P. v. Anderson

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Filed 11/19/18 P. v. Anderson CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
VERNON ANDERSON,
Defendant and Appellant.
A136451
(City & County of San Francisco
Super. Ct. No. 206013)
Defendant Vernon Anderson appeals a judgment convicting him of, among other
things, first degree murder, multiple robberies and participation in a criminal street gang
and sentencing him to 189 years to life in prison. On appeal, he contends the court made
numerous procedural, instructional and evidentiary errors, and he challenges the
sufficiency of the evidence in support of specific findings by the jury. He also asserts
numerous errors regarding his sentence. We agree that remand for resentencing is
necessary but affirm the judgment in all other respects.
Factual and Procedural Background
Defendant was charged by amended information with first degree murder (Pen.
Code, § 187),1 participation in a criminal street gang (§ 186.22, subd. (a)), two counts of
second degree robbery (§ 212.5, subd. (c)), three counts of attempted robbery (§§ 664,
212.5), conspiracy to commit second degree robbery (§ 182, subd. (a)(1)), and two counts
1 All statutory references are to the Penal Code unless otherwise noted.

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of discharging a firearm at an inhabited dwelling (§ 246). With respect to count one, the
information alleged that defendant personally used a firearm (§ 12022.5, subd. (a)(1)) and
discharged a firearm causing death (§ 12022.53, subds. (d), (e)). With respect to counts
three through seven, the information alleged that defendant personally used a firearm
(§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). With respect to counts one and three
through seven, it was alleged that defendant committed the offenses for the benefit of a
criminal street gang within the meaning of section 186.22, subdivision (b)(1)(C). With
respect to counts eight through ten, it was alleged that defendant committed the offenses
for the benefit of a criminal street gang within the meaning of section 186.22, subdivision
(b)(1)(B).
The following evidence was presented at trial:
On September 15, 2006, Zachary Roche-Balsam, the homicide victim, attended a
party in the Ingleside-Lakeview district of San Francisco with a group of friends
including Keith, Bella, Yana, Ryan, and Justin.2
At some point, a group of about 8 to 12 young African-American men arrived.
Ryan testified that the group seemed out of place at the party and another guest, Heather,
agreed that the appearance of the group seemed “odd” because no one seemed to know
them. Heather identified defendant as having been one of the group. Around 12:30 a.m.,
the host of the party approached and spoke to members of this group, and they began to
leave.
Sometime later, the group of men that had been asked to leave the party began
gathering across the street. David testified that the group seemed to be looking to start
trouble with another African-American guest. The individuals in the group were asking
the guest if he was from Sunnydale, to which the man replied that he did not know “any
Dale.” The group members asked the man what he “was claiming,” to which he answered
2 We refer the these and other witnesses by their first names to respect their privacy. No
disrespect is intended.

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that he was not claiming anything. David intervened at this point, telling the group that
the man was not claiming anything and that the man did not want any trouble. At this, the
group backed off and David and the guest went back into the house. David identified
defendant in court as having been among the men across the street from the party.
Around 2:00 a.m., the host announced that the party was over and began turning
out the lights in the house. The host added that the police would be arriving in about
10 minutes. When the host announced the end of the party, someone from the group of
men gathered across the street said it would not take 10 minutes to “beat his ass.”
Bella left the party and was standing in the street when a man approached her and
started tugging at her purse. She let go of her purse because she saw the man had a gun.
She identified defendant in court as the man who took her purse.
As Yana was leaving the party, a young African-American man yanked her purse
from her shoulder, saying “Give me your shit.” He ripped the strap and ran away with her
purse.
Ryan testified that as he was preparing to leave the party, he saw a man from the
group of young men that had congregated across the street approach Bella and Yana and
take their purses. At the same time, another man from the group approached him and
demanded that he empty his pockets and surrender his wallet and his phone. The man
displayed what Ryan believed was not a real gun. Ryan hit the man in the jaw and the
man fell to the ground. As the man arose, Ryan grabbed Bella and Yana and started
walking away.
Justin was standing outside the party with Keith when the party ended. He noticed
a group of approximately eight to ten African-American males gathered in the middle of
the street in front of the party house. One of the men pulled out a gun and ordered
everyone outside the house to empty their pockets. One of the other men in this group
approached Justin and tried to go through his pockets. Justin told the man he did not have

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anything. Justin and the man began shoving each other, but the fight did not escalate. At
the same time, he saw someone snatch Bella’s purse.
Keith was outside the house shortly before the party broke up. He recalled seeing
the group of men accost the guest who was asked if he was from Sunnydale. After that
incident, the group huddled across the street. One of the men approached him and Justin.
The man had a pistol, which he brandished near their heads. He demanded money, but
when they said they did not have any, the man moved on. A second man approached
holding what appeared to be a rifle. He told everyone to get on the ground and then began
shooting the rifle.
Of the 19 shots fired, one of the bullets went through the front window of the party
house, two of the bullets went towards a house up the block, and five bullets hit and
killed Zachary Roche-Balsam. No witness provided a clear identification of the shooter.3
Defendant was interviewed by the police on April 9, 2007, and the interview was
recorded and played for the jury. He acknowledged having been at the party where the
shooting occurred, but stated that he stayed for only about 30 minutes and left before the
shooting. He only learned the next day that someone had been shot at the party.
Juan also attended the party the night of the shooting. Around 1:45 a.m., he left to
get some beer. He asked a group of about four or five African-American men who were
standing outside the house where he could buy beer. One of the men, whom Juan
identified in court as defendant, gave him directions. When he returned to the house at
about 2:15 a.m., he saw the victim lying on the ground outside the house.
Terry, a police informant who was housed with defendant in San Francisco
County jail, testified that defendant told him that he and his friends went to the party but
that defendant did not like it very much because it was for a bunch of white college
3 Keith testified that when he met with police investigators he identified the shooter from
a photograph but that he also told them he “wasn’t sure if it’s the same person or not.” He
explained, “I couldn’t positively identify anyone, but I said this person, you know,
resembles, possibly could be” the shooter.

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students. One of defendant’s friends raised the idea of robbing the guests. They went to
defendant’s house and got a BB gun. Then they decided to make some calls and get some
real weapons. After obtaining a rifle and a second gun, they returned to the party and
robbed some of the partygoers. When one of the boys fought back, two of defendant’s
friends started shooting. Two, three or four shots were fired. Defendant’s friend shot one
of the partygoers.
San Francisco Police Officer Barry Parker was qualified as an expert on criminal
street gangs in San Francisco’s Lakeview district. He testified that in September 2006 the
Randolph Mob was a criminal street gang operating in the Lakeview district, and that
defendant had been a member of the gang since 2003. He testified to defendant’s and his
accomplices’ membership in the gang and to the predicate offenses supporting the gang
allegations. Parker opined, based on a hypothetical, that the crimes were “gang related.”
He reasoned that gangs in San Francisco are extremely territorial and the party occurred
in an area where the Randolph Mob considered their turf. In addition, he relied on the fact
that all but one of the men who were in the group that night were documented members
of the Randolph Mob. He also pointed to the encounter between members of the group
and the African-American male whom they asked whether he “claimed” Sunnydale, an
area which the Randolph Mob considered hostile. Officer Parker opined that the crimes
were committed for the benefit of the Randolph Mob because they elevated the gang’s
status among the other San Francisco gangs and spread fear of the gang in the Lakeview
neighborhood.
Defendant presented two witnesses to support his claim that he was not one of the
men who engaged in the robberies and shooting that night. One challenged the credibility
of the police informant and an expert witness challenged the validity of the eyewitness
identifications.
The jury found defendant guilty as charged, except that it found only that a
principal, not defendant, had discharged a firearm causing death.

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Defendant was sentenced as follows: For his conviction for first degree murder,
defendant was sentenced to 25 years to life plus an additional term of 25 years to life for
the gang-related weapons enhancement. For both of the robbery convictions, defendant
was sentenced to one-third the midterm or 12 months, plus a term of 25 years to life for
the gang-related weapons enhancement, and for each of the three attempted robbery
convictions defendant was sentenced to one-third the midterm or eight months, plus a
term of 25 years to life for the gang-related weapons enhancement. On count 9,
discharging a firearm at an inhabited dwelling, defendant was sentenced to the midterm
of five years, with an additional five years for the gang enhancement. A similar
concurrent term was imposed for the second count of discharging a firearm at an
inhabited dwelling. For his participation in a criminal street gang, defendant was
sentenced to a concurrent two-year term. For his conviction of conspiracy to commit
second degree robbery, defendant was sentenced to a concurrent term of two years. The
trial court ordered the determinative terms to run consecutive to the indeterminate terms.
Defendant timely filed a notice of appeal.
Discussion
1. The jury was properly instructed on and necessarily convicted defendant of felony
murder.
The trial court instructed the jury on felony murder under CALCRIM No. 540B.4
The jury was instructed that the defendant “may be guilty of murder, under a theory of
felony murder, even if another person did the act that resulted in the death. I will call the
other person the perpetrator. [¶] To prove that the defendant is guilty of first degree
murder under this theory, the People must prove that: [¶] 1. The defendant committed or
attempted to commit, or aided and abetted, or was a member of a conspiracy to commit
robbery; [¶] 2. The defendant intended to commit, or intended to aid and abet the
4 The jury was also instructed on aiding-and-abetting and conspiracy theories of liability
for murder.

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perpetrator in committing, or intended that one or more of the members of the conspiracy
commit robbery; [¶] 3. If the defendant did not personally commit, or attempt to commit
robbery, then a perpetrator (whom the defendant was aiding and abetting, or with whom
the defendant conspired) personally committed or attempted to commit robbery; AND
[¶] 4. While committing or attempting to commit robbery, the perpetrator caused the
death of another person.”
Although the jury asked a series of questions regarding felony murder, the
questions do not demonstrate undue confusion with regard to the felony-murder
instruction. During deliberations, the jury asked the trial court: “To find Vernon
Anderson guilty of murder under CALCRIM 540B, must we conclude that murder was a
natural and probable consequence of the commission of a robbery or attempted robbery
(or of the conspiracy to commit robbery)?” The trial court sent the following response, to
which both counsel agreed: “To find Vernon Anderson guilty of murder under the theory
of felony murder, the jury does not have to conclude that murder was a natural and
probable consequence of the commission of robbery or attempted robbery. See
CALCRIM 540B [nonkiller liability for felony murder]. [¶] To find Vernon Anderson
guilty of murder under a theory of conspiracy, the jury must unanimously find that
murder was a natural and probable consequence of robbery. See CALCRIM 415
[defining conspiracy] and 417 [defining liability for co-conspirators’ acts].” Later, the
jury asked, “In CALCRIM 540B, #3, is it enough if the perpetrator was an aider and
abettor in the robbery or attempted robbery?” Defense counsel stated that the answers
were within the instructions regarding aiding and abetting and felony murder and asked
the court to simply refer the jury back to those instructions. The court instructed the jury
as follows, “Please see CALCRIM 400 [aiding and abetting] and 540B [nonkiller liability
for felony murder].” Finally, the jury asked, “In CALCRIM 540B, does the prosecution
need to prove that the shooter of Zachary Roche-Balsam personally took property from
another? Or is it sufficient if he used force and fear to assist the ongoing robberies and

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attempted robberies?” Without objection from counsel, the trial court responded to the
jury as follows, “Please refer to CALCRIM 540B [nonkiller liability for felony murder],
1600 [robbery], and 460 [attempt to commit a crime].” The court’s responses correctly
state the law and direct the jury to consider the relevant instructions.
Contrary to defendant’s argument, the court was not required sua sponte to give an
amplifying instruction explaining that under the felony-murder rule the target felonies
and the ultimate fatal shooting must be part of a “continuous transaction” or share a
logical nexus. In People v. Cavitt (2004) 33 Cal.4th 187, 196 (Cavitt), the court held that
“the felony-murder rule does not apply to nonkillers where the act resulting in death is
completely unrelated to the underlying felony other than occurring at the same time and
place. Under California law, there must be a logical nexus—i.e., more than mere
coincidence of time and place—between the felony and the act resulting in death before
the felony-murder rule may be applied to a nonkiller.” The trial court, however, does not
have a sua sponte duty to clarify the logical-nexus requirement. (Id. at pp. 203-204.) “[I]f
the requisite nexus between the felony and the homicidal act is not at issue and the trial
court has otherwise adequately explained the general principles of law requiring a
determination whether the killing was committed in the perpetration of the felony, ‘it is
the defendant’s obligation to request any clarifying or amplifying instructions on the
subject.’ ” (Id. at p. 204.)
In this case, the evidence did not raise an issue as to the existence of a logical
nexus between the robbery and the homicide. Defendant argues, “In the present case, the
evidence before the jury case posed a genuine question as to whether the target felonies
and the fatal shooting were logically connected, even if the temporal connection was not
in doubt. According to Keith . . . , there was a fusillade directed at the party house, which
occurred shortly after the host of the party house told the group of African-American men
who had congregated outside the house that they would have to leave, that the police
would be there in ten minutes, to which one of the men replied that ten minutes was

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enough time for the group to ‘beat [the host’s] ass.’ Around the same time, the group was
challenging another African-American male in a fashion that the police gang expert
thought was gang-related. The presence of a man suspected to be from a rival gang would
have been considered disrespectful by the group, whom Officer Parker considered to be
members of the Randolph Mob, a rival gang. Although it was by no means compelled to
do so, the jury could have concluded that the shooting at the party house was related to
the host’s challenging behavior to the Randolph Mob members on their own turf and to
the presence of a rival gang member at the party rather than to the robbery.”
In Cavitt, supra, 33 Cal.4th at page 205, the court rejected the argument that a
killer’s “personal animus towards the victim of the felony, if credited, should somehow
absolve the other participants of their responsibility for the victim’s death.” The court
explained that liability for felony murder “does not depend on an examination of ‘the
individual state of mind of each person causing an unlawful killing to determine whether
the killing was with or without malice, deliberate or accidental. . . . Once a person
perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment
of the Legislature, he is no longer entitled to such fine judicial calibration. . . .’ [Citation.]
‘The felony-murder rule generally acts as a substitute for the mental state ordinarily
required for the offense of murder.’ [Citation.] Accordingly, a nonkiller’s liability for
felony murder does not depend on the killer’s subjective motivation but on the existence
of objective facts that connect the act resulting in death to the felony the nonkiller
committed or attempted to commit. Otherwise, defendants’ responsibility would vary
based merely on whether the trier of fact believed that [the killer] killed [the victim] by
accident, because of a personal grudge, to eliminate a witness, or simply to find out what
killing was like.” (Id. at p. 205.) Here, objective facts connect the robberies to the
shooting: The victims began resisting, so that it became necessary for the perpetrators to
use force to complete the crimes and escape. Whether the killer was motivated by any
perceived slights by the host or guests does not absolve defendant of guilt, because the

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shooting was not “completely unrelated” to the robberies. It was not “a mere coincidence
of time and place” that the homicide occurred during the commission of the robberies.
Accordingly, the trial court had no sua sponte duty to clarify this requirement.
Having been properly instructed on felony murder, the jury made express findings
demonstrating that it necessarily found defendant guilty under this theory. The jury was
instructed regarding the gang-related firearm enhancement attached to the murder charge
as follows: “If you find the defendant guilty of the crimes charged in counts three and/or
four, robbery of [Bella and Yana], respectively, and/or the crimes charged in counts five,
six and/or seven, attempted robbery of [Ryan, Justin], and/or [Keith] respectively, and
you find that the defendant committed that crime for the benefit of, at the direction of, or
in association with a criminal street gang with the intent to promote, further, or assist in
any criminal conduct by gang members, you must then decide whether the People have
proved the additional allegation that one of the principals personally and intentionally
discharged a firearm during that crime and caused death. [¶] To prove this allegation, the
People must prove that: One, someone who was a principal in the crime personally
discharged a firearm during the commission of, or attempted commission of robbery; and,
two, that person intended to discharge the firearm; and three, that person’s act caused the
death of another person.”
The jury’s verdict includes the following special finding on the murder count:
“We, the jury, having found defendant, Vernon Anderson, guilty of robbery. And having
further found true the allegation that he committed that offense ‘for the benefit of a
criminal street gang,’ do now find the allegation under section 12022.53(d) and (e) of the
Penal Code that a principal did personally and intentionally discharge[] a firearm, which
. . . proximately caused death to a person other that an accomplice . . . in commission of
the above offense, to be true.”
Contrary to defendant’s argument, the jury’s finding is not ambiguous. Defendant
suggests that it is unclear from the finding whether the discharge of a firearm that

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resulted in the victim’s death occurred in the commission of the murder or the robbery.
The instructions make clear, however, that under this enhancement the discharge
resulting in death must occur in the commission of the predicate felony, which in this
case was robbery or attempted robbery. Accordingly, the jury expressly found that
defendant either personally committed or aided and abetted in the commission of a
robbery or attempted robbery and that during the commission of the robbery or attempted
robbery, a principal to that crime shot and killed the victim. These findings necessarily
establish that the jury found defendant guilty on each element of felony murder.
Because the jury properly found defendant guilty of felony murder, we need not
reach many of defendant’s remaining arguments. Any ambiguity in the instructions on
other theories of liability for murder was harmless beyond a reasonable doubt. (People v.
Chiu (2014) 59 Cal.4th 155, 167 [“When a trial court instructs a jury on two theories of
guilt, one of which was legally correct and one legally incorrect, reversal is required
unless there is a basis in the record to find that the verdict was based on a valid ground.”];
In re Martinez (2017) 3 Cal.5th 1216, 1221, 1224.) For the same reason, we need not
reach defendant’s argument, asserted in his first supplemental brief, that the court
deprived defendant of due process by failing to instruct that the jurors must unanimously
agree on a theory of vicarious liability in support of the murder charge. (See People v.
Johnson (2016) 243 Cal.App.4th 1247, 1281 [failure to give unanimity instruction is
harmless beyond a reasonable doubt if other aspects of verdict or evidence leave no
reasonable doubt that jury made finding necessary under a particular theory]; People v.
Vargas (2001) 91 Cal.App.4th 506, 562 [failure to give unanimity instruction was
harmless in light of implicit unanimous finding of conspiracy].) Nor must we reach
defendant’s argument, asserted in his second supplemental brief, that the court’s
“response to the jury’s question asking for clarification of the term ‘natural and probable
consequence’ invaded the province of the jury and deprived appellant of due process of
law.”

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Finally, contrary to the argument asserted in defendant’s fifth supplemental brief,
the passage of Senate Bill No. 1437 does not require that his murder conviction be
reversed and the matter remanded for a new trial on that count. Senate Bill No. 1437
amends sections 188 and 189, as relevant here, to “prohibit a participant in the
perpetration or attempted perpetration of one of the specified first degree murder felonies
in which a death occurs from being liable for murder, unless the person was the actual
killer or the person was not the actual killer but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted the actual killer, or the
person was a major participant in the underlying felony and acted with reckless
indifference to human life . . . .” (Legis. Counsel’s Dig., Sen. Bill No. 1437 (2017-2018
Reg. Sess.).) The bill also adds section 1170.95, which creates a procedure for vacating
the conviction and resentencing of a defendant who was prosecuted under a theory of first
degree felony murder or murder under the natural-and-probable-consequences doctrine,
who was sentenced for first degree murder, and who could no longer be convicted of
murder because of the changes made to sections 188 and 189. (Sen. Bill No. 1437 (2017-
2018 Reg. Sess.) § 4.) The effective date of the amendments made by Senate Bill
No. 1437 is January 1, 2019. (Ibid.) Accordingly, as the Attorney General argues,
defendant’s claim for relief is not ripe. Our decision, however, is entered without
prejudice to any relief that may be available to defendant following the effective date of
section 1170.95.
2. The trial court did not err in refusing to reduce defendant’s murder conviction to
second degree murder under section 1157.
Section 1157 provides: “Whenever a defendant is convicted of a crime . . . which
is distinguished into degrees, the jury . . . must find the degree of the crime . . . of which
he is guilty. Upon the failure of the jury . . . to so determine, the degree of the crime . . .
of which the defendant is guilty, shall be deemed to be of the lesser degree.” Defendant

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contends he could be convicted only of second degree murder because the jury did not
determine the degree of his offense. We disagree.
In People v. Mendoza (2000) 23 Cal.4th 896, 900 (Mendoza), the court held that
section 1157 does not apply when the prosecution’s only murder theory at trial is that the
killing was committed during perpetration of robbery or burglary, which is first degree
murder as a matter of law. The court explained that felony murder is not a crime “ ‘which
is distinguished into degrees’ ” within the meaning of section 1157 because, if the jury
finds that the homicide was committed during the commission of any of the offenses
enumerated in section 189, the homicide is first degree murder by operation of law. (Id. at
p. 908.) If the evidence supports only a finding of guilty or not guilty of felony murder
and no other theory of murder, the trial court is justified in withdrawing the question of
degree from the jury and instructing that the defendant is either not guilty, or is guilty of
felony murder. (Id. at pp. 908-909.)
While here the jury was presented with three theories of liability, two of which
could have resulted in a conviction for second degree murder, the jury’s findings
necessarily establish that defendant committed first degree felony murder. Accordingly,
section 1157 is not applicable, and the court properly refused to reduce defendant’s
conviction to second degree murder.
3. The trial court did not abuse its discretion in refusing to bifurcate the gang
evidence.
Defendant was charged in count 2 with the substantive offense of participating in a
criminal street gang (§ 186.22, subd. (a)) and with gang-related sentence enhancements
(§ 186.22, subd. (b)) as to the remaining counts.5 Defendant contends the trial court erred
5 Section 186.22, subdivision (a) reads in relevant part: “Any person who actively
participates in any criminal street gang with knowledge that its members engage in, or
have engaged in, a pattern of criminal gang activity, and who willfully promotes,
furthers, or assists in any felonious criminal conduct by members of that gang, shall be
punished by imprisonment in a county jail for a period not to exceed one year, or by

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by refusing to sever the gang offense and bifurcate the gang-enhancement allegations,
thereby depriving him of a right to a fair trial.
A trial court has broad discretion to order bifurcation of a gang enhancement from
the trial of the substantive offenses when the evidence necessary to prove the
enhancement is “so extraordinarily prejudicial, and of so little relevance to guilt, that it
threatens to sway the jury to convict regardless of the defendant’s actual guilt.” (People v.
Hernandez (2004) 33 Cal.4th 1040, 1049.) “In the context of severing charged offenses,
we have explained that ‘additional factors favor joinder. Trial of the counts together
ordinarily avoids the increased expenditure of funds and judicial resources which may
result if the charges were to be tried in two or more separate trials.’ [Citation.]
Accordingly, when the evidence sought to be severed relates to a charged offense, the
‘burden is on the party seeking severance to clearly establish that there is a substantial
danger of prejudice requiring that the charges be separately tried.’ ” (Id. at p. 1050.)
In the trial court, defendant argued that his motion should be granted because there
was no evidence the crimes were gang related and thus, the gang evidence was only
prejudicial and had no probative value as to the substantive crimes. The prosecutor
argued that the gang evidence was cross-admissible to prove both the gang allegations as
well as motive, intent, and knowledge, and to explain the reluctance of certain witnesses
to testify. (See People v. Hernandez, supra, 33 Cal.4th at p. 1049 [“Evidence of the
defendant’s gang affiliation—including evidence of the gang’s territory, membership,
signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can
help prove identity, motive, modus operandi, specific intent, means of applying force or
fear, or other issues pertinent to guilt of the charged crime.”]; People v. Samaniego
imprisonment in the state prison for 16 months, or two or three years.” Section 186.22,
subdivision (b) imposes sentence enhancements on “any person who is convicted of a
felony committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members.”

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(2009) 172 Cal.App.4th 1148, 1167-1168 [Gang evidence is “relevant and admissible
when the very reason for the underlying crime, that is the motive, is gang related.”].)
At the trial court’s request, the prosecutor made the following evidentiary proffer:
“The crimes were committed at the same time in the same place by multiple perpetrators
. . . acting together to rob and attempt to rob. Zachary Roche-Balsam was shot dead in
front of the house at the same time and place that [the] robberies and attempted robberies
were perpetrated by multiple people. [¶] . . . Keith Gallo saw a group of people making
statements to one person in front of the house. The statements that Gallo heard were, ‘Are
you from the Dale?’ . . . Gallo understood the question[] [was] a reference to the
Sunnydale rivals of . . . a gang in the Lakeview area. [¶] . . . So, the statements heard just
before the crimes happened reflect classic gang statement that claims, intimidates, and
announces. And it’s the action in concert, same time, same place, . . . that adds to the
strength of my good faith argument that these crimes were committed by members of a
gang. If the facts were different, only one perpetrator, not in gang territory, no statements
or questions that classically fit the gang profile, your decision on this issue might be
entirely different.” Given the prosecution’s offer of proof, we cannot say the trial court’s
decision was an abuse of discretion.
Moreover, even assuming the court should have granted the severance/bifurcation
motion, and the gang evidence should have been excluded from the trial on the remaining
counts, the error was harmless under any standard. (People v. Watson (1956) 46 Cal.2d
818, 836; Chapman v. California (1967) 386 U.S. 18.) The gang evidence in this case
was not particularly inflammatory. In contrast, the evidence of defendant’s guilt was
overwhelming. At trial, defendant did not dispute that the robberies and murder occurred,
only that he was no longer present at the time, having already left the party. Numerous
witnesses, however, identified defendant as present at the scene of the crimes and as one
of the men who participated in the crimes. There is no likelihood that any prejudice from

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the gang evidence impacted the verdict or that defendant would have obtained a more
favorable result on the substantive offenses had the gang evidence been excluded.
4. The admissible evidence supports the jury’s findings on the gang offense and
enhancements.
“[A] violation of section 186.22[, subdivsion] (a) is established when a defendant
actively participates in a criminal street gang with knowledge that the gang’s members
engage or have engaged in a pattern of criminal activity, and willfully promotes, furthers,
or assists in any felonious criminal conduct by gang members.” (People v. Albillar (2010)
51 Cal.4th 47, 54.) The substantive offense does not require that the “felonious criminal
conduct” in which defendant “promotes, furthers or assists” be gang related. (Ibid.) In
contrast, the language of section 186.22, subdivision (b) makes “ ‘clear that a criminal
offense is subject to increased punishment . . . only if the crime is “gang related.” ’ ” (Id.
at p. 60.) The enhancement requires proof that the charged offense was committed “ ‘for
the benefit of, at the direction of, or in association with any criminal street gang’ ” and
with “ ‘the specific intent to promote, further, or assist in any criminal conduct by gang
members.’ ” (Id. at p. 59, quoting § 186.22, subd. (b)(1).)6
6 The jury was instructed under CALCRIM No. 1400 that to convict defendant of active
participation in a criminal street gang under count two they must find: “1. The defendant
actively participated in a criminal street gang; [¶] 2. When the defendant participated in
the gang, he knew that members of the gang engage in or have engaged in a pattern of
criminal gang activity; [¶] AND [¶] 3. The defendant willfully assisted, furthered, or
promoted felonious criminal conduct by members of the gang either by: [¶] a. directly
and actively committing a felony offense; [¶] OR [¶] b. aiding and abetting a felony
offense. [¶] . . . [¶] A criminal street gang is any ongoing organization, association, or
group of three or more persons, whether formal or informal: [¶] 1. That has a common
name or common identifying sign or symbol; [¶] 2. That has, as one or more of its
primary activities, the sale of cocaine, and/or possession for sale of cocaine, and/or
robbery, and/or possession of a firearm by a convicted felon, and/or possession of a
concealed firearm in a vehicle; [¶] AND [¶] 3. Whose members, whether acting alone or
together, engage in or have engaged in a pattern of criminal gang activity. [¶] . . . [¶] A
pattern of criminal gang activity, as used here, means: [¶] 1. The commission of, or

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In a supplemental brief, defendant contends that a substantial portion of the gang
expert’s testimony was inadmissible under People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez), which was decided after his trial but the holding of which is applicable
retroactively to these pending proceedings. He also contends there was insufficient
evidence to support the jury’s finding on the enhancement that the murder charged in
count one was committed with the specific intent to assist a criminal street gang. We find
no prejudicial error with regard to the admission of evidence in support of the gang
offense and enhancement allegations and that the enhancement on count one is supported
by substantial evidence.
In Sanchez, supra, 63 Cal.4th 665, the Supreme Court held that when “an expert
relies on hearsay to provide case-specific facts, consider the statements as true, and
relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be
asserted that the hearsay content is not offered for its truth.” (Id. at p. 682.) Therefore, in
explaining the basis for their opinions, experts cannot “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.” (Id. at p. 686.) The Sanchez court also
held that, under the confrontation clause as interpreted in Crawford v. Washington (2004)
541 U.S. 36, “[i]f the case is one in which a prosecution expert seeks to relate testimonial
hearsay [as the basis for his or her opinion], there is a confrontation clause violation
attempted commission of, or conspiracy to commit, or conviction of any combination of
two of more of the following crimes; sale of cocaine, possession for sale of cocaine,
robbery, possession of a firearm by a convicted felon, or possession of a concealed
firearm in a vehicle. [¶] 2. At least one of those crimes was committed after September
26, 1988; [¶] 3. The most recent crime occurred within three years of one of the earlier
crimes; [¶] AND [¶] 4. The crimes were committed on separate occasions or were
personally committed by two or more persons.” With regard to the enhancement
allegations, the jury was instructed under CALCRIM No. 1401 that to find the
enhancements true it must find the defendant “committed or attempted to commit the
crime for the benefit of, at the direction of, or in association with a criminal street gang”
and that he “intended to assist, further, or promote criminal conduct by gang members.”

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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, at p. 686.) “Testimonial statements are those made primarily to memorialize facts
relating to past criminal activity, which could be used like trial testimony.” (Id. at p. 689.)
Information contained in a police report is generally construed as testimonial hearsay
because police reports “relate hearsay information gathered during an official
investigation of a completed crime.” (Id. at p. 694.)
The Attorney General concedes that Officer Parker related testimonial hearsay to
the jury when he relied on several police reports to explain the details of the predicate
offenses and to opine that defendant and his cohorts were members of the Randolph Mob.
The Attorney General argues, however, that any error in the admission of this evidence
was harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. 18;
Sanchez, supra, 63 Cal.4th at pp. 670-671, 698.) We agree with the Attorney General.
Ample admissible evidence was introduced to prove each of the required elements; there
is no likelihood that the admission of the improper evidence affected the verdict.
Officer Parker’s testimony regarding the Randolph Mob’s territory and hand signs
and other background information about the function of the gang was properly admitted.
(Sanchez, supra, 63 Cal.4th at p. 685.) With respect to the predicate offenses committed
by the gang, the prosecution introduced certified copies or took judicial notice of the
following convictions: (1) In January 2005, Robert Vernon was convicted of cocaine
sales; (2) In April 2005, Jeremy Joseph was convicted of possession for sale of cocaine;
and (3) In February 2007, Darius Boone was convicted of armed robbery. The following
admissible evidence established that Vernon, Joseph and Boone were members of the
Randolph Mob. Officer Loufas testified that Boone self-identified as a gang member

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when being booked into jail.7 Officer Gilmore testified regarding an incident in 2003 in
which she observed Boone and Vernon loitering with another man in Randolph Mob
territory. A search of the third man produced guns and narcotics. Officer Pak testified that
he observed Joseph attempting to sell drugs in gang territory. Given Officer Parker’s
expert testimony that non-gang members would not sell drugs in gang territory, the
evidence supports a finding that Boone, Vernon and Joseph are gang members.
Collectively, this evidence supports Officer Parker’s opinion that the Randolph Mob is a
criminal street gang whose primary activity is engaging in the specified criminal conduct.
Substantial admissible evidence also establishes that defendant is a member of the
Randolph Mob. Testimony established that Kenneth Garrett also self-identified as a
Lakeview gang member during the jail intake process. At trial, he testified and was
questioned extensively regarding letters he wrote from jail to defendant. These letters
contained multiple references to the Randolph Mob and establish defendant’s
participation in the gang.8 In addition, statements made by defendant during a recorded
jail phone call suggests that he was a gang member. Finally, photographs were introduced
that depict defendant making gang hand signs and Officer Gala testified that he observed
defendant loitering on a street corner in Randolph Mob territory.
The following admissible evidence establishes that the other men involved in the
crimes for which defendant was charged (Cedric Blake, Marcus Butler and Jared Wilson)
7 Although Officer Loufas testified that Boone claimed to be with “Lakeview” in
response to his question about gang affiliation, Officer Parker clarified that the Randolph
Mob was a Lakeview gang.
8 Contrary to defendant’s argument, the letters were not inadmissible hearsay because
they were not offered for the truth of the matters asserted but rather to establish that
defendant was a gang member. (People v. Price (1991) 1 Cal.4th 324, 437 [Letter written
by one alleged gang member to another alleged member was not hearsay because it was
offered to “show that the author and the intended recipient were members of an existing
organization.”].) There is no dispute that Garrett, the author of the letters, was subject to
cross-examination.

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are members of the Randolph Mob. Officer Bragagnolo testified that he arrested Blake
and Butler for possession of drugs and weapons at a location within the Randolph Mob
territory. Officer Pak testified he observed Wilson and Blake attempting to sell drugs
within the gang’s territory. This evidence supports Officer Parker’s opinion that the
present offenses were committed in association with the gang.
Defendant’s argument regarding prejudice focuses on the general prejudice
stemming from defendant’s identification as a gang member rather than on any undue
prejudice from the nature of specific inadmissible predicate offense testimony. Given that
substantial admissible evidence establishes the statutory requirements, there is no
likelihood that any cumulative, inadmissible evidence impacted the verdict.
Finally, the admissible evidence established that defendant acted with the requisite
intent to prove the enhancement allegation to the murder charge. Defendant argues,
“Where . . . there is no evidence that anyone intended to kill the victim, there cannot be
any specific intent to benefit other gang members on the part of an actor who has no
intention of aiding and abetting a killing or even any knowledge that there will be a
killing.” Section 186.22, subdivision (b) does not require that the defendant have the
specific intent to commit a murder to benefit other gang members. It is sufficient that he
commit the charged offense (murder) in association with other gang members with the
intent to “assist in any criminal conduct by gang members.” The jury’s finding that
defendant intended to commit a robbery with fellow gang members is supported by
substantial evidence sufficient to support the true finding by the jury.
5. The court’s treatment of the witnesses granted use immunity did not violate
defendant’s confrontation rights.
Two witnesses, both documented members of the Randolph Mob gang, refused to
testify after they were granted use immunity. At an unrecorded side bar conference, the
prosecutor represented that the attorney for the first witness had advised that the witness
was afraid to testify because he did not want to be labeled a snitch. Over defendant’s

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objection, the trial court allowed the prosecutor to question the witness before the jury for
the limited purpose of eliciting support for the gang expert’s testimony regarding gang
intimidation and the fear that witnesses have if they testify in court.
As permitted by the court, the prosecutor asked the witness questions including
whether he was a member of the Randolph Mob in 2006, whether he knew anything
about what happened at the party, whether he could identify anyone from photographs
taken at the party, whether he would answer questions about people he knew from 2003
to the present, whether he knew anything about the Randolph Mob’s rival gang in the
Lakeview District, and whether he had knowledge about the San Francisco criminal street
gangs. Despite the trial court’s warning that his refusal to answer could subject him to
contempt charges, the witness continued to respond that he was not answering any
questions. The trial court instructed the jury that the appearance of this witness and
“anything as a result of it is received for a limited purpose only. It is received only for the
limited purpose as it ma[y] relate to any expert opinion offered by Officer Barry Parker
and for the basis of any expert opinion.”
The second witness was asked whether he knew defendant or the Randolph Mob
and whether his refusal to testify was motivated by his desire to protect the Randolph
Mob or because he feared for his or his family’s safety. The witness stated that he was
refusing to testify on the ground that his answers might incriminate him. The same
limiting instruction was given as to his refusal to testify.
Defendant contends the trial court violated his Sixth Amendment right to confront
and cross-examine the witnesses against him by allowing the prosecution to question
these witnesses. Defendant generally acknowledges that the prosecution is entitled to
draw a negative inference from a gang member’s refusal to testify after a grant of
immunity. (See People v. Sisneros (2009) 174 Cal.App.4th 142, 150-152 [jury is
permitted to infer that the witness’s silence was motivated by a fear of gang retribution in
evaluating gang expert’s testimony].) He argues, however, that even if the court could

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properly inform the jury of the witnesses’ refusal to testify and permit negative inferences
from that refusal, the court erred in allowing the prosecution to ask numerous specific
questions of the witnesses that that they refused to answer. (See People v. Murillo (2014)
231 Cal.App.4th 448, 449-450 [trial court violated defendant’s confrontation rights by
allowing prosecution to ask witness more than 100 questions, including some regarding
his prior statements to police, despite witness’s refusal to answer any questions.].) We
need not resolve this issue because any error was harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18; Delaware v. Van Arsdall (1986) 475 U.S.
673, 684.)
Factors relevant to the analysis of prejudice include: “ ‘the importance of the
witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise permitted, and, of
course, the overall strength of the prosecution’s case.’ ” (People v. Sully (1991) 53 Cal.3d
1195, 1220, quoting Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.) As discussed
above, defendant’s gang membership, his participation in the robberies, and the gang
membership of others who were involved were established through other evidence
considerably more persuasive than any inference that might have been drawn from the
refusal of these witnesses to testify.
6. Defendant’s sentence does not constitute cruel and usual punishment.
Defendant contends that his sentence constitutes cruel and unusual punishment
under the state and federal constitutions. He argues that his sentence is the functional
equivalent of a sentence of life imprisonment without parole because he cannot “possibly
hope to complete even half of that sentence” in his lifetime and that the sentence is
“ridiculously long,” citing concurring and dissenting opinions by the late Justice Mosk
addressing the issue. (See People v. Deloza (1998) 18 Cal.4th 585, 600-602 (conc. opn.
of Mosk, J.) [sentence of 111 years in prison impossible for a human being to serve,

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gratuitously extreme, serves no rational legislative purpose under either a retributive or
utilitarian theory of punishment, and demeans the government inflicting it and the
individual on whom it is inflicted]; People v. Hicks (1993) 6 Cal.4th 784, 797 (dis. opn.
of Mosk, J.) [“sentence . . . that cannot possibly be completed in the defendant’s lifetime
makes a mockery of the law and amounts to cruel and unusual punishment”].) He also
argues that the court violated his right to due process by imposing the sentence without
the procedural and substantive safeguards found in section 190.2.9
Defendant’s sentence can no longer be characterized as the functional equivalent
of a sentence of life imprisonment without parole. Because defendant was 21 years old
when he committed the offense, he is entitled to a youthful offender parole hearing
during his 25th year of incarceration. (§ 3051, subd. (b)(3).) He has a “meaningful
opportunity to obtain release” while still middle aged. (§ 3051, subd. (e); People v.
Franklin (2016) 63 Cal.4th 261, 277 [“For those juvenile offenders eligible for youth
offender parole hearings, the provisions of Senate Bill No. 260 are designed to ensure
they will have a meaningful opportunity for release no more than 25 years into their
incarceration.”].) Therefore, his sentence neither is cruel and unusual nor violates due
process. (Id. at pp. 279-280 [Because defendant was “now serving a life sentence that
includes a meaningful opportunity for release during his 25th year of incarceration,” his
sentence was “neither [life without parole] nor its functional equivalent.”].)
Moreover, defendant is entitled to remand for the limited opportunity to augment
the sentencing record to include “information relevant to his eventual youth offender
parole hearing.” (People v. Franklin, supra, 63 Cal.4th at p. 284.)
9 Section 190.2 lists the special circumstances that must be found true by the jury before a
defendant can be sentenced to a term of life imprisonment without parole.

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7. Remand Is Required for the Trial Court to Consider Whether to Strike the
Firearm Enhancements.
At the time it sentenced defendant, the trial court had no discretion to strike the six
firearm enhancements imposed under section 12022.53, subdivision (d). (Former
§ 12022.53, subd. (h).) In October 2017, however, the Legislature passed S.B. 620, which
took effect on January 1, 2018. The statute provides that “The court may, in the interest
of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an
enhancement otherwise required to be imposed by this section.” (§ 12022.53, subd. (h).)
“The discretion conferred by the statute ‘applies to any resentencing that may occur
pursuant to any other law’ [citation] and it applies retroactively to non-final judgments.”
(People v. McDaniels (2018) 22 Cal.App.5th 420, 424.)
The Attorney General agrees that the amendment applies retroactively to
defendant’s sentence, but argues that remand is not necessary because “nothing in the
record shows that the trial court would have any possible basis for exercising such
discretion.” We disagree with the Attorney General’s proposed standard for assessing
whether remand is required in this instance.
In People v. McDaniels, supra, 22 Cal.App.5th at page 426 the court rejected the
argument that application of the People v. Watson (1956) 46 Cal.2d 818 “reasonable
probability” standard is appropriate to determine whether an action must be remanded for
a trial court to exercise sentencing discretion under Senate Bill No. 620. The court
explained, “when, as here, a trial court has made no discretionary choice because it was
unaware it had authority to make one, an application of the ‘reasonable probability’
standard requires the reviewing court to decide what choice the trial court is likely to
make in the first instance, not whether the court is likely to repeat a choice it already
made. While it is true that determining whether a trial court is likely to repeat a choice
involves some degree of conjecture, determining what choice the trial court is likely to
make in first instance is far more speculative, unless the record reveals a clear indication

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of how the court would have exercised its discretion.” (Id. at p. 426.) Accordingly, the
court concluded that “ ‘[W]hen the record shows that the trial court proceeded with
sentencing on the . . . assumption it lacked discretion, remand is necessary so that the trial
court may have the opportunity to exercise its sentencing discretion at a new sentencing
hearing. [Citations.] Defendants are entitled to “sentencing decisions made in the exercise
of the ‘informed discretion’ of the sentencing court,” and a court that is unaware of its
discretionary authority cannot exercise its informed discretion.’ [Citation.] But if ‘ “the
record shows that the trial court would not have exercised its discretion even if it believed
it could do so, then remand would be an idle act and is not required.” ’ ” (Id. at p. 425.)
Here, in both its original sentencing memorandum and its revised sentencing
memorandum, the prosecution recommended the court impose a total indeterminate term
of 25 years to life for the murder conviction plus 25 years to life for the enhancement
pursuant to section 12022.53, subdivision (d). Only in its second revised sentencing
memorandum did the prosecution inform the court that it was required under People v.
Palacios (2007) 41 Cal.4th 720 to impose full consecutive 25 years to life terms for each
of the robberies/attempted robberies to which the section 12022.53 allegation was
attached. The court agreed that the enhancements were mandatory and imposed full
consecutive terms for each enhancement. The trial court believed it did not have
discretion to strike the enhancements, and the record does not include any indication that
the sentencing court would not, in any event, have exercised its discretion to strike the
allegations. Accordingly, remand is necessary for the trial court to exercise its discretion
whether to strike the firearm enhancements. (People v. McDaniels, supra, 22 Cal.App.5th
at p. 425)10
10 In connection with our request for supplemental briefing, we asked the parties to brief
the following question: “Can appellant be sentenced on the section 12022.53,
subdivisions (d) and (e) enhancements that the jury found true on counts three through
seven, which were not alleged in the first amended information filed on April 12, 2011?”
Having considered the parties’ responses, we conclude that defendant was properly

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Disposition
Defendant’s convictions are affirmed, but the case is remanded for the trial court
to consider whether to strike the firearm enhancements imposed under Penal Code
section 12022.53, subdivision (d) and to provide defendant the opportunity to augment
the sentencing record to include information relevant to his eventual youth offender
parole hearing.
Pollak, J.
We concur:
Siggins, P.J.
Ross, J.*
sentenced in conformity with People v. Riva (2003) 112 Cal.App.4th 981. Nonetheless,
as discussed above, the court must exercise its discretion to decide whether the
enhancements should be stricken.
* Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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