P. v. Daniel

Filed 12/5/18 P. v. Daniel CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL ANGELO DANIEL,
Defendant and Appellant.
B275303
(Los Angeles County
Super. Ct. No. TA133457)
APPEAL from an order of the Superior Court of Los
Angeles County. Pat Connolly, Judge. Affirmed; remanded with
directions.
Law Office of Corey Evan Parker and Corey Evan Parker
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Steven D. Matthews, David F. Glassman, and
Shawn McGahey Webb, Deputy Attorneys General, for Plaintiff
and Respondent.

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Michael Angelo Daniel appeals from a judgment of
conviction for murder and attempted murder, contending
insufficient evidence supports the convictions, the trial court
improperly admitted gang evidence, and the prosecutor
committed misconduct. We disagree with each contention, and
therefore affirm the judgment.
Daniel also contends the matter should be remanded for
resentencing in light of a change in the law. We agree, and will
remand the matter.
BACKGROUND
This case involves shootings at rival gang houses located
approximately two miles apart on Kay and Bennett Streets in
Compton, California.
Daniel lived at the Kay Street house and was an
established member of the Santana Blocc Crips, a criminal street
gang. Santana Blocc’s primary activities were murder, robbery,
assault, burglary, vehicle theft, drug sales, and firearm and drug
possession. Daniel had “722” tattooed on his forearm,
corresponding to “SBC” on a telephone keypad, and “Compton” on
his back, and over the years had admitted his gang affiliation
several times to police.
Gregory Aubrey, a member of the South Side Crips gang, a
Santana Blocc rival, lived at the Bennett Street house, a South
Side hangout. David Scott was a South Side “associate” and daily
visitor at the house.
In September 2013, a South Side member traveled to Kay
Street and shot Daniel’s brother, and was himself killed by
return gunfire.
In the months following, shootings between Santana Blocc
and South Side occurred almost weekly. On May 5, 2014, two

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South Side members were shot and killed by the Neighborhood
Crips gang, a Santana Blocc ally. On May 17, South Side shot a
non-gang member at Wilson Park, in Santana Blocc territory. On
May 19, South Side committed a drive-by shooting of a known
Santana Blocc hangout, killing a woman.
On the evening of May 21, 2014, Daniel sent a text message
to his girlfriend stating, “If I die, I love you.”
He then drove to Bennett Street, and from his moving car
fired several shots from a .357 SIG semiautomatic handgun,
wounding Aubrey and killing Scott.
Los Angeles County Sheriff’s deputies recovered two
expended Winchester .357-caliber SIG bullet casings on the
street, and an eyewitness described the shooter’s car as a silver
sedan.
Deputies James Krase and Ryan Clarke were on patrol
when they heard a radio call regarding the Bennett Street
shooting. Recognizing the crime scene as a South Side house and
aware of the recent shootings, Krase and Clarke drove to Kay
Street, and waited.
Daniel arrived within minutes driving a tan Chevrolet
Lumina. The deputies detained him and found gunshot residue
on his hands and in his car, as well as two .357-caliber
Winchester SIG shell casings in the car.
The eyewitness later stated Daniel’s car resembled the
shooter’s car. She was not 100 percent sure, but stated there was
“a high chance” it was the same car.
Microscopic analysis revealed that all four shell casings,
two from the crime scene and two recovered from Daniel’s car,
were fired from the same gun.
Daniel was tried three times.

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At the third trial, FBI Agent Michael Easter, an expert in
historical cell site analysis, testified that approximately one hour
before the Bennett Street shooting Daniel’s cell phone had made
a call that connected through a tower approximately 50 feet from
the crime scene on Bennett Street. The phone placed a second
call soon after the shooting from a location approximately
halfway between Bennett and Kay Streets.
Sheriff’s Detective Dan Morgan testified that Daniel’s cell
phone contained the following photographs: a hand flashing a
Santana Blocc sign; a cartoon image of three men with the words
“Here come them Santana Boys”; a wooden sign with the words
“Santana Blocc”; Daniel with the number “722” in the corner; and
Daniel’s “Compton” back tattoo. All but the first photograph
were taken or loaded onto the phone in 2013, i.e., within a year of
the Bennett Street shooting.
Several sheriff’s deputies testified that Daniel had been
found in the company of gang members several times in 2008,
2013 and 2014, and always admitted he was a Santana Blocc
member.
Sheriff’s Sergeant George Bernal, a gang expert, testified
that just after the September 2013 shooting at Daniel’s house on
Kay Street, where a South Side member was killed, Daniel sent a
Facebook message stating, “they just took the body.” In another
message he stated that “the snots [South Side members] on the
corner talkin about they gonna shoot up the house n shit,” but he
was “ready.”
Daniel posted Facebook messages a week later stating,
“snots shot up my party” and “bro got shot up but the snot that
did it died in my driveway.” In other messages Daniel referred to

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himself as “a real tana,” and stated, “I’m just at the crib solo
lookin out,” “sittin here barely sleepin patrolin,” and “on[]alert.”
Text messages Daniel sent and received a month after the
September 13 Kay Street shooting discussed the ongoing rivalry
with the “snots.”
Two days after the May 5, 2014 shooting, where two South
Side members were murdered by the Neighborhood Crips gang,
Daniel sent and received text messages discussing the gang
rivalry. One stated, “my sis said a car was following her
yesterday trying to see where she was going so she didn’t come to
the house and called me and I got my tool belt and came outside
to make sure she made it safe they been rolling thru it was goin
down last night hard. . . .” Another referred to the sender as
being on alert or on patrol.
On the day of the May 17 shooting in Wilson Park, Daniel
received a text message stating, “I heard somebody from Tana got
popped, so I was checking on u praying it wasnt my bd.” Daniel
responded, “not really but im alive right now r u ok?” The next
day, more text messages were exchanged regarding the Wilson
Park shooting, including a text to Daniel’s cell phone stating, “I
see why the snots mad one of them niggers was baby ke ke” (a
South Side victim in the May 5 shooting).
The day after the May 19 shooting by South Side of a
Santana Blocc hangout, Daniel sent a text message stating, “be
careful them dudes killed my homie female couse last night on
spring and palmer and shot up wilson park its gonna get ugly, so
be careful stay from outside or around that area.” Later, he
texted, “not good my homegirl got killed last night.” The next day
Daniel texted, “idk where niggers at now its ghostown only a few

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heads,” referring to no other Santana Blocc members being
around.
Sergeant Bernal opined from the text and Facebook
messages, Daniel’s tattoos, and his association with other
Santana Blocc members and repeated admissions of membership
that he was a Santana Blocc member.
Bernal testified that gang members are driven by a need
for respect, freely admit their gang membership, and earn status
in the gang by committing crimes. He stated that if one gang
attacks another, the latter must retaliate to avoid losing status,
commonly by committing drive-by shootings.
When posed a hypothetical based on the evidence in this
case, Bernal opined the shooting was committed for the benefit of,
at the direction of, or in association with Santana Blocc to elevate
the gang’s status, garner respect, instill fear in the rival gang and
community, and deter community members from cooperating
with law enforcement.
A jury found Daniel guilty of the first degree murder of
Scott (Pen. Code, § 187)1 and the willful, deliberate and
premeditated attempted murder of Aubrey (§§ 664/187), and
found true that he committed the offenses for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)(C)) and that a
principal personally used and intentionally discharged a firearm
causing death or great bodily injury (§ 12022.53, subds. (b)-(e)).
It was also determined that Daniel had suffered a prior serious
felony “strike” conviction. (§ 667, subd. (a)(1) & (b)-(i), § 1170.12,
subds. (a)-(d).) The trial court sentenced him for the murder to
1 Undesignated statutory references will be to the Penal
Code.

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25 years to life plus 25 years to life for the weapon use
enhancement and five years for the prior serious felony
enhancement, and for the attempted murder to a consecutive
sentence of life with a minimum parole eligibility of seven years,
plus 25 years to life for the weapon use enhancement, for a total
of 80 years to life. The court imposed sentences for the gang
enhancements but ordered them stayed, and ordered the “strike”
to be stricken for sentencing purposes.
After the trial court denied his motion for new trial, Daniel
appealed.
DISCUSSION
A. Cumulative Gang Evidence
Daniel contends the trial court erred by admitting text and
Facebook messages that were cumulative of other evidence, and
therefore irrelevant, and further erred in admitting other gang
evidence. He admits he did not object at trial to the latter
evidence but argues any objection would have been futile, and in
any case his contentions are preserved because admission of the
objectionable evidence rendered the trial fundamentally unfair.
1. Text and Facebook Messages
Over the defense’s objection the following text messages
sent by Daniel were admitted: “My party, man. It went down
bad at my house last Saturday. Snots shot up”; “I ain’t in the
city, but, yeah, I’m ready”; “I heard from sumbody, frm tana, got
popped, so I’m checking on u”; “Car following my sister. I got my
tool belt and came outside to make sure she made it safe. They
been rollin thru. It was goin down last night hard”; “I’m on it.
I’m the only one around here still, so gotta keep my eyes open.”
“Be careful. Them dudes killed my homie female cuz last night
on Spring and Palmer and shot up Wilson Park. It’s going to get

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ugly, so be careful and stay from outside or around this area”;
and “Not good. My homegirl got killed last night. Oh my God.
What happened? Some street shit.”
And Daniel received the following text messages: “I see
why the snots mad, one of them - was baby Ke Ke”; “Them was
snots that were killed on Santa Fe yesterday?”; and “yea. No
hanging out for a minute and don’t be driving around here for a
few days. Just stay out of the way.”
Daniel posted the following Facebook messages: “I’m
ready”; “I’m a real tana”; and “Knoccin each other down, now shit
happening to them. And it ain’t so funny no more. Now they
cryin peace and shit. But what they didn’t know is once u got n-
words in the dirt, ain’t no peace. They never dealt with this
before until now. We use to it, so we got thicker skin than them.”
2. Gang Evidence
The trial court also admitted substantial evidence of
Daniel’s gang affiliation, all with no relevant objection from the
defense. For example, four witnesses testified that sheriff’s
deputies filled out field identification cards over the years
identifying Daniel as a Santana Blocc member. And Sergeant
Bernal interpreted Daniel’s messages and testified extensively
about criminal activities of Santana Blocc members, the rivalry
between Santana Blocc and South Side, and gang culture in
general.
3. Legal Principles
A trial court must limit the introduction of evidence and
argument to relevant and material matters. (§ 1044.) Relevant
evidence is that which tends in reason to prove or disprove a
disputed fact of consequence. (Evid. Code, § 210; People v.
Merriman (2014) 60 Cal.4th 1, 78.) “[E]vidence of gang

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membership is often relevant to, and admissible regarding, the
charged offense. Evidence of the defendant’s gang affiliation—
including evidence of the gang’s territory, membership, signs,
symbols, beliefs and practices, criminal enterprises, rivalries, and
the like—can help prove identity, motive, modus operandi,
specific intent, means of applying force or fear, or other issues
pertinent to guilt of the charged crime.” (People v. Hernandez
(2004) 33 Cal.4th 1040, 1049.)
Nevertheless, relevant evidence should be excluded if the
trial court, in its discretion, determines that its probative value is
substantially outweighed by the probability that its admission
will create a substantial danger of undue prejudice. (Evid. Code,
§ 352.) In this context, unduly prejudicial evidence is evidence
that would cause the jury to “prejudge” a person on the basis of
extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.)
In a gang-related case, gang evidence is admissible to prove
enhancement allegations and to establish the motive for charged
crimes. (People v. Williams (1997) 16 Cal.4th 153, 193.) But
given its inflammatory impact, “[g]ang evidence should not be
admitted at trial where its sole relevance is to show a defendant’s
criminal disposition or bad character as a means of creating an
inference the defendant committed the charged offense.” (People
v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) “Thus, as [a]
general rule, evidence of gang membership and activity is
admissible if it is logically relevant to some material issue in the
case, other than character evidence, is not more prejudicial than
probative and is not cumulative.” (People v. Albarran (2007) 149
Cal.App.4th 214, 223.)
“A trial court has considerable discretion to exclude even
relevant evidence, however, if it determines the probative value

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of the evidence is substantially outweighed by its possible
prejudicial effects. [Citations.] A trial court’s rulings in this
regard will be upheld on appeal unless it is shown ‘ “the trial
court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage
of justice.” ’ ” (People v. Merriman, supra, 60 Cal.4th at p. 78.)
4. Analysis
Here, messages sent and received by Daniel demonstrated
his affiliation with, commitment to, and active involvement in
Santana Blocc, his disdain for South Side, and his awareness of
its ongoing conflict with Santana Blocc and willingness to
retaliate on his gang’s behalf. He called South Side members
“snots,” proclaimed himself “a real tana” who was vigilant of and
“ready” for their attacks, and checked up on a friend from
Santana Blocc after a South Side attack. The messages tended in
reason to explain his motivation and level of willingness to
participate in the charged shooting.
Daniel argues the evidence was irrelevant because it
pertained to undisputed matters. For example, he argues defense
counsel conceded at trial that Daniel was a Santana Blocc
member and knew about the feud between Santana Blocc and
South Side, including the various shootings. But Daniel denied
his current involvement with the gang.
A prosecutor must prove every element of the charged
crime and any enhancement allegation beyond a reasonable
doubt. Nothing limits the prosecution in this endeavor to only
one piece of evidence on each fact of consequence. On the
contrary, the prosecutor may chip away at reasonable doubt by
offering corroboration on every material fact, limited only by the
trial court’s discretion to determine when the arcs of diminishing

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returns and jury distraction intersect. Here, various lines of
evidence addressed one of the crucial disputed issues in this
case—Daniel’s current involvement with Santana Blocc. None of
the messages was significantly inflammatory, and in the
aggregate they described for the jury the backdrop against which
this otherwise inexplicable crime occurred.
Similarly, the historical evidence described and interpreted
by Sergeant Bernal was directly relevant to the motive for the
Bennett Street shooting. It showed that Santana Blocc members
had committed crimes in the past, the gang was currently
involved in a deadly feud with a rival gang, and rival gangs
generally engage in violence. The evidence was not unduly
prejudicial to Daniel, who has always admitted his Santana Blocc
membership, now disputing only the currency of that
membership. But none of the historical evidence touched on this
issue or suggested Daniel had participated in his gang’s earlier
crimes.
Assuming the trial court committed some error in
admitting Daniel’s messages or other gang evidence, the error
would have been harmless under any standard. Where there is
“ ‘at least such an equal balance of reasonable probabilities as to
leave the court in serious doubt as to whether the error affected
the result,’ ” the error is prejudicial. (People v. Mower (2002) 28
Cal.4th 457, 484.) But here we have every reason to believe the
jury would have reached the same result even absent any
improperly admitted gang evidence. (See Chapman v. California
(1967) 386 U.S. 18, 24 [reversal is required under the federal
Constitution unless the error was harmless beyond a reasonable
doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [state law

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error requires reversal only if it is reasonably probable that the
error had an effect on the verdict].)
B. Substantial Evidence
Daniel contends insufficient evidence supported the jury’s
conclusion that he was the shooter. This is so, he argues, because
no one identified him as the shooter and no physical evidence
linked him to the shooting except for two shell casings, which
even the police expert admitted could not be positively tied to the
crime scene, and gunshot residue, which could have been
obtained from the back of a sheriff’s patrol car.
“Substantial evidence is evidence which is ‘ “reasonable in
nature, credible, and of solid value.” ’ [Citation.] ‘In reviewing
the sufficiency of the evidence, we must determine “whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” ’
[Citation.] We must presume in support of the judgment the
existence of every fact that the trier of fact could reasonably
deduce from the evidence.” (People v. Medina (2009) 46 Cal.4th
913, 919.)
Here, substantial evidence showed that Daniel was
member of Santana Blocc, then in the midst of a feud with South
Side, and eager to retaliate against the rival gang for prior
attacks. An eyewitness and his cell phone records placed his car
and phone at the scene of the crime, and expended shell casings
found at the crime scene and in his car, and gunshot residue on
his hands and in his car, were consistent with his having been
the shooter. This evidence supported his conviction.
Daniel argues the evidence was weak, because no one
identified him as the shooter, the murder weapon was never

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recovered, his car was not positively identified, the shell casings
were of suspect provenance, and the sheriff’s department acted
inappropriately in detaining him and examining the evidence.
He argues, for example, that the gunshot residue on his hands
could have come from inside the patrol car in which he was
detained. Our view of the evidence is to the contrary, but in any
event we may not reweigh it, as our only province is to determine
whether the jury could reasonably deduce from the evidence that
Daniel was the shooter. We easily conclude it could.
C. Prosecutorial Misconduct
Daniel contends the prosecutor committed misconduct
when she alluded to accomplices in her closing argument and
made inflammatory remarks. We reject the contention.
During closing arguments, the prosecutor embellished on
Daniel’s text to his girlfriend, in which he had said only, “If I die,
I love you.” The prosecutor interpreted the message poetically,
saying, “When I go and do this mission, when I go and put my life
on the line for my gang that I love above all else, I want you to
know I love you.” The prosecutor told the jury, “He knows that
when you go out to do a mission like this, when you go out in your
car and your fellow gang members are with you, and you’re
armed, and you’re ready to take another life, that you might end
up paying with your own.”
In other argument, the prosecutor said, “This case is about
a world unlike any world that you and I want to be part of. It’s a
world where violence begets violence. It’s about a world where a
war continues to rage on. And it doesn’t matter what side you’re
fighting for, because the soldiers in this war, they won’t stop to
ask you what side you’re fighting for, and they won’t stop to see
what colors you’re wearing.” She described Daniel as a “soldier”

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who was “lost,” and stated he “loved that gang more than he
loved anything else.”
Finally, the prosecutor made several references to Daniel’s
accomplices, even though the evidence that he acted in concert
with anyone else—for example evidence that the gun was never
found and that a second car was seen at both the crime and
arrest locations—was sparse. Daniel argues the liberal
interpretation of his text message and repeated references to his
being a soldier engaged in a love affair with his gang could only
have inflamed and prejudiced the jury, as there was no evidence
that he acted on orders from the gang or had any prior gang-
related conviction. He also argues the reference to accomplices
prejudiced him, although he fails to explain how.
“A prosecutor’s conduct violates the Fourteenth
Amendment to the federal Constitution when it infects the trial
with such unfairness as to make the conviction a denial of due
process. Conduct by a prosecutor that does not render a criminal
trial fundamentally unfair is prosecutorial misconduct under
state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.”
(People v. Morales (2001) 25 Cal.4th 34, 44.) “When a claim of
misconduct is based on the prosecutor’s comments before the jury
. . . , ‘ “the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of
remarks in an objectionable fashion.’ ” [Citations.] To preserve a
claim of prosecutorial misconduct for appeal, a defendant must
make a timely and specific objection and ask the trial court to
admonish the jury to disregard the improper argument.” (People
v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.)

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Here, Daniel made no contemporaneous objection to any of
the statements to which he now objects. Because no basis exists
in the record to conclude an objection would have been futile, the
issue is forfeited.
In any event, Daniel’s objections are without merit.
“Although it is misconduct to misstate facts, the prosecutor
‘enjoys wide latitude in commenting on the evidence, including
the reasonable inferences and deductions that can be drawn
therefrom.’ ” (People v. Collins (2010) 49 Cal.4th 175, 230.) Here,
the prosecutor’s poetic characterization of Daniel’s last message
to his girlfriend, and her references to his being a Santana Blocc
soldier and loving the gang, did not materially misrepresent the
evidence. Although it is true there was no direct evidence that
Daniel had any accomplice in the Bennett Street shooting, any
misstatement to that effect was innocuous, and could easily have
been corrected by the court upon timely objection. And as the
jury was instructed to determine the facts from the evidence and
not from the arguments of counsel, no prejudice likely resulted.
D. Senate Bill No. 620 Requires Remand
Daniel contends the case should be remanded for
resentencing in light of recently enacted Senate Bill No. 620.
Respondent concedes the point, and we agree.
The jury found that Daniel personally and intentionally
used and discharged a firearm, causing great bodily injury and
death. Lacking at the time authority to strike or dismiss gun
enhancements under Penal Code section 12022.53 (see, e.g.,
People v. Kim (2011) 193 Cal.App.4th 1355, 1362-1363), the trial
court imposed two 25-years-to-life gun enhancements pursuant to
subdivisions (d) and (e)(1) of section 12022.53.

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Before Daniel had exhausted his opportunities to challenge
the trial court’s judgment in reviewing courts, the Legislature
amended section 12022.53 to provide that the “court may, in the
interest of justice pursuant to Section 1385 and at the time of
sentencing, strike or dismiss an enhancement otherwise required
to be imposed by this section.” (§ 12022.53, subd. (h); Stats. 2017,
ch. 682.) The amendment went into effect on January 1, 2018.
(See Cal. Const., art. IV, § 8, subd. (c).)
Generally, amendments to the Penal Code do not apply
retroactively. (§ 3.) However, our Supreme Court has recognized
an exception for an amendment that reduces the punishment for
a specific crime. (See In re Estrada (1965) 63 Cal.2d 740, 745
(Estrada); accord, People v. Brown (2012) 54 Cal.4th 314, 323-
324.) The Estrada court explained that when the Legislature has
reduced a crime’s punishment, it has “expressly determined that
its former penalty was too severe and that a lighter punishment
is proper as punishment for the commission of the prohibited
act.” (Estrada, at p. 745.) The Court inferred that “the
Legislature must have intended that the new statute imposing
the new lighter penalty now deemed to be sufficient should apply
to every case to which it constitutionally could apply.” (Ibid.) To
“hold otherwise would be to conclude that the Legislature was
motivated by a desire for vengeance, a conclusion not permitted
in view of modern theories of penology.” (Ibid.)
The Supreme Court has extended the Estrada holding to
amendments that give the trial court discretion to impose a lesser
sentence even if it does not necessarily reduce a defendant’s
punishment. (People v. Francis (1969) 71 Cal.2d 66, 75-76; see
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.)

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Although the trial court here had no discretion to strike a
gun enhancement at the time of sentencing, the record is silent
as to whether the court might have been open to doing so.
Therefore, the matter must be remanded to provide the court
with the opportunity to exercise its discretion.
DISPOSITION
The convictions are affirmed. The matter is remanded to
the trial court to determine whether to strike the enhancement
under Penal Code section 12022.53 and if the enhancement is
stricken, to resentence defendant.
NOT TO BE PUBLISHED.
CHANEY, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.

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