P. v. Gray

Filed 10/1/18 P. v. Gray CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
TREVAIL GRAY,
Defendant and Appellant.
B282321
(Los Angeles County
Super. Ct. No. KA106735)
APPEAL from a judgment of the Superior Court Los
Angeles County, Bruce F. Marrs, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Carlo Andreani, under appointment by the Court of Appeal,
for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Scott A. Taryle and Michael Katz, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________

-- 1 of 43 --

2
Defendant Trevail Gray was convicted by a jury of three
counts of attempted murder (Pen. Code,1 §§ 187, 664), three
counts of assault with a firearm (§ 245, subd. (a)(2)), two counts
of being a felon in possession of a firearm (§ 29800, subd. (a)(1)),
one count of being a felon in possession of ammunition (§ 30305,
subd. (a)(1)), and one count of resisting an executive officer (§ 69).
The jury found true the allegations that the attempted murders
were willful, deliberate and premeditated and that they were
committed for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)). The jury also found true various allegations that a
principal used and discharged a firearm in the commission of the
attempted murders (§ 12022.53, subds. (b), (c), (d) & (e)).
Defendant admitted he had suffered a prior serious strike
conviction and had served a prior prison term. (§§ 667, subds.
(a), (b)-(i), 667.5, subd. (b), 1170.12, subds. (a)-(d).) The trial
court sentenced defendant to a total term of 147 years to life in
prison. Defendant filed a timely notice of appeal.
Defendant contends the trial court erred in denying his
motion for a new trial based on newly discovered evidence in the
form of posttrial declarations from two of the victims stating that
law enforcement personnel pressured them to make false
statements about the shooting. Defendant also contends the trial
court gave incorrect instructions to the jury on aiding and
abetting, the natural and probable consequences doctrine, the kill
zone doctrine, the definition of principals, and the requirements
for a gang enhancement. He further contends the prosecutor
1 Further undesignated statutory references are to the Penal
Code.

-- 2 of 43 --

3
committed error in his opening statement by being
argumentative and in his closing argument by misstating a fact
and a legal principle.
We determine the trial court did not abuse its discretion in
denying the motion for a new trial. Two of defendant’s claims of
instructional error involve what amount to harmless
typographical errors. The remaining two claims of instructional
error involve statements of law which are correct in the abstract
but have the potential to mislead a jury under certain
circumstances; such circumstances were not present in this case.
Two of defendant’s three prosecutorial error claims have been
forfeited; the third lacks merit because the prosecutor correctly
stated the law.
Defendant additionally contends the trial court improperly
sentenced him for the section 12022.53 firearm enhancement,
without a jury finding that he was the shooter, and in imposing
sentence on the gang enhancement. In a supplemental brief,
defendant requests that we remand this matter to permit the
trial court to consider whether to exercise its newly acquired
discretion to strike the section 12022.53 firearm enhancements.
The People agree the gang enhancements must be stricken and
that remand is appropriate. We order the gang enhancements
stricken and remand the matter for the court to consider whether
to exercise its discretion to strike one or more of the firearm
enhancements. We affirm the judgment of conviction in all other
respects.

-- 3 of 43 --

4
BACKGROUND
The convictions in this case arose from an October 25, 2013
shooting at a liquor store in Pomona. The incident was captured
from various angles by a number of surveillance cameras around
the liquor store. Videotape of the incident was shown to the jury
at trial. We have reviewed key portions of the videos as well.
The videotape shows a man, later identified as defendant’s
uncle James Gray (Blue) at the liquor store at about 10:30 p.m.
In the store’s parking lot, Blue interacted with a man later
identified as Raymond Sears, including hugging him. Blue then
went inside the liquor store, came back out and left. Blue
returned to the store about seven to eight minutes later driving a
pick-up truck. A man wearing a blue plaid shirt, later identified
as defendant, got out of the truck, followed by a man in a white
shirt.
Defendant and his companion walked along the front of the
liquor store toward the entrance. As they passed by the entrance,
the man in the white shirt fired a number of bullets at Sears’
truck. The gun was very close to defendant’s head when the man
fired it, and defendant ducked away from the gun and went into
the liquor store. Defendant reappeared briefly at the store’s door,
pointed a gun out the store door and then returned inside the
store.
Sears and two companions were in the front seat of his
truck when the man in the white shirt opened fire. Although
injured, Sears was able to flee on foot with his two companions,
later identified as Ronald Bailey and Steven Goines.
Pomona Police Department officers came to the scene.
Sergeant Scott Hess spoke with the liquor store’s owner, Saung

-- 4 of 43 --

5
Lee. The sergeant watched several surveillance videos with Lee
in the manager’s office. The man in the blue shirt looked familiar
to Sergeant Hess, and he later realized that he had participated
in a traffic stop of the man. Sergeant Hess later identified the
man in the video as defendant.
Lee told Sergeant Hess the man in the blue shirt,
defendant, was a frequent customer. Lee stated defendant was
standing next to the man in the white shirt when the man in the
white shirt began firing a gun. Lee later found defendant
“wandering around” inside the liquor store, holding a handgun.
Lee directed him out the back door of the store to avoid further
trouble.
Other officers went to a 7-Eleven convenience store near
the liquor store. Officer Robert Scheppman found Sears there
with head and hand wounds. There was a blood trail at the
entrance to the convenience store and Officer Schepmann
eventually followed the trail to the parking lot of the liquor store.
Detective Andrew Bebon also went to the 7-Eleven where he saw
the injured Sears. Sears was unable to speak. Sears was
transported via helicopter to Los Angeles County+USC Medical
Center. There is no evidence the police were able to speak with
Sears at the hospital. Sears survived and was able to leave the
hospital. Detective Bebon spoke to Sears once or twice on the
phone about victim’s services, but was unable to locate him
thereafter.
Officer Richard Aguiar showed photos taken from the
surveillance videos to people living nearby. Jerry Orsborn and
Linda Nelson identified defendant in the photos, although they
recanted their identification at trial. Officer Aguiar had seen
defendant before and recognized him in the photo.

-- 5 of 43 --

6
Detective Bebon attempted to locate defendant after the
shooting, but could not. In July 2014, he obtained an arrest
warrant for defendant. This led to defendant’s arrest.
Detective Bebon eventually learned the identity of the two
other men with Sears during the shooting. He did not locate the
men until two years later, when he learned both were in prison in
Nevada.
Detective Bebon and his partner Detective Catanese
travelled to Nevada and interviewed Bailey and Goines in their
separate prisons. The interviews were recorded.
At trial, Goines and Bailey were uncooperative witnesses.
Bailey did admit he was a member of the 456 Island Piru Bloods,
a Pomona gang, and that Goines was an associate of the gang.
Bailey also testified that the liquor store was in a Blood
neighborhood. Bailey acknowledged he had identified defendant
from a group of photos and in a video of the liquor store shooting,
both of which Detective Bebon showed him in prison. Bailey
testified that someone said “cuz” before or during the shooting
but not “Budlong.” Generally, Bailey and Goines equivocated and
claimed not to remember details of the shooting incident or their
discussions of the incident with Detective Bebon.
Detective Bebon then testified about portions of the
interviews, accompanied at times by the playing of the recordings
of the interviews. Detective Bebon testified he showed a
photograph to Goines, and Goines pointed to a person in the
photo, elsewhere identified as defendant, and said the person was
the one saying “cuz.” Goines also stated he saw the person with a
gun. Detective Bebon also testified he showed the same photo to
Bailey, who identified the man in the blue shirt as “Sticks,” that
is, as defendant. Detective Bebon also testified that Bailey stated

-- 6 of 43 --

7
he heard either Sticks or the man in the white shirt say
“Budlong.”
Detective Bebon additionally testified about a December
interview he had with Bailey in Pomona. Bailey told him that
before the shooting, Bailey was “Blooding,” that is, speaking to
Goines in the parking lot using Blood gang slang. The detective
also noted Bailey admitted his membership in the 456 Island
Piru Bloods. Goines was an associate of the gang.
A redacted version of the recordings of each of the three
interviews was admitted into evidence, along with the redacted
transcripts. (Exhs. 38, 38A, 39, 39A, 40, & 40A.) A more detailed
summary of the men’s Nevada interview statements is provided
in section I post, discussing defendant’s new trial motion.
Los Angeles County Sheriff’s Deputy Joshua Whiting
testified for the prosecution as a gang expert on the 10 Deuce
Budlong Gangster Crips. He opined that defendant was a
member of that gang.2 Deputy Whiting also testified that Crips
and Bloods are generally enemies. In response to a hypothetical
based on the facts of this case, Deputy Whiting opined the crimes
were committed for the benefit of the Budlong Gangster Crips.
In his trial testimony, Detective Bebon provided more
evidence on the background of the 456 Island Piru Bloods gang.
He testified that the liquor store where the shooting took place
was located at the edge of that gang’s territory. The detective
testified the 456 Island Piru Bloods gang had been in a rivalry
2 Deputy Whiting’s opinion was based in part on defendant’s
admission in a 2013 field interview that he was a Budlong
Gangster Crip. Pomona Police Department Detective Greg
Freeman conducted the 2013 interview during a traffic stop and
testified about defendant’s admission at trial.

-- 7 of 43 --

8
with several Crips gangs for a long time. Detective Bebon also
opined the shootings were committed for the benefit of the
Budlong Gangster Crips.
Defendant testified in his own defense at trial. He stated
he did not know the man in the white shirt who rode with him to
the liquor store in Blue’s truck. At the liquor store, defendant got
out of the truck and started walking toward Sears to say hello.
The unknown man walked with him. Defendant did not know
the man had a gun. When defendant heard shots, he was scared,
thought the shooter was firing at him and tried to escape.
Inside the liquor store, defendant took out a gun which he
carried for self-protection. He pointed the gun out the store’s
door but did not shoot. Defendant went back inside the store and
eventually left through a back entrance with two women. He did
not know Bailey or Goines, and did not shoot at anybody.
DISCUSSION
I. Motion for New Trial
Defendant moved for a new trial on (1) the statutory
ground of newly discovered evidence, (2) the denial of a fair trial
due to the presentation of perjured testimony, and (3) a violation
of the Brady3 duty to disclose exculpatory evidence. All three
claims were based on declarations submitted by Bailey and
Goines after trial, in which the men asserted Detective Bebon
had pressured them into providing false statements during a
recorded interview. The declarations implied that the pressure
3 Brady v. Maryland (1963) 373 U.S. 83 [83 S.Ct. 1194, 10
L.Ed.2d 215].

-- 8 of 43 --

9
occurred prior to the recording beginning. The detective
submitted a declaration denying any unrecorded discussions with
the men. The trial court denied the new trial motion.
Defendant contends the trial court’s “erroneous legal
conclusions” that Bailey and Goines were “‘bit players’” in the
trial contravened the record and United States Supreme Court
precedent. Defendant claims the men were “crucial” to the
prosecution’s case and their testimony supported the motive and
intent for the offenses and for the gang element. Defendant
asserts the “[e]xculpatory and impeaching evidence” in the men’s
posttrial declarations put the case in a different light,
undermined confidence in the outcome and requires reversal. In
his reply brief, defendant claims the trial court’s explanation of
its ruling constituted an “express and/or implied factual finding
that the posttrial declarations were credible” and that this
finding binds this court.
A. Background
On February 25, 2017, about a month after the jury
reached its verdicts in this matter, Bailey and Goines executed
declarations recanting portions of their recorded pretrial prison
interview statements to Detective Bebon. These pretrial
statements had been used at trial to impeach Bailey and Goines,
who were reluctant witnesses.
Goines’ posttrial declaration states that at the beginning of
his pretrial prison interview with Detective Bebon, the detective
said the interview was not being recorded. Detective Bebon then
showed Goines a photographic lineup, pointed to one of the
photos and said it was “Sticks,” and Sticks was the person who
shot at Goines. Goines did not know who Sticks was. Detective

-- 9 of 43 --

10
Bebon then asked “questions, such as, ‘He said the word cuz,
didn’t he?’” Goines replied that he did not. Detective Bebon
asked Goines “to agree with what he (Bebon) was saying.
Det[ective] Bebon said, ‘Sticks said, “yeah, cuz.”’ [¶] Det[ective]
Bebon told [Goines], ‘I will put you in gang file if you don’t
corroborate what I was saying.’” The interview was in fact
recorded. The statements attributed to Detective Bebon do not
appear anywhere in the recording of the detective’s interview
with Goines, and Goines does not offer a theory to explain their
absence from the recorded interview.
Bailey’s posttrial declaration states that at the beginning of
his pretrial prison interview, Detective Bebon asked him if he
“‘remember[ed] something that happened at a liquor store in
Pomona when [Bailey] got shot at?’” Bailey “indicated yes.”
Detective Bebon asked Bailey if he would be willing to testify
about it and Bailey “told him no because I don’t really remember
any of it.” Detective Bebon then showed Bailey a photo and told
him it was “Sticks.” Before seeing the photo, Bailey “did not
know what Sticks looked like.” According to Bailey, “Det[ective]
Bebon then began to use leading questions to give facts about
what occurred. He showed another picture and said, ‘Didn’t
[S]ticks get out of the car first and said “Budlong Cuz?”’ I told
him (Bebon) that I thought I heard the word ‘cuz’ but not
‘Budlong,’ and I don’t know who said it. I didn’t see who got out
first because I was ducking.” Bailey stated that “[a]bout halfway
through the interview, Det[ective] Bebon reintroduced himself
again. He re-showed the photographs again [sic], and re-asked
most of the questions he already asked.” The statements
attributed to Detective Bebon do not appear anywhere in the
recording of the detective’s pretrial prison interview with Bailey.

-- 10 of 43 --

11
Bailey’s reference in his posttrial declaration to the detective “re-
asking” questions during the pretrial prison interview implies
that either the first part of his pretrial prison interview with
Detective Bebon was not recorded, or that the recording produced
by the detective was not complete.
In opposition to defendant’s motion, the prosecution
submitted a posttrial declaration from Detective Bebon that
states: “The entire conversation that I had with both Steven
Goines and Ronald Bailey was audio taped. Those recordings
were provided as part of the discovery process.” The detective
also stated: “I did not talk to either Goines or Bailey on July 19,
2016 off-tape. The recording is the entirety of my interaction
with both witnesses on that date. The recordings were started
prior to each separate inmate being brought into each individual
interview room.”
The trial court denied the new trial motion without
expressly ruling on the credibility of Bailey’s and Goines’
posttrial declarations. The court explained that “the primary
witness in this particular case was the cameras and the video
system. Everybody else was basically a supporting character.”
The court pointed out that Bailey’s trial testimony was in fact
consistent with his posttrial declaration: Bailey testified at trial
that he only heard the word “cuz” and not the word “Budlong.”
The court also pointed out that defendant was identified from the
video stills by other witnesses in addition to Bailey and Goines.
The court concluded: “Taking all of this material, as well as the
balance of the information, I don’t find that we have anything
material to add to the information that was presented to the jury.
Cross examination for all the witnesses was extensive. I think
it’s all cumulative, to be honest with you. As to the statements

-- 11 of 43 --

12
from the two folks from Nevada, they were at best bit players.
The case could have been proved beyond a reasonable doubt . . .
without them even appearing. They appear on the disks that
were presented from the video in the store.”
B. Standard of Review
Defendant’s motion for new trial included two claims
which, if true, would show violations of his federal constitutional
rights: (1) the presentation of perjured testimony, and (2) a
Brady violation.
A trial court’s ruling on a motion for a new trial is reviewed
under a deferential abuse of discretion standard. (People v.
Hoyos (2007) 41 Cal.4th 872, 917, fn. 27.) Thus, we will not
disturb the trial court’s ruling unless defendant establishes “‘a
manifest and unmistakable abuse of discretion.’” (People v.
Delgado (1993) 5 Cal.4th 312, 328.) This standard of review
applies even when, as here, the defendant asserts violations of
federal constitutional rights. (Hoyos, supra, at p. 917, fn. 27.) In
such circumstances, the defendant’s abuse of discretion claim is
best understood as the asserted failure of the trial court to
recognize violations of defendant’s constitutional rights. (Ibid.)
Our abuse of discretion analysis must therefore also address the
constitutional aspects of the motion under the appropriate
standard for those claims. (Id. at pp. 917-922 [performing a
traditional Brady analysis].)
C. Brady Claim
In the new trial motion, defendant describes the evidence
he claims to have been suppressed as undisclosed (and
apparently unrecorded) discussions between Detective Bebon and

-- 12 of 43 --

13
Bailey and Goines which immediately preceded the recorded
pretrial prison interviews with Bailey and Goines (which had
been disclosed to the defense). The motion states that during
those earlier pretrial prison discussions, Detective Bebon
provided the men with “information and direction which resulted
in their testimony at trial.”
The elements of a Brady claim involve “[c]onclusions of law
or of mixed questions of law and fact, . . . [citation] [and] are
subject to independent review.” (People v. Salazar (2005) 35
Cal.4th 1031, 1042 (Salazar).) Findings of fact by the trial court
“though not binding, are entitled to great weight when supported
by substantial evidence. [Citation.]” (Ibid.)
“‘There are three components of a true Brady violation:
The evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.’ (Strickler v.
Greene (1999) 527 U.S. 263, 281-282 [144 L.Ed.2d 286, 119 S.Ct.
1936], fn. omitted.) Prejudice, in this context, focuses on ‘the
materiality of the evidence to the issue of guilt or innocence.’
(United States v. Agurs[ (1976)] 427 U.S. [97,] 112, fn. 20 [96
S.Ct. 2392, 49 L.Ed.2d 342]; accord, U.S. v. Fallon (7th Cir. 2003)
348 F.3d 248, 252.) Materiality, in turn, requires more than a
showing that the suppressed evidence would have been
admissible (cf. Wood v. Bartholomew (1995) 516 U.S. 1, 2 [133
L.Ed.2d 1, 116 S.Ct. 7]), that the absence of the suppressed
evidence made conviction ‘more likely’ (Strickler, supra, . . . at
p. 289), or that using the suppressed evidence to discredit a
witness’s testimony ‘might have changed the outcome of the trial’
(ibid.). A defendant instead ‘must show a “reasonable probability

-- 13 of 43 --

14
of a different result.”’ (Banks v. Dretke (2004) 540 U.S. 668, 699
[157 L.Ed.2d 1166, 124 S.Ct. 1256].)” (Salazar, supra, 35 Cal.4th
at p. 1043.)
“‘In general, impeachment evidence has been found to be
material where the witness at issue “supplied the only evidence
linking the defendant(s) to the crime,” [citations], or where the
likely impact on the witness’s credibility would have undermined
a critical element of the prosecution’s case [citation]. In contrast,
a new trial is generally not required when the testimony of the
witness is “corroborated by other testimony” [citations].’
[Citation.]” (Salazar, supra, 35 Cal.4th at p. 1050.)
1. Suppressed evidence
Although the defense motion characterized the allegedly
suppressed unrecorded pretrial discussions as influencing the
men’s trial testimony, the posttrial declarations themselves, as
set forth in detail above, refer to Detective Bebon’s influence on
the men’s pretrial prison interview statements. The men
specifically identified two areas where they lied in their pretrial
prison statements: (1) their identification of defendant as one of
the men who got out of the pickup truck at the liquor store; and
(2) their statements that defendant and/or the shooter said “cuz”
and/or “Budlong” prior to or during the shooting. At trial, the
men claimed not to remember some of their pretrial prison
statements and denied others were true. Thus, the allegedly
suppressed evidence would have been relevant to impeach some
of the men’s trial testimony and some of their pretrial prison
interview statements, which were introduced at trial through the
testimony of Detective Bebon.

-- 14 of 43 --

15
2. Identification statements and testimony
Very early in his trial testimony, when questioned directly
about events leading up to the shooting, Bailey stated all he saw
on the night of the shooting was the pickup truck pull up in the
liquor store parking lot. The prosecutor then shifted to asking
Bailey about his pretrial statements to Detective Bebon. Bailey
acknowledged he had identified Sticks from a group of photos
which the detective showed him. Bailey also agreed he pointed
out a person who appeared to be Sticks in a video from the liquor
store shooting. Bailey claimed, however, not to recall telling the
detectives he saw Sticks get out of the pickup truck driven by
Blue. Bailey claimed he ducked when the car pulled up and did
not see who got out of the pickup truck.
Bailey was ultimately impeached during trial with his
recorded statements to Detective Bebon. In that interview,
Bailey said Sticks got out of the pickup truck at the liquor store
with another man. Bailey also said the man in the white shirt
raised a gun as he and Sticks were walking around the pickup
truck.
In his posttrial declaration, Bailey recanted his
identification of the person in the photos/video as “Sticks.” He
stated he did not know what “Sticks” looked liked before
Detective Bebon showed him a photo during the prison interview.
Goines, too, indicated early in his testimony that he did not
remember the events that led up to the shooting. The prosecutor
asked Goines about his statements to Detective Bebon; Goines
testified he did not remember telling Detective Bebon he had
seen two men get out of the pickup truck. He testified he had his
head down and did not see anything. Goines also denied Bailey
told him the shooter was Sticks. Goines testified he could not

-- 15 of 43 --

16
remember if he told Detective Bebon that Bailey said Sticks was
the shooter.
Goines was ultimately impeached during trial with his
recorded pretrial interview statements to Detective Bebon. In
that interview, Goines had told the detective that one of the men
who got out of the pickup truck went by the name of Sticks.
However, when shown a group of photos, Goines said, “I don’t
know which one Sticks is.” Detective Bebon asked Goines how he
heard that the man might be called Sticks. Goines responded
that Bailey told him after the shooting that Sticks was the person
who shot at them.
In his posttrial declaration, Goines recanted his pretrial
prison statements indicating that Sticks was involved in the
shooting. Goines now declared he did not know who Sticks was
before Detective Bebon showed him a photo lineup during the
prison interview.
The trial court found that defendant had been identified by
other witnesses, as well as being seen in the video of the
shooting. Our independent review of the record confirms these
findings are supported by substantial evidence: Defendant’s
identity and presence were corroborated by videos of the shooting
and the testimony of Orsborn, Nelson, Officer Aguiar and
Sergeant Hess. A new trial is generally not required where the
allegedly suppressed evidence related to witness testimony that
was otherwise corroborated. (Salazar, supra, 35 Cal.4th at
p. 1050.)4
4 Stated in terms of materiality, impeachment evidence is
material “‘where the witness at issue “supplied the only evidence
linking the defendant(s) to the crime.”’” (Salazar, supra, 35
Cal.4th at p. 1050.)

-- 16 of 43 --

17
3. Statements and testimony about “cuz” and/or
“Budlong”
Goines testified at trial that he only heard gunshots, and
he did not remember telling Detective Bebon in the pretrial
prison interview that he had heard someone say “cuz.”
Goines was ultimately impeached at trial with his recorded
pretrial prison interview statements to Detective Bebon. In that
interview, Goines told the detective that one of the men who got
out of the pickup truck said “Yeah, cuz” repeatedly.
In his posttrial declaration, Goines stated that Sticks did
not say “cuz” and he told Detective Bebon this in the pretrial
prison interview. Goines stated in his declaration that the
detective pressured him to agree that Sticks did say “cuz,” and
Goines bowed to that pressure.
Bailey testified at trial that all he heard was the word
“cuz.” He did not tell Detective Bebon during the pretrial prison
interview that he heard “Budlong.” When informed that
Detective Bebon had recorded the pretrial prison interview,
Bailey stood by his claim that he heard the word “cuz” but not the
word “Budlong.”
Bailey was ultimately impeached at trial with his recorded
pretrial prison interview statements to Detective Bebon. In that
interview, Bailey told the detective that one of the men said,
“Budlong,” but Bailey was not sure which one.
In his posttrial declaration, Bailey stated that during the
pretrial prison interview, Detective Bebon asked Bailey if Sticks
said “Budlong Cuz” but Bailey replied that he only heard “cuz,”
and he did not know which of the men said it.

-- 17 of 43 --

18
The use of the words “cuz” and “Budlong” were relevant
primarily to the gang enhancement allegation. Significantly,
Deputy Whiting, the prosecution’s primary gang expert, was
asked about the importance of these words to his opinion that the
crimes were committed for the benefit of the Budlong Crips. On
cross-examination, defense counsel asked Deputy Whiting if it
would change his opinion if “no one heard anything being yelled?
For example, the factor would be removed of yelling of ‘cuz’ or
‘Budlong.’ Would that change your [opinion]?” Deputy Whiting
replied, “No.”
Thus, even if the likely impact of the suppressed evidence
would have been to undermine Goines’ and Bailey’s statements
and testimony about “cuz” and “Budlong,” those statements and
testimony were not needed to support a critical element of the
prosecution’s case. Thus, the “cuz/Budlong” impeachment
evidence does not meet the Brady standard of materiality. (See
Salazar, supra, 35 Cal.4th at p. 1050 [impeachment evidence is
material if “‘the likely impact on the witness’s credibility would
have undermined a critical element of the prosecution’s case’”].)
4. Overall credibility
Considering the impact of Bailey’s and Goines’ posttrial
declarations on the men’s overall credibility, that impact would
have been slight to nonexistent.5 Both men had otherwise shown
themselves to be less than honest and forthcoming. Goines, for
example, stated in his prison interview that he “grew up in Perris
5 Defendant did not argue in the trial court that a new trial
was warranted on the ground that Bailey’s and Goines’
declarations impeached Detective Bebon’s credibility.

-- 18 of 43 --

19
and Moreno Valley” and “had barely started coming to Pomona
only, like, two or three months” before the shooting. These
statements were made to support his claim he was not a 456
Island Piru Bloods gang member and was only loosely connected
to that gang as an associate. At trial, however, Goines testified
he grew up in Pomona and had lived in Perris “at some point.”
While the trial was ongoing, Bailey was revealed to have lied in
his trial testimony when he denied making his pretrial “Budlong”
statement to Detective Bebon; further, Bailey effectively claimed
in his trial testimony that his recorded pretrial statement to
Detective Bebon on this topic was a lie. Both Bailey and Goines
had convictions for crimes of moral turpitude, affecting their
credibility. Both men were very evasive in answering even minor
unimportant questions at trial, responding with equivocal
answers, claims of lack of recollection, or both.6
5. Prejudice
Prejudice is, in effect, assessed through the materiality
prong of a Brady claim. Suppressed “evidence is material ‘only if
there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different.’ ‘A “reasonable probability” is a probability
sufficient to undermine confidence in the outcome.’ [Citation.]”
6 For example, when the prosecutor asked Bailey what kind
of car he had seen Blue near in the parking lot, Bailey replied, “I
don’t remember.” When the prosecutor specifically asked
defendant if he had told Detective Bebon that he saw Blue get
into a Mercedes, Bailey responded, “I mean, I think it was a
Mercedes . . . I don’t know.” The make of the car was of little to
no importance.

-- 19 of 43 --

20
(People v. Hoyos, supra, 41 Cal.4th at pp. 917-918.) The
defendant has the burden of showing materiality. (Id. at p. 918.)
For the reasons set forth above, we see no reasonable
probability of a different outcome at trial if the contents of the
posttrial declarations had been disclosed to the defense before
trial. The evidence was not material, and so there was no Brady
violation. The trial court did not abuse its discretion in
disagreeing with the defense that a Brady violation had occurred.
D. Newly Discovered Evidence
In ruling on a motion for new trial based on the ground of
newly discovered evidence, the trial court similarly considers
whether the evidence is “‘“‘such as to render a different result
probable on a retrial of the cause.’”’” (People v. Howard (2010) 51
Cal.4th 15, 43.) The court also considers whether the new
evidence is material and not cumulative. (Ibid.)7 Here, the trial
court ruled that the declarations did not add anything “material”
to the information that was presented to the jury, and the
evidence offered in support of the motion for new trial was
“cumulative.” This is an implied finding that it was not
reasonably probable the new evidence would result in a different
7 A trial court considers five factors in total: “‘“‘1. That the
evidence, and not merely its materiality, be newly discovered;
2. That the evidence be not cumulative merely; 3. That it be such
as to render a different result probable on a retrial of the cause;
4. That the party could not with reasonable diligence have
discovered and produced it at the trial; and 5. That these facts be
shown by the best evidence of which the case admits.’”
[Citations.]’ [Citation.]” (People v. Howard, supra, 51 Cal.4th at
p. 43.) As factors 1, 4 and 5 were not disputed in the trial court,
we do not consider them on appeal.

-- 20 of 43 --

21
outcome. As our discussion above shows, there is substantial
evidence to support the trial court’s findings on the nature of the
newly proffered evidence. Further, we have concluded in our
Brady analysis that the new evidence did not render a different
result reasonably probable. Thus, the trial court did not abuse its
discretion in denying the new trial motion made on statutory
grounds.
E. False Testimony
“When the prosecution fails to correct testimony of a
prosecution witness which it knows or should know is false and
misleading, reversal is required if there is any reasonable
likelihood the false testimony could have affected the judgment of
the jury. This standard is functionally equivalent to the
‘“harmless beyond a reasonable doubt”’ standard of Chapman v.
California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824]. (In
re Jackson (1992) 3 Cal.4th 578, 597-598 . . . .)” (People v. Dickey
(2005) 35 Cal.4th 884, 909.)8
8 “The United States Supreme Court has held that the state’s
duty to correct false or misleading testimony by prosecution
witnesses applies to testimony which the prosecution knows, or
should know, is false or misleading (see United States v. Agurs,
supra, 427 U.S. at p. 103 . . .), and has concluded this obligation
applies to testimony whose false or misleading character would
be evident in light of information known to other prosecutors, to
the police, or to other investigative agencies involved in the
criminal prosecution. (See, e.g., Giglio v. United States[ (1972)]
405 U.S. 150, 154 [31 L.Ed.2d 104, [93 S.Ct. 763]] [information
known to prior prosecutor]; United States v. Bagley[ (1985)] 473
U.S. 667, 670-672 & fn. 4 [87 L.Ed.2d 481, [105 S.Ct. 3375]]
[information known to federal investigators]; Barbee v. Warden,

-- 21 of 43 --

22
Defendant contends the court’s statement “it’s all
cumulative, to be honest with you” is an implied finding that
Bailey’s and Goines’ declarations were credible. Defendant
further contends this court is bound by those findings. While do
not agree, we will assume for the purpose of considering
defendant’s argument that Bailey’s and Goines’ claims in their
declarations that they did not know and/or recognize defendant
were true, and Bailey’s testimony to the contrary at trial was
false. We will also assume for this purpose that the introduction
into evidence at the trial of the men’s statements to Detective
Bebon asserting that defendant or his companion used the words
“cuz” and/or “Budlong” constituted the presentation of false
testimony.
We independently review the record (see Napue v. Illnois
(1959) 360 U.S. 264, 272 [79 S.Ct. 1173, 3 L.Ed.2d 1217]) and see
no “reasonable likelihood [that] the false testimony could have
affected the judgment of the jury.” (People v. Dickey, supra, 35
Cal.4th at p. 909, italics omitted.) As we explained in our
discussion of defendant’s Brady claim, other witnesses identified
defendant as the man in the blue plaid shirt in the video. Deputy
Whiting’s opinion was not dependent on defendant or the shooter
having said either “cuz” or “Budlong.” There was ample evidence
Maryland Penitentiary (4th Cir. 1964) 331 F.2d 842, 846
[information known to investigating police officers]. See also
Comment, The Prosecutor’s Duty [to] Disclose: From Brady to
Agurs and Beyond (1978) 69 J.Crim.L. & Criminology 197, 205-
206; 2 LaFave & Israel, Criminal Procedure (1984) § 19.5,
pp. 553-554 & fn. 9.)” (In re Jackson, supra, 3 Cal.4th at pp. 595-
596, disapproved on another ground by In re Sassounian (1995) 9
Cal.4th 535, 545, fn. 6.)

-- 22 of 43 --

23
from other witnesses to support the true finding on the gang
enhancement. Overall, the credibility of Bailey and Goines was
significantly impeached during trial. Thus, any admission of
false testimony was harmless beyond a reasonable doubt. (See
ibid.)
II. Aiding and Abetting Instruction
Defendant contends the trial court committed two errors in
instructing the jury on general principles of aiding and abetting
using a modified version of CALJIC No. 3.01: (1) leaving in the
phrase “by failing to act in a situation where a person has a legal
duty to act” even though defendant had no duty to act and
(2) omitting the word “and” between two clauses in the last
paragraph. He claims these errors violated both state and
federal constitutional law and were not harmless.
The People contend that the “instruction [was] correct in
law and responsive to the evidence” and so defendant has
forfeited his claim that the instruction was “too general or
incomplete” by failing to request clarifying or amplifying
instructions during trial proceedings. (See People v. Johnson
(2016) 62 Cal.4th 600, 638.) Defendant’s first claim is that the
reference to a legal duty to act was not responsive to any evidence
in the case; that claim is not forfeited. His second claim is that
the instruction is incomplete without the use of the word “and.”
Although that claim is otherwise forfeited, we review it pursuant
to section 1259, which permits review of an instruction given by
the trial court even though it was not objected to if the
substantial rights of the defendant were affected thereby.
“Ascertaining whether claimed instructional error affected the
substantial rights of the defendant necessarily requires an

-- 23 of 43 --

24
examination of the merits of the claim—at least to the extent of
ascertaining whether the asserted error would result in prejudice
if error it was.” (People v. Andersen (1994) 26 Cal.App.4th 1241,
1249.)
A. Extraneous “Duty To Act” Language
The first error appears in context as follows: “A person aids
and abets the commission or attempted commission of a crime
when he or she: [¶] (1) With knowledge of the unlawful purpose
of the perpetrator, and [¶] (2) With the intent or purpose of
committing or encouraging or facilitating the commission of the
crime, and [¶] (3) By act or advice, or, by failing to act in a
situation where a person has a legal duty to act, aids, promotes,
encourages or instigates the commission of the crime.” (Italics
added.) Defendant contends and the People agree that defendant
had no legal duty to act.
“Giving an instruction that is correct as to the law but
irrelevant or inapplicable is error. [Citation.] Nonetheless,
giving an irrelevant or inapplicable instruction is generally ‘“only
a technical error which does not constitute ground for reversal.”’
[Citation.]” (People v. Cross (2008) 45 Cal.4th 58, 67.)
Such an error violates California law, but does not
implicate the United States Constitution. The error is reviewed
under the reasonable probability standard of People v. Watson
(1956) 46 Cal.2d 818, 836-837. (People v. Debose (2014) 59
Cal.4th 177, 205-206.) In most cases an error of this sort is
harmless. (People v. Rowland (1992) 4 Cal.4th 238, 282.)
This is such a case. The language refers to “a situation
where a person has a legal duty to act” but the trial court did not
instruct the jury that this case presented such a situation. The

-- 24 of 43 --

25
prosecutor never argued or implied that defendant had a duty to
act to prevent the shootings. The prosecutor’s theory of the case
was that defendant was either directly involved in the crimes or
was liable under the natural and probable consequences doctrine.
The jury was instructed pursuant to CALJIC No. 17.31 that all
instructions are not necessarily applicable. The jury must be
considered to have understood and dismissed the reference to a
legal duty to act as mere surplusage. (See People v. Rowland,
supra, 4 Cal.4th at p. 282.)
B. Omission of the Word “And”
The second claimed error appears in the written version of
the instruction as follows: “Mere knowledge that a crime is being
committed [text redacted] the failure to prevent it does not
amount to aiding and abetting.” The word “and” follows
“committed” in the standard version of this instruction. The trial
court’s reading of the instruction to the jury is transcribed as
“Mere knowledge that a crime is being committed, the failure to
prevent it does not amount to aiding and abetting.”
Defendant contends the court’s omission “mistakenly
constricted and obliterated two distinct prongs excluding aiding
and abetting liability.” The omission of the word “and” does
interject some ambiguity into this portion of the instruction.
“In reviewing an ambiguous instruction, we inquire
whether there is a reasonable likelihood that the jury
misunderstood or misapplied the instruction in a manner that
violates the Constitution. (Estelle [v. McGuire (1991)] 502 U.S.
[62,] 72 [112 S.Ct. 475, 116 L.Ed.2d 385].)” (People v.
Covarrubias (2016) 1 Cal.5th 838, 906.)

-- 25 of 43 --

26
Here, it is obvious that something is missing from the
sentence which comprises the last paragraph of the instruction.
This is particularly clear from the written instruction, reproduced
above. Simply as a matter of grammar and logic, a connecting
word is missing from the sentence. “We ‘credit jurors with
intelligence and common sense.’” (People v. McKinnon (2011) 52
Cal.4th 610, 670.) Rational jurors would mentally insert the
words “and” or “or” into the gap. Either choice is favorable to
defendant. There is no reasonable possibility that defendant was
deprived of a defense to aiding and abetting liability by the
manner in which this instruction was presented to them.
III. Natural and Probable Consequences Instruction
Defendant contends the trial court erred prejudicially in
misidentifying the nontarget offense for the natural and probable
consequences doctrine as assault with a deadly weapon, the same
crime listed as the target offense. He claims the error permitted
the jury to convict him of attempted murder without finding that
his co-principal had the specific intent to kill required for a
conviction of attempted murder. The People acknowledge the
trial court misstated the nontarget offense, but contend the
misstatement was harmless error.
A. Instruction Given
The trial court instructed the jury with CALJIC No. 3.02.
The first two paragraphs of this instruction read:
“One who aids and abets another in the commission of a
crime or crimes is not only guilty of . . . those crimes, but is also
guilty of any other crime committed by a principal which is a

-- 26 of 43 --

27
natural and probable consequence of the crimes originally aided
and abetted.
“In order to find the defendant guilty of the crimes of
[attempted murder, sections 187 and 664], under this theory, as
charged in [c]ounts 1, 2, [and] 3, you must be satisfied beyond a
reasonable doubt that: [¶] 1. The crime or crimes of [section 245,
subdivision (a)(2)] were committed; [¶] 2. That the defendant
aided and abetted that those [sic] crimes; [¶] 3. That a co-
principal in that crime committed the crimes of [section 245,
subdivision (a)(2)]; and [¶] 4. The crimes of [sections 187 and
664] was were [sic] a natural and probable consequence of the
commission of the crimes of [section 245, subdivision (a)(2)].”
(Italics added.)
The last paragraph of the instruction told the jury: “You
are not required to unanimously agree as to which originally
contemplated crime the defendant aided and abetted, so long as
you are satisfied beyond a reasonable doubt and unanimously
agree that the defendant aided and abetted the commission of an
identified and defined target crime and that the crime of [sections
187 and 664] was a natural and probable consequence of the
commission of that target crime.”
B. Analysis and Law
The CALJIC No. 3.02 instruction correctly states the legal
requirements for liability under the natural and probable
consequences doctrine. The error here involves a mistake of fact,
that is the designation of the crime which under the
circumstances of this case was the nontarget offense. While this
error may have created some ambiguity in the instruction, we see
no reasonable likelihood that the jury applied this instruction in

-- 27 of 43 --

28
a way that violates the Constitution. (People v. Covarrubias,
supra, 1 Cal.5th at p. 906; People v. Prettyman (1996) 14 Cal.4th
248, 272.)
The prosecutor indentified the alleged target and nontarget
offenses in the opening statement and explained that the
nontarget crime was attempted murder: “[T]he co-perpetrator,
the guy in the white shirt, attempts to kill [and] that guy firing
the gun was a natural and probable consequence of the original
intent of . . . defendant . . . to do an assault.”
The first paragraph of CALJIC No. 3.02 told the jury that
liability under the natural and probable consequences doctrine
applied when a defendant aided and abetted the commission of a
crime and “any other crime [was] committed by a principal which
is a natural and probable consequence of the crimes originally
aided and abetted.” (Italics added.) Thus, the jury knew the
instruction only applied when two different crimes were
committed, and also knew that both crimes had to be committed
by the principal.9 When faced with the repetition of the same
crime, assault, in subsections 1 and 3, a rational juror would
recognize as a matter of logic that the repetition of assault was a
mistake of fact.
The instruction as a whole told the jury that attempted
murder was in fact the “other crime committed by a principal
which is a natural and probable consequence of the crimes
originally aided and abetted.” Subsection 4 tells the jury it must
find that attempted murder “was were a natural and probable
9 The jury was instructed with CALJIC No. 3.00 that persons
involved in committing a crime may be divided into two
categories: (1) those who directly and actively commit the crime,
and (2) those who aid and abet the commission of the crime.

-- 28 of 43 --

29
consequence of the commission of the crimes of [assault].” The
last sentence of the instruction also tells the jury it must agree
that “the crime of [attempted murder] was a natural and
probable consequence of the commission of [the] target crime.”
A rational jury would understand that the instruction
required the jury to find that a co-principal committed attempted
murder. The jury was correctly instructed on the elements of
attempted murder and premeditated attempted murder
necessary to convict a defendant of those crimes, including the
requisite intent. There is no reasonable likelihood that the jury
understood the instruction to permit it to convict defendant of
attempted murder without finding that a principal actually
committed attempted murder, and did so with the necessary
element of intent. To use defendant’s formulation of the
Chapman10 standard of review, the error did not contribute to
the verdict and was harmless beyond a reasonable doubt. (See
People v. Patterson (1989) 209 Cal.App.3d 610, 615.)
IV. Kill Zone Instruction
The trial court instructed the jury on a kill zone theory of
attempted murder using CALJIC No. 8.66.1. The trial court’s
reading of the instruction to the jury is transcribed as: “A person
who primarily intends to kill one person or persons known as the
primary targets may, at the same time, attempt to kill all persons
in the immediate vicinity of the primary targets. This area is
known as the kill zone. A kill zone is created when a perpetrator
10 Chapman v. California, supra, 386 U.S. at p. 24. The
phrase “reasonable likelihood . . . is functionally equivalent to the
‘“harmless beyond a reasonable doubt”’ standard of Chapman.”
(See People v. Dickey, supra, 35 Cal.4th at p. 909, italics omitted.)

-- 29 of 43 --

30
specifically intending to kill the primary target by lethal means
also attempts to kill anyone in the immediate vicinity of the
primary targets. If the perpetrator has this specific intent, and
employs the means sufficient to kill the primary targets and all
others in the kill zone, the perpetrator is guilty of the crimes of
attempted murder of the other persons in the kill zone.” (Italics
added.)11
Defendant contends the instruction’s use of the term
“anyone” misstates the kill zone doctrine, which requires an
intent to kill “everyone” in the kill zone, and so permits a
conviction for attempted murder without requiring the applicable
intent to kill. The People contend the instruction is correct.
Defendant relies on People v. Perez (2010) 50 Cal.4th 222,
232, People v. Smith (2005) 37 Cal.4th 733, 745-746, People v.
Falaniko (2016) 1 Cal.App.5th 1234, 1243, People v. Cardona
(2016) 246 Cal.App.4th 608, 615, review granted July 27, 2016,
11 The written version of the instruction reads as follows: “A
person who primarily intends to kill one person, or persons,
known as the primary targets, may—at the same time—attempt
to kill all people persons—in the immediate vicinity of the
primary targets. This area is known as the ‘kill zone.’ A kill zone
is created when a perpetrator specifically intending to kill the
primary target by lethal means also attempts to kill anyone
everyone in the immediate vicinity of the primary targets. If the
perpetrator has this specific intent, and employs the means
sufficient to kill the primary targets and all others in the kill
zone, the perpetrator is guilty of the crimes of attempted murder
of the other persons anyone in the kill zone. [¶] Whether a
perpetrator actually intended to kill the victim, either as a
primary target or as someone within a ‘kill zone’ zone of risk is an
issue to be decided by you.”

-- 30 of 43 --

31
S234660,12 and People v. McCloud (2012) 211 Cal.App.4th 788,
798 to show error in the court’s failure to use the word “everyone”
in the kill zone instruction. This reliance is misplaced: these
cases all involve fact patterns which did not support a kill zone
instruction.
Our colleagues in Division Two have found no error in the
use of the word “anyone” in the CALCRIM No. 600 instruction on
the kill zone theory. (People v. Campos (2007) 156 Cal.App.4th
1228, 1243-1244.) The version of the instruction used in Campos
explains that “‘[a] person may intend to kill a specific victim or
victims and at the same time intend to kill anyone in a particular
zone of harm or “kill zone.”’” (Id. at p. 1241.) It states that the
People must prove the defendant “intended to kill anyone within
the kill zone.” (Ibid., italics added.) Finally, the instruction
concludes by telling the jury to find the defendant not guilty if it
has a reasonable doubt that the defendant intended to kill the
identified victim(s) “by harming everyone in the kill zone.” (Ibid.,
italics added.) The court concluded that the instruction as a
whole “is consistent with [People v. Bland (2002) 28 Cal.4th 313]
and directed the jury that it could not find [the defendant] guilty
of attempted murder of [the victim] under a ‘kill zone’ theory
unless it found that he intended to harm ‘everyone’ in the zone.”
(Id. at p. 1243.) The court found that in context “there is little
difference between the words ‘kill anyone within the kill zone’
12 Our Supreme Court has deferred briefing in Cardona
pending consideration and disposition of a related issue in People
v. Canizales (S221958, review granted October 10, 2014). The
court has stated that Canizales “presents the following issue:
Was the jury properly instructed on the ‘kill zone’ theory of
attempted murder?”

-- 31 of 43 --

32
and ‘kill everyone within the kill zone.’ In both cases, there
exists the specific intent to kill each person in the group.” (Ibid.)
Our Supreme Court has reached a similar conclusion and
has indicated in dicta that the above quoted CALCRIM
instruction on the kill zone theory which uses the phrase “kill
anyone” was probably harmless error. The court explained: “In
context, a jury hearing about the intent to kill anyone within the
kill zone would probably interpret it as meaning the intent to kill
any person who happens to be in the kill zone, i.e., everyone in the
kill zone.” (People v. Stone (2009) 46 Cal.4th 131, 138, fn. 3.)
Here, the case for harmless error is even stronger than in
Stone. The oral version of CALJIC No. 8.66.1 used “anyone” and
“all persons”/“others” interchangeably, thus increasing the
likelihood that the jury would understand “anyone” to mean
“everyone.” Even applying the Chapman standard of review,
which defendant asserts is applicable to “error involving the
elements of the offense” (see People v. Falaniko, supra, 1
Cal.App.5th at p. 1245), we conclude there is no reasonable
possibility that the jury in this case misunderstood the phrase
“anyone” and convicted defendant without a finding that the
shooter had the requisite specific intent to kill each person in the
group. (See People v. Campos, supra, 156 Cal.App.4th at p.
1243.) The error claimed did not contribute to the verdict and
was harmless beyond a reasonable doubt.
V. “Equally Guilty” Phrase in CALJIC No. 3.00
The trial court instructed the jury with an older version of
CALJIC No. 3.00, probably from 2012. The trial court’s reading
of the instruction to the jury is transcribed as “Each principal,
regardless of the extent or manner of participation is equally

-- 32 of 43 --

33
guilty of a crime.”13 As defendant notes, there has been criticism
of the “equally guilty” language of this instruction, on the ground
that an aider and abettor may be guilty of a lesser or greater
offense than the perpetrator. He contends the instruction
violated his federal constitutional right to due process as a
misinstruction on an element of an offense and as a conclusive
and/or burden shifting presumption.
The People contend defendant has forfeited this claim
because he did not object that the instruction was too general or
incomplete or ask for clarifying or amplifying language. (See
People v. Johnson, supra, 62 Cal.4th at p. 638.) At defendant’s
request, we review his claim pursuant to section 1259.14
Our Supreme Court has explained that the instruction
“generally state[s] a correct rule of law. All principals, including
aiders and abettors, are ‘equally guilty’ in the sense that they are
all criminally liable. (See § 31.) The instruction could be
misleading if the principals in a particular case might be guilty of
different crimes and the jury interprets the instruction to
preclude such a finding.” (People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335, 433.)
There is no possibility the jury was misled in this case,
however. The last paragraph of the instruction makes clear that
13 The written version, which contains an obvious (and
harmless) typographical error states “Each principal, regardless
of the extent or manner of participation is equally guilty. guilty of
a crime.”
14 Because we review defendant’s claim and find no prejudice,
we need not and do not consider defendant’s assertion that if his
claim is forfeited, his counsel’s failure to object constituted
ineffective assistance of counsel.

-- 33 of 43 --

34
a more specific rule applied for the attempted murder charges.
That paragraph reads: “When the crime charged is . . . attempted
murder ___, the aider and abettor’s guilt is determined by the
combined acts of all the participants as well as that person[’]s
own mental state. If the aider and abettor’s mental state is more
culpable than that of the actual perpetrator, that person’s guilt
may be greater than that of the actual perpetrator. Similarly,
the aider and abettor’s guilt may be less than the perpetrator’s, if
the aider and abettor has a less culpable mental state.”
VI. Prosecutorial Error in Opening and Closing
Statements
Defendant contends the prosecutor’s use of the phrase
“partners in crime” during opening statements was improperly
argumentative and his description of Goines as a gang “member”
in closing arguments misstated the evidence. Defendant further
contends the prosecutor misstated the law on the mental state
required for an aider and abettor of willful, deliberate and
premeditated attempted murder.
The record establishes that defendant did not object to
these three statements. This is the basis for the People’s
contention that defendant has forfeited his claim by failing to
object and request a curative admonition in the trial court.
(People v. Ochoa (1998) 19 Cal.4th 353, 427; People v. Avena
(1996) 13 Cal.4th 394, 442.) Defendant acknowledges this rule,
but contends he was “excused from the necessity of either a
timely objection and/or a request for admonition [because] either
would [have been] futile.” (People v. Hill (1998) 17 Cal.4th 800,
820.)

-- 34 of 43 --

35
A. Language Based Errors
Assuming for the sake of argument that the phrase
“partners in crime” was an implicit argument about the men’s
mental states in committing the charged crimes, rather than
merely a colorful description of the men’s relationship, the court
could have cured any possible slight prejudice by admonishing
the jury that the men’s mental state should be determined by the
jury after hearing all the evidence and receiving legal
instructions from the court. Thus, defendant has forfeited this
claim.
Similarly, an admonition easily could have cured any
possible slight prejudice from the prosecutor’s misstatement that
Goines was a gang “member,” particularly since the evidence was
essentially undisputed that Goines was a gang “associate.”15 If
defendant had objected, the trial court could have reminded
jurors of the opening instructions that statements made by the
attorneys during trial are not evidence and that it was the jury’s
duty to determine what facts have been proved by the evidence.
Even without an objection, the jury was re-instructed on these
topics as part of the closing instructions, soon after the closing
arguments. Thus, defendant has forfeited this claim as well.
B. Legal Error
Defendant contends the prosecutor misstated the law when
he argued: “With attempted murder, all that’s required for the
willful, deliberate, and premeditation is that any principal have
that state of mind. So a finding that the guy in the white shirt
15 The gang expert’s hypothetical mirroring the facts of the
case referred to a gang member and a gang associate.

-- 35 of 43 --

36
fired that weapon with the intent to kill and did it willfully and
with deliberation and premeditation is sufficient in this case
where we have two defendants participating in the crime.”
An objection to this statement would have been futile
because the prosecutor correctly stated the current law on this
topic. (People v. Favor (2012) 54 Cal.4th 868, 879-880.)16 Thus,
16 As our Supreme Court has explained: “Because section
664[, subdivision] (a) ‘requires only that the attempted murder
itself was willful, deliberate, and premeditated’ [citation], it is
only necessary that the attempted murder ‘be committed by one
of the perpetrators with the requisite state of mind.’ [Citation.]
Moreover, the jury does not decide the truth of the penalty
premeditation allegation until it first has reached a verdict on the
substantive offense of attempted murder. [Citation.] Thus, with
respect to the natural and probable consequences doctrine as
applied to the premeditation allegation under section 664[,
subdivision] (a), attempted murder—not attempted premeditated
murder—qualifies as the nontarget offense to which the jury
must find foreseeability. Accordingly, once the jury finds that an
aider and abettor, in general or under the natural and probable
consequences doctrine, has committed an attempted murder, it
separately determines whether the attempted murder was
willful, deliberate, and premeditated. [¶] Under the natural and
probable consequences doctrine, there is no requirement that an
aider and abettor reasonably foresee an attempted premeditated
murder as the natural and probable consequence of the target
offense. It is sufficient that attempted murder is a reasonably
foreseeable consequence of the crime aided and abetted, and the
attempted murder itself was committed willfully, deliberately
and with premeditation.” (People v. Favor, supra, 54 Cal.4th at
pp. 879-880.)

-- 36 of 43 --

37
although defendant technically has not forfeited this claim, the
claim lacks merit.17
VII. Cumulative Error
Defendant contends that even if the above-described errors
were not prejudicial when considered individually, the combined
effect of the errors violated his federal constitutional right to due
process. Defendant does not make an argument grounded in the
facts of this case to support his claim. Assuming defendant has
not forfeited this claim, he has failed to demonstrate prejudice.
We have found no abuse of discretion in the denial of the
new trial motion. Two of his three prosecutorial error claims
have been forfeited; the third lacks merit because the prosecutor
correctly stated the law. Thus, any claim of cumulative error
must be based on the instructional error which occurred in this
case.
Two of defendant’s claims of instructional error involve
what amount to harmless typographical errors. The remaining
two claims of instructional error involve statements of law which
are correct in the abstract but have the potential to mislead a
jury under certain circumstances. As we have explained, no such
17 As defendant points out, the California Supreme Court has
granted review in People v. Mateo (S232674, review granted
May 11, 2016) to answer the question of whether Favor should
“be reconsidered in light of Alleyne v. United States (2013) [570]
U.S. [99] [113 S.Ct. 2151] and People v. Chiu (2014) 59 Cal.4th
155.” The court in Chiu cited Favor with approval. (Chiu, supra,
at pp. 162-163.) Until the court issues its decision in Mateo or a
related case, Favor remains valid.

-- 37 of 43 --

38
circumstances were present here. For these reasons, defendant’s
claim of cumulative prejudicial error fails.
VIII. Gang Enhancement Instruction
In order to meet the legal definition of a criminal street
gang, an entity must have as one of its primary activities the
commission of one or more criminal acts specified in section
186.22, subdivision (e). (§ 186.22, subd. (f).) Felony vandalism is
such an offense; misdemeanor vandalism is not. (§ 186.22,
subd. (e)(20).)
Defendant contends the trial court erred prejudicially in
instructing the jury that “vandalism” could qualify as a primary
activity of a gang for purposes of section 186.22. He maintains
the court should have instructed the jury that “felony” vandalism
could qualify as such an activity. He further contends that if the
gang enhancement is reversed, the section 12022.53, subdivision
(e)(1)(A) firearm enhancement must be reversed as well because
it applies when a person has been found to have violated section
186.22, subdivision (b). Defendant did not object to the
instruction and the People contend defendant has forfeited the
claim. At defendant’s request, we review his claim pursuant to
section 1259.
Defendant is correct that only felony vandalism qualifies as
a primary activity under section 186.22, subdivisions (f) and (e).
The difference between misdemeanor and felony vandalism lies
in the amount of the damage caused by the crime; if the damage
is $400 or more the vandalism is a felony. (§ 594, subds. (b)(1)
and (b)(2)(A).)
Deputy Whiting, the gang expert, described the vandalism
committed by the 10 Deuce Gangster Crips as “low level

-- 38 of 43 --

39
vandalism.” He did not use the terms felony or misdemeanor and
did not provide dollar amounts for the vandalism damage. Thus,
the trial court erred in instructing the jury on vandalism because
there was no evidence that it was felony vandalism as required
by section 186.22, subdivision (e)(20).
The court’s error was harmless under either the Watson or
Chapman standards of review. There is no reasonable
probability or possibility that the trial court’s error contributed to
the true finding on the gang enhancement, or stated
alternatively, no reasonable probability or possibility that
defendant would have received a more favorable outcome in the
absence of the error.
Deputy Whiting identified four other primary activities of
the gang: assaults with a firearm, robberies, weapon possession
and narcotics sales. These offenses are all specified in section
186.22, subdivision (e). (§ 186.22, subds. (e)(1) [assault with a
deadly weapon], (e)(2) [robbery], (e)(4) [sales of controlled
substances], (e)(31) [prohibited possession of a firearm].) The
prosecutor produced specific evidence that one gang member had
been convicted of robbery while another had been convicted of
prohibited possession of a firearm. No other witnesses testified
about the gang’s primary activities.
There was no basis for jurors to believe Deputy Whiting’s
testimony about vandalism but not his testimony about the other
four offenses, particularly robbery and prohibited firearm
possession. (Cf. People v. Covarrubias, supra, 1 Cal.5th at p. 880
[no reason for the jurors to believe the victim’s testimony that the
defendant stole handgun but not other property].) There was
similarly no basis for the jury to find that the “low level
vandalism” was a “chief” or “principal” occupation of the gang,

-- 39 of 43 --

40
but that the gang committed the other identified activities only
occasionally. (See CALJIC No. 17.24.2 [instructing on frequency
requirements].) Accordingly, the error was harmless under
either the state or federal standard of review. Because the true
finding on the gang enhancement is valid, there is no basis to
reverse the section 12022.53, subdivision (e)(1)(A) firearm
enhancement.
IX. Firearm and Gang Enhancements Sentences
The trial court sentenced defendant to a term of 7 years to
life for each premeditated attempted murder conviction, doubled
to 14 years pursuant to the Three Strikes law (§§ 667, subds. (b)-
(i), 1170, subds. (a)-(d)). The court then indicated that the section
12022.53, subdivision (d) enhancement required a sentence of 25
years to life to be imposed consecutively to the 14 years to life
sentence. The court then added another 10 years for the section
186.22 gang enhancement. Thus, the court sentenced defendant
to terms of 49 years to life for each attempted murder conviction,
then imposed those terms consecutively to reach a total term of
confinement of 147 years to life.
Defendant contends the 25-years-to-life enhancement term
provided by section 12022.53, subdivision (d) could not be
imposed because there was no jury finding that defendant
personally used and discharged a firearm in the commission of
the attempted murders. Section 12022.53, subdivision (e)(1)
permits the imposition of the 25-years-to-life enhancement under
section 12022.53, subdivision (d) if the jury determines both that
the defendant violated section 186.22, subdivision (b) and a
principal personally and intentionally discharged a firearm

-- 40 of 43 --

41
within the meaning of subdivision (d). The jury made both such
determinations in this case. Thus, this contention lacks merit.
Defendant further contends and the People agree that the
trial court erred in adding a 10-year term for the gang
enhancement to the attempted murder conviction. We agree as
well.
Section (e)(2) of section 12022.53 provides: “An
enhancement for participation in a criminal street gang . . . shall
not be imposed on a person in addition to an enhancement
imposed pursuant to this subdivision, unless the person
personally used or personally discharged a firearm in the
commission of the offense.” When a jury finds only that a
principal personally used a firearm in the commission of an
offense, the defendant is not subject to an enhancement for
participation in a criminal street gang, in addition to the
enhancement imposed under section 12022.53. (People v.
Valenzuela (2011) 199 Cal.App.4th 1214, 1238 [Div. 1]; People v.
Gonzalez (2010) 180 Cal.App.4th 1420, 1424-1425 [Div. 8]; People
v. Salas (2001) 89 Cal.App.4th 1275, 1281-1282 [Div. 5]; see
§ 12022.53, subd. (j) [existence of any fact necessary for penalties
under the section must be pled and either admitted by the
defendant or found true by the trier of fact].)
X. Correction of the Abstract of Judgment
The People request that we order the abstract of judgment
corrected to reflect the trial court’s sentences of 14 years to life in
prison for the premeditation attempted murder convictions. The
abstract currently shows sentences of 7 years to life. Defendant
does not object. We will order the correction.

-- 41 of 43 --

42
XI. Senate Bill No. 620 Remand
In a supplemental brief filed with our permission,
defendant requests that we vacate the true findings on the
section 12022.53 firearm enhancement allegations and remand
the matter for the court to excercise its discretion under Senate
Bill No. 620 to strike or retain those enhancements. In a
supplemental reply brief, the People agree that remand is
appropriate.
On January 1, 2018, Senate Bill No. 620 (2017-2018 Reg.
Sess.) took effect, which amends section 12022.53, subdivision
(h), to remove the prohibition against striking the gun use
enhancements under this and other statutes. (Stats. 2017,
ch. 682, § 2.) The discretion to strike a firearm enhancement
under section 12022.53 may be exercised as to any defendant
whose conviction is not final as of the effective date of the
amendment. (See People v. Brown (2012) 54 Cal.4th 314, 323; In
re Estrada (1965) 63 Cal.2d 740, 742-748.) Defendant’s
conviction was pending on appeal in this court and so was not
final on January 1, 2018. (See People v. Vieira (2005) 35 Cal.4th
264, 305 [“a defendant generally is entitled to benefit from
amendments that become effective while his case is on appeal”];
People v. Smith (2015) 234 Cal.App.4th 1460, 1465 [“A judgment
becomes final when the availability of an appeal and the time for
filing a petition for certiorari have expired”]; see also Bell v.
Maryland (1964) 378 U.S. 226, 230 [84 S.Ct. 1814, 12 L.Ed.2d
822] [“The rule applies to any such [criminal] proceeding which,
at the time of the supervening legislation, has not yet reached
final disposition in the highest court authorized to review it”].)
In light of the People’s agreement that remand is
appropriate, we will remand this matter.

-- 42 of 43 --

43
DISPOSITION
The 10-year terms for the section 186.22 gang
enhancements are ordered stricken. The trial court is instructed
to correct the abstract of judgment to show a sentence of 14 years
to life for each of the attempted murder convictions. The matter
is remanded to permit the trial court to consider whether to
exercise its discretion and strike the section 12022.53 firearm
enhancements. The judgment of conviction is affirmed in all
other respects.
GOODMAN, J.*
We concur:
RUBIN, Acting P. J.
GRIMES, J.
* Retired Judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

-- 43 of 43 --