P. v. Orozco

Filed 6/27/18 P. v. Orozco CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS OROZCO et al.,
Defendants and Appellants.
B276130
(Los Angeles County
Super. Ct. No. NA090280)
APPEAL from judgments of the Superior Court of Los
Angeles County. James D. Otto, Judge. Affirmed in part, and
remanded with directions.
Joshua L. Siegel, under appointment by the Court of
Appeal, for Defendant and Appellant Luis Orozco.
Chris R. Redburn, under appointment by the Court of
Appeal, for Defendant and Appellant Shawn Verrette.
Mathew D. Alger, under appointment by the Court of
Appeal, for Defendant and Appellant Frank Ervin.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Senior Assistant
Attorney General, Steven D. Matthews and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.

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Defendants Luis Orozco, Shawn Verrette, and Frank Ervin
were convicted in a joint trial of the special circumstance murder
and robbery of Franklin R. (Frank).1 Defendants challenge the
admission at trial of gang evidence, wiretapped communications
discussing uncharged crimes, and testimony regarding domestic
violence. They contend the challenged evidence was irrelevant to
the underlying charges against them and unduly prejudicial.
We remand the matter for the trial court to address several
sentencing issues, but otherwise affirm the judgments.
FACTS
The Defendants
April P. was a small-time drug dealer who also helped her
brother deliver and package methamphetamine. April’s brother
had been a major drug dealer in the Lake Elsinore area for over
20 years. In July 2010, he violated his probation and turned
himself in to serve a 30-day sentence. April’s brother intended
for Frank, another drug dealer and their childhood friend, to run
his business while he served his sentence. Before he left, he gave
Frank two cell phones and his remaining supply of
methamphetamine. He asked April to help Frank run the
business until his return.2
Frank lived across the street from April’s mother, and April
described their relationship as one of brother and sister. Frank
was on parole, and he kept two homes. One, located on Franklin
1 To protect personal privacy interests as required under rule
8.90 of the California Rules of Court, we refer to victims and
witnesses in this matter by their first name and last initial.
2 April’s brother remained in prison in August 2010, during
the relevant time period.

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Avenue, was where Frank told his parole officer he lived. As a
result, he usually did not keep any drugs or weapons in the
Franklin house. The second or “safe” house, located on
Beachwood Avenue, was where Frank’s girlfriend and their son
lived. He kept a supply of drugs, money, and weapons at the
Beachwood house.
April’s brother supplied methamphetamine to Orozco,
a member of the Compton Tortilla Flats gang known by the
moniker “Stalker.” April was distantly related to Orozco by
marriage; her husband’s brother was married to Orozco’s sister.
Verrette was a member of the Looters Park Piru gang,
who used the moniker “Ace.” This moniker was used by two or
three other men in the area. Verrette and Orozco grew up in the
same neighborhood and had been friends since childhood.
Although they were members of rival gangs, they were allowed to
maintain a relationship and Orozco was allowed in Looters Park
territory without being harassed. He often visited Verrette at his
home on San Marcos Street in Looters Park territory. Orozco
was seen near Verrette’s home a few days before Frank’s murder.
Ervin was known as Casper and was also a member of the
Looters Park Piru gang. He was a known associate of Verrette’s.
The Crimes
Frank asked April to introduce him to Orozco. April
arranged for the introduction at Orozco’s house on August 3,
2010, and it appeared to go well. The next day, April and Frank
again met with Orozco in order to give him some drug samples.
On their way back from the meeting, Orozco called Frank and

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asked if he knew anyone they could “jack” to make quick money.3
Frank replied he would work on it.
The following day, Orozco called and again asked Frank
whether he knew of someone they could rob. Frank suggested
Jose, a drug dealer who supplied methamphetamine to April’s
brother. April overheard the conversation and objected, because
she believed her brother would be upset about it. Frank assured
her the drug dealer would not know he was involved because they
would make it appear as if Frank was robbed as well.
On August 6, April arranged for Frank to deliver another
sample of methamphetamine to Orozco. At that meeting, Orozco
asked Frank for an advance of the drugs and to allow him to pay
for them later. Frank refused. Orozco was angry and asked
April to intervene. April did, but with no success. Despite this
disagreement, April believed they planned to go forward with the
robbery.
Orozco and Frank arranged for the robbery to take place on
August 9, just before Jose planned to leave for Texas with his
family. The day before, April drove Frank to Jose’s auto body
shop in Long Beach so Frank could place an order for 10 pounds
of methamphetamine. Jose confirmed it would be delivered the
next day.
On August 9, April arrived at the Franklin Avenue house to
accompany Frank to Jose’s auto body shop. She left her car
there, and they drove Frank’s car to Long Beach. April called
Orozco to let him know Frank was on the way and that he should
not go into the auto body shop until Jose, who would be driving a
black Cadillac, went in first. When they arrived, they parked
3 April testified this meant he was looking for someone to
rob.

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down the street from the auto body shop and Frank walked to the
entrance to speak with one of the body shop’s employees. Frank
told April, who was waiting in the parked car, that Jose would be
back in about 10 or 15 minutes and asked her to call Orozco to
determine where he was. Orozco reported he was “stuck at his
home boy’s house” and that he would be there in a few minutes.
Frank instructed April to go get something to eat. He took
his keys, several cell phones, his wallet, and the remote to the
automated gate at the Franklin house with him. As April
prepared to leave, she noticed an older model, dark-colored van
parked on the opposite side of the street with its nose towards the
curb. It was dented and had a gray bumper. She also noticed
two African-American men, later identified as Ervin and
Verrette, trying to open the door to a neighboring business with a
screwdriver. She watched them for a few seconds and then
pulled out onto the street. She traveled to the end of the block
and made a u-turn at the intersection. On her way back down
the street, she observed that the two men were in the van and
backing up towards the auto body shop, sideswiping a few cars
along the way.
She continued past them and had reached the main street
when Frank called to tell her to come back for some money.
She went around the block to get back to the auto body shop, but
as she approached, she saw Frank’s shoes and his feet on the
ground behind the gate of the auto body shop with no one around.
April continued past the shop and onto the freeway, because
Frank had told her to leave if anything went wrong.
The employees of the auto body shop confirmed April’s
account. One of the employees said he recognized Frank and
greeted him as he arrived. The employee then went to the back

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of the shop to speak with his coworker and call his boss, who told
him to give Frank a car. When he returned to the front of the
shop a few minutes later, he saw Frank lying face down on the
ground with two African-American men standing over him, one of
whom held a gun and was rifling through Frank’s pockets while
the other man held Frank’s head. He later identified Verrette as
the man with the gun.4 The employee called his coworker over;
the coworker saw the two men going through Frank’s pockets.
The employees also saw an older model purple van with holes
made by a dent puller parked in the driveway of the auto body
shop.
Upon seeing the employees, Verrette pulled what looked
like a badge from around his neck and ordered, “Get out. Police.”
Both employees complied and went to the back office to hide.
They did not believe the men were police officers, however. They
were about to call 911 when they heard three gunshots in quick
succession. They dropped the phone and hid. When they went
back to the front of the shop a few minutes later, Frank was lying
face up on the ground with three gunshots to his head. The
employees called 911. Frank died shortly thereafter from his
wounds. Forensic evidence showed the gun was a semiautomatic
weapon, which was shot at close range. There were no defensive
wounds.
Meanwhile, April called Orozco in a panic to tell him what
she had seen and he directed her to meet him at a car wash near
the freeway. He arrived in a tan Suburban approximately 30
minutes after she did. April immediately thought something was
wrong because Orozco was wearing black gloves and a black
4 The employees were initially unable to identify Verrette
from a photographic lineup.

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hooded sweatshirt in 98 degree weather. Orozco told her he
never made it to the auto body shop. He agreed to drive with her
to ensure she got home safely. As they headed to Lake Elsinore,
he instructed her to get off the freeway so they could get rid of
Frank’s car. April abandoned it on a residential street and got
into the back of the Suburban, which had followed them.
Orozco’s best friend, also a member of the Compton Tortilla Flats
gang, was driving.5
Once in the Suburban, April recognized the two African-
American men she had just seen near the auto body shop. April
later identified them as Ervin and Verrette. Verrette sat in the
front passenger seat. April sat between Ervin and Orozco in the
back.
Ervin asked for April’s cell phone and removed the battery,
telling her he would return it to her later. He and Verrette broke
down three other cell phones and threw the pieces out of the
window. April asked Orozco what happened to Frank and he
responded, “he is not coming back.” At some point, Orozco also
said, he was “straight through that fool in sector 8.” To this,
Verrette responded, “Yeah, we did.” Orozco asked Verrette, “are
you cool, Ace?” Verrette put his hand back to high five Orozco.
April told them her car was parked at the Franklin house
and she directed them to it. Orozco opened the gate with the
remote that Frank had taken with him when he left April.
Orozco unlocked the front door of the house and the men began to
search it with socks on their hands. They eventually found
money in a canister in the kitchen as well as a few laptops and
other items. They took those things. Verrette used a towel to
5 Orozco’s best friend died in 2011.

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wipe away the Suburban’s tire tracks from the driveway as they
left.
The men then decided to drive to Frank’s safe house on
Beachwood. Verrette rode with April in her car. They made a
stop at a Circle K store for water and to get gas for the Suburban
at a Chevron station. As they neared the Beachwood house, April
parked her car and got into the Suburban. When they drove by
the Beachwood house, they saw Frank’s son playing outside.
April warned Orozco that Frank’s girlfriend would be in the
house if her son was outside. He replied, “I’m about to just go
inside and crack that bitch up side the head and tie her up.”
They drove by the house a few more times, but left without
entering when a police car drove up behind them.
They returned to April’s car, and Ervin gave her back her
phone. She and Orozco got out of the car, and she asked him
again what happened to Frank. He shook his head and told her
he was not coming back. Orozco instructed her to tell the police
she did not know anything and to say that she was at home all
day if they questioned her. He told her no one would find out
what happened because the men with him had been doing this for
a while and knew what they were doing. He also gave her $600
to buy a new cell phone. April saw Verrette, who was still in the
Suburban, put his finger over his lips, which April understood as
a message to her to keep quiet. April did not report the crimes to
the police because she feared for her own safety as well as her
family’s.
The Investigation
Frank’s family suspected April was involved in his murder
and gave the police her cell phone number. April’s cell phone
records indicated she was in Long Beach and had contact with

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Frank on the day he was killed. After accessing Frank’s cell
phone records, the police determined there were an unusual
number of calls to April’s phone. They searched April’s cell phone
records, which led them to interview Orozco, his best friend, his
daughter, and Ervin’s former girlfriend, among others. When she
was first interviewed by the police, April denied any knowledge of
the murder.
On October 7, 2010, April was arrested and charged with
Frank’s murder and robbery. She was also found with nine
grams of methamphetamine and charged with possession of
narcotics. The night before her arrest, Orozco’s sister threatened
her to keep quiet. After her arrest, April admitted to the police
that she dropped Frank off at the auto body shop and saw two
African-American men in a van there, but refused to provide any
other details about the murder.
However, April thereafter gave a recorded statement to the
police on February 5, 2011, describing the events leading to
Frank’s murder. She identified Orozco, Ervin, and Orozco’s best
friend from six-pack photographic lineups. On March 14, she
identified Verrette, who was not yet a suspect at the time, as
“Ace” from a photographic lineup. She also identified the van she
saw at the crime scene. The same day, April entered into a plea
agreement under which she pled guilty to robbery and agreed to
testify at trial in exchange for three years in state prison. Her
account was corroborated by statements from the auto body shop
employees and nearby surveillance video, which showed the car
she and Frank used that day driving in the area. In addition, her
cell phone records showed her travelling from Lake Elsinore to
Long Beach on August 9. It then tracked her to the area where
she met Orozco at the car wash. It also showed she returned to

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Lake Elsinore that evening. The cell phone records correlated
with the timeframes she gave to the police.
During the investigation, the police became aware of
various telephone numbers the defendants had used. Cell phone
records placed each of the defendant’s cell phones near the auto
body shop at the time of the murder, and the police were able to
track their movements before and afterward.6 The police noticed
a pattern of telephone calls on the day of the murder, which
showed calls between April’s cell phone and the cell phone
numbers used by Orozco, his best friend, Verrette, and Ervin.
The records showed April calling Orozco, who then immediately
called Verrette, who then called Ervin. The records also showed
April called Ervin’s telephone number after the murder. Orozco
had given her that cell phone number earlier that morning
because his cell phone’s battery was running low.
In the course of their investigation, the police were able to
link the purple van to Ervin. Ervin’s then-girlfriend owned a van
fitting the description provided by the auto body employees and
April. Ervni’s girlfriend testified that Ervin drove her van from
approximately June 2010 to the end of December 2010. At some
point after the murder, Ervin told his girlfriend not to drive the
van in Long Beach or Compton, but did not explain why. Ervin
told his daughter he stopped driving the van because he had
gotten into trouble with some people he knew. Ervin changed his
6 Verrette’s cell phone records showed it used a tower near
the auto body shop on the morning of Frank’s murder. It then
was tracked to Compton. During the time of the murder, calls
were routed to voicemail so the phone’s location could not be
determined.

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hairstyle after his sister told him the police came to her house
asking about him.
In December 2010, Ervin’s girlfriend saw him with a black
handgun and argued with him about it. She testified it looked
like a nine-millimeter semiautomatic gun. The cartridge casings,
bullet, and bullet jacket collected from the murder scene were
determined to have been fired from a semiautomatic firearm.
The day before Easter in April 2011, Ervin brought a black
nine millimeter-type semiautomatic handgun to his girlfriend’s
house. She hid it while he was taking a shower. He became
angry when he could not find the gun and threatened his
girlfriend with a fireplace poker, yelling, “You stupid bitch. It’s
your fault that I killed that Mexican.” The next morning, Ervin’s
girlfriend went to the Long Beach Police Department and spoke
to a detective investigating Frank’s murder about Ervin and her
van.
The police obtained wiretaps for various phone numbers
they had reason to believe belonged to the suspects. To stimulate
conversations for the wiretaps, the police put out bulletins and
news reports with information about the murder, some of which
were false. They also disseminated sketches of the suspects.
In the wiretapped calls, Verrette discussed plans to rob a drug
dealer living in Victorville and plans to sell a handgun. He
disclosed his concern about the police investigation, including the
sketches. He indicated he was worried about helicopters, which
had been hovering over his home. In one call, Orozco can be
heard in the background telling Verrette that his sister told him
to watch the news because bulletins had come out about “your
murder case.”

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The Trial Proceedings
Orozco, Verrette, and Ervin were charged with special
circumstance robbery/murder (count 1; Pen. Code,7 §§ 187,
subd. (a)(1), 190.2, subd. (a)(17)), second degree robbery (count 2;
§ 211), first degree residential burglary (count 3; § 459), and
conspiracy (count 4; § 182, subd. (a)(1)). As to Verrette, it was
further alleged in count 1 that he personally used a firearm
(§ 12022.53, subds. (b)–(d)). In counts 1 through 3, it was alleged
as to Orozco and Ervin that a principal was armed with a
handgun (§ 12022, subd. (a)(1)). It was further alleged that
Orozco served one prior prison term (§ 667.5, subd. (b)), that
Ervin had four prior strike convictions (§§ 667, subds. (a)(1) &
(b)–(i), 1170.12, subds. (a)–(d)), and that Verrette had one prior
strike conviction (§§ 667, subds. (a)(1) & (b)–(i), 1170.12, subds.
(a)–(d)).8
A mistrial was declared in the first trial due to juror
misconduct. At the second trial, the prosecution presented
evidence of the events leading to the murder and the Long Beach
Police Department’s investigation, as previously described.
Defendants did not testify. Verrette’s grandmother
provided an alibi for him. She testified Verrette had scheduled a
colonoscopy on August 10 and that she was with him all day on
August 9, the day of Frank’s murder, to help him prepare for it.
She explained the doctor had ordered Verrette to drink a gallon of
laxatives by 9:00 p.m. that day as well as complete a fleet enema.
She testified she was with him until 5:30 p.m., at which point his
7 All further section references are to the Penal Code unless
otherwise specified.
8 Charges were also alleged against Orozco’s sister, which
are not a part of this appeal.

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girlfriend picked him up. The prosecution countered with
testimony from a nurse who confirmed that a patient could begin
to prepare for such a procedure as late as 7:00 or 7:30 p.m. the
night before.
The second jury found all three defendants guilty of first
degree special circumstance murder. The jury also found true the
firearm allegations for count 1 as to each defendant. The
defendants were also found guilty as charged on counts 2 and 4,
but not guilty on count 3. The jury found the count 2 firearm
enhancement under section 12022, subdivision (a)(1), to be true
as to Ervin and Orozco. As to Verrette, the count 2 firearm
allegations pursuant to sections 12022, subdivision (a)(1), and
12022.53, subdivision (b), were found true. The prior conviction
allegations were found true as to each defendant after a court
trial.
Defendants each filed a notice of appeal.
DISCUSSION
Defendants challenge the admission at trial of three
categories of evidence: (1) gang evidence; (2) wiretap evidence;
and (3) domestic violence evidence. They contend such evidence
was irrelevant and more prejudicial than probative under
Evidence Code section 352.9 They additionally contend the same
evidence tended to show they had a propensity to commit violent
crimes in violation of Evidence Code section 1101. We find no
9 Defendants each raise separate issues in their appeals, but
join in the others’ arguments. As a result, we treat each issue as
jointly raised by defendants unless it applies only to a particular
defendant.

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evidentiary error justifying reversal.10 In addition, we find any
error resulting from the admission of the evidence was harmless.
We, however, remand to the trial court to address certain
sentencing issues.
I. Standard of Review
We review for abuse of discretion the trial court’s decision
to admit or exclude evidence. (People v. Albarran (2007)
149 Cal.App.4th 214, 223–225 (Albarran); People v. Avitia (2005)
127 Cal.App.4th 185, 193 (Avitia).) “Where, as here, a
discretionary power is statutorily vested in the trial court, its
exercise of that discretion ‘must not be disturbed on appeal
except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice. [Citations.]’ [Citation.]”
(People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–1125, italics
omitted.) It is appellant’s burden on appeal to establish an abuse
of discretion and prejudice. (People v. Jordan (1986) 42 Cal.3d
308, 316.) We review a court’s order denying a motion for a new
trial de novo. (People v. Ault (2004) 33 Cal.4th 1250, 1262.)
II. Gang Evidence
Defendants assert that the trial court erred in admitting
evidence of their gang membership. We disagree and find the
trial court did not abuse its discretion in admitting the gang
10 Defendants contend the cumulative prejudice from the
evidentiary errors require reversal of their convictions. As
discussed below, we find the trial court did not err by admitting
the challenged evidence. Where there is no error, there can be no
prejudicial error, cumulative or otherwise. Moreover, any errors
were harmless and did not amount to a clear miscarriage of
justice, as discussed at length in this opinion. (People v. Bradford
(1997) 14 Cal.4th 1005, 1064.)

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evidence because it was relevant to prove motive, intent, and
access to weapons.
A. The Gang Evidence at Trial
Defendants moved prior to trial to exclude evidence of their
gang membership under Evidence Code section 352. Defendants
argued they would be portrayed as violent gang members with a
propensity to commit a violent crime in violation of Evidence
Code section 1101. The trial court found the evidence was
relevant to motive and intent to commit conspiracy, and that it
would corroborate other anticipated evidence.11 The trial court
further found that the probative value of the evidence outweighed
any undue prejudice or consumption of time under Evidence Code
section 352.
At trial, the People presented testimony from gang expert
Richard Sanchez, a gang investigator with the Los Angeles
County Sheriff’s Department who had worked in the Compton
area for 25 years. Deputy Sanchez testified generally about gang
culture and gang terminology. He identified the different gangs
located within Compton. He explained there were rivalries
among the gangs, including one between the Looters Park Piru
and the Compton Tortilla Flats gangs, which “always have an
active beef.” Despite the rivalries among the gangs, Deputy
Sanchez testified he has recently noticed more crimes in which
different gangs cooperate.
Deputy Sanchez testified that the Compton Tortilla Flats
gang is a Hispanic gang comprised of approximately 450
members. Its members have committed crimes ranging from
11 The trial court later instructed the jury it could only
consider the gang evidence for the limited purpose of deciding
intent, motive, and access to weapons.

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murder to petty theft, including robbery, extortion, narcotics
sales, weapons sales, kidnapping, assault with a deadly weapon,
burglary, and vandalism. He previously investigated Tortilla
Flats members for robbing known drug dealers. He explained
that the advantage to robbing a drug dealer was that he or she
was likely to have a large amount of cash and drugs, but was
unlikely to report the crime to the police. Deputy Sanchez
explained the Looters Park Piru gang engaged in similar conduct.
Deputy Sanchez testified he had known both Orozco and
Verrette since the 1990s. He knew Verrette to have the street
moniker “Ace.” He also understood Verrette was an “O.G.,”
known as an original gangster, or shot caller for the Looters Park
Piru gang. This meant that he had freedom to do things that a
younger member of the gang would not.
Detective Sanchez testified he knew Orozco, also known as
“Stalker,” since the mid-1990s. He described the tattoos Orozco
had on his head and body and what each meant. He considered
Orozco to be a shot caller or “O.G.” within the Compton Tortilla
Flats. Detective Sanchez further testified another gang
investigator working in Compton told him Verrette and Orozco
grew up in the same neighborhood and were childhood friends.
As a result, they were allowed to maintain their friendship,
despite their gangs’ rivalry. Detective Sanchez opined that no
one would question two O.G. shot callers from rival gangs
committing a crime together. Moreover, the police might not
think to investigate a gang member as an accomplice in a crime
committed by a rival gang member.
The People also presented testimony from Deputy Erick
Martinez, a Los Angeles County Sheriff’s Deputy assigned to
patrol the northern and central portion of the City of Compton.

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He testified he came in contact with Orozco on August 5, 2010,
shortly before Frank’s murder. Orozco was standing with a few
other Hispanic men on San Marcos Street, where Verrette lived,
in an area controlled by the Looters Park gang. During that
contact, Orozco confirmed to Martinez that he was a member of
the Compton Tortilla Flats gang and his moniker was Stalker.
Deputy Martinez testified to Orozco’s appearance in 2010,
and photographs of Orozco were shown to the jury. Martinez
described Orozco’s tattoos, including a tattoo on the back of his
head which read “Flats” and the letters T and F on his left and
right arms. Orozco also had a tattoo of the letters C, P, and T on
the top of his head, which signified Compton, with an X over the
P. Deputy Martinez testified the “P” was crossed out as a sign of
disrespect towards the Piru gangs, which were rivals to the
Compton Tortilla Flats gang. He pointed out the number 13
tattooed just below Orozco’s lip, and explained that it indicated
that Orozco and his gang were affiliated with the Mexican Mafia,
a prison gang.
In addition to Deputy Martinez’s and Deputy Sanchez’s
testimony, defendants’ membership in their respective gangs
were detailed by other trial witnesses, including, but not limited
to April, Orozco’s wife, Orozco’s friend, Orozco’s niece, Ervin’s
daughter, Ervin’s former girlfriend, Verrette’s grandmother,
Verrette’s friend, and Verrette’s girlfriend. Each witness
discussed his or her knowledge of each defendant’s gang
affiliation as well as his or her knowledge of their tattoos and
other signs of gang affiliation.
The trial court instructed the jury that it could consider the
gang evidence for the limited purpose of deciding intent, motive,
and access to weapons, but not to conclude any defendant had a

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bad character or disposition to commit crime from the gang
evidence. Defendants moved for a new trial on the ground that
the evidence regarding their gang affiliation was irrelevant and
highly prejudicial. The motion was denied.
B. Admissibility of Gang Evidence
California courts have long recognized the potentially
prejudicial effect of gang membership. Where a gang
enhancement has not been alleged, for example, the Supreme
Court has held evidence of gang membership should be excluded
if its probative value is minimal. (People v. Hernandez (2004) 33
Cal.4th 1040, 1047.) Therefore, the trial court must carefully
scrutinize gang-related evidence before admitting it because of its
potentially inflammatory impact on the jury. (People v. Williams
(1997) 16 Cal.4th 153, 193 (Williams); People v. Carter (2003) 30
Cal.4th 1166, 1194.) Evidence of gang affiliation is not
admissible when its only relevance is to establish a defendant
may be predisposed to commit a crime solely because of
membership in the gang. (People v. Cardenas (1982) 31 Cal.3d
897, 904–905.) However, evidence of gang membership and
activity is admissible if it is logically relevant to some material
issue in the case, is not more prejudicial than probative, and is
not cumulative. (People v. Avitia, supra, 127 Cal.App.4th at
p. 192; see generally Evid. Code, § 352.)
Evidence Code section 1101, subdivision (a), provides that
“evidence of a person’s character or a trait of his or her character
(whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a
specified occasion.” However, pursuant to section 1101,
subdivision (b), the admission of such evidence is not prohibited

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by subdivision (a), when evidence of a past bad act is “relevant to
prove some fact (such as motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake or accident . . .)
other than his or her disposition to commit such an act.” (Evid.
Code, § 1101, subd. (b).) Accordingly, under section 1101,
subdivision (b), “[i]f an uncharged act is relevant to prove some
fact other than propensity, the evidence is admissible, subject to
a limiting instruction upon request.” (People v. Bryant, Smith,
and Wheeler (2014) 60 Cal.4th 335, 406.)
The California Supreme Court has held gang evidence to be
relevant to establish the defendant’s motive, intent, or some fact
concerning the charged offenses other than criminal propensity
as long as the probative value of the evidence outweighs its
prejudicial effect. (Williams, supra, 16 Cal.4th at p. 193.)
“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. [Citations.]” (People v. Hernandez, supra, 33
Cal.4th at p. 1049.)
Even if relevant, evidence may be excluded if its probative
value is substantially outweighed by the probability that its
admission will necessitate undue consumption of time, create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury. (Evid. Code, § 352; Albarran, supra, 149
Cal.App.4th at pp. 223–225 (Albarran).)
C. The Gang Evidence Was Properly Admitted
Defendants contend the gang evidence was irrelevant
because there was no gang enhancement alleged. Further,

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Verrette contends the gang evidence was particularly irrelevant
as to him because the only thing at issue in his case was his
identity due to the alibi provided by his grandmother.
Defendants also argue the gang evidence was cumulative and its
prejudice outweighed its probative value. We find no abuse of
discretion.
1. The gang evidence was relevant.
There is no question that the gang evidence was relevant to
the issues presented at trial. Defendants concede as much.
In fact, Orozco admits the gang evidence had two legitimate
purposes: to explain the meaning of the terms used in the
wiretapped calls and to explain the prosecution’s theory that
defendants were members of rival gangs who were temporarily
working together as a ploy to mislead police.
We agree the gang evidence was relevant. Although it was
not alleged that defendants committed the crimes to benefit a
criminal street gang, each was charged in count 4 with the crime
of conspiracy to commit robbery in violation of section 182.
Accordingly, the People were required to prove defendants
specifically intended to agree or did agree to commit the crime of
robbery, that they intended that one or more of them would
commit robbery, and at least one of them committed an overt act
to accomplish the robbery. (§ 182, subd. (a); People v. Morante
(1999) 20 Cal.4th 403, 416.) Further, “common gang membership
may be part of circumstantial evidence supporting the inference
of a conspiracy. [Citation.] The circumstances from which a
conspiratorial agreement may be inferred include ‘the conduct of
defendants in mutually carrying out a common illegal purpose,
the nature of the act done, the relationship of the parties [and]

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21
the interests of the alleged conspirators . . . .’ [Citation.]” (People
v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20–21.)
Here, the gang evidence was necessary to describe to the
jury the relationship of the parties and the interests of the
alleged conspirators. It was relevant to explain why defendants,
who are members of rival gangs, would agree to a conspiracy to
rob Frank. Deputy Sanchez’s testimony that Orozco grew up in
the area claimed by Looters Park Piru and was childhood friends
with Verrette, was relevant to explain how an agreement
between rival gang members could be achieved. Further, the fact
of Orozco’s and Verrette’s status in their respective gangs as shot
callers was relevant to explain why they were allowed to work
together without repercussions from their gangs.
The gang evidence also helped to prove motive, particularly
as to Verrette and Ervin. Although April testified to Orozco’s
personal dispute with Frank, it was Deputy Sanchez’s testimony
that explained Verrette’s and Ervin’s motivation to conspire with
Orozco. Specifically, Deputy Sanchez testified that both the
Looters Park Pirus and the Compton Tortilla Flats gang had
previously robbed drug dealers. He explained that the advantage
to robbing a drug dealer was that he was likely to have a large
amount of cash and drugs, but was unlikely to report the crime to
the police.
Although there was no gang enhancement alleged, their
gang membership was relevant to the prosecution’s case against
them. The relevance of the gang membership in this case is what
distinguishes it from the gang evidence introduced in the cases
relied upon by defendants. In those cases, the gang evidence was
not relevant to the underlying charges. (People v. Perez (1981)

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114 Cal.App.3d 470; People v. Memory (2010) 182 Cal.App.4th
835.)
We also reject Verrette’s contention that the gang evidence
was not relevant to his case because the only issue at his trial
was identity. Verrette contends that as a result of his
grandmother’s alibi testimony, the jury was left only to decide
whether he was the “Ace” who was a perpetrator, as witnesses
testified there were a few men who were known as Ace. This
contention lacks merit. In addition to discrediting his alibi, the
prosecution was still required to prove the conspiracy and
Verrette’s part in it. There is no indication Verrette agreed to
admit to the conspiracy charge against him if the jury disbelieved
the alibi provided by his grandmother.
Contrary to Verrette’s contention, the evidence of Verrette’s
gang monicker also corroborated April’s identification of Verrette
as the “Ace” who was in the Suburban with her shortly after
Frank’ murder because it linked Verrette to Orozco.
2. The gang evidence was more probative than
prejudicial.
Defendants further contend the gang evidence should not
have been admitted because it was cumulative and the resulting
prejudice far outweighed its probative value. Defendants argue
the gang evidence was impermissibly used by the jury to conclude
they had a propensity for violence and crime because they
associated with other violent criminals. Orozco, in particular,
asserts the gang evidence was inflammatory because it
highlighted his reputation for violence and affiliation with the
Mexican Mafia. While they concede some of the gang evidence
was necessary, they assert the evidence should have been

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curtailed to allow the prosecution to make its case without
“belabor[ing] these points.”
The exclusion of evidence under Evidence Code section 352
is not designed to avoid the prejudice or damage to a defense that
naturally flows from relevant, highly probative evidence.
“Prejudice” in the context of this statute “is not synonymous with
‘damaging’: it refers to evidence that poses an intolerable risk to
the fairness of the proceedings or reliability of the outcome.”
(People v. Booker (2011) 51 Cal.4th 141, 188.) Evidence is not
“unduly prejudicial” under the Evidence Code merely because it
strongly implicates a defendant and casts him in a bad light.
(People v. Robinson (2005) 37 Cal.4th 592, 632 (Robinson).)
Rather, undue prejudice is that which “ ‘uniquely tends to evoke
an emotional bias against a party as an individual, while having
only slight probative value with regard to the issues.’ ” (Ibid.,
quoting People v. Crittenden (1994) 9 Cal.4th 83, 134.)
As discussed above, the gang evidence in this case did not
have “only slightly probative value.” Rather, it was highly
relevant to the issues of motive, intent, and access to weapons.
That it also may have cast defendants in a bad light does not
render it unduly prejudicial.
Moreover, the trial court instructed the jury with
CALCRIM No. 1403, stating that the jurors may consider the
gang evidence only for the limited purpose of deciding whether
defendants acted with the intent required to prove conspiracy or
whether defendants had the motive to commit the charged crimes
or whether they had access to weapons. We presume the jury
followed the limiting instruction given by the trial court.
(Williams, supra, 16 Cal.4th at p. 256.) Although defendants
assert the limiting instruction was ineffective because it was

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given long after the jury heard the testimony about the gang
membership, there is no indication in the record that the jury
failed to follow the court’s instruction during its deliberations.
3. The admission of the gang evidence did not
render the trial fundamentally unfair.
Defendants also assert the admission of the gang evidence
violated federal due process and rendered their trial
fundamentally unfair. “ ‘As a general matter, the ordinary rules
of evidence do not impermissibly infringe on the accused’s right
to present a defense.’ ” (People v. Hawthorne (1992) 4 Cal.4th 43,
58.) Moreover, the mere erroneous exercise of discretion under
ordinary rules of evidence does not implicate the federal
Constitution. (People v. Cudjo (1993) 6 Cal.4th 585, 611.)
To prove a deprivation of federal due process rights,
Defendants must satisfy a high constitutional standard to show
that the erroneous admission of evidence resulted in an unfair
trial. “Only if there are no permissible inferences the jury may
draw from the evidence can its admission violate due process.
Even then, the evidence must ‘be of such quality as necessarily
prevents a fair trial.’ [Citations.] Only under such circumstances
can it be inferred that the jury must have used the evidence for
an improper purpose.” (Jammal v. Van de Kamp (1991) 926 F.2d
918,920; Albarran, supra, 149 Cal.App.4th at p. 232.)
We do not agree with defendants that this is the “rare and
unusual” case, such as that presented in Albarran, in which the
admission of gang evidence violated due process and rendered the
trial fundamentally unfair. In Albarran, a gang expert testified
about the defendant’s membership in a criminal street gang and
presented a panoply of other crimes its members had committed,
including making threats to kill police officers and connections

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with the Mexican Mafia. The court determined the gang evidence
was insufficient to prove the crime was committed to benefit a
criminal street gang as no one announced their affiliation with
the gang at the time of the crime and no one later took credit for
it or bragged about it. (Albarran, supra, 149 Cal.App.4th at
p. 227.) Nevertheless, the trial court found the gang evidence
relevant to prove motive and intent of the underlying crime.
Division Seven of our court disagreed. It found the gang
testimony regarding other gang members’ crimes and threats to
police was completely irrelevant to show motive or intent and had
no bearing on the underlying charges. (Id. at p. 229.)
Here, there were permissible inferences the jury could draw
from the evidence. As discussed above, the gang evidence was
relevant to demonstrate motive, intent, and access to weapons.
The gang expert testimony explained defendants’ motive to target
drug dealers and testified to their friendship to explain why they
agreed to conspire to rob Frank. Unlike in Albarran, the gang
evidence here was relevant to the underlying charges and was
not presented merely to poison the jury against defendants.
Defendants have not satisfied the high constitutional standard to
show that the erroneous admission of the gang evidence resulted
in an unfair trial.
4. Any error was harmless.
Even if some portion of the gang evidence was
inadmissible, reversal of defendants’ convictions is not warranted
because the error was harmless under any standard. (Chapman
v. California (1967) 386 U.S. 18, 24 (Chapman); People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson).) This is because the evidence
against defendants was overwhelming.

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We need not repeat the entirety of April’s testimony here; it
is detailed above. In short, April had personal knowledge of the
motive behind and execution of Frank’s murder and robbery. She
was present while Orozco and Frank planned the robbery of her
brother’s methamphetamine supplier. She explained why Orozco
had a motive to rob Frank instead. She also was present on the
day of the planned robbery and saw Verrette and Ervin at the
auto body shop. She again encountered them with Orozco after
Frank’s murder. She was there when Defendants searched
Frank’s home and Orozco admitted to her several times that
Frank was dead. Indeed, both Orozco and Verrette warned her to
keep quiet about what she knew.
April’s account was corroborated by the two auto body shop
employees, by cell phone records, by surveillance video from a
nearby store, and by defendants’ own statements. The auto body
shop employees identified Verrette and the van at trial. Their
account of the events leading to Frank’s murder correlated with
April’s. The cell phone records tracked defendants’ movements,
showing them near the auto body shop on the day of the murder,
and disclosed defendants’ pattern of calls to one another. These
supported April’s timeline.
In addition, defendants made statements incriminating
themselves. During arguments with his then-girlfriend, Ervin
threatened her multiple times, saying, “A bitch will get you
killed.” He also told her, “That could be you, like that fucking
Mexican.” During a separate argument with his girlfriend, Ervin
said: “You stupid bitch. It’s your fault that I killed that
Mexican.” In a recorded phone call, Orozco could be heard telling
Verrette about his sister telling him to watch the news broadcast
about “your murder case.”

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27
Moreover, Ervin’s girlfriend and his daughter both saw him
with what looked to be a black semiautomatic firearm, which was
the type of gun used to kill Frank. Additional evidence from his
girlfriend tied Ervin to the purple van, which he stopped driving
sometime after September 2010. He also told his girlfriend not to
drive it in Compton or Long Beach.
Verrette discussed committing a similar robbery of a drug
dealer. He also indicated he was concerned about the police
bulletins issued about Frank’s murder. He discussed at length
his worry about people talking about the murder and alerting
him to the news bulletins and flyers. Both Orozco and Ervin also
became worried about the police investigation. Orozco and his
family discussed the news bulletins and sketches often. Ervin
changed his appearance and his daughter testified he became
even more paranoid after his sister told him the police were
asking about him. All of these actions demonstrated defendants’
consciousness of guilt. From this evidence, it is not reasonably
probable defendants would have received a different verdict.
D. The Gang Evidence Was Not Inadmissible
Hearsay
Defendants further challenge some of the gang testimony
provided by the two Sheriff’s deputies as inadmissible case-
specific hearsay under People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez). In particular, defendants challenge Deputy Sanchez’s
testimony that both Orozco and Verrette were shot callers or
O.G.’s in their respective gangs and that he was aware from
another gang investigator that they were childhood friends.
Defendants also take issue with Deputy Martinez’s testimony
regarding the field identification card which he completed after
his contact with Orozco shortly before the murder. They contend

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these three statements were inadmissible hearsay under
Sanchez. We disagree.12
In Sanchez, the California Supreme Court held, “When any
expert relates to the jury case-specific out-of-court statements,
and treats the content of those statements as true and accurate
to support the expert’s opinion, the statements are hearsay.
It cannot logically be maintained that the statements are not
being admitted for their truth. If the case is one in which a
prosecution expert seeks to relate testimonial hearsay, there is a
confrontation clause violation unless (1) there is a showing of
unavailability and (2) the defendant had a prior opportunity for
cross-examination, or forfeited that right by wrongdoing.”
(Sanchez, supra, 63 Cal.4th at p. 686, fn. & italics omitted.)
An expert may not relate as true case-specific facts asserted in
hearsay statements, “unless they are independently proven by
competent evidence or are covered by a hearsay exception.”
(Ibid.) The Sanchez court made clear, however, that an expert
may still rely on general “background testimony about general
gang behavior or descriptions of the . . . gang’s conduct and its
territory,” which is relevant to the “gang’s history and general
operations.” (Id. at p. 698.)
12 We note that the Fourth District in People v. Perez (2017)
16 Cal.App.5th 636 (Perez), held that given the holdings in
Williams v. Illinois (2012) 567 U.S. 50 and People v. Dungo (2012)
55 Cal.4th 608, competent counsel should have objected to this
evidence even before the Sanchez case was decided, and that
failure to do so resulted in forfeiture of the issue on appeal. We
decline to address this issue, because we find that even had an
objection been interposed, there was no prejudicial error in the
admission of the evidence. The California Supreme Court
granted review of Perez on February 28, 2018.

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29
As a preliminary matter, we find two of the three
challenged statements were not inadmissible hearsay. First,
Deputy Sanchez testified based on his personal knowledge that
Orozco’s and Verrette were shot callers or O.G.’s in their
respective gangs. He did not rely on out-of-court statements for
this testimony, but on his own knowledge about general gang
behavior, history, and operations. He testified an O.G. was
someone who had been in a gang and had been an active
participant through the years. From his general knowledge of
gang hierarchy and his personal knowledge of Orozco and
Verrette, based on numerous contacts with them going back to
the 1990s, Deputy Sanchez testified he considered them to be
O.G.’s or shot callers. This testimony was admissible and not
hearsay.
Second, Deputy Martinez’s testimony about the field
identification card falls within a hearsay exception. Deputy
Martinez testified he encountered Orozco a few days before
Frank’s murder and filled out a field identification card. During
that contact, Orozco admitted he was a member of the Compton
Tortilla Flats gang and his moniker was Stalker. A party’s
admission falls within a hearsay exception and may be admitted
for its truth. (Evid. Code, § 1220; see People v. Jennings (2010)
50 Cal.4th 616, 661–662 [a party’s adoptive admissions do not
implicate the confrontation clause].) Moreover, the testimony
regarding the contact was not hearsay because Deputy Martinez
was present, had personal knowledge of the facts, and was
subject to cross-examination at trial. (Sanchez, supra, 63 Cal.4th
at pp. 676, 680.)

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30
Having dispensed with two of the three challenged
statements, we now turn to Deputy Sanchez’s testimony that he
was made aware of Orozco’s and Verrette’s childhood friendship
by another Compton-based gang investigator. Even if we assume
the information conveyed to Deputy Sanchez was inadmissible
hearsay, it was independently proven by competent evidence and
therefore admissible under Sanchez. (Sanchez, supra, 63 Cal.4th
at p. 698.)
The fact of Orozco’s and Verrette’s relationship was
established in other ways. School records showed Orozco and
Verrette grew up in the same area and attended the same school,
but they were about five years apart in age. The wiretapped
conversations between Orozco and Verrette demonstrated they
had a relationship. Cell phone records showed Orozco and
Verrette were in constant contact. Witnesses also testified they
saw Orozco at Verrette’s home in Compton, speaking with him,
and knew they were friends. Deputy Martinez observed Orozco
standing with other Hispanic men near Verrette’s home. April
testified to their friendly interaction in the Suburban on the day
of the murder. This is sufficient to independently prove Deputy
Sanchez’s testimony.
III. Wiretapped Communications
Defendants next challenge the admission of the wiretapped
communications at trial. They contend the vast majority of it
was irrelevant to the issues at trial, and was merely a ploy to
admit evidence of uncharged crimes and gang membership to cast
them in a bad light. As a result, defendants assert the
wiretapped communications were inadmissible under Evidence
Code sections 352 and 1101. We conclude the trial court did not

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31
abuse its discretion to admit the wiretapped communications.
Alternatively, we find any error was harmless.
A. Wiretap Evidence at Trial
In 2011, the police obtained wiretaps for various phone
numbers they believed were relevant to their investigation of
Frank’s murder. In addition to the wiretaps, they utilized an
investigative technique called a “stimulation,” during which they
posted flyers and bulletins about the crime to elicit conversation
among the individuals whose phones were wiretapped.
During the course of the stimulation and the wiretaps, the
police gathered numerous phone calls and texts among
defendants. Some of the wiretapped communications involved
Verrette discussing potential criminal activity. In an August 22,
2011 call between Verrette and a woman named Gina H., he told
her he was “supposed to be doing a lick man tomorrow.”13 In a
separate conversation with Gina, she tells Verrette she needs a
lick because she needs money. On August 31, 2011, Verrette
indicated in a phone call he intended to sell a gun, because he
would “rather get that money . . . instead of the BB gun . . . I
can’t kill nobody with that . . .” A recording of Orozco talking
about selling “a 357 Magnum” was also admitted.
In a series of phone calls in September 2011, Verrette
discussed a plan to rob a drug dealer in Victorville that was
“supposed to be all gravy.” Verrette’s co-conspirator, who was
unidentified, reported he had inspected the drug dealer’s house
while he was in Las Vegas in preparation for the robbery and
13 The prosecution presented testimony that a “lick” meant a
robbery.

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32
monitored the dealer’s Facebook feed for his whereabouts.
Verrette said, “We liable to get money, weed and the extras.”
In a separate conversation on September 22, 2011, Verrette
stated his “little Mexican buddy” had something “lined up” for the
next day because he was “hungry too.” Verrette also reported he
“was ripping and running back and forth to call Clavo.”14
In other phone calls, defendants made references to Frank’s
murder and that they were apprehensive about the police
investigation. In one, Orozco could be heard speaking in the
background while Verrette was making a call to someone.
He stated that his sister had told him to watch the news and that
bulletins had come out about “your murder case.”
In recorded calls, Orozco’s family frequently discussed the
police bulletins and the investigation into Frank’s murder. His
niece told investigators that “everyone” was talking about
Frank’s murder. She called Orozco and told him to watch the
news on September 4, 2011, but stated she could not tell him why
over the phone. Orozco’s sister directed her daughter, Orozco,
and their other sister to the Long Beach Police Department’s
website, which provided information on Frank’s murder and
sketches of the suspects. This occurred on the same day the
police performed a stimulation. Orozco’s sisters speculated that
April was providing information to the police.
In wiretapped phone calls between August and October of
2011, Verrette often vented about the police investigation to
Cameron M., his friend of more than 20 years. During these
14 Clavo was a Compton Tortilla Flats gang member who
associated with Orozco. The prosecution presented testimony
that “ripping and running” could refer to someone “running up,
ripping somebody off, taking off running.”

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33
conversations, Verrette fretted about the sketches the police were
passing out of the suspects to Frank’s murder. On September 20,
2011, Verrette discussed these sketches with Cameron, which
Verrette said did not look like him. Cameron told Verrette that
the police were “just fishing.” Cameron testified he meant that if
the police had a case against Verrette, they would already have
arrested him.
In phone calls a week later, Cameron and Verrette
lamented about other people talking too much and speculated
that someone was communicating with the police. Verrette told
Cameron, “cause fo sho, it’s a leak in the firm and I don’t know
who.” Cameron referred to a “bird” and a “kid in a cage.”
Verrette referred to a “pigeon already in a cage” and to someone
“with the same blood line.” The prosecution presented testimony
that “a bird in the cage with the same blood line” meant someone
who was in jail and who was a family member or from the same
neighborhood. Cameron knew that appellant Ervin was in jail at
the time.
Later that night, Verrette told Cameron about being pulled
over by the Long Beach Police Department and Cameron assured
him that “they are just fishing.” While discussing a flyer handed
out by the police in October, Cameron asserted, “that’s someone
inside running the mouth, running of the mouth, homie.”
Verrette told another friend he had changed his phone
number, and would change it again, because the police could have
used his number to find out who had been in contact with him.
Verrette also indicated he was lying “lower than an ant with
chucks on.” He refused to go to Long Beach because “[t]hey been
showing pictures of mutha fuckas and doing all kinds of shit.
I been seeing sketches and shit all kinds of shit over here.”

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34
On September 27, 2011, a Long Beach Police Department
helicopter repeatedly flew low over the home Verrette shared
with his grandmother. In telephone conversations with his
grandmother, Cameron, and others, Verrette expressed concern
about the helicopters and suggested police cars would soon come
around to be “nosey.” He told his grandmother he would not be
home because of the helicopters. He also expressed frustration
that so many people were discussing sketches on fliers that the
police had distributed. He complained about people coming to his
house to specifically show him the police sketches. After the
helicopters flew over his house, Verrette was recorded telling a
friend that because of an emergency, he may need to cut his hair
and change his appearance.
At trial, defendants objected to the admission of the
wiretapped conversations which took place between September
and October of 2011 under Evidence Code sections 352 and 1101.
The prosecutor argued the phone calls were necessary to show
the relationship among the defendants and the conspiracy, which
was ongoing at that time, as well as defendants’ intent and
modus operandi. The prosecutor admitted that some portions of
the calls were irrelevant to the issues at trial, but argued they
were necessary to provide context to the portions that were
relevant. The trial court overruled the objections, finding the
communications more probative than prejudicial.
B. The Wiretapped Communications Were Properly
Admitted
The wiretapped communications may be divided into two
categories: those in which Verrette discusses uncharged
misconduct and the remaining ones in which defendants discuss

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35
the police investigation and other topics. We address the
uncharged misconduct communications first.
As we have already noted, Evidence Code section 1101 does
not prohibit the admission of evidence of uncharged misconduct
when it is offered as evidence of some other fact in issue, such as
motive, common scheme or plan, preparation, intent, knowledge,
identity, or absence of mistake or accident. (Evid. Code, § 1101,
subd. (b).) The California Supreme Court has held that evidence
of a defendant’s uncharged misconduct is relevant where the
uncharged misconduct and the charged offense are sufficiently
similar to support the inference that they are manifestations of a
common design or plan. (People v. Ewoldt (1994) 7 Cal.4th 380,
401–402.)
The high court explained, “To establish the existence of a
common design or plan, the common features must indicate the
existence of a plan rather than a series of similar spontaneous
acts, but the plan thus revealed need not be distinctive or
unusual . . . evidence that the defendant has committed
uncharged criminal acts that are similar to the charged offense
may be relevant if these acts demonstrate circumstantially that
the defendant committed the charged offense pursuant to the
same design or plan he or she used in committing the uncharged
acts. Unlike evidence of uncharged acts used to prove identity,
the plan need not be unusual or distinctive; it need only exist to
support the inference that the defendant employed that plan in
committing the charged offense.” (People v. Ewoldt, supra,
7 Cal.4th at p. 403.)

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36
Here, the evidence of Verrette’s uncharged misconduct—
the other “licks” or robberies and having access to guns—and the
charged crimes are sufficiently similar to support the inference
they are manifestations of a common design or plan. The
wiretapped communications in which Verrette discusses other
“licks” or robberies are relevant because they supported the
prosecution’s theory that these were individuals who had
experience with robberies, knew how to plan them, and knew how
to avoid detection, in particular by targeting drug dealers. The
wiretapped communications corroborated April’s testimony that
both Frank and Orozco told her the perpetrators of the robbery
knew how to do it discretely and had been doing it for a while.
Also, the wiretapped communications showed defendants
knew what they were likely to recover from the robbery of a drug
dealer. Specifically, Verrette said he believed they would get
“money, weed, and the extras” from a robbery of the drug dealer
in Victorville. This statement explains why they ransacked
Frank’s Franklin house and why they wanted to go to the
Beachwood house. This evidence was helpful in proving the case,
given there was no indication April told them that was where
Frank kept his money and drugs. The wiretapped
communications also show defendants typically conspired with
others to commit robbery. These common features are sufficient
to overcome the exclusion of uncharged misconduct under
Evidence Code section 1101.
Notwithstanding the Evidence Code section 1101 analysis,
defendants also claim these communications should have been
excluded under Evidence Code section 352. We acknowledge the
wiretapped communications regarding these uncharged crimes
were damaging, but do not find them so unduly prejudicial as to

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37
have warranted their exclusion. Again, Evidence Code section
352 is not designed to avoid the damage to a defense that
naturally flows from relevant, highly probative evidence.
This evidence was relevant, highly probative evidence of a
common plan or design of targeting drug dealers to rob; it was
not evidence that evoked an emotional bias against an individual
while having only slight probative value with regard to the
issues. (Robinson, supra, 37 Cal.4th at p. 632.) As a result, we
find the trial court did not abuse its discretion in admitting the
wiretapped communications regarding other robberies.
As to the second category of wiretapped communications in
which defendants discussed the police investigation and other
topics, we also conclude the trial court did not abuse its discretion
in admitting them. The conversations were highly probative of
defendants’ consciousness of guilt. It is apparent the police’s
stimulation did precisely what it was designed to do—it
stimulated conversations about the murder and made the
defendants and their friends and family concerned about the
investigation into Frank’s death. Verrette’s apprehension about
the helicopter activity and the police investigation demonstrated
his consciousness of guilt and fear of apprehension. Likewise, the
Orozco family’s discussions of the police investigation were also
directly relevant to their awareness of Orozco’s guilt.
We are aware that defendants contend and the prosecutor
admitted that some of the conversation transcribed in the
wiretapped communications were irrelevant to the issues at trial
and included prejudicial references. For example, Verrette’s
conversations with Cameron included gang references. Also, his
conversation with Gina became sexually explicit; he told her she
“was yelling for mercy” while he “was drilling for oil.” He told her

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38
that talking with her aroused him. She replied, “Yeah, I know it
do.” However, each of his conversations with Cameron, Gina, and
others were relatively short and the inclusion of these passing
comments was necessary to provide context to the relevant
statements. For example, Verrette’s conversation with Gina
about doing a lick was only a few minutes long. The trial court
was within its discretion to admit the entirety of the
communications.
C. Any Error Was Harmless
Even if we were to conclude the trial court erred in
admitting the wiretapped evidence, we find any error harmless
because it is not reasonably probable defendants would have
received a more favorable verdict given the overwhelming
evidence against them.15 (Watson, supra, 46 Cal.2d at p. 836.)
As discussed above, April identified Orozco, Verrette, and Ervin
as co-conspirators in the scheme to rob Frank and testified to
their participation in Frank’s murder. She sat in a car with them
during the ride from approximately Buena Park to Lake Elsinore.
During that time, she heard Verrette agree with Orozco that “he
was straight through that fool in sector 8,” which April
understood to mean Frank was dead. Further, the auto body
shop employees identified Verrette at trial as the man who had
Frank on the ground with a gun to his head. The cell phone
records tracked defendants to the area around the auto body shop
15 Defendants have not satisfied the high constitutional
standard to show that the admission of the wiretapped
communications deprived them of a fair trial. (Jammal v. Van de
Kamp, supra, 926 F.2d at p. 920.) In any event, any error is
harmless under the standard enunciated in Chapman, supra, 386
U.S. at p. 24.

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and revealed the pattern of calls before, during, and after the
murder. All of this evidence linked defendants to the crime and
provided independent evidence of their guilt, such that we are
confident they would have been convicted even without the
wiretap evidence.
D. The Wiretapped Statement About “Your Murder
Case” Did Not Violate the Confrontation Clause
Verrette also challenges the admission of Orozco’s
wiretapped comment to Verrette about Orozco’s sister telling him
to watch the news and that a bulletin had come out about “your
murder case.” He contends he was deprived of the Sixth
Amendment right of confrontation under People v. Aranda (1965)
63 Cal.2d 518 (Aranda), and Bruton v. United States (1968) 391
U.S. 123 (Bruton). (See also Crawford v. Washington (2004) 541
U.S. 36 (Crawford).) We are not persuaded.
The Aranda/Bruton rule bars the admission of one
defendant’s out-of-court confession incriminating a codefendant,
even if the court instructs the jury to consider the confession only
against the declarant. (Aranda, supra, 63 Cal.2d at pp. 529–530;
Bruton, supra, 391 U.S. at pp. 135–136.) Under such
circumstances, the trial court must either sever the trials or
redact the statement to avoid references to the codefendant.
(Aranda, supra, 63 Cal.2d at pp. 530–531.)
As an initial matter, defendants have forfeited this claim
because they failed to raise the issue below. (People v. Redd
(2010) 48 Cal.4th 691, 730 [“He did not raise an objection below
based upon the confrontation clause, and therefore has forfeited
this claim”]; see also People v. Chaney (2007) 148 Cal.App.4th
772, 779 [“A Crawford analysis is distinctly different than that of
a generalized hearsay problem”].)

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Even if they have not forfeited the right to raise the issue
on appeal, the argument lacks merit because the statement is not
testimonial. The Aranda/Bruton rule is violated only by the
admission of testimonial hearsay statements. (People v.
Washington (2017) 15 Cal.App.5th 19, 28 [Crawford “narrow[ed]
the reach of . . . the []Bruton doctrine” to testimonial statements];
People v. Gallardo (2017) 18 Cal.App.5th 51, 69, fn.10; Whorton v.
Bockting (2007) 549 U.S. 406, 420 [confrontation clause applies
only to testimonial hearsay statements]; People v. Loy (2011)
52 Cal.4th 46, 66 [same].) Remarks made to friends or “off-hand”
comments are not testimonial. (Crawford, supra, 541 U.S. at
p. 51; see also, Loy, supra, 52 Cal.4th at pp. 66–67 [conversation
between friends not testimonial].) Likewise, remarks made to a
government informant to be used later at trial are not testimonial
for confrontation clause purposes. (People v. Arauz (2012) 210
Cal.App.4th 1394, 1402.) Thus, the admission of Orozco’s
comment, made off-hand to his friend Verrette, did not violate a
confrontation right under the Aranda/Bruton rule. As the
authorities we have cited indicate, this is true even when the
comment was recorded by the police with the intent to use it at
trial.
IV. Evidence of Ervin’s Domestic Violence
At trial, Ervin’s former girlfriend, Cherry P., and their
daughter testified to incriminating comments Ervin made during
arguments he had with Cherry. In the course of this testimony,
Cherry and their daughter revealed occurrences of domestic
violence perpetrated by Ervin. Ervin challenges the admission of
the domestic violence evidence under Evidence Code sections 352
and 1101. We find no error.

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A. Domestic Violence Testimony at Trial
The evidence with which Ervin takes issue is as follows:
(1) In 2010, Ervin and Cherry had been in a long-term
relationship and had children together. They often fought and
sometimes the fights became physical. Ervin and Cherry’s
daughter confirmed the domestic violence. She testified that
Ervin became angry once and threw her cell phone out a car
window. Another time, he broke his own phone in a rage.
(2) Cherry owned a purple van fitting the description of the
one seen by April and the two auto body shop employees on the
day of Frank’s murder. Cherry testified at trial that in June
2010, Ervin picked her up from work in the van and they argued
while they drove home. He threatened her, and the fight became
physical. They continued to argue at home for the next few days.
At some point, Ervin left with the van. Ervin returned a week
later, but left after another fight, taking the van and Cherry’s
phone with him.
(3) During the holidays in 2010, Ervin and Cherry took
their children to dinner one night. Cherry wanted to leave when
she saw that Ervin had a gun in his waistband. They fought, and
Ervin left with their children, but returned with the children a
few hours later. He came back to Cherry’s house on Christmas
Eve, climbing through an upstairs sliding door. He yelled at her
and was violent, scaring Cherry. He left the next morning.
During other fights in this time period, Ervin threatened Cherry
multiple times, saying, “A bitch will get you killed.” He also said,
“That could be you, like that fucking Mexican.”
(4) Ervin again appeared at Cherry’s house uninvited the
day before Easter in April 2011. He wanted to eat and take a
shower. She let him in. While he was in the shower, Cherry

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found his handgun in his pants and hid it behind the refrigerator.
When Ervin could not find his gun, he became angry. He shook a
fireplace poker at Cherry and yelled, “You stupid bitch. It’s your
fault that I killed that Mexican.” Their daughter confirmed that
statement in her testimony. Cherry became frightened and left
with the children that night. They slept in a Walmart parking
lot. The next morning, Cherry went to the Long Beach police
station and spoke to an officer who was investigating Frank’s
murder. She told him about Ervin and the van.
Defense counsel made continuing objections throughout
this testimony and moved for a mistrial on the ground that the
evidence of Ervin’s domestic violence rendered the trial
fundamentally unfair. The prosecutor argued the evidence
provided context for Ervin’s admission about killing a “Mexican”
and having access to a weapon. She reminded the court that it
had previously instructed her to lead the witness so as to elicit
testimony on these points and limit testimony of the details of the
domestic violence. She contended she did so.
The trial court found there was no violation of its prior
ruling. It found some of the testimony to be “highly relevant,”
but that it was intertwined with testimony that cast Ervin in a
poor light. The court noted the prosecutor could not completely
control Cherry even by leading and as a result, the court struck
some of the testimony that Cherry “blurted out” and allowed in
other testimony. The court denied the mistrial motion.
A few days after Cherry’s testimony, the court instructed
the jury with CALCRIM No. 375. Among other things, it limited
the jury’s consideration of the domestic violence evidence to
determining Ervin’s intent, motive, and access to weapons.

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The court also gave CALCRIM No. 375 as part of its instruction
in the case.
B. The Domestic Violence Evidence Was Properly
Admitted
The trial court was within its discretion to admit the
domestic violence testimony by Cherry and her daughter. The
evidence of Ervin’s domestic violence was intertwined with highly
probative evidence of Ervin’s intent, motive, or access to weapons.
During arguments with Cherry, Ervin told her, “A bitch will get
you killed.” He also said, “That could be you, like that fucking
Mexican.” During another fight, he said, “You stupid bitch. It’s
your fault that I killed that Mexican.” These admissions are
highly relevant to the underlying charges, demonstrating Ervin’s
consciousness of guilt. Cherry’s and their daughter’s testimony
about the fights explained how these statements came about and
contributed to their credibility. Indeed, Ervin acknowledged that
the domestic violence evidence tended to show Cherry had reason
to fear him and explained why she was reluctant to report him to
the police.
Other incidents of domestic violence stemmed from
arguments over Ervin’s access to a firearm. Cherry testified
Ervin’s firearm was a semiautomatic nine-millimeter handgun.
This was consistent with the forensic evidence that Frank was
shot with a semiautomatic nine-milimeter handgun at close
range. Accordingly, it was highly relevant to the underlying
charges.
Although the evidence of his domestic violence likely was
damaging to Ervin, he fails to demonstrate how it was unduly
prejudicial—the challenged testimony provided necessary context
and the trial court struck the more inflammatory and irrelevant

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statements. It also limited the testimony as much as possible by
allowing the prosecutor to lead the witness. The record shows
the trial court carefully considered the probative value of the
evidence of domestic violence against its potential for prejudice.
The court did not abuse its discretion in admitting it. For the
same reasons, the court did not abuse its discretion when it
denied defendants’ motion for mistrial. (Blumenthal v. Superior
Court (2006) 137 Cal.App.4th 672, 679.)
C. Any Error Was Harmless
Even if we assume the trial court erred by admitting this
evidence, it is harmless under any standard of review. (Watson,
supra, 46 Cal.2d at p. 836; Chapman, supra, 386 U.S. at p. 24.)
The trial court twice gave the jury a limiting instruction
regarding this evidence. The jurors are presumed to have
understood and followed these instructions. (People v. McKinnon
(2001) 52 Cal.4th 610, 670.) To the extent defendants contend
the limiting instruction was defective, they have forfeited this
claim by failing to object to the instruction below or to request
clarification. (People v. Bolin (1998) 18 Cal.4th 297, 327–328.)
Also, as we have already explained, the case against defendants,
including Ervin, was overwhelming. Ervin was identified by
April as a co-conspirator. Indeed, April sat next to him in the
Suburban on August 9. Ervin also drove the distinctive van
which was seen by April and the employees at the auto body shop
on the day of Frank’s murder. The cell phone records placed him
in the area of the auto body shop on August 9.

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V. Sentencing Issues
A. The Sentences
Orozco was sentenced in count 1 to life imprisonment
without the possibility of parole (LWOP), plus one year for the
firearm enhancement pursuant to section 12022, subdivision
(a)(1). The trial court imposed and stayed the sentences on
counts 2 and 4 pursuant to section 654. It also struck a one-year
enhancement under section 667.5, subdivision (b).
In count 1, Ervin was sentenced to LWOP, tripled under
the Three Strikes Law, plus 11 years, comprised of one year for
the firearm enhancement pursuant to section 12022, subdivision
(a)(1), and two five-year enhancements pursuant to section 667,
subdivision (a)(1). The court imposed and stayed the sentences
for counts 2 and 4 pursuant to section 654. It also struck the one-
year enhancement under section 667.5, subdivision (b).
Verrette was sentenced in count 1 to LWOP, doubled under
the Three Strikes Law, plus a 10-year enhancement pursuant to
section 12022.53, subdivision (b), and a five-year enhancement
pursuant to section 667, subdivision (a)(1). The court also
imposed and stayed the sentences on counts 2 and 4. It struck
the one-year term pursuant to section 667.5, subdivision (b).
B. Orozco’s Presentence Custody Credits
Orozco contends, and the Attorney General concedes, his
presentence custody credits were miscalculated by one day.
We agree. The record shows Orozco was in presentence custody
from October 6, 2011 to July 7, 2016. Thus, Orozco should have
received 1,737 days of credit for his actual time in presentence
custody, not 1,736 days, which was awarded by the trial court.
The abstract of judgment should be modified to reflect an
accurate accounting of Orozco’s presentence custody credits.

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C. Three Strikes Provisions Do Not Apply to LWOP
Verrette and Ervin each received LWOP sentences, which
were doubled and tripled, respectively, under the Three Strikes
Law. (§§ 667, subd. (e), 1170.12, subd. (c).) Relying on People v.
Smithson (2000) 79 Cal.App.4th 480 (Smithson) and People v.
Coyle (2009) 178 Cal.App.4th 209 (Coyle), they contend on appeal
that the portion of the “Three Strikes” Law that provides for
doubling or tripling their sentence does not apply to LWOP
sentences.
There is a split of authority on the proper sentence to
impose when a crime is punishable with an LWOP sentence.
People v. Hardy (1999) 73 Cal.App.4th 1429, concludes that the
Three Strikes Law applies to double or triple the LWOP terms,
reasoning it fulfills the Three Strikes Law’s intent to ensure
longer prison terms for those who fall within its reach. (Id. at
p. 1433.)
Smithson and Coyle take the opposing view. They hold
that the unambiguous language of the statute clearly excludes
LWOP sentences from being doubled or tripled. These cases
recognize that the plain language of section 667, subdivision
(e)(1), a part of the Three Strikes Law, permits doubling or
tripling only “ ‘the determinate term or minimum term for an
indeterminate term.’ ” (Smithson, supra, at p. 503, italics
omitted.) Since LWOP’s are indeterminate terms with no
minimum terms, those courts found the Three Strikes Law does
not apply. (Id. at pp. 503–504; Coyle, supra, at p. 219.)
We find Smithson and Coyle the better reasoned decisions.
Accordingly, we reverse the trial court’s sentence which doubles
Verrette’s LWOP sentence and triples Ervin’s and modify them to
impose a single term of LWOP for both.

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D. Remand is Necessary for the Trial Court to
Consider the Firearm Enhancement Against Verrette
Verrette received a 10-year sentence enhancement
pursuant to a true finding under section 12022.53, subdivision
(b). At the time of Verrette’s sentence, the trial court was
prohibited from striking or dismissing any firearm enhancements
under section 12022.53.
On January 1, 2018, Senate Bill No. 620 (2017–2018 Reg.
Sess.) took effect, which amends section 12022.53, subdivision
(h), to remove the prohibition against striking the gun use
enhancements under this and other statutes. The amendment
grants the trial court discretion to strike or dismiss an
enhancement imposed under section 12022.53. (Stats. 2017,
ch. 682, § 2.)
In supplemental briefing, Verrette urges us to reverse that
portion of his sentence related to the firearm enhancement and
remand this matter for the trial court to exercise its discretion.
The Attorney General concedes a limited remand is appropriate
in this case. We agree.
The discretion to strike a firearm enhancement under
section 12022.53 may be exercised as to any defendant whose
conviction is not final as of the effective date of the amendment.
(See In re Estrada (1965) 63 Cal.2d 740, 742–748; People v.
Brown (2012) 54 Cal.4th 314, 323.) There is no dispute that
Verrette’s appeal was not final when SB 620 went into effect on
January 1, 2018. (See People v. Vieira (2005) 35 Cal.4th 264, 305
[“a defendant generally is entitled to benefit from amendments
that become effective while his case is on appeal.”]; People v.
Smith (2015) 234 Cal.App.4th 1460, 1465 [“[a] judgment becomes
final when the availability of an appeal and the time for filing a

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petition for certiorari have expired”]; see also Bell v. Maryland
(1964) 378 U.S. 226, 230 [“[t]he rule applies to any such
[criminal] proceeding which, at the time of the supervening
legislation, has not yet reached final disposition in the highest
court authorized to review it”].)
On remand, the court may exercise its discretion under
section 12022.53, subdivision (h), to strike the firearm
enhancement or impose it. In addition, the trial court has
discretion to strike only the punishment for the enhancement.
(§ 1385, subdivision (a); In re Pacheco (2007) 155 Cal.App.4th
1439, 1443–1446.) “In determining whether to strike the entire
enhancement or only the punishment for the enhancement, the
court may consider the effect that striking the enhancement
would have on the status of the crime as a strike, the accurate
reflection of the defendant’s criminal conduct on his or her record,
the effect it may have on the award of custody credits, and any
other relevant consideration.” (Cal. Rules of Court, rule
4.428(b).)
DISPOSITION
The judgment as to Ervin is modified to reflect the
imposition of a single LWOP term for count 1. The judgment as
to Orozco is modified to reflect 1,737 days of actual presentence
custody. The trial court is directed to prepare amended abstracts
of judgment to reflect the modifications to the sentences of Ervin
and Orozco and to forward certified copies of the amended
abstracts to the Department of Corrections and Rehabilitation.
The matter is remanded to the trial court to allow it to
exercise its discretion to decide if it is appropriate to strike or
dismiss the firearm enhancement against Verrette pursuant to
section 12022.53, subdivision (h). The judgment as to Verrette is

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modified to impose a single LWOP term for count 1. This
modification shall be reflected in the new abstract of judgment
prepared after the sentencing hearing on the firearm
enhancement. The abstract of judgment shall then be forwarded
to the Department of Corrections and Rehabilitation.
The judgments are otherwise affirmed.
BIGELOW, P.J.
We concur:
GRIMES, J.
ROGAN, J.*
* Judge of the Orange Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.

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