P. v. Garcia

Filed 12/12/24; certified for publication 12/31/24 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANGEL GARCIA et al.,
Defendants and Appellants.
D082237
(Super. Ct. No. SCD288314)
APPEAL from judgments of the Superior Court of San Diego County,
Kimberlee A. Lagotta, Judge. Reversed and remanded.
Patricia L. Brisbois, under appointment by the Court of Appeal, for
Defendant and Appellant Angel Garcia.
Marcia Clark, under appointment by the Court of Appeal, for Defendant
and Appellant Armando Alvarado.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and
Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.

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Angel Garcia and Armando Alvarado (together appellants) are members of
Logan Red Steps (Logan), a criminal street gang in San Diego. A jury convicted
them of murdering Eduardo S. (Pen. Code,1 § 187, subd. (a), count 1) and found
true a robbery murder special circumstance (§ 190.2, subd. (a)(17)). It also found
them guilty of attempting to murder Ruben T. (§§ 664, subd. (a) & 187, subd. (a),
count 2), and robbery (§ 211, count 3). The jury found Alvarado guilty of
shooting at an occupied structure (§ 246, count 5) and Garcia guilty of an
additional robbery count related to a separate incident. The jury also found true
firearm allegations attached to counts 1 and 3 for Garcia and counts 2 and 3 for
Alvarado. As to both appellants, the trial court imposed life without the
possibility of parole on count 1 and the attached robbery murder special
circumstance.
Appellants argue the trial court prejudicially erred by (1) admitting gang-
related evidence after bifurcating the gang enhancements; (2) excluding
evidence that Eduardo had told his girlfriend he had stolen a BB gun; and
(3) refusing to instruct on the alleged lesser included offenses of second degree
murder and voluntary manslaughter. Garcia contends the cumulative effect of
these errors requires reversal. Appellants claim imposition of life without the
possibility of parole constituted cruel and unusual punishment. Alvarado also
argues the court erred by: (1) failing to dismiss a firearm enhancement
regarding the attempted robbery; and (2) not staying the concurrent sentence for
shooting at an occupied dwelling. Finally, Alvarado contends, and the People
concede, Alvarado is entitled to nine more days of actual custody credit and the
abstract of judgment requires correction.
1 Undesignated statutory references are to the Penal Code.

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We conclude the trial court prejudicially erred by admitting the gang-
related evidence and reverse appellants convictions. This conclusion moots
appellants’ claims of posttrial error. For the trial court’s benefit, we address
appellants’ arguments regarding exclusion of the stolen BB gun, as this issue
may arise again on remand. Given our conclusion that appellants’ convictions
must be reversed, we decline to offer an advisory opinion on their claims of
instructional error. What instructions are required or appropriate will depend
in large part on the theory or theories of liability pursued by the prosecution and
the evidence presented in the event of a retrial. Any argument thereon should
be addressed to the trial court in the first instance.
FACTUAL BACKGROUND
Eighteen-year-old Eduardo showed his friend, Ruben, a social media video
of a ghost gun (a gun without a serial number) he wanted to purchase for $700
or $750. The gun was black on the bottom and bronze on the top. A few days
later, on November 25, 2020, Ruben and Eduardo had plans to hang out that
night and shoot BB guns at the home of their friend Joel S. Eduardo picked up
Ruben, telling him that he planned to purchase the ghost gun before going to
Joel’s home. Ruben brought his BB gun with him. It had a wooden stock and
looked like a rifle. He jammed the BB rifle between the front passenger seat
and a plastic pillar so it could not be seen from outside the car.
As planned with the seller, Eduardo drove his car to the back parking lot
of a particular store in Point Loma where the seller would enter Eduardo’s car to
conduct the transaction. It was dark outside when Eduardo and Ruben arrived
at the parking lot but some lighting existed in the area. Eduardo backed into a
parking spot next to two people and left his engine running. The two people
wore all black and had “Covid” masks on their faces. After Eduardo unlocked
his car doors, Garcia opened the rear driver’s side door and got into the back

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seat with Alvarado following behind him. Eduardo pulled out of the parking
space and began driving slowly in the parking lot.
According to Ruben, Garcia displayed the ghost gun, pointed it at Ruben’s
head, and asked, “Where’s the fucking money?” Ruben immediately ducked his
head between his knees, opened the front passenger door, and dove out of the
car. While still in the car, Ruben heard two gunshots and Eduardo grunt from
being shot.
Ruben started running away and ultimately took refuge inside a store.
Another nearby person heard some pops and saw Eduardo’s car accelerate and
crash into a retaining wall. Ruben called three friends, asking them to pick him
up and telling them that he and Eduardo had just been robbed. One of his
friends picked him up, he ultimately got home about an hour after the incident
and told his parents what had happened. His parents then contacted an
attorney who instructed them to wait at the house for police to arrive.
Meanwhile, police officers responded to scene. Firefighters extracted
Eduardo from the car and paramedics tried to resuscitate him. When the
paramedics arrived at the hospital and pulled Eduardo’s stretcher out of the
ambulance, $705 in cash fell out of his pocket. Eduardo never regained
consciousness, had two gunshot wounds, and died from blood loss caused by a
gunshot that entered his back and perforated his heart and lungs.
Police searched Eduardo’s car and found the loaded ghost gun on the front
passenger seat and Ruben’s BB rifle on the front passenger seat floorboard. The
officer who found the BB rifle believed it was a relatively weak one-pump BB
rifle that looked like a toy. Among other things, police found a black hair in a
large spider web-like crack in the windshield of Eduardo’s car. In the backseat,
they found a black hat, red hat, and black sweatshirt that said, “In loving

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memory of Brian Romo 7/19/2005 to 10/23/2020.”2 Police found a red iPhone
belonging to Alvarado beneath the floormat on the passenger backseat of the
car. Another black hat with a “SD” logo on it was found in the rear passenger
compartment.
Garcia’s DNA was on several parts of the ghost gun, the ghost gun’s
magazine, the sweatshirt, the black hat in the backseat, and on the inside of the
windshield. Alvarado’s DNA was found on the interior of the hat with the “SD”
logo. Police subsequently determined that the ghost gun was operable and a
MXT brand cartridge casing found inside the car came from the ghost gun. A
Remington brand cartridge casing also found inside the car came from a
different gun.
Detectives obtained search warrants to gain access to cell phones
belonging to Alvarado and Eduardo and to the social media accounts of Eduardo,
Garcia, and a person named Jhason S. Messages revealed Eduardo and Garcia
became “friends” on a social media site two days before the incident with
Eduardo indicating he wanted to purchase a firearm. Jhason posted a
photograph of guns on a chair being sold for specific prices, including the ghost
gun for $550 and said he would pass on any interest in the guns to his friend.
Police later found another photograph and an audio file indicating the ghost gun
cost $700.
Jhason sent Garcia an audio message where he said he “was going to slide
you this fools ‘@’ so you can rob him.” Jhason also sent an audio message to
Garcia’s account that “he” (apparently meaning Eduardo) wanted the gun and
Jhason told “him” it cost $750, and asked Garcia “save him” $150 or at least $50.
2 A prosecution witness testified regarding a photograph showing Romo,
a known Logan gang member, who was shot and killed in October 2020.
Garcia was shown in a photograph with Romo. Other Logan gang members
wore sweatshirts with Romo’s name, photo, and dates of birth and death.

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A photograph posted on Garcia’s account offered guns for sale with their prices,
including the ghost gun for $700.
The following month, police arrested appellants. Police conducted a
videotaped undercover operation in Alvarado’s jail cell with a sheriff’s detective
and two other individuals pretended to be fellow jail inmates. The three
individuals posed as fellow inmates and talked to Alvarado about the incident.
During the undercover operation, Alvarado admitted being a Logan gang
member and stated police found his phone where the homicide occurred.
Alvarado stated the person he was with “messed up,” the incident was not gang
related or involve gang enemies and “was supposed to be just a robbery.” He
said the incident occurred behind a store and they had it all planned out.
Alvarado stated the person he was with got in the car with “fucking La Jolla
white boys” and one of the white boys pulled out a BB gun that looked real to
him, so he pulled out his gun, claiming he “got” one of the white boys.
Alvarado said they were going to rob the white boys but those boys were
also planning to rob them. When the passenger with the BB gun saw Alvarado’s
gun, he threw the BB gun and ran out of the car. Alvarado fired his gun at the
passenger and believed he had shot the passenger. Alvarado’s “homie” believed
Alvarado had been shot and fired his gun at the driver.
The car then ran into a wall. Alvarado stated it was “foggy” inside the car
and he grabbed whatever he could, including a wallet that he took and two guns
that he threw away. Alvarado did not realize Ruben had pointed a fake gun at
him until he accidentally took it from the car after the incident. When Alvarado
realized the gun was fake, he threw it away. He later checked the wallet,
discovered it contained money, and took the money. Alvarado claimed about five
“homies” were there, saw what had happened and left.

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DISCUSSION
I. PREJUDICIAL ERROR ADMITTING GANG EVIDENCE
A. Background
The amended information alleged appellants committed counts 1 through
5 to benefit a criminal street gang under section 186.22, subdivision (b). The
court granted the motion of both defense counsel to bifurcate the gang
allegations under section 1109 after the prosecutor conceded bifurcation was
required upon request. Nevertheless, the prosecution sought to admit gang-
related evidence to prove motive, intent, uncharged conspiracy, aiding and
abetting, and that Alvarado was a major participant who acted with reckless
indifference to human life. The prosecutor also argued postarrest evidence of
Garcia’s new tattoos showed consciousness of guilt by celebrating and taking
credit for the crimes.
The court concluded evidence of Logan’s violent nature and its
engagement in illegal activities was admissible pursuant to Evidence Code
section 352 because Alvarado’s reference to other homies being there shows the
robbery “was a coordinated, planned robbery with the assistance of gang
members and as a result of the gang-related type of activity that the Logan Red
Steps engage in.” It found the gang evidence was relevant to prove appellants’
“intent, motive, conspiracy and aiding and abetting.” The court also ruled the
gang expert could explain and interpret appellants’ tattoos.
At trial, detective Kevin Janknowski testified as a gang expert for the
People. He explained that he had spent the last five years of his career working
on Logan gang cases. He investigated crimes involving Logan gang members,
including numerous shootings “that were not initially known to be gang-related,
but wound up being gang-related.” Jhason and appellants were all about the

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same age at the time of the incident (18 to 19 years old), were Logan gang
members, and had about the same level of seniority in Logan.
When asked why the police monitor gang members, Janknowski replied:
“So gang members, by their very nature, are extremely dangerous. And it’s . . . a
growing problem within the city of San Diego. Gang members operate by a
different set of rules.” The court took a break to consider a lack of foundation
objection. The court ruled that “this witness has not shocked the conscience of
the jury, so I’m not going to agree with you on that, [defense counsel]. I see the
majority of what’s been testified to up to this point as foundational.”
The court then stated: “And then I think more than anything, the reason
the court allowed limited testimony about gang evidence in this case is because
there was overwhelming evidence to corroborate, based upon photos, videos, and
tattoos, that the jury could find that each of the defendants in this case are
members of the Logan Heights Red Steps. [¶] Then the issue was beyond that,
a limited inquiry with respect to—was more an issue of loyalty and how they
operate together and how they operate in concert with each other in a very
limited way.”
When back on the record, Janknowski stated Logan existed to commit
violent crimes, as well as other illegal activities, and he monitored Logan to
prevent violent crimes. Logan gang members either use hand signs or symbols
such as tattoos or graffiti to claim a territory, threaten community members,
indicate to other gang members and community members that they are gang
members and to identify each other as being gang members from that particular
set. The whole point of the Logan gang is to commit violent crimes and Logan
gang members frequently commit crimes together because it allows the gang
members to trust each other and gives them a greater chance of success.

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Logan gang members “are very proud” to be part of Logan and “frequently
get all sorts of different tattoos that generally signify to not only themselves but
to other members of their gang that they’re proud of being [Logan] gang
members.” They will get tattoos to commemorate a gang member’s death or
some violent act they committed on behalf of the gang, typically in places where
the tattoos are obvious to not only other gang members, but also members of the
public. Logan gang members will also get tattoos while in custody to
commemorate the event for which they are in custody. A deputy sheriff who
worked in a detention facility testified that on February 17, 2021, he noticed
Garcia had two fresh tattoos, “LH” on the right cheek of his face, and another
“LH” on his right hand. The tattoos are associated with the Logan gang.
Logan gang members increase their status within the gang by killing
someone in association with another Logan gang member. Logan gang members
are expected to arm themselves to conduct gang business. Logan gang members
do not exclusively carry weapons for protection and Janknowski has
investigated numerous shootings where Logan gang members have offensively
attacked rival gang members or general members of the public, either by
shooting them or displaying a firearm in such a manner that persons feared for
their safety.
B. General Legal Principles
“Given its highly inflammatory impact, the California Supreme Court
has condemned the introduction of [gang-related] evidence if it is only
tangentially relevant to the charged offenses.” (People v. Albarran (2007)
149 Cal.App.4th 214, 223 (Albarran).) In 2021, “the Legislature passed
Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), known as
the STEP Forward Act of 2021.” (People v. Burgos (2024) 16 Cal.5th 1, 7.)
Among other things, Assembly Bill 333 “added . . . section 1109, which

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provides that, if requested by the defense, a trial court must try a gang
enhancement charge separately from the underlying offense.” (Burgos, at
p. 7.) “In enacting Assembly Bill 333, the Legislature made several findings
and declarations related to . . . section 1109’s bifurcation provisions. The
Legislature declared that ‘[g]ang enhancement evidence can be unreliable
and prejudicial to a jury because it is lumped into evidence of the underlying
charges which further perpetuates unfair prejudice in juries and convictions
of innocent people.’ ” (Burgos, at p. 10.)
Nonetheless, section 1109 does not disturb existing case law holding
that gang evidence may be admitted to prove substantive crimes. (People v.
Chhoun (2021) 11 Cal.5th 1, 31 (Chhoun).) Generally, gang evidence “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.” (Albarran, supra, 149 Cal.App.4th at p. 223.) For example,
gang evidence “ ‘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.’ ” (Chhoun, at p. 31.)
If gang “evidence is found to be relevant, the trial court must carefully
scrutinize [such] evidence before admitting it because of its potentially
inflammatory impact on the jury.” (Albarran, supra, 149 Cal.App.4th at
p. 224.) Under Evidence Code section 352, the trial court may, in its
discretion, exclude gang evidence if its probative value is substantially
outweighed by the probability that its admission will create substantial
danger of undue prejudice. The decision on whether gang evidence is
relevant and not unduly prejudicial rests within the broad discretion of the
trial court. (Albarran, at pp. 224–225.) We will not disturb a trial court’s
exercise of discretion “ ‘ “except on a showing that the [trial] court exercised

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its discretion in an arbitrary, capricious or patently absurd manner that
resulted in a manifest miscarriage of justice.” ’ ” (Id. at p. 225, italics
omitted.) The appellant bears the burden to demonstrate abuse of discretion
and prejudice. (Ibid.)
“Erroneous admission of gang-related evidence, particularly regarding
criminal activities, has frequently been found to be reversible error, because of
its inflammatory nature and tendency to imply criminal disposition, or actual
culpability.” (People v. Bojorquez (2002) 104 Cal.App.4th 335, 345.) We apply
the Watson3 test to determine whether admitting this evidence was prejudicial.
(See People v. Tran (2022) 13 Cal.5th 1169, 1208–1209.) The analysis “ ‘focuses
not on what a reasonable jury could do, but what such a jury is likely to have
done in the absence of the error under consideration. In making that
evaluation, an appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong, and the
evidence supporting a different outcome is so comparatively weak, that there is
no reasonable probability the error of which the defendant complains affected
the result.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 956.)
C. Analysis
After properly bifurcating the gang enhancements, appellants contend the
trial court erred by admitting gang-related evidence during trial of the
substantive crimes. They contend this evidence was far more prejudicial than
probative and its erroneous admission violated their rights to due process and a
fair trial. As we will explain, no admissible evidence existed showing the crimes
had any connection to the Logan gang. Additionally, the gang-related evidence
was either cumulative of other admissible evidence, or not relevant to proving
3 People v. Watson (1956) 46 Cal.2d 818, 836.

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the substantive crimes. Accordingly, admission of this evidence led to a
miscarriage of justice and appellants’ convictions must be reversed.
Although appellants and Jhason are Logan gang members, there is no
evidence in the record indicating gang signs were thrown, gang threats were
made, or that the crime occurred on gang territory. The trial court concluded,
however, that Alvarado’s reference to other “homies” being at the scene shows
the crime was gang related.
During the undercover operation, Alvarado stated five “homies” were at
the scene but they left after hearing the gunshots. The transcript of the
undercover operation does not support the court’s implied conclusion that
Alvarado’s reference to “homies” meant other Logan gang members. Alvarado
described Garcia as “his friend” and described the other individuals who were at
the scene before fleeing as “friends.” Two prosecution witnesses testified that
Alvarado likely gave a truthful account during the undercover operation and
both believed he had been truthful. During the undercover operation Alvarado
acknowledged being a Logan gang member. Notably, one of the undercover
operatives testified that gang members are comfortable indicating when certain
actions are done for a gang and he did not believe that during the undercover
operation Alvarado made any statements indicating the incident was gang
related.
Finally, during the undercover operation, Alvarado denied committing the
robbery for any gang-related purpose. That exchange went as follows:
“Salas: “And how did that one play out, perrito? That one
was gang related, enemigos or? Translation: “And how did
that one play out, dog? That one was gang related,
enemies, or ?
“Alvarado: “No, it wasn’t it was just—

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“Salas: “Some random shit, stupid shit.
“Alvarado: “It was supposed to be just a robbery.”
The People argue it is unclear from this exchange whether Alvarado was
saying the crime was not at all gang related, or if he was only saying the crime
did not involve a Logan gang enemy. We believe a fair reading of this exchange
shows Alvarado denied any gang purpose, including no purpose related to a
Logan gang enemy. One of the undercover participants interpreted this
exchange as Alvarado stating the incident was not gang related. This same
operative stated such operations are more likely to elicit truthful information
than the usual police interrogation because the person is unaware he’s talking to
a police officer. A detective who listened to the operation live stated Alvarado
had no idea he was speaking with undercover operatives and confirmed
Alvarado was being truthful in this situation. Jankowski confirmed the
transcription reflected a denial by Alvarado of any gang-related activity or
involvement with gang enemies.
Thus, the evidence, and inferences therefrom, suggest the unknown people
that Alvarado claimed were present, were not there for a gang purpose and the
incident was not gang related. Even assuming an inference can be drawn that
the crimes were gang related, the gang evidence admitted at trial had little, if
any, relevance to proving the substantive crimes.
Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is
relevant if it has “any tendency in reason to prove or disprove any disputed fact
that is of consequence to the determination of the action.” (Evid. Code, § 210.)
The court may exclude relevant evidence “if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue

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consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Before trial, the court found gang evidence relevant to prove, “intent,
motive, conspiracy and aiding and abetting” between appellants. The court also
ruled the gang expert could explain and interpret appellants’ tattoos. The
People do not argue the gang-related evidence admitted at trial was relevant to
identity or motive. Instead, they contend this evidence was relevant to prove:
(1) a conspiracy and aiding and abetting; (2) intent to rob; and (3) that Alvarado
was a major participant in the shooting. We are not persuaded.
The People claim the court properly found the gang evidence relevant to
prove appellants’ intent to rob Eduardo. The People, however, provided no
analysis explaining how the gang-related evidence proved this intent.
Arguments such as this that “are bereft of factual underpinning” require no
discussion.” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) In any event,
the People’s assertion is meritless. During the undercover operation, Alvarado
admitted he and Garcia were together to commit a robbery. Accordingly, gang
evidence was not required to prove appellants’ intent to rob Eduardo.
“ ‘Evidence is sufficient to prove a conspiracy . . . “if it supports an
inference that the parties positively or tacitly came to a mutual understanding
to commit a crime. [Citation.] The existence of a conspiracy may be inferred
from the conduct, relationship, interests, and activities of the alleged
conspirators before and during the alleged conspiracy.” ’ ” (People v. Penunuri
(2018) 5 Cal.5th 126, 145.) The People claim gang evidence was relevant to
show a conspiracy between appellants and Jhason to commit robbery, the
underlying crime for the felony murder charged in count 1.
Specifically, the People contend the evidence showing appellants’ and
Jhason’s membership in the same gang was required to support the inference of

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a conspiracy and show they had agreed to rob Eduardo because no direct
evidence existed that (1) appellants agreed with Jhason’s suggestion to rob
Eduardo, and (2) Alvarado’s admission during the undercover operation that
they were supposed to commit a robbery never mentioned Garcia by name.
While we agree no direct evidence established these two points, other
circumstantial evidence established these points without the need to present
any gang-related evidence.
During the undercover operation Alvarado never mentioned Garcia by
name. Nevertheless, abundant evidence existed showing Alvarado’s relationship
with Garcia and Garcia’s participation in the shooting. Jankowski testified that
social media posts between appellants revealed a preexisting relationship dating
back to about 2019. Evidence collected at the scene contained appellants’ DNA
on items inside Eduardo’s car, including the ghost gun. This evidence shows
Garcia’s participation in the shooting.
Other evidence adduced at trial showed appellants’ relationship. Alvarado
stated he was with one person and Ruben confirmed two people arrived for the
gun sale transaction. Alvarado referred to the person with whom he committed
the robbery, Garcia, as his “friend.” Garcia used Alvarado’s phone to plan the
robbery with Jhason. Jhason sent Garcia an audio message where he said he
“was going to slide you this fools ‘@’ so you can rob him.” Jhason also sent an
audio message to Garcia’s account that “he” wanted the gun and Jhason told
“him” it cost $750, and Garcia should “save him” $150 or at least $50 from the
sale. Significantly, Garcia’s cell phone and Alvarado’s cell phone contained the
same message stream with Eduardo regarding sale of the ghost gun and
meeting at the location where the incident occurred. This evidence shows the
existence of a conspiracy to rob Eduardo without the need to present any gang

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evidence. This evidence also shows aiding and abetting without the need to
refer to any gang-related evidence.4
The People also fail to convince us they required gang-related evidence to
show Alvarado was a major participant in the robbery. To find Alvarado guilty
of Eduardo’s murder, the People were required to prove he was a major
participant in the robbery and acted with reckless indifference to human life.
(CALCRIM No. 540B) The People do not contend gang evidence was required to
prove a reckless indifference to human life, which is a fact based inquiry. To
determine whether Alvarado was a major participant in the robbery the court
instructed the jury to consider all the evidence and certain factors, including:
(1) What was the defendant’s role in planning the crime that led to the death?;
(2) What was the defendant’s role in supplying or using lethal weapons?;
(3) What did the defendant know about dangers posed by the crime, any
weapons used, or past experience or conduct of the other participants?; (4) Was
the defendant in a position to facilitate or to prevent the death? (5) Did the
defendant’s action or inaction play a role in the death?; and (6) What did the
defendant do after lethal force was used?
Garcia used Alvarado’s phone to plan the robbery with Jhason. Garcia’s
cell phone and Alvarado’s cell phone contained the same message stream with
Eduardo regarding sale of the ghost gun and meeting at the location where the
incident occurred. Thereafter, Alvarado and Garcia got into Eduardo’s car, both
4 A “person aids and abets the commission of a crime when he or she,
acting with (1) knowledge of the unlawful purpose of the perpetrator, and (2)
the intent or purpose of committing, encouraging, or facilitating the
commission of the offense, (3) by act or advice aids, promotes, encourages or
instigates, the commission of the crime.” (People v. Beeman (1984) 35 Cal.3d
547, 561.) Companionship, and conduct before and after the crime, are
factors that may be considered in deciding aiding and abetting. (People v.
Lara (2017) 9 Cal.App.5th 296, 322.)

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armed with a loaded firearms, which they used. This evidence showed
Alvarado’s major participation in the incident without the need for any gang-
related evidence.
Here, the evidence presented at trial concerning the Logan gang lacked
probative value because it was largely irrelevant to prove intent, motive,
conspiracy, aiding and abetting, or that Alvarado was a major participant. The
gang evidence, however, was inflammatory and prejudicial because it informed
jurors that appellants belonged to a gang whose primary purpose was to commit
violent crimes, gang members frequently commit crimes together, and killing
someone in association with another Logan gang member increases that person’s
status within the gang. The jury also learned that Logan gang members will get
tattoos while in custody to commemorate the event for which they are in custody
and Garcia obtained two Logan tattoos on his face and hand while in custody.
To the extent the gang-related evidence had any relevance to prove the
substantive crimes, the issue becomes whether the prejudicial nature of this
evidence exceeded its probative value. As detailed above, the probative value of
the gang-related evidence was minimal at best. Moreover, to the extent
appellants’ membership in the same gang had any relevance to the substantive
crimes, it was cumulative of other evidence in the record showing appellants
knew each other and, as Alvarado stated, were friends. (People v. Maestas
(1993) 20 Cal.App.4th 1482, 1495 [in case with compelling and overwhelming
other evidence of codefendants’ close relationship and affinity for one another,
evidence they allegedly belonged to the same criminal street gang was
cumulative and prejudicial].)
“As part of the [Evidence Code] section 352 prejudice analysis, courts
consider whether the trial court gave a limiting instruction. A limiting
instruction can ameliorate [Evidence Code] section 352 prejudice by eliminating

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the danger the jury could consider the evidence for an improper purpose.”
(People v. Hendrix (2013) 214 Cal.App.4th 216, 247.) Here, the trial court gave
the standard limiting instruction, CALCRIM No. 1403 telling the jury it could
consider evidence of gang activity for the limited purpose of determining intent,
motive, aiding and abetting, conspiracy, and in evaluating credibility.5
We normally presume jurors follow such instructions (People v. Homick
(2012) 55 Cal.4th 816, 866–867), however, there are “times when the evidence is
so potent or inflammatory that this presumption is overcome.” (People v. Dallas
(2008) 165 Cal.App.4th 940, 958.) We need not address the question whether
this is one of those times where the presumption is overcome because CALCRIM
No. 1403 allowed the jury to use the evidence to “evaluate the credibility or
believability of a witness.” While there is no dispute that Alvarado shot at
Ruben and Garcia shot and killed Eduardo, what led to these shootings was
largely a credibility contest between Ruben and Alvarado. Garcia’s counsel
recognized this fact in closing argument—that Ruben’s version of the evidence
5 CALCRIM No. 1403 provided: “You may consider evidence of gang
activity only for the limited purpose of deciding whether:
•A defendant acted with the intent, purpose, or knowledge that are
required to prove the crimes, allegations, and special circumstance
charged.
•A defendant had a motive to commit the crimes charged.
•A defendant aided and abetted another defendant in the commission
of the crimes charged in this case.
•A defendant or uncharged co-conspirator intended to participate in a
conspiracy in this case.
You may also consider this evidence when you evaluate the credibility
or believability of a witness and when you consider the facts and information
relied on by an expert witness in reaching his or her opinion. [¶] You may
not consider this evidence for any other purpose. You may not conclude from
this evidence that the defendant is a person of bad character or that he has a
disposition to commit crime.”

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would lead down the path of guilt, while Alvarado’s version of the evidence
shows Ruben pulled out a gun before appellants started the robbery.
“ ‘Legions of cases and other legal authorities have recognized the
prejudicial effect of gang evidence upon jurors. [Citations.]’ [Citation.] That
prejudice not only affects the jurors’ assessment of the defendants’ credibility,
but also taints their view of events with the inference of the defendants’ criminal
disposition.” (People v. Memory (2010) 182 Cal.App.4th 835, 862, fn. omitted.)
The risk of injecting undue prejudice is particularly high where, as here the
gang enhancement allegations have been bifurcated and the probative value of
the gang evidence is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040,
1049–1050.)
Alvarado’s and Ruben’s credibility was central to the case and admission
of the gang-related evidence which had little, if any, relevance to the substantive
crimes, likely bolstered the People’s case by tarnishing Alvarado’s credibility in
the jurors’ minds, and painting appellants as violent gangsters. Ruben agreed
the gun sale transaction was supposed to be quick, he did not know why
Eduardo drove after appellants got inside the car, and agreed this did not make
sense. Ruben denied trying to rob appellants and denied ever discussing the
idea of robbing appellants in lieu of paying for the gun. But other evidence cast
serious doubt on Ruben’s credibility.
About a year after Eduardo died, Ruben lied to police for a friend who was
trying to get money from a fake insurance claim. He pled guilty and was on
probation at the time of trial. Ruben admitted to lying to the police a second
time regarding a friend who crashed his car during a street race, even going so
far as to stage the scene to appear as an accident. Finally, after Ruben received
a “fix it” ticket to correct some issues regarding his car, he went into court with

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a document stating the issues had been remedied. He admitted the document
was fake and he had lied to the court.
We next consider what impact the prosecutor’s argument may have had on
the prejudice resulting from admission of the gang-related evidence. For
purposes of determining whether the error was harmless we may consider
whether the prejudicial effect is reduced or exacerbated by a prosecutor’s closing
argument. (See People v. Miller (1963) 211 Cal.App.2d 569, 577 [“We feel that
the effect of any impropriety [of questions asked by the prosecutor on cross-
examination of defendant] was cured by the statement of the district attorney in
his argument to the jury.”].)
During closing argument, the prosecutor emphasized the gang nature of
the murder. Immediately after thanking the jury for their attention, she argued
Jhason, appellants and other Logan gang members conspired to commit armed
robbery for their own profit and to profit the gang. She commented that Garcia
got tattoos while in jail to commemorate the work he did for the gang. Toward
the end of her argument the prosecutor stated:
“And then we have the criteria of what is the individual’s
knowledge of the person he is committing the crime with[.]
This, ladies and gentlemen, is why you heard about the
gang evidence in this case. It’s because it goes to an
element of the crime. And I want to be very clear about the
purpose and the nature and the scope of gang evidence in
this case. It is a complicated world out there. There are
people who have associations and friendships with
individuals who might be criminally involved, involved in
gangs, what have you. That doesn’t necessarily mean that
you’re a horrible person or you’re ever going to do anything
that comes to the level of killing anyone.
“So the gang evidence that you received in this case is not
being offered or argued to try to say that someone is a bad
person or someone is predisposed to commit a crime. But
what you can consider that evidence for is Armando

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Alvarado’s knowledge and Angel Garcia’s knowledge about
what it is that they are signing up for. And so that gang
evidence is heard by you for that very specific purpose.
“So to begin, you heard about the Logan Red Steps. They
are not the Girl Scouts. They are not a book club. They are
not a pickle ball league. They are a criminal enterprise.
They exist for the primary purpose of criminal activity
within San Diego to include violent crime. And so you
know that if you are a Logan Red Step gang member that is
what it is you are signing up to do with your fellow gang
members.
“There are also expectations that come with being a Logan
Red Step gang member. You are expected to be armed on
behalf of gang business. You are expected to rely on other
gang members and have them rely on you in the
commission of gang business. You are expected to back
each other up.
“You also have a longstanding nature and the closeness of
the relationship that Armando Alvarado and Angel Garcia
have. You saw that photo where Angel Garcia calls
Armando Alvarado his stepbrother from a year before this
ever took place. That photo captured from December of
2019. They have their matching “619” tattoos. These are
not individuals who met the day that this crime happened
or the week before this crime happened. These are
individuals who know each other well. They trust each
other. And they know what the expectations are for that
lifestyle that they’ve signed up for. It’s this.”
The prosecutor emphasized other gang members were at the scene for
“reinforcement”—reiterating this point three times. As we will explain, this
argument is unsupported by admissible evidence. During a hearing on the
motions in limine, the court “painstakingly” reviewed court’s exhibit 2 with
counsel, the entire transcript of the undercover operation, and ruled on what
portions would be given to the jury. Based on the court’s rulings, the People

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created People’s exhibit 130, the revised video and audio recording, and People’s
exhibit 130A, the written transcript.
In court’s exhibit 2, the unofficial copy of the transcript, when one of the
undercover operators asked Alvarado whether “[t]hey went together like for
reinforcement” Alvarado responded: “Uh-huh, one supposedly I don’t he said he
got off and shot at the one who was the one that was running, but I don’t even
believe him.” Alvarado’s counsel requested that lines 20 to 24, Alvarado’s
response, be deleted because it was unclear what Alvarado was referring to
when he responded. The court interpreted Alvarado’s response as referring to
an individual who drove appellants to the scene and who may have fired a
weapon. Alvarado’s counsel interpreted the response as other people later
informing Alvarado that when Ruben fled the scene someone other than
appellants may have fired a weapon at Ruben.
After the prosecutor stated she had “no strong feelings” about this
evidence, the court ruled that lines 20 through 24 would be deleted. In
accordance with this ruling, the transcript given to the jury contains no response
from Alvarado after the undercover operator asked him whether “[t]hey went
together like for reinforcement.” At trial, during redirect, this undercover
operator violated the court’s in limine ruling by stating Alvarado agreed the
individuals were there for reinforcement and not just to provide Alvarado a ride
after the robbery. The prosecutor then relied on this improper testimony to
argue to the jury that the unknown individuals acted as gang reinforcement.
Finally, during rebuttal argument, the prosecutor stated: “[Defendants]
did everything they could to make this crime as dangerous as they could possibly
make it. When you have handguns in the hands of any person with bad
intentions, that is a recipe for dead. When you have guns in the hands of armed
gang members who are planning on using them and are prepared to use them

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and, in fact, do, death is a foregone conclusion.” The prosecutor’s argument
exacerbated the prejudicial effect of the gang-related evidence.
We conclude the probative value of the gang-related evidence was de
minimis and substantially outweighed by a probability admitting that evidence
would unduly prejudice appellants. The jury heard that appellants were Logan
gang members, gang members are extremely dangerous, the purpose of the
Logan gang is to commit violent crimes, gang members frequently commit
crimes together, and obtain status within the gang by killing.6 This evidence
fell squarely within the legal definition of prejudice because it evokes an
emotional bias and had no evidentiary value in proving the substantive crimes.
The prejudice created by the nonprobative gang-related evidence was
undoubtedly intensified by how the prosecutor used the evidence in closing
argument. By portraying appellants’ as violent gangsters, the gang-related
evidence harmed Alvarado’s credibility and unjustly bolstered Ruben’s
credibility, whose trustworthiness was otherwise doubtful.
Having reviewed the entire record, we find “at least such an equal balance
of reasonable probabilities as to leave [us] in serious doubt as to whether the
error has affected the result. But the fact that there exists at least such an
equal balance of reasonable probabilities necessarily means [we must be] of the
opinion ‘that it is reasonably probable that a result more favorable to
[appellants] would have been reached in the absence of the error.’ ” (Watson,
6 The trial court’s decision during trial to admit gang evidence to
establish that appellants were gang members raises concerns as it seems to
override its earlier ruling that such evidence was relevant only to
demonstrate “intent, motive, conspiracy, and aiding and abetting” among
appellants. In cases like this, where gang enhancements are not at issue,
gang-related evidence is inadmissible unless it is logically relevant to a
material issue in the case beyond character evidence. (Albarran, supra,
149 Cal.App.4th at p. 223.) Here, the record does not indicate appellants’
gang membership was material to the case.

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supra, 46 Cal.2d at p. 837.) For purposes of Watson review, “a hung jury is a
more favorable result than a guilty verdict.” (People v. Soojian (2010)
190 Cal.App.4th 491, 521.) Because the court prejudicially abused its discretion
under Evidence Code section 352 by admitting the gang-related evidence, we
reverse appellants’ convictions.
II. NO ERROR IN EXCLUDING STOLEN BB GUN EVIDENCE
A. Background
Eduardo sold marijuana. Before trial, Garcia’s counsel moved to admit
evidence from Eduardo’s girlfriend, N.Z., that Eduardo had previously “robbed”
a rival marijuana dealer of his “stuff,” including a firearm. At a pretrial
hearing, the court informed counsel it would conduct an Evidence Code
section 402 hearing to establish the relevancy of the proposed evidence.
At trial, Ruben testified that Eduardo had a replica firearm that looked
like a handgun. Ruben did not see Eduardo with anything that resembled a gun
the night of the incident. He also did not know if Eduardo had a real gun or a
replica handgun in the car that night. At the Evidence Code section 402
hearing, N.Z. stated she had dated Eduardo for two years. She knew Eduardo
had two handguns, one small and silver, and the other black and longer. She
rarely saw the silver handgun in Eduardo’s car, and never saw the black
handgun in person. Eduardo also had a small black BB handgun with an orange
tip, that Eduardo claimed to have stolen from the car of a former school
classmate and drug dealer named Sergio. Eduardo stole the BB gun about
10 months before his death. N.Z. saw the BB gun inside Eduardo’s car only one
time about five months before Eduardo passed and believed Eduardo gave the
BB gun to a friend.
After hearing argument from counsel, the court excluded the proposed
evidence regarding theft of the BB gun under Evidence Code Section 352 finding

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its probative value was substantially outweighed by the probability its
admission would create a substantial danger of undue prejudice, of confusing
the issues in this case, and misleading the jury. Assuming the hearsay
statement qualified as a statement against penal interest, the court concluded it
lacked reliability.
B. Analysis
Appellants contend the trial court committed prejudicial error by
excluding N.Z.’s testimony because Eduardo’s statement to her regarding
stealing the BB gun was admissible as a statement against his penal interest.
They further assert this evidence supported the defense theory of the case and
its exclusion prejudiced them.
Hearsay is generally inadmissible unless it falls under an exception.
(Evid. Code, § 1200, subd. (b).) Evidence Code section 1230 is one such exception
for a statement that, “when made, . . . so far subjected [the declarant] to the risk
of . . . criminal liability . . . that a reasonable man in his position would not have
made the statement unless he believed it to be true.” The rationale underlying
the exception is that “ ‘a person’s interest against being criminally implicated
gives reasonable assurance of the veracity of his statement made against that
interest,’ thereby mitigating the dangers usually associated with the admission
of out-of-court statements.” (People v. Grimes (2016) 1 Cal.5th 698, 711
(Grimes).) We review a trial court’s decision whether a statement is admissible
under Evidence Code section 1230 for abuse of discretion. (People v. Lawley
(2002) 27 Cal.4th 102, 153.)
“To demonstrate that an out-of-court declaration is admissible as a
declaration against interest, ‘[t]he proponent of such evidence must show that
the declarant is [1] unavailable, that [2] the declaration was against the
declarant’s penal interest when made and that [3] the declaration was

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sufficiently reliable to warrant admission despite its hearsay character.’ ”
(Grimes, supra, 1 Cal.5th at p. 711.) Nonetheless, Evidence Code section 1230 is
also subject to Evidence Code section 352. (People v. Cudjo (1993) 6 Cal.4th 585,
609 (Cudjo).) A court’s determination under Evidence Code section 352 is also
reviewed for abuse of discretion. (Cudjo, at p. 609.)
For purposes of analysis, we will assume Eduardo’s declaration to N.Z.
qualified as statements against his penal interest.7 The court, however,
properly excluded the evidence under Evidence Code section 352. Eduardo’s act
of stealing a toy BB gun with an orange tip had no probative value to support
Alvarado’s claim Ruben had pointed a replica firearm at him that Alvarado
believed was real. Admitting evidence of this theft would have distracted and
confused the jurors because theft of a toy firearm at some unknown date in the
past was dissimilar to the facts of the present case.
Even assuming the court erred in excluding Eduardo’s statements to N.Z.,
the assumed error was harmless. Appellants had a meaningful opportunity to
present a complete defense despite the exclusion of these statements. (See
People v. Guillen (2014) 227 Cal.App.4th 934, 1019 [“a defendant has no
constitutional right to present all relevant evidence in his favor,” and “ordinary
evidentiary rules do not impermissibly infringe on the defendant’s right to
present a defense”].) Ruben testified that Eduardo had a replica firearm that
looked like a real handgun. He also agreed that airsoft guns look like a real
firearms and a person could not tell it was fake without touching it.
7 Eduardo was unavailable and his statements to N.Z. were against his
penal interest when made. Although the court concluded Eduardo’s
declaration as unreliable, “[e]xcept in . . . rare instances of demonstrable
falsity, doubts about the credibility of the in-court witness should be left for
the jury’s resolution; such doubts do not afford a ground for refusing to admit
evidence under the hearsay exception for statements against penal interest.”
(Cudjo, supra, 6 Cal.4th at p. 609.)

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Additionally, excluding this evidence did not deprive appellants of their ability
to use Alvarado’s statements during the undercover operation to argue Eduardo
and Ruben tried to rob them. Accordingly, any assumed error in excluding this
evidence was harmless.
DISPOSITION
The judgments are reversed.
HUFFMAN, Acting P. J.
WE CONCUR:
O’ROURKE, J.
KELETY, J.

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Filed 12/31/24
CERTIFIED FOR PUBLICATION§§
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
ANGEL GARCIA et al.,
Defendants and Appellants.
D082237
(Super. Ct. No. SCD288314)
ORDER CERTIFYING OPINION
FOR PARTIAL PUBLICATION
THE COURT:
The opinion in the above-entitled matter filed December 12, 2024, was
not certified for publication. It appearing the opinion meets the standards for
partial publication specified in California Rules of Court, rule 8.1105(c), the
requests pursuant to rule 8.1120(a) for publication are GRANTED IN PART.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
partial publication specified in California Rules of Court, rule 8.1105(c); and
§§ Pursuant to California Rules of Court, rule 8.1110, this opinion is
certified for publication with the exception of part II.

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ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page 1 of said opinion be deleted and the opinion herein be
published in part in the Official Reports.
HUFFMAN, Acting P. J.
Copies to: All parties

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