P. v. Torrence

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Filed 10/30/17 P. v. Torrence 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
WILLIE A. TORRENCE et al.,
Defendants and Appellants.
A142592
(Alameda County
Super. Ct. No. 171910)
In re WILLIE A. TORRENCE et al.,
on Habeas Corpus. A150345, A150186
Defendants Willie Torrence and Lawrence Denard appeal judgments convicting
them of, among other things, one count of first degree murder and two counts of
attempted murder arising out of a gang-related drive-by shooting. On appeal, and in
related habeas corpus petitions, defendants assert numerous errors and violations of their
constitutional rights. With respect to the vast majority of their contentions, we find no
error. To the extent there were errors in the court’s evidentiary rulings, arising largely
from subsequent changes in decisional law, we find no prejudice in light of the
overwhelming admissible evidence of defendants’ guilt both as to the offenses charged
and the gang enhancements. Accordingly, we shall affirm the judgment and summarily
deny the habeas petitions.

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Factual and Procedural History
On July 10, 2013, Denard and Torrence were charged with murder (count 1,
Pen. Code,1 § 187), attempted murder (counts 2 and 3, §§ 187, 664), shooting from a
motor vehicle (counts 4 and 5, § 12034), and possession of a firearm by a felon (count 6
(Denard) and count 7 (Torrence), § 12021.) As to counts 1 through 5, enhancement
allegations under section 12022.53 were alleged for the personal discharge of a firearm
and discharge of a firearm against Denard and Torrence respectively and gang
enhancements under section 186.22 were alleged against both defendants. The
information alleged further under section 667.5, subdivision (b) that both defendants had
suffered one prior prison term.
The following evidence was presented at trial:2
On August 8, 2011, Cynthia was sitting in her car in front of a grocery store on
International Boulevard near 64th Avenue in Oakland. A three-year-old boy was being
pushed in his stroller by his mother. Cynthia saw a car that looked like a “Neon” driving
by at approximately 15 to 20 miles per hour, about one car length in front her. She saw a
dreadlocked, dark-skinned African-American man reaching an arm with a gun out of the
passenger’s window of the Neon. She heard about 10 gunshots. Cynthia then heard the
boy’s mother shouting that her son had been shot.
Cynthia got out and saw two African-American men lying on the ground with
gunshot wounds. She picked up and tried to aid the young victim, but he died before the
ambulance arrived. Cynthia identified the Neon in photographs taken from a nearby
surveillance camera.
The two adult victims were Jerome Williams and Robert Hudson. Williams
testified that he left Oakland to avoid testifying and had been arrested for failure to
appear as a witness in the case. Williams explained that for the last 14 or 15 years there
had been a feud between some people in the “65th Avenue Village” and the “69th
1 All statutory references are to the Penal Code unless otherwise noted.
2 To protect the privacy of the witnesses in this case, we refer to them by their first
names whenever possible.

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Avenue Village” housing projects. He and Hudson had both lived in the 65th Village for
15 to 20 years. Williams has “65” tattooed on his arm. He was afraid to testify and be
labeled a “snitch.” Testifying in front of people he knew from the 69th Village made him
feel “funny” and “intimidated.”
Williams testified that on August 8, 2011, around 1:00 p.m., he and Hudson were
standing on International Boulevard between 64th and 65th Avenues. He saw a gray car
pass by on the far side of the street, heading towards 64th Avenue. The driver was
“mugging” or “looking hard” at him. He recognized the driver as Torrence. People called
him “Whoa” or “Little Will.” As the car passed, he said “there goes those 69th cats.”
After the car made a U-turn in front of the market and came back, Williams heard
gunshots. He was hit in the head and shoulder and fell to the ground. Later, at the
hospital, Williams identified Torrence as the driver and picked his photograph from a
photo lineup. He also identified a photograph of the car Torrence was driving. Williams
did not see the shooter.
Robert Hudson testified that he was currently in custody based on his failure to
appear to testify. He was not happy to be testifying. He acknowledged having been
arrested a number of times for selling drugs near the location of the shooting. He initially
acknowledged the existence of a feud between 65th Village and 69th Village and testified
that “a lot of people” had been shot because of the feud, but he later claimed not to know
of such a feud. On the day of the shooting, Hudson was “hanging out” on International
Boulevard with Williams. He saw Williams get a scared look and heard Williams say
“There goes those 6-9 cats.” He turned around, saw a gun and got down. As he hid
behind a car he heard more than five shots. At trial, Hudson could not identify the
shooter. When asked whether he remembered identifying Denard from a photographic
line-up while in the hospital, Hudson said that he could not. He also denied making a
follow-up statement to the police in which he again identified Denard or “Laylow” as the
shooter.
Oakland Police Sergeant Steven Nowak testified that he spoke to Robert Hudson
at the hospital. Hudson was in critical condition and was strapped to a gurney with a tube

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in his mouth at the time of the interview. Hudson nodded when Sergeant Nowak asked if
he could hear him. When asked if he could identify the people involved, Hudson nodded
“yes.” When told he would show him pictures of people who may or may not be
involved, Hudson again nodded “yes.” Hudson looked at all of the photos and, when
asked if he recognized anyone, again nodded “yes.” When asked if the person he
recognized was one of the shooters, he nodded yes. The sergeant pointed to photo number
one, and Hudson shook his head “no.” When the sergeant pointed to photo number two,
which was Denard, Hudson nodded his head “yes.” When the sergeant pointed to photo
number 3, Hudson again nodded his head “no.” Sergeant Nowak moved back to photo
number 2, and again Hudson nodded his head “yes.” The sergeant asked if Hudson was
identifying the shooter and Hudson nodded “yes,” and made the number “2” with his
hand “by closing his ring finger pinky and thumb.”
At trial, Hudson claimed that he identified Denard in the photo lineup because that
was the person he saw on the news. He acknowledged that around Denard’s picture in the
lineup there was a circle and his initials, but stated he did not put them there.
Hudson was also shown a video tape of an interview conducted at the district
attorney’s office during which he identified Denard as the shooter. In the video, Hudson
states that he saw “Laylow” in the window of the car “whipping out the gun.” Laylow’s
real name was Lawrence. He was half way hanging out of the window. Laylow was a
“dark skin dude with dreads.”
Hudson testified that the tape had been “doctored.” He denied that he ever told the
police in the interview he knew “Laylow” and testified that he only heard that name from
Williams after he left the hospital. Hudson denied that he said on the video tape that he
saw “Laylow” with the gun, and he did not tell the police that Laylow’s first name was
Lawrence. He did not tell the police that Laylow was hanging out the window of the car
or that he got a good look at Laylow firing the gun. He did not tell the police that Laylow
had dark skin and shoulder-length dreadlocks.
Hudson testified that “Shawn” came to help him immediately after he had been
shot. DeShawn was arrested on the night of the shootings for possession of a firearm and

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gave a statement the next day. Later, he gave a videotaped interview. Both times he
identified Denard as the shooter. At trial, he disavowed his earlier statements. DeShawn
did not want to testify at trial. He had been transported from out of state pursuant to a
warrant to compel him to testify.
Oakland Police Officer Michael Igualdo testified that a month before the shooting
he stopped a 2004 gray Dodge Neon near 62nd Avenue. Torrence was driving but the car
was registered to his girlfriend Desiree.
Desiree testified that she owned the Dodge Neon in which Torrence had been
stopped earlier in the year. She testified that around 9:00 a.m. on August 8, Torrence
dropped her at work in San Jose and left in her Neon. That afternoon, around 2:30 p.m.,
Torrence called and said he was on his way back to San Jose to return the car.
Video surveillance footage of the area, from two local business establishments,
showed the suspect vehicle heading West on International Boulevard, then making a U-
turn and coming back Eastbound on International Boulevard.
Denard was arrested at home on August 9, 2011, and Torrence was arrested three
days later. Their cell phones were seized at the time of their arrests. An Alameda County
District Attorney Inspector testified as an expert on cell phone information and cell phone
tower data. He testified that defendants’ cell phone data placed them in the vicinity of
International Boulevard around the time of the shooting. He also opined that the two
phones were “in close proximity of each other during that time period.”
Text messages were also recovered, including the following exchange between
Torrence’s phone and another phone on the night of August 9: Torrence: “they on me . . .
you see the news?” Responder: “What, from the Vil?” Torrence: “Yeah.” Responder:
“Whoa . . . , what you gonna do. I kind knew it was you, but I really didn’t know. Did
you do the little boy?” Torrence: “Don’t talk like that through these texts. You trippin?”
Responder: “I just go far away.” Torrence: “And keep your mouth closed. Don’t tell
nobody nothing, please.”
Five videos that were taken from Denard’s cell phone were played to the jury. In
the videos, Denard expressly claims an association with 69th Village. He also displays

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handguns, talks of drug dealing, shows scenes of drugs, and talks of shooting rival gang
members.
Letters to and from defendants while they were in jail were admitted into
evidence. The letters expressly identify Williams or Hudson as the witnesses who
identified defendants and threatened retaliation. Torrence repeatedly signs his letters
“Whoa” and writes “God forgives, Whoa don’t.” Copies of Torrence’s “writings” while
in jail were also introduced into evidence. In one, he states “65 ain’t Tha Vill” and “street
code names never revealed.” In another, Torrence claims to be “from SNV (sixty-ninth
village)” and writes of sending people “to the dirt.” He also wrote, “If you ever hear
Whoa did it, then it got to be right, because nine times out of ten, ima take your life.”
Oakland Police Lieutenant Tony Jones testified as an expert on Oakland gangs and
gang culture. He testified that there were two gangs within the housing project that runs
from 65th Avenue to 69th Avenue, and he described the history of the ongoing feud
between the 69th Village and 65th Village gangs. He detailed their turf and testified that
the shooting took place in 65th Village’s turf. He testified that the primary activities of
the 69th Village gang include murder, drug dealing, robberies, and possession of guns.
Photographs of defendants’ tattoos were introduced, including Torrence’s tattoos
which read “Bannon Boys” and “Whoa” and Denard’s tattoos which include the numbers
“6” and “9.” Images recovered from Torrence’s social media accounts were also
admitted. In one, Torrence can be seen wearing a T-shirt that reads “revenge is a promise,
Pooka.” Other images show Terrence and Denard “flashing” hand signals associated with
the 69th Village gang. Jones explained that Pooka was a 69th Village member who was
killed. He also explained the significance of the tattoos to the gang. Jones opined, based
in part on their tattoos, material seized from their phones and social media accounts, and
statements made to the police, that Denard and Torrence are members of the 69th Village
gang. Jones also discussed a number of prior gang-related crimes in which defendants
were involved. Jones also opined, based on their tattoos and the location of their prior
drug sales, that Williams, Hudson and DeShawn were members of the 65th Village gang.
Given a hypothetical question that assumed numerous facts for which there was evidence,

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including a daytime drive-by shooting, and “mean-mugging,” Jones concluded that such
a killing would be gang related. He explained that the crime would serve to enhance the
gang’s reputation for violence.
The jury found defendants guilty on all counts and found the enhancement
allegations true. The murder and attempted murders were found to be of the first degree.
The trial court sentenced Denard to a total term of 137 years to life in state prison and
Torrence to a total term of 121 years to life in state prison.3
Defendants timely filed notices of appeal. While their appeals were pending,
defendants’ filed petitions for a writ of habeas corpus, which we consolidated with this
appeal.4
Discussion
I. The Direct Appeal
1. Batson/Wheeler Challenge
Defendants, who are African-American males, contend they were deprived of their
constitutional rights to equal protection and a representative jury based on the
prosecutor’s exercise of peremptory challenges to exclude African-American males and
3 Denard’s sentence was calculated as follows: On count 6, possession of a firearm,
the court imposed the three-year upper base term, enhanced by the four-year upper base
term for the gang enhancement. The court then imposed 25 years to life on the murder
charged in count 1, with a consecutive 25-year-to-life term for the gun use enhancement.
The court imposed 15 years to life on the attempted murders, with enhanced minimum
terms under the gang allegations, in counts 2 and 3. Those terms were enhanced with 25
years to life for the gun use enhancements. The remaining terms were stayed.
Torrence’s sentence was calculated as follows: On count 1, the court imposed a
term of 25 years to life, with a consecutive term of 25 years to life for the gun
enhancement. On counts 2 and 3, the court imposed seven years to life base terms,
consecutive to 25 years to life terms for the gun enhancements. The court imposed the
upper base term of three years for the gun possession in count 7, with a consecutive four-
year upper term for the gang enhancement under section 186.22.
4 Defendants’ request for judicial notice of the record and pleadings filed in their
direct appeals is granted pursuant to the consolidation of these matters.

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males in general. (See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler).)
The law is settled. The exercise of a peremptory challenge based solely on a
prospective juror’s inclusion in a protected classification, such as race or gender, offends
the guarantee of equal protection of the laws under the Fourteenth Amendment to the
federal Constitution (Batson, supra, 476 U.S. 79; United States v. Martinez-Salazar
(2000) 528 U.S. 304, 315) and a defendant's right to trial by a jury drawn from a
representative cross-section of the community under article I, section 16 of the state
Constitution (Wheeler, supra, 22 Cal.3d at pp. 276-277).
“When a party raises a claim that an opponent has improperly discriminated in the
exercise of peremptory challenges, the court and counsel must follow a three-step
process. First, the Batson/Wheeler movant must demonstrate a prima facie case by
showing that the totality of the relevant facts gives rise to an inference of discriminatory
purpose. The moving party satisfies this first step by producing ‘ “evidence sufficient to
permit the trial judge to draw an inference that discrimination has occurred.” ’
[Citations.] [¶] Second, if the court finds the movant meets the threshold for
demonstrating a prima facie case, the burden shifts to the opponent of the motion to give
an adequate nondiscriminatory explanation for the challenges. To meet the second step's
requirement, the opponent of the motion must provide ‘a “clear and reasonably specific”
explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] In
evaluating a trial court’s finding that a party has offered a neutral basis—one not based
on race, ethnicity, or similar grounds—for subjecting particular prospective jurors to
peremptory challenge, we are mindful that ‘ “[u]nless a discriminatory intent is inherent
in the prosecutor's explanation,” ’ the reason will be deemed neutral. [Citation.] [¶] Third,
if the opponent indeed tenders a neutral explanation, the trial court must decide whether
the movant has proven purposeful discrimination. [Citation.] In order to prevail, the
movant must show it was ‘ “more likely than not that the challenge was improperly
motivated.” ’ [Citation.] This portion of the Batson/Wheeler inquiry focuses on the
subjective genuineness of the reason, not the objective reasonableness. [Citation.] At this

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third step, the credibility of the explanation becomes pertinent. To assess credibility, the
court may consider, ‘ “among other factors, the prosecutor’s demeanor; . . . how
reasonable, or how improbable, the explanations are; and . . . whether the proffered
rationale has some basis in accepted trial strategy.” ’ [Citation.] To satisfy herself that an
explanation is genuine, the presiding judge must make ‘a sincere and reasoned attempt’ to
evaluate the prosecutor’s justification, with consideration of the circumstances of the case
known at that time, her knowledge of trial techniques, and her observations of the
prosecutor's examination of panelists and exercise of for-cause and peremptory
challenges. [Citation.] Justifications that are ‘implausible or fantastic . . . may (and
probably will) be found to be pretexts for purposeful discrimination.’ [Citation.] We
recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it
draws on its contemporaneous observations when assessing a prosecutor's credibility.
[Citation.] We review a trial court's determination regarding the sufficiency of tendered
justifications with ‘ “great restraint.” ’ [Citation.] We presume an advocate's use of
peremptory challenges occurs in a constitutional manner. [Citation.] When a reviewing
court addresses the trial court’s ruling on a Batson/Wheeler motion, it ordinarily reviews
the issue for substantial evidence. [Citation.] A trial court’s conclusions are entitled to
deference only when the court made a ‘sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered.’ [Citation.] What courts should not do is
substitute their own reasoning for the rationale given by the prosecutor, even if they can
imagine a valid reason that would not be shown to be pretextual. ‘[A] prosecutor simply
has got to state his reasons as best he can and stand or fall on the plausibility of the
reasons he gives. . . . If the stated reason does not hold up, its pretextual significance does
not fade because a trial judge, or an appeals court, can imagine a reason that might not
have been shown up as false.’ ” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158-1159.)
In the trial court, defense counsel alleged the prosecution improperly excused 10
male jurors based on a bias against males and African-American males. Nine of those
challenges are reasserted on appeal. Seven of the challenges were to prospective

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members of the jury and two challenges were to prospective alternates.5 Two challenges
to prospective jury members were to African-American males. The other five challenges
to prospective jurors were to males of other races. The final jury was comprised of six
women, three of whom were African-American, and six men, none of whom were
African-American.
The trial court had “serious doubts” as to whether a prima facie case had been
made, but followed the “better practice” and allowed the prosecutor to record his reasons
for the challenges. After the prosecutor stated his reasons, the court provided a detailed
and well-reasoned explanation for its conclusion that the reasons were gender and race
neutral and sincere.
We review the contested peremptory challenges to the seven jurors who were
excused from the jury. Initially, we note that although not conclusive, the fact that the
jury included six men and three African-American women “is an indication of good faith
[by the prosecutor] in exercising peremptories.” (People v. Turner (1994) 8 Cal.4th 137,
168.)
a. L.A. – African American, Male
The prosecutor gave four reasons for excusing L.A. First, he had been a postal
worker for 23 years and the prosecutor opined that “postal workers are traditionally a
group that prosecutors have to give a critical eye to, because they operate on an
individual basis . . . if they are operating as [a] carrier. They work alone, not with other
people. They often then can be viewed as having difficulty in terms of working as a
group, coming to a group resolution.” Second, the prosecutor thought L.A. “had a very
5 As the prosecution argues, defendants’ challenges to the two prospective alternative
jurors are easily dismissed, as no alternatives were substituted into the jury and thus any
purported error would be harmless. (People v. Roldan (2005) 35 Cal.4th 646, 703
[“Defendant also claims the trial court erred in denying his second Wheeler motion
regarding Prospective Alternate Jurors G.A. and T.J., but we reject his claim at the
threshold. ‘[Because] no alternate jurors were ever substituted in, . . . it is unnecessary to
consider whether any Wheeler violation occurred in their selection. Moreover, any
Batson violation could not possibly have prejudiced the defendant.’ ”], disapproved on
other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)

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harsh demeanor.” He was “an imposing individual [who] gave short curt answers both in
his questionnaire and when he was voir dired.” Third, he was resistant to answering
questions “about his employment” which caused the prosecutor concern because when a
juror is “less forthcoming . . . I do not know what is behind that curtain then. I am not
going to press him about it, because I will further alienate him, but that refusal is
certainly a concern.” Finally, he “was falling asleep” when the court was reading the
charges and the next day he failed to show up for an entire morning of voir dire.
Initially, defendants fault the court for failing to take into account “the Alameda
County District Attorney’s Office history of excluding African-Americans from juries.”
Defendants cite Miller-El v. Cockrell (2003) 537 U.S. 322, 347 for the proposition that
“the fact that a prosecutor belongs to a district attorney’s office with a history of racial
bias is a factor to consider in the ‘totality of the relevant facts about a prosecutor's
conduct.’ ” Not only did the defense attorneys not make any such argument in the trial
court or present facts sufficient to support such a claim, Denard’s attorney expressly
discouraged the court from considering “things that are outside of our record such as
other experiences.” Accordingly, this argument has been waived.
Defendants also challenge the sincerity in the prosecutor’s concern with L.A.’s
employment. It is well established, however, that “[w]hether a prosecutor’s
generalizations about a given occupation have any basis in reality or not, a prosecutor
‘surely . . . can challenge a potential juror whose occupation, in the prosecutor’s
subjective estimation, would not render him or her the best type of juror to sit on the case
for which the jury is being selected.’ ” (People v. Trinh (2014) 59 Cal.4th 216, 242.) The
trial court found the prosecutor’s explanation sincere and we see no evidence of pretext.
Contrary to defendants’ argument, the lack of sincerity is not demonstrated by the
prosecutor’s failure to excuse Juror No. 7, who also worked as a postal carrier. As the
Attorney General notes, however, unlike L.A. who worked as a letter carrier for 21 years,
Juror No. 7 “retired after having been an engineer with Chevron in Richmond for 36
years. The two years he listed as having been a postal worker, inferably as a student, were
a small fraction of his career.”

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b. S.K. – African-American, Hispanic Male
The prosecutor explained that he excused S.K. in part because of his occupation as
a social worker: “This focus on social work then is a concern in that again it is a focus on
rehabilitation, not accountability, but on rehabilitation of an individual. It is a focus on
giving the benefit of the doubt on reform, not on holding accountable.” The prosecutor
also observed that S.K. had reported two bad experiences with police and that he had
nodded affirmatively when another male juror gave an answer during voir dire that the
prosecutor thought was particularly defense-oriented. Finally, the prosecutor was
concerned that S.K. would have trouble deliberating because he suffered from bipolar
disorder and his “triggers” included “people yelling at me,” or “out right rudeness.”
As noted above, a prosecutor may properly rely on occupation as a basis for
exercising a peremptory challenge. (People v. Trinh, supra, 59 Cal.4th at p. 242; People
v. Streeter (2012) 54 Cal.4th 205, 225 [“[T]he prosecutor could also have reasonably
believed that as a social services caseworker, Prospective Juror No. 3 might be more
sympathetic to the defense.”].) The prosecutor’s concerns with the prospective juror’s
mental health are a second, nondiscriminatory explanation for the challenge. Substantial
evidence supports the court’s finding that the prosecutor’s reasons were sincere.
Defendant’s comparison of S.K. to Juror No. 12, who was not challenged by the
prosecutor, is inapt. Although Juror No. 12 had an undergraduate degree in psychology,
she was a second grade teacher, not a social worker.
c. C.C. – African-American, Male
The prosecutor identified numerous “red flags” in C.C.’s questionnaire, including
his attendance for six years at the University of California, Santa Cruz, which the
prosecutor described as a “liberal university” with “liberal values,” his support of the
Sierra Club, the ACLU, Amnesty International and the Union of Concerned Scientists,
and the fact that he did not watch television, but listened to “KQED radio news.” He also
observed that on two different days, C.C. “had [a] disheveled beard, disheveled hair, but
he wore bicycle shorts, just bicycle shorts. Tight Lycra or Spandex bicycle shorts to
court. That sort of presentation in terms of the formality of this court, wearing shorts to

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begin with, but also in terms of wearing bicycle shorts, essentially tight underwear, that
caused me concern about him taking the seriousness of this case and certainly, in terms of
the appropriateness of this [case], given this is a court of law and given the nature of this
case. I should say if I haven’t made it clear already, there were nothing covering the
bicycle shorts. Nothing covering his genitalia, nothing covering part of his leg, just
bicycle shorts.” Finally, the prosecutor noted that C.C. had served previously on a hung
jury.
Defendants contend that two of the prosecutor’s proffered explanations, that C.C.
attended the University of California, Santa Cruz and that he sat on a hung jury, were
“make-weight and demonstrate purposeful discrimination.” We disagree. Fair or not, the
prosecutor’s characterization of the University of California, Santa Cruz is consistent
with C.C.’s other stated interests and is not a sign of bias against all males. The trial court
reasonably determined that the proffered reasons were not pretextual.
d. R.M. – No race stated,6 Male
The prosecutor explained that R.M. “lives alone, he has worked as a scientist . . . .
He has never been married. He has no children. I state these factors, because again, there
are concerns certainly about a scientist, about over evaluating any particular evidence,
over evaluating, overly critical using scientific principles instead of common sense . . . .
In addition, the fact that he lives alone, that he has never been married, he has no kids,
. . . speaks to a concern in my head about his . . . independence as opposed to working
with others.”
The prosecutor also explained why he felt differently about R.M. than about other
scientists on the panel. The prosecutor pointed out that Juror No. 3 was also a male
scientist, but that he “has two daughters and is married. His daughters are of young age.
He also had a good answer in his questionnaire regarding the testimony of an expert. That
will play heavily in this case. Good answer . . . and a prosecution-oriented answer.”
6 The prospective juror answered “none” to the question asking for race on the
questionnaire.

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Similarly, as to Juror No. 5, a female scientist, the prosecutor pointed out that she had
two sons and that this “distinguished her from [R.M.] particularly with children, her
being married, divorced, her having a fiancé, her ability to work with others.” Also, Juror
No. 5 “had several answers that were prosecution oriented.”
Defendants contend the prosecutor’s failure to ask R.M any follow-up questions
demonstrates the pretext in his explanations. For example, defendants suggest that the
prosecutor “could have asked [him] about his employment, whether he had to work in a
collaborative manner with others and/or how he resolved conflicts either at work or at
home. The prosecutor failed to broach this important subject with the witness. [¶] Lastly,
there were no questions by the prosecutor directed to determine whether [R.M.] would be
able to exercise common sense or whether he would be ‘overly’ critical.”
The prosecutor, however, “is not required to examine a prospective juror about
every aspect that might cause concern before it may exercise a peremptory challenge.”
(People v. Jones (2011) 51 Cal.4th 346, 363.) The failure to question a prospective juror
“is of limited significance in a case such as this one, in which the prosecutor reviewed the
jurors' questionnaire answers and was able to observe their responses and demeanor, first,
during extensive individual questioning by the court and later, during group voir dire.”
(People v. Clark (2011) 52 Cal.4th 856, 906-907) As the trial court observed, the
prosecutor “was concerned that because of perhaps the confluence of all of these factors,
[R.M.] would be overly critical and would not be capable of exercising common sense,
that he would not be able to work well with others. Whether or not [the prosecutor] was
right or wrong on that, is not necessarily the point. The point though is, this is in my
judgment a valid and race and [gender] neutral [reason] for [the prosecutor] to want to
excuse [R.M]. I do not think it is a sham excuse. I think it is a genuine reflection of [the
prosecutor’s] honest belief that this is not someone was going to work well in the context
of jury deliberations.” We find no basis to disturb this finding.
e. L.T. – Filipino, Male
The prosecutor explained L.T. was excused because of “two things in his
questionnaire that I determined were significant enough to cause me to question his

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ability to be prosecution oriented in this case and his view of the evidence.” First, L.T.
stated “brother-in-law went into trial, was accused of molesting his step-daughter, not
convicted” and that L.T. “attended [the] trial of brother-in-law.” Second, he believed in
the “fairness and effectiveness of the criminal justice system” “if the verdict was decided
without any doubt.” The prosecutor explained his concerns as follows: “One, that he went
to his brother-in-law’s trial, that his brother-in-law took a case to trial and was found not
guilty by jurors would obviously create questions in my mind as to [his] comfortableness
with the criminal justice system and [its] ability to effectively, to charge people that are
guilty of a crime. [¶] . . . What’s more that he has stated that his burden of proof for me
would be higher than what the law indicates only would he decide the verdict, if it was
decided without any doubt. And again, I think this is probably in reference to his brother-
in-law and perhaps feelings about his brother-in-law’s trial and him being unfairly tried. I
did not want to question him about that for fear of tainting this jury with his answer and
replies to that. . . . I exercised a peremptory on that basis.”
Again, defendants’ contend that the prosecutor’s failure to ask the prospective
juror questions about his concerns indicates the pretext of the explanation. As with the
prior juror, the trial court again concluded that the prosecutor legitimately believed that
the prospective juror would “hold the prosecutor to a significantly higher burden of
proof” than the law requires. We perceive no basis to disturb the trial court’s finding.
f. B.M. –White, Male
The prosecutor noted that B.M was young, liberal, had no children and no
attachment to the community. The prosecutor explained that B.M. had lived in numerous
places and had been in Alameda County only for roughly two and a half years, and that
he preferred jurors who have strong attachment to the community. The prosecutor also
was concerned about B.M. having volunteered with Vista, which B.M described as a
program of AmeriCorps. The prosecutor explained that he knew about AmeriCorps from
friends and roommates in law school, and that it “is geared towards serving the
underprivileged. It is often volunteered to by people that have a social bent that are
looking for the rehabilitative process in our culture that are less law and order.”

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Defendants fault the trial court for relying on its own experiences to validate the
prosecutor’s concerns about the prospective juror’s volunteer work with AmeriCorps.
The court explained, “My experience has been that AmeriCorps is, membership in that
group is not uncommonly the subject of discussion of voir dire and that the perception is
widely held by the prosecution that it is a liberal agency whose goals are social justice
and rehabilitative as opposed to accountability, and that I think it is and I hold that it is a
legitimate and gender neutral reason to excuse the juror who has volunteered for, to work
in this type of organization.” In assessing the credibility of the proffered explanation, the
court, however, “may also rely on the court’s own experiences as a lawyer and bench
officer in the community, and even the common practices of the advocate and the office
that employs him or her.” (People v. Lenix (2008) 44 Cal.4th 602, 613.)
g. G.R. – Filipino, Male
The prosecutor pointed to G.R’s questionnaire, in which he answered the question
as to his “feelings about the fairness and effectiveness of the criminal justice system,” by
stating, “It is intrinsically biased to the poor and minorities.” To the question of what
came to mind when he thought of prosecutors and defense attorneys, both times G.R
replied, “biased.” The prosecutor explained, “His belief and the use of the word
intrinsically . . . left no qualification, no room for variations rather, his feelings that it is
intrinsically. I determine that to be indelibly, unalterably so biased against the poor and
minorities. He told me that he entered into his role as a juror with a perceived notion that
I, representing the system in great part was biased against poor and minorities.” Given the
opinions expressed in the questionnaire, the lack of follow-up questions does not, as
defendants’ suggest, show pretext or bias.
Thus defendants’ Batson/Wheeler challenges were properly overruled.
2. Hudson’s identification of Denard as the shooter was admissible.
Denard contends that evidence of Hudson’s identification of him while in the
hospital and of his selection of his photograph from the “six-pack” photo array were
inadmissible, and that defense counsel was ineffective in failing to object. The Attorney

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General argues that the evidence was admissible as prior inconsistent statements and that
even if inadmissible, there could be no prejudice because Denard has not challenged the
admissibility of Hudson’s subsequent unequivocal identification of Denard as the shooter
during Hudson’s interview with the police.
“ ‘A statement by a witness that is inconsistent with his or her trial testimony is
admissible to establish the truth of the matter asserted in the statement under the
conditions set forth in Evidence Code sections 1235 and 770.’ [Citation.] ‘The
“fundamental requirement” of section 1235 is that the statement in fact be inconsistent
with the witness’s trial testimony.’ [Citation.] ‘ “Inconsistency in effect, rather than
contradiction in express terms, is the test for admitting a witness’[s] prior statement.
. . .” ’ ” (People v. Cowan (2010) 50 Cal.4th 401, 462, fn. omitted.) “ ‘Normally, the
testimony of a witness that he or she does not remember an event is not inconsistent with
that witness’s prior statement describing the event. [Citation.] However, . . . [w]hen a
witness’s claim of lack of memory amounts to deliberate evasion, inconsistency is
implied. [Citation.] As long as there is a reasonable basis in the record for concluding that
the witness’s “I don’t remember” statements are evasive and untruthful, admission of his
or her prior statements is proper.’ ” (People v. Ledesma (2006) 39 Cal.4th 641, 711.) We
review the trial court’s rulings on the admissibility of inconsistent statements for abuse of
discretion. (People v. Homick (2012) 55 Cal.4th 816, 859.)
Here, Hudson unequivocally testified at trial that he did not see who fired the gun.
He stated, “I wasn’t paying attention to who was holding it. I seen that gun and got low.”
Hudson’s hospital identification of the shooter is at odds with this trial testimony. His
prior identification is also inconsistent with his trial testimony regarding the photographic
line up. Hudson initially testified that he did not recall being shown the photographic
lineup and could not recall identifying the shooter; he later said that he had never seen the
photographs and did not identify a person in the lineup as the shooter. There was no error
in admitting this contradictory evidence.

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3. The admission of DeShawn’s testimony did not violate Denard’s confrontation
rights.
Denard contends that DeShawn’s testimony, including his impeachment with prior
statements to the police in which he identified Denard as the shooter, was admitted in
violation of his confrontation rights. At trial, DeShawn made plain that he did not want to
testify and that he was doing so only because he had been arrested when he failed to
appear in response to a subpoena. DeShawn responded “I don’t know” or “I don’t
remember” to the vast majority of the questions asked on direct and cross-examination.
To impeach DeShawn, the prosecutor read numerous prior inconsistent passages from
DeShawn’s statements to the police, each of which DeShawn disavowed. Further, the
prosecutor was allowed to play for the jury the recording of the statements DeShawn had
made to the police. Although DeShawn never admitted that he made the statements read
into evidence by the prosecutor, the prosecutor argued that the prior statements were true
and that his identification of the defendants was solid.
Denard contends that DeShawn’s refusal to answer questions prevented
defendants from cross-examining him “on important topics, such as how much time he
had to observe the car as it drove by, where specifically he was located, what he was
actually looking at, [and] whether the ‘identification’ was valid or whether [Denard]
merely looked familiar to [DeShawn].” Denard argues that the lack of opportunity to
cross-examine DeShawn resulted in a violation of his constitutional right to confront the
witness testifying against him. The Attorney General suggests that defendants’ argument
is flawed because they “do not distinguish between, on the one hand, a flat refusal to
testify, and, on the other hand, the situation here, where [the witness] did testify, but did
so with evasiveness and hostility.”
“The Sixth Amendment right of confrontation secures a defendant’s right of cross-
examination. [Citation.] The right of confrontation ‘has long been read as securing an
adequate opportunity to cross-examine adverse witnesses.’ [Citation.] ‘ “[T]he
Confrontation Clause guarantees only ‘an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to whatever extent, the

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defense might wish.’ ” [Citations.]’ [Citation.] [¶] That opportunity may be denied if a
witness refuses to answer questions, but it is not denied if a witness cannot remember. A
witness who ‘refuses to answer any question on direct or cross-examination denies a
defendant the right to confrontation which contemplates a meaningful opportunity to
cross-examine the witness. [Citations.]’ [Citations.] [¶] By contrast, a witness who suffers
from memory loss—real or feigned—is considered ‘subject to cross-examination’
because his presence and responses provide the ‘jury with the opportunity to see [his]
demeanor and assess [his] credibility.’ ” (People v. Foalima (2015) 239 Cal.App.4th
1376, 1390-1391; see also People v. Homick, supra, 55 Cal.4th at p. 861 [“While
[witness’s] refusal to answer defendant’s counsel’s questions ‘narrowed the practical
scope of cross-examination, [his] presence at trial as a testifying witness gave the jury the
opportunity to assess [his] demeanor and whether any credibility should be given to [his]
testimony or [his] prior statements. This was all the constitutional right to confrontation
required.’ ”].)
Defendants were provided an opportunity to cross-examine DeShawn and he did
respond substantively to some of defense counsel’s questions. He admitted he was near
the scene of the shooting and that he heard the shots but denied having seen the shooter
or the car driving by. He also admitted he was angry that his friends had been shot and
that he did not want his friends to be hurt, but denied that he wanted to pin the crime on
someone as a result. He did not remember being arrested after the offense or offering to
give the officers information about the shooting if they would let him go home. Thus, the
jury was given an opportunity to observe his demeanor and judge his credibility.
Even assuming that the failure to strike DeShawn’s testimony was error, it was
harmless beyond a reasonable doubt given the other evidence that established Denard’s
guilt. (Chapman v. California (1967) 386 U.S. 18.) DeShawn’s testimony merely
buttressed Hudson’s identification of Denard as the shooter. Cynthia’s description of the
shooter as a dark-skinned African-American man with shoulder length dreadlocks
provided further confirmation of Hudson’s identification. No prejudice resulted from the
admission of DeShawn’s testimony.

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4. Videos found on Denard’s cell phone were properly admitted against both
defendants.
The trial court admitted five videos from Denard’s cell phone. Two of the videos
were made the day of the shooting, two a few days earlier and one a few months before
the shooting. In each of the videos, Denard and others can be seen displaying firearms
and can be heard repeatedly using offensive language, including racial and homophobic
slurs and demeaning statements about women. Torrence is not visible in any of the videos
although it is possible he is referenced by name in the video made several months prior to
the shooting.7 The videos were played in full for the jury and portions of the videos were
replayed when the firearms expert testified regarding the firearms shown in the video, the
police investigator identified where the videos were made and in connection with the
testimony of the gang expert. The videos were also replayed during closing argument.
Initially, Torrence contends the videos were admitted in violation of Bruton v.
United States (1968) 391 U.S. 123 and People v. Aranda (1965) 63 Cal.2d 518. “The
Aranda/Bruton rule addresses the situation in which ‘an out-of-court confession of one
defendant . . . incriminates not only that defendant but another defendant jointly
charged.’ [Citation.] ‘The United States Supreme Court has held that, because jurors
cannot be expected to ignore one defendant’s confession that is “powerfully
incriminating” as to a second defendant when determining the latter’s guilt, admission of
such a confession at a joint trial generally violates the confrontation rights of the
nondeclarant.’ ” (People v. Brown (2003) 31 Cal.4th 518, 537.) As the Attorney General
argues, in People v. Washington (2017) 15 Cal.App.5th 19, 23, the court recently held
that “the United States Supreme Court’s subsequent narrowing of the Sixth Amendment
right to confront and cross-examine witnesses to protect against only ‘testimonial’
statements—as accomplished in Crawford v. Washington (2004) 541 U.S. 36 (Crawford)
and its progeny—also narrowed the Aranda/Bruton doctrine.” The court explained that
“the Aranda/Bruton doctrine is grounded exclusively in the confrontation clause and can
7 In the April 29 video, someone refers to “Pretty Boy Will” and says “He’s a shooter
too.”

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extend no farther than the metes and bounds of the clause defined by the United States
Supreme Court.” (Id. at p. 29.) In his reply, Torrence questions, without further argument,
whether “Crawford so severely limits the Sixth Amendment’s Confrontation Clause.”
Since there is no dispute that the videos made by Denard are not testimonial, we agree
with the Attorney General that Torrence’s rights under the Sixth Amendment were not
infringed by the admission of this evidence.
Torrence also contends that the contents of the videos should have been excluded
pursuant to Evidence Code section 352 as their prejudicial effect greatly outweighed any
probative value as to him. He argues that the court abused its discretion in denying his
motion for separate trials on this basis and, alternatively, that his trial attorney rendered
ineffective assistance in failing to request a limiting instruction.
Contrary to Torrence’s argument, we see no basis to disagree with the court’s
finding that the videos were not unduly prejudicial. As the Attorney General notes, the
videos had probative value in the case against Torrence. “[T]he evidence was probative
on the nature of the 69th Avenue Village gang. Both appellants repeatedly attempted to
show that the 69th Avenue Village was merely a geographic location, which the residents
viewed with pride. They tried to explain their tattoos, and the statements they made in
writing and in pictures and videos, as merely showing local loyalty. Denard’s videos
plainly showed that the 69th Avenue Village was a gang which engaged in drug sales,
and violent retribution and expansion of territory. These facts were a strong indication of
motive. The reason Denard and Torrence shot the victims in this case was to expand their
drug selling territory, and to eliminate drug selling rivals. Denard proclaimed these
motives vividly in the videos.” The trial court reasonably concluded that this probative
value was not outweighed by any purported prejudice. The court did not see the “passing
references to inappropriate treatment and attitudes towards women, or attitudes reflecting
disdain for persons of a different sexual persuasion or a similar type, rise to the level of
undue prejudice which will so inflame this jury, crying out for emotional response and
hatred from the jurors, that they will no longer follow the instructions of the court and
they can no longer be fair and impartial to the defendants.” Given the clear probative

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value of the videos and the trial court’s reasonable estimate of the potential prejudice, we
find no error in the admission of the evidence and agree with the trial court that separate
trials were not warranted.
Finally, any error with respect to the failure to request a limiting instruction was
harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) As stated above, much of the
evidence was admissible against Torrence. Moreover, to the extent that any part of the
video might have been subject to a limiting instruction, given the overwhelming evidence
of Torrence’s participation in the crimes, there is no likelihood that the absence of a
limiting instruction impacted the verdict in any way.
5. Evidence of Torrence’s prior acts of domestic violence was properly admitted.
In Desiree’s rebuttal testimony, the prosecutor questioned her about prior
instances in which Torrence had committed domestic violence against her. Desiree
admitted that on November 10, 2010, Torrence grabbed her by the neck and threw her
onto a couch. She was asked about a statement she signed in November stating that
Torrence punched her and that both sides of her face and her eyes were swollen. She
testified she did not recall the incident. She also denied that she wrote or signed a
statement indicating that she did not report him because she was scared and did not want
to be the reason that he goes to jail. Finally, she was questioned about an incident on May
12, 2011, in which she and Torrence argued when she told him he could not use the Neon
and he hit her with a closed right hand. She admitted the argument, but denied that
Torrence hit her.
In seeking to admit the evidence, the prosecutor noted that Desiree seemed to be
withholding information that she knew about the crimes and Torrence’s friends and his
“lifestyle.” The prosecutor asked that the evidence be admitted as impeachment to
explain why Desiree might be reluctant to say more to the jury and to show that she was
testifying as Torrence had told her to.8 The court admitted the evidence with the
8 Contrary to the Attorney General’s contention, the record supports the inference that an
objection was properly made and overruled.

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following limiting instruction: “I am allowing [evidence] for a limited purpose. The
limited purpose is, it is not received for the truth of the matter referred to. It is only
admitted for this limited purpose, that is, whatever effect it has, if any, on the state of
mind of this witness as the witness is testifying. . . . [¶] . . . At the end of the case, I will
remind you of evidence that was admitted for a limited purpose, and you are to consider
it only for that limited purpose.” The trial court reiterated the instruction in the closing
instructions.
Torrence contends the domestic violence evidence was not properly admitted as
impeachment because Desiree’s “state of mind was not relevant. She was not evasive and
her testimony was very favorable to the prosecution and unfavorable to [him].” He argues
further that the evidence was unduly prejudicial. Whether Desiree’s testimony was
sufficiently evasive to place her mental state at issue and support admission of this
evidence is a question soundly within the trial court’s discretion. (People v. Kovacich
(2011) 201 Cal.App.4th 863, 887.) We cannot say on this record that the court abused its
discretion in so finding. Nor do we find the evidence unduly prejudicial. Finally, given
the overwhelming evidence of Torrence’s guilt, any potential error in the admission of
this evidence is harmless. (People v. Watson, supra, 46 Cal.2d at p. 836.)
6. Any error with respect to the admission of gang evidence was harmless.
Defendants make numerous arguments with regard to the admission of gang
evidence at trial. Defendants argue: (1) the trial court abused its discretion by failing to
act as a “gatekeeper” as required by Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747 (Sargon); (2) the admission of case specific testimonial
hearsay by Lieutenant Jones violated defendants’ confrontation rights under People v.
Sanchez (2016) 63 Cal.4th 665 (Sanchez); and (3) the admission of excessive gang
evidence deprived defendants of a fair trial in violation of their Federal and State rights to
due process.

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a. The trial court did not abdicate its “gatekeeping” duty.
In Sargon, supra, 55 Cal.4th 747, the court delineated the scope of a trial court’s
substantial responsibility to exclude improper expert testimony. “[U]nder Evidence Code
sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude
expert testimony that is (1) based on matter of a type on which an expert may not
reasonably rely, (2) based on reasons unsupported by the material on which the expert
relies, or (3) speculative.” (Sargon, pp. 771-772.) The focus of the trial court’s
gatekeeping function is not on the conclusions reached by the expert but rather on the
reliability of the principles and methodology applied to generate them. (Id. at p. 772; see
also People v. Stamps (2016) 3 Cal.App.5th 988, 994 [Trial courts “are charged with an
important gatekeeping ‘duty’ to exclude expert testimony when necessary to prevent
unreliable evidence and insupportable reasoning from coming before the jury.”].)
Prior to trial, Denard made a motion to limit the testimony of the prosecution
expert under Sargon and requested that the court hold an evidentiary hearing to determine
the basis of Lieutenant Jones’s opinions in this case. The court denied the request for the
evidentiary hearing. The court acknowledged that “trial courts have a substantial
gatekeeping responsibility” and that “this is a responsibility that . . . has been accepted
and welcomed by the trial courts in California for many, many years.” The court
concluded, however, that an evidentiary hearing was not necessary in this instance. The
court explained that it relied on a number of factors in denying the requested hearing,
including that the witness had been extensively examined and cross-examined and was
qualified as an expert at the preliminary hearing. The court also considered the substantial
body of case law regarding admissibility of gang experts and concluded that the witness’s
proffered testimony was a proper subject of expert testimony and that the materials he
relied on are those that an expert may reasonably rely on in forming an opinion. Based on
the above, the court concluded that “the gatekeeping responsibility of this court, the
Superior Court of Alameda County, has been accepted and has been correctly applied,
and I see no need to have what I perceive to be a duplication of what occurred at the
preliminary examination. [¶] [Denard’s defense attorney] was personally present,

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personally engaged in a lengthy and focused cross-examination of Lieutenant Jones after
Lieutenant Jones was subject of an equally focused and direct examination by [the
prosecutor]. That function has taken — that procedure has taken place. I don’t see any
necessity to do it again, especially in view of the state of the law in California which I
must consider when I apply the Sargon standard. There is no need for a 402 hearing in
this case.” The trial court also noted this ruling was not “the end of the road.” The court
acknowledged that as the trial progressed there would be opportunity to revisit the
“gatekeeping” issue with regard to specific evidentiary objections and that all parties
would have an opportunity to voir dire the witness before he was designated an expert at
trial.
Contrary to defendants’ argument, the trial court did not abdicate its gatekeeping
responsibility by relying on the magistrate’s determination at the preliminary hearing.
The court repeatedly stated that the court was independently evaluating the admissibility
of the expert’s testimony under the Sargon standard. To do so, the court reasonably relied
on the testimony previously given at the preliminary hearing in order to avoid
unnecessary delay and duplication of efforts. The court did not abuse its discretion in
concluding that an evidentiary hearing was not required at that time. (Evid. Code, § 802
[“The court in its discretion may require that a witness before testifying in the form of an
opinion be first examined concerning the matter upon which his opinion is based.”].)
Moreover, as noted above, the court indicated that it would revisit the matter as necessary
as the trial progressed.
On appeal, defendants do not identify any specific opinion that was premised on
faulty or unreliable principles or methodology. Instead, they argue generally that in
California, “ ‘gang’ testimony by law enforcement has been admitted under the theory
that it is expert opinion ‘in the field of gang sociology and psychology.’ [Citation.]
Sociology and psychology are disciplines that are based on the scientific method. Jones
never testified that he had taken classes in sociology but that he did take a class or classes
in psychology. None of the psychology classes related to gang culture. [¶] Therefore,
because Jones was lacking ‘the same level of intellectual rigor that characterizes the

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practice in the relevant field,’ namely psychology and sociology, the court should have
never allowed Jones to testify.” However, the use of police witnesses as gang experts in
criminal cases in California is well established. (See People v. Olguin (1994) 31
Cal.App.4th 1355, 1370 [“The use of expert testimony in the area of gang sociology and
psychology is well established.”]; People v. Gardeley (1996) 14 Cal.4th 605, 617 [“The
subject matter of the culture and habits of criminal street gangs . . . meets [the
requirements of Evidence Code section 801.]”], disapproved on different grounds by
People v. Sanchez, supra, 63 Cal.4th 665, 686, fn. 13.) Indeed, it has long been
recognized that the knowledge that renders one an expert for this purpose need not be
acquired from scientific studies or academic endeavors, but may be acquired simply from
experience. (Estate of Toomes (1880) 54 Cal. 509, 514.) We see no basis to revisit the
issue here.
b. Any error under Sanchez is harmless.
As set forth above, the prosecution alleged the offenses charged in this case were
committed for the benefit of, at the direction of, or in association with a criminal street
gang. (Pen. Code, § 186.22, subds. (b)(1)(C), (b)(4).) “In order to prove the elements of
the criminal street gang enhancement, the prosecution may, as in this case, present expert
testimony on criminal street gangs.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047-
1048.) As the parties recognize, the legal landscape with regard to the admissibility of
expert gang testimony changed significantly following the California Supreme Court’s
decision in Sanchez, supra, 63 Cal.4th 665, which was issued well after the trial was
completed in this case.
In Sanchez, supra, 63 Cal.4th at page 679-686, the Supreme Court held the Sixth
Amendment right to confront and cross-examine witnesses limits an expert witness from
relating case-specific hearsay content in explaining the basis for his or her opinion. The
court advised that “a court addressing the admissibility of out-of-court statements must
engage in a two-step analysis. The first step is a traditional hearsay inquiry: Is the
statement one made out of court; is it offered to prove the truth of the facts it asserts; and
does it fall under a hearsay exception? If a hearsay statement is being offered by the

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prosecution in a criminal case, and the Crawford limitations of unavailability, as well as
cross-examination or forfeiture, are not satisfied, a second analytical step is required.
Admission of such a statement violates the right to confrontation if the statement is
testimonial hearsay.” (Id. at p. 680.) The court reaffirmed that “[g]ang experts . . . can
rely on background information accepted in their field of expertise under the traditional
latitude given by the Evidence Code. They can rely on information within their personal
knowledge, and they can give an opinion based on a hypothetical including case-specific
facts that are properly proven. They may also rely on nontestimonial hearsay properly
admitted under a statutory hearsay exception. What they cannot do is present, as facts, the
content of testimonial hearsay statements.” (Id. at p. 685.)
Here, the Attorney General acknowledges that some of Lieutenant Jones’s
testimony was improper under Sanchez, but contends that the “bulk” of his testimony was
admissible and that the erroneous admission of any testimonial hearsay was harmless
beyond a reasonable doubt under Chapman v. California, supra, 386 U.S. 18. We agree
that defendants were not prejudiced by the erroneous admission of limited testimonial
hearsay.
Denard concedes that “there was no confrontation problem with testimony
regarding general gang description or a description of the gang’s conduct or its territory.”
He argues, however, that “there was a confrontation problem with the prosecutor’s use of
case-specific testimony as to [defendants’] police contacts to prove [their] intent to
benefit the gang when committing the underlying crimes,” as well as to establish their
“present gang membership and any monikers” that they may have used. Even assuming
that the evidence objected to by defendants was improperly admitted, the other evidence
that defendants were active members of the 69th Village gang and that the crimes were
committed for the benefit of the gang was so overwhelming that the failure to exclude
this evidence was harmless beyond a reasonable doubt.
Here, Jones’s background information on the 69th Village and 65th Village gangs,
including turf and history, was confirmed by the victims’ testimony. The victims’
membership in the 65th Village gang is established by William’s tattoos and by the fact

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that the victims were selling drugs in 65th Village turf, which Jones permissibly opined
would not be allowed if they were not associated with that gang. Denard’s tattoos and the
videos on his phone overwhelmingly establish that he was an active member of the 69th
Village gang and that the shooting was committed in association with the gang for the
purpose of retaliation against or intimidation of the 65th Village gang. Likewise,
Torrence’s tattoos, the photograph of him in a T-shirt promising revenge for the death of
a 69th Village gang member, his social media posts and his writings in prison all
establish his active participation in the 69th Village gang and that the crime was
committed with the requisite intent. There is no likelihood that defendants would not
have been convicted had the testimonial hearsay been excluded.
Defendants also contend, as they did in the trial court, that the admission of
Jones’s testimony rendered their trial fundamentally unfair. They argue that the testimony
created “a real danger” that the jury would infer they “had committed other crimes and
would commit other crimes in the future unless convicted of these crimes,” and that they
“posed a danger to at least every law-abiding citizen of Alameda County” and thus
should be punished whether or not they committed the charged crimes. We disagree.
For the same reasons that the admission of some evidence inadmissible under
Sanchez was harmless, the constitutional argument fails. As just indicated, considerable
evidence of the gang activities and defendants’ active participation in the gang was
properly admitted. Compared to this evidence, the testimonial hearsay, including the
specific details of defendants’ prior gang-related police interactions, was simply not that
shocking or prejudicial. The evidence of defendant’s guilt is overwhelming. There is no
likelihood the jury was punishing defendants for other past or potential crimes. Although
Denard disputed that he was the shooter, both Hudson and DeShawn identified him as the
shooter soon after the shooting. Although they refused to confirm those identifications at
trial, the evidence was nonetheless persuasive. Moreover, their identification is consistent
with Cynthia’s description of the shooter, particularly his noticeable dreadlocks.
Torrence’s identity as the driver was also convincingly established by William’s
identification immediately after the shooting and at trial, and by the fact that at the time

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of the crimes he was in possession of the car used in the crimes. Likewise, although he
disputed his knowledge and intent at trial, the evidence provided a strong basis to
conclude that he was aware of and actively supported Denard’s shooting. The testimony
was clear that Torrence stared at Williams as he drove past, then made a U-turn and
drove slowly past the victims as Denard was firing the gun. The erroneous admission of
some gang evidence did not deprive defendants of a fair trial.
7. The admission of Torrence’s statements in his jail intake form was harmless.
An Alameda County sheriff’s deputy testified that he interviewed Torrence in
March 2011 to determine his housing. During the interview, Torrence stated that he was
“69th Village,” and that his subset was “Bannon Boys.” These answers along with a
description of Torrence’s tattoos were documented in his intake forms.
Torrence asserts that admission of the form and testimony were improper under
People v. Elizalde (2015) 61 Cal.4th 523, in which the Supreme Court held that the Fifth
Amendment prohibited admission of gang-related statements made by defendants in jail
intake interviews, such as occurred here. The Attorney General concedes that Torrence
“appears to be correct that the evidence was admitted in error” but argues the admission
was harmless because defendant’s gang membership was established beyond a reasonable
doubt by other admissible evidence. (See id., at p. 542 [“The erroneous admission of a
defendant's statements obtained in violation of the Fifth Amendment is reviewed for
prejudice under the beyond a reasonable doubt standard.”].) We agree. Torrence’s gang
membership is established beyond question by the admissible portions of the gang
expert’s testimony, the photographs of his tattoos, his social media account and his
jailhouse writings in which he claimed membership in the 69th Village gang.
8. Torrence was not entitled to an instruction on the lesser related offense of
accessory after the fact.
Torrence contends the trial court erred in refusing his request for an instruction on
accessory after the fact. He suggests the facts, as argued in closing argument, support a
reasonable inference that he did not know that Denard intended to commit the shooting

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before it happened but that, after the shooting, he aided Denard in escaping. However,
being an accessory after the fact would be a lesser related offense to the offense charged,
and not a lesser included offence, so that giving the instruction would have been “ ‘proper
only upon the mutual assent of the parties.’ ” (People v. Rangel (2016) 62 Cal.4th 1192,
1230.)
Torrence acknowledges that the prosecutor objected to the instruction. He argues
that the prosecutor’s explanation for his objection (that the facts did not support the
instruction) somehow negated the need for mutual assent. Regardless, the prosecutor
clearly did not agree that the instruction be given, so the instruction was properly denied.
Moreover, as the Attorney General explains, any possible error in this respect was
undoubtedly harmless. Torrence was convicted of first degree murder and of two counts
of malicious discharge of a firearm from a motor vehicle under an aiding and abetting
theory. As defendant admits, conviction required that “the jury believe[] beyond a
reasonable doubt that he knew, or should have known, that his passenger possessed a
firearm and that he intended to discharge it into a crowd.” Having been found guilty
under that instruction, the absence of an instruction on the theory that Torrence was an
accessory after the fact could not have had any effect on the verdict.
9. Defendants were not denied their right to a public trial.
During the afternoon session on June 4 the court ordered any spectators who were
on felony probation to leave the courtroom.9 At the close of the day, the court indicated
that it wanted to re-evaluate that order and the following morning the court rescinded
the order. While the order was in effect only two witnesses testified. The police inspector
assigned to investigate this case completed his testimony (consisting of approximately 10
9 The court also noted that it was distracting when spectators came and went from the
courtroom while the trial was in session and ordered that spectators no longer be allowed
to do so. Defendants do not challenge this clearly permissible order. (People v. Esquibel,
supra, 166 Cal.App.4th at p. 552, citing Alvarado v. Superior Court (2000) 23 Cal.4th
1121.)

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of 140 pages of transcript)and Jones testified to his background and experience as a
police officer prior to being offered as an expert (approximately 33 pages of transcript).
Denard contends that the exclusion of those on felony probation, even for the
limited duration, was an improper “partial closure” of the courtroom that requires
reversal of his convictions. Alternatively, he argues that this court should “consider a
lesser remedy, such as reversal of the gang allegations and a reversal of all counts that
Jones’s testimony substantially impacted.” We disagree.
A criminal defendant has a constitutional right to a public trial, including the
presence of friends or relatives. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I,
§ 13; In re Oliver (1948) 333 U.S. 257, 271-272; Waller v. Georgia (1984) 467 U.S. 39,
44; People v. Esquibel (2008) 166 Cal.App.4th 539, 551, 553.) Violation of the right to a
public trial is a reversible per se error. (People v. Woodward (1992) 4 Cal.4th 376, 381.)
However, the temporary exclusion of select supporters of the accused does not
necessarily violate the constitutional right to a public trial. (People v. Esquibel, supra, at
p. 552; People v. Bui (2010) 183 Cal.App.4th 675, 688.)
People v. Bui, supra, 183 Cal.App.4th 675 is instructive. In that case, three
spectators, including two of the defendant’s family members, were excluded by a bailiff
from the courtroom for about 40 minutes during jury selection. (Id. at p. 679.) After the
trial court was advised of the situation, the problem was rectified and the courtroom was
opened to all who wanted to be present. (Id. at p. 686.) On appeal, the defendant
maintained his right to a public trial had been violated and reversal was required. The
appellate court made clear that, while it did not condone the exclusion of any person from
the proceedings, the short period of exclusion did not constitute a per se violation of the
defendant’s right to a public trial. The court explained, “Given what we find to be the
de minimis nature of the temporary exclusion of these individuals from only a limited
portion of voir dire, we likewise find, as did the Supreme Court in [People v.] Woodward
[(1992) 4 Cal.4th 376, 383-385], that this ‘temporary “closure” did not violate
defendant's fundamental constitutional right to a public trial.’ ” (People v. Bui, supra, 183
Cal.App.4th at pp. 688-689.)

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The exclusion of felony probationers in this case was similarly de minimis and did
not result in a denial of defendants’ right to a public trial. Defendants’ failure to address
the limited nature of the police inspector’s testimony that was given while the exclusion
was in effect underscores its lack of importance. Lieutenant Jones’s testimony during the
exclusion included only the prosecutor’s expert voir dire examination. The exclusion
order was lifted before defense counsel questioned Jones regarding his expert
qualifications and before Jones offered any substantive testimony. While the exclusion
should never have been ordered, the court corrected itself before any prejudice can be
presumed or the error can be deemed a per se basis for reversal.
10. Prejudicial Prosecutorial Misconduct
Denard asserts four instances of alleged prosecutorial misconduct. “The applicable
federal and state standards regarding prosecutorial misconduct are well established. ‘ “A
prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises
a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make
the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does
not render a criminal trial fundamentally unfair is prosecutorial misconduct under state
law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury.’ ” ’ [Citation.] As a general rule a defendant may not
complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the
same ground—the defendant made an assignment of misconduct and requested that the
jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim
focuses upon comments made by the prosecutor before the jury, the question is whether
there is a reasonable likelihood that the jury construed or applied any of the complained-
of remarks in an objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
a. Officer Johnson
At trial, the prosecutor asked Police Officer Johnson whether she heard anyone
say who the shooter was while at the scene of the shooting. Johnson replied, “I did not
hear anyone say any names.” When asked whether she heard “anyone say Laylow was

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the shooter,” Johnson responded “not from the victims, but I did hear that name. And,
like I said, it was a crowd of people standing in the area, and at that time the name wasn’t
really familiar to me.” Defense counsel objected and the court struck the answer.
Although the jury was not immediately admonished, the court later instructed the jury not
to consider the stricken testimony for any purpose and to treat it as though it had never
been uttered. Whether or not asking the question rises to the level of misconduct, which
we seriously question, there is no reason to believe the jury disregarded the clear
admonition from the court or that any prejudice resulted.
b. Robert Hudson
Denard contends the prosecutor committed misconduct by failing to correct
Hudson’s false testimony that he had not received any monetary payment from the
prosecution and by failing to produce available documentation of the payments. Any
misconduct in this respect was also harmless. Inspector Cruz testified that Hudson
received two $400 payments in 2011 to cover relocation costs in exchange for his
agreement to testify at trial. It is also undisputed that the prosecutor informed defense
counsel about the payments prior to trial, albeit without producing the documents, and
that after defense counsel received the documents, Hudson was recalled and questioned
about the payments.
c. Cell Phone Expert
As set forth above, the cell phone expert opined that the cell phones associated
with the defendants were in close proximity to each other at the time of the shooting. The
prosecutor then asked the expert for the basis of his opinion. The expert answered, “Due
to the start time of the calls that we have applied and the in time and you are talking two
different separate networks that have a lot of their own antennas, don’t necessarily share
all the sites with each other, that in combination with the above, I just mentioned, I would
say they were definitely together.” The prosecutor emphasized, “[d]efinitely together.
Thank you . . . . Those are the only questions I have.”
Denard contends the expert’s testimony that the phones were “in close proximity”
and “definitely together” is patently false and that the prosecution committed misconduct

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by asking questions calling for inadmissible answers or by intentionally eliciting
inadmissible testimony. The expert’s testimony, however, was not misleading or false.
The expert testified that when making or receiving a call, a cell phone will activate the
tower that has the strongest signal, which is usually the closest tower to the phone. He
explained further, that the sector of the tower that is activated indicates the direction from
which the signal is coming. Given a record showing a call that activated sector 6 of a
particular cell tower, the expert could locate the address of the tower, divide the tower
into six sectors of 60 degrees each, and map the triangle shaped area served by a
particular sector of the tower. He noted that he was “not at all trying to say that that
phone was definitely right in that area. It just represents . . . what portion of that tower
serviced the call.” On cross-examination, the expert clarified that “you can never say
where a phone is exactly” and “the cell phone technology . . . cannot pinpoint the location
of a person with a phone.” The prosecutor’s questions were not misconduct.
d. Burden of Proof
Denard contends that the following closing argument by the prosecutor improperly
lowered the burden of proof: “During the very beginning of the prosecutor’s argument he
stated the following; ‘[a]nd there’s a couple of starting points when you look at the
evidence in this case. The judge will instruct you that you have a duty to be reasonable,
and if one interpretation of the evidence appears to be reasonable and the other
interpretation appears to be unreasonable, you must accept the reasonable interpretation
and reject the unreasonable. You must decide, when you listen to me, to the defense
attorneys, what makes sense, what is reasonable, and what simply doesn't add up in your
minds.’ [¶] During his final closing argument, the prosecutor stated, ‘[i]f the evidence
points you — you are to decide what the evidence shows here, but if the evidence points
you to only one reasonable explanation, that’s exactly what the law asks you to decide.
Reject the unreasonable and accept the reasonable. That’s exactly the black and white
letter law that you will be given. That's not shifting of any burdens.’ [¶] Later on the
prosecutor said, ‘[n]ow, again, you come back to this. This interpretation of the evidence.
And what I wanted to show, but this is — it doesn't apply with just each piece of

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evidence. In other words, you don't assess every piece of evidence, whether it is the cell
phone records or the efforts to intimidate witnesses or the gang evidence, and you look at
it by itself and determine, well, I have a reasonable explanation here and a reasonable
explanation there. I got to go with the one with innocence. That's not the way it works.
The law says you take the whole case, look at the whole case as one interpretation,
reasonable and the other unreasonable. If so, you must accept the reasonable.”
In People v. Centeno (2014) 60 Cal.4th 659, 672, the court held that “it is error for
the prosecutor to suggest that a ‘reasonable’ account of the evidence satisfies the
prosecutor’s burden of proof.” The court explained, “Here, the prosecutor’s argument
began with what the jury could consider: reasonably possible interpretations to be drawn
from the evidence. While this is an acceptable explanation of the jury’s starting point, it
is only the beginning. . . . The standard of proof is a measure of the jury’s level of
confidence. It is not sufficient that the jury simply believe that a conclusion is reasonable.
It must be convinced that all necessary facts have been proven beyond a reasonable
doubt. [Citation.] The prosecutor, however, left the jury with the impression that so long
as her interpretation of the evidence was reasonable, the People had met their burden. The
failure of the prosecutor’s reasoning is manifest.” (Ibid.)
Contrary to Denard’s argument, the prosecutor’s argument in the present case does
not suffer from the same defect. As quoted, the prosecutor expressly stated that
determining reasonableness of the evidence was a starting point in the jury’s
deliberations. As the Attorney General notes, this argument was made largely in rebuttal
to defense counsel’s reliance on the circumstantial evidence instruction during his
closing. Among the prosecutor’s final words to the jury was a reminder that “[t]he burden
of proof is beyond a reasonable doubt. You all know that. It has been stated several times.
It is no magic formula. It is no far-reaching standard that is impossible. It is the same
burden that is used in every criminal case in this courthouse and in every other
courthouse in the country, the city, state and country. It is the same burden that is used in
every conviction. And it is far exceeding in this case.” The court’s instructions of course
also made clear the correct standard. There was no misconduct.

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11. The trial court did not err in denying Denard’s posttrial motion to relieve
retained counsel.
Following the return of the jury’s verdict on June 23, 2014, the trial court set
Denard’s sentencing for July 22, 2014.
On July 7, 2014, Denard’s counsel made a motion to withdraw. She pointed out
that the motion was not dependent on a Marsden type showing of ineffective assistance,
but rather was appellant’s absolute right, absent a showing of prejudice to the parties or
the court. She argued that there would be no prejudice or undue delay because it would
take only a short time, perhaps 20 days, for new counsel to get up to speed on the case
and to be able to file the new trial motion, and prepare for sentencing. The prosecutor
objected, noting that given the size of the record, it would take competent counsel weeks
if not months to review. The prosecutor also noted that he had spoken to the reporter,
who stated that a “conservative estimate for the amount of time it would take to just
process the transcripts of the trial alone, would be approximately three months.”
The trial court denied the motion, explaining that “it would result in significant
prejudice to the defendant and . . . would result in disruption of the orderly process of
justice.” The court agreed that “At a minimum, [it] is going to require [new counsel]
months of time to review those transcripts and to carefully delineate and determine in his
or her mind which motions are appropriate, which motions perhaps are not, things of this
nature” and that “a six months to a year continuance of this matter to bring in a new
attorney who has never seen this case before, or has no intimate familiarity with it is
simply unconscionable.” The court found that both defendant and the family of the young
victim would suffer prejudice if the motion were granted. Denard challenges the denial of
his motion.
A criminal defendant has the right to discharge a retained attorney, with or without
cause. (People v. Ortiz (1990) 51 Cal.3d 975, 983.) “A nonindigent defendant’s right to
discharge his retained counsel, however, is not absolute. The trial court, in its discretion,
may deny such a motion if discharge will result in ‘significant prejudice’ to the defendant
[citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes

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of justice’ [citations] . . . . [T]he ‘fair opportunity’ to secure counsel of choice provided
by the Sixth Amendment ‘is necessarily [limited by] the countervailing state interest
against which the Sixth Amendment right provides explicit protection: the interest in
proceeding with prosecutions on an orderly and expeditious basis, taking into account the
practical difficulties of “assembling the witnesses, lawyers, and jurors at the same place
at the same time.” ’ The trial court must exercise its discretion reasonably: ‘a myopic
insistence upon expeditiousness in the face of a justifiable request for delay can render
the right to defend with counsel an empty formality.’ ” (Id. at pp. 983-984.)
Defendant here demonstrated no compelling reason for discharge of the attorney,
and the disruption to orderly process that discharge would necessarily have entailed
seems undeniable. There was no abuse of discretion in the court’s well-reasoned
explanation for the denial of Denard’s motion.
II. The Habeas Petitions
Defendants contend the prosecution violated its discovery obligation under Brady
v. Maryland (1963) 373 U.S. 83 (Brady) (1) by failing to disclose that DeShawn had a
juvenile record and that he was a suspect in a murder that took place in October 2011,
and (2) by failing to alert the defense to the existence of impeaching information
regarding Oakland Police Sergeant Mike Gantt and gang expert Lieutenant Tony Jones.
Denard also contends his counsel rendered ineffective assistance by failing to move to
suppress evidence recovered in the search of his girlfriend’s home.
1. Brady Violation
“ ‘The federal due process clause prohibits the prosecution from suppressing
evidence materially favorable to the accused. The duty of disclosure exists regardless of
good or bad faith, and regardless of whether the defense has requested the materials.
[Citations.] The obligation is not limited to evidence the prosecutor’s office itself actually
knows of or possesses, but includes “evidence known to the others acting on the
government's behalf in the case, including the police.” [Citation.] [¶] For Brady purposes,
evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a

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prosecution witness. [Citations.] Evidence is material if there is a reasonable probability
its disclosure would have altered the trial result. [Citation.] Materiality includes
consideration of the effect of the nondisclosure on defense investigations and trial
strategies. [Citations.] Because a constitutional violation occurs only if the suppressed
evidence was material by these standards, a finding that Brady was not satisfied is
reversible without need for further harmless-error review.’ ” (People v. Cordova (2015)
62 Cal.4th 104, 123-124.)
a. DeShawn’s Criminal History
Denard contends the prosecution violated his constitutional rights by failing to
provide discovery of DeShawn’s juvenile file.10 The Attorney General argues that any
failure to produce the file was not material because defense counsel was aware of the
existence and contents of the file. (See People v. Superior Court (Johnson) (2015) 61
Cal.4th 696, 716 [“if the prosecution provides the defense with, or if the defense
otherwise has, sufficient information to obtain the evidence itself, there is no Brady
violation”]; People v. Salazar (2005) 35 Cal.4th 1031, 1049 [evidence is not suppressed
when it “is available to a defendant through the exercise of due diligence”].) The record
establishes that prior to trial the prosecution informed defense counsel that DeShawn had
“no known adult convictions for felony or misdemeanor crimes of moral turpitude” and
that he had “only one arrest for a crime involving moral turpitude. This arrest is
documented in OPD 11-038710 and previously provided.” Although DeShawn’s juvenile
record was not disclosed, the police report of DeShawn’s arrest, which was disclosed,
indicates that Deshawn had a sustained juvenile petition in November 2010 for resisting
arrest. Moreover, Torrence’s counsel in the present case represented DeShawn in those
juvenile proceedings. Accordingly, any failure to disclose DeShawn’s juvenile record
10 DeShawn’s juvenile record indicates that a petition was filed alleging he had
committed numerous felonies, including assault with a deadly weapon and attempted
murder, based on a police report which indicated that he had fired a hand gun at a the
occupants of a moving car. The petition was sustained in November 2010 based on his
admission to evading arrest and the remaining allegations were dismissed.

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was not material because defense counsel was aware of both the existence and content of
DeShawn’s juvenile record and chose not to pursue the matter.
Insofar as defendants assert that the failure to investigate DeShawn’s juvenile
record constitutes ineffective assistance of counsel, the absence of prejudice negates the
claim. The jury knew that DeShawn offered to provide information regarding the
shooting after being arrested for possession of an assault weapon shortly after the
shooting. DeShawn’s association with the 65th Village gang was well established at trial
so that the jury was aware of any potential motivation this may have provided to identify
Denard as the shooter. Denard’s argument that the jury would have reached a different
verdict had it also known about his involvement in the prior shooting is purely
speculative. He argues, “Had [DeShawn] seen who was in the car, as he had told
authorities previously, and known that the car had been involved in the shooting, he
would have used the weapon that he possessed, the automatic weapon, to shoot at the car
and its occupants who had injured his companions. Because he did not, it is reasonably
probable that he did not actually see who was in the car, and only told the police he did
because he wanted to avoid custody.” Given his gang membership and possession of an
assault weapon, this argument could just as well have been made with or without
evidence of DeShawn’s participation in a shooting as a juvenile.
Next, defendants contend the prosecution failed to disclose that two months prior
to trial, the Oakland Police Department learned from a confidential informant that
DeShawn may have been involved in an October 2011 murder. The Attorney General
argues the information was not material because the information would not have been
admissible to impeach DeShawn. Assuming, however, that DeShawn might have been
asked about his participation in a prior shooting, it is highly improbable that this
additional information would have impacted the jury’s verdict. As set forth above,
Deshawn’s motives to falsely identify Denard were well established. The suggestion that
he may have had an additional reason to lie because he knew he had previously
participated in a murder for which he had not yet been charged is entirely speculative.
There is no basis to believe he would have refused to testify, in breach of his agreement

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with the prosecution, had he known he might be questioned about his participation in the
prior crime for which he had not yet been charged. There is no reasonable probability that
the result of the trial would have been different had Deshawn been impeached with the
additional information regarding his criminal history. We cannot agree with defendants
that the verdict is “not worthy of confidence.”
b. Mike Gantt
Defendants contend the prosecution violated its obligation under Brady by failing
to disclose three pieces of information contained in Gantt’s personnel file: (1) he was
fired, but later reinstated, based on his alleged interference with a rape investigation in
2004; (2) he was recently placed on administrative leave based on allegations that he
allowed his girlfriend to write or transcribe reports in a 2013 murder investigation; and
(3) in 2014 Gantt filed a complaint against Lieutenant Jones, and other members of the
police department’s homicide unit, after receiving racist text messages.11
The Attorney General disputes that any of these incidents implicated Gantt’s
credibility and involved discoverable misconduct. The Attorney General argues further
that the failure to disclose this information was not material in any event given Gantt’s
limited role in the investigation in this case. “Sergeant Gantt did not testify in the case,
and none of his brief investigatory contact with the case found its way into substantive
evidence. ‘Because there was no testimony to impeach, defendant’s Brady claim is
without merit.’ (People v. Williams (2013) 58 Cal.4th 197, 258.)”
In his response, Denard argues that the information in Gantt’s file was material
because it painted the “Oakland Police Department in a very bad light, and would have
substantially impinged the credibility of the gang expert, Lieutenant Jones.” However, as
detailed below, Gantt did not file his complaint against Jones until after conclusion of the
trial. At the risk of stating the obvious, the prosecution could not have disclosed text
messages that did not exist.
11 The Attorney General disputes the characterization of the texts as racist. Insofar as the
texts can reasonably be viewed as exhibiting racial bias, we will treat them as such for
purposes of determining prejudice on appeal.

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c. Lieutenant Tony Jones
Defendants contend that the “Alameda County District Attorney knew that there
were problems with Jones and the racist texts that he sent to fellow officers” but “did not
inform trial counsel or [appellate] counsel [of] any information it had regarding what
Jones’s personnel records might contain regarding this explosive allegation.” Defendants
note that in August 2016, while this appeal was pending, defense counsel requested from
the prosecution “All documents related to Oakland Police Lieutenant Tony Jones and the
racist texts (Klu Klux Klan photographs) he allegedly sent to M. Gantt, and appearing in
a broadcast of ABC news, and any other investigation undertaken by the Alameda
County District Attorney regarding him.” The district attorney replied that it did not have
any discovery to disclose in response to the request.
The texts disclosed in the 2016 news reports appear to have been sent in July
2014. The jury had rendered its verdict in this case in June 2014. Other exhibits show that
Gantt first complained about the texts in August 2014, “two weeks after” defendants had
been sentenced. Nothing in the record establishes that the texts were sent prior to
conclusion of the trial.
The District Attorney’s response to counsel’s August 2016 request for disclosure
was faultless. As noted above, “if the prosecution provides the defense with, or if the
defense otherwise has, sufficient information to obtain the evidence itself, there is no
Brady violation.” (People v. Superior Court (Johnson), supra, 61 Cal.4th at p. 716.)
“[T]he prosecution has no Brady obligation to do what the defense can do just as well for
itself.” (Id. at p. 715.) The court explained, “the prosecution and the defense have equal
access to confidential personnel records of police officers who are witnesses in a criminal
case. Either party may file a Pitchess[12] motion, and either party must comply with the
statutory procedures to obtain information in those records. Because a defendant may
seek potential exculpatory information in those personnel records just as well as the
prosecution, the prosecution fulfills its Brady obligation if it shares with the defendant
12 Pitchess v. Superior Court (1974) 11 Cal.3d 531

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any information it has regarding whether the personnel records contain Brady material,
and then lets the defense decide for itself whether to file a Pitchess motion.” (People v.
Superior Court (Johnson), supra, at p. 716.)
Here, the defendant’s discovery request indicates that the defense was aware of the
allegations regarding Jones’s racial bias. The decision whether to seek discovery of that
evidence by way of a Pitchess motion was within their discretion.13 (People v. Superior
Court (Johnson), supra, 61 Cal.4th at p. 718 [setting forth the “several advantages . . . to
having the defendant use the Pitchess procedures to acquire exculpatory material in
confidential personnel records rather than require the prosecution to do so”].) The
prosecution had no further obligation with respect to disclosure of this information.
2. Ineffective Assistance of Counsel
Denard contends his trial attorney failed to provide constitutionally effective
assistance when she failed to file a motion to suppress evidence recovered in the search
of the Pheasant Drive residence. Denard does not dispute that a warrant was issued for
the search of the property. He argues, however, that the officers did not act in good faith
in relying on the warrant because it was “so lacking in indicia of probable cause that it
rendered official belief in its existence unreasonable.” Denard argues that “there was no
nexus between the crime, the things to be seized, and the place to be searched.” He notes
that the warrant did not identify any named person as the occupant of the residence and
stated only that another suspect who was arrested with Denard had been seen entering the
apartment, while Denard waited outside.
13 In Hurd v. Superior Court (2006) 144 Cal.App.4th 1100, 1108, the court held that
Penal Code section 1054.9, which allows for pre-habeas corpus discovery, authorized a
Pitchess motion. The court required defendant to show, however, that the requested
records were material to his habeas corpus petition, not to his defense to the underlying
prosecution. (Id. at pp. 1105, 1110 [noting that a Pitchess motion must “ ‘set[] forth the
materiality [of the desired personnel records] to the subject matter involved in the
pending litigation’ ”].) We express no opinion whether such a motion would be
appropriate in this instance and note that defendants have failed to explain how evidence
that Jones’s testimony was tainted by a racial bias would entitle them to relief.

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To prevail on a claim of ineffective assistance of counsel, defendant must establish
that his counsel's representation fell below an objective standard of reasonableness and
there is a reasonable probability that, but for counsel’s deficient performance, the result
of the trial would have been different. (Strickland v. Washington (1984) 466 U.S. 668,
694.) Additionally, when, as here, an ineffective assistance claim is predicated on
counsel's failure to bring a motion to suppress evidence on Fourth Amendment grounds,
the defendant “ ‘must also prove that his Fourth Amendment claim is meritorious.’ ”
(People v. Wharton (1991) 53 Cal.3d 522, 576, citing Kimmelman v. Morrison (1986)
477 U.S. 365, 375.)
It is highly doubtful that Denard’s showing would have been sufficient to
overcome the good faith exception to the exclusionary rule. “Evidence obtained by
police officers acting in reasonable reliance on a search warrant issued by a detached and
neutral magistrate is ordinarily not excluded under the Fourth Amendment, even if a
reviewing court ultimately determines the warrant is not supported by probable cause.
[Citation.] This is commonly referred to as the good faith exception to the exclusionary
rule. However, the good faith exception to the exclusionary rule is inapplicable if ‘the
affidavit was “ ‘so lacking in indicia of probable cause’ ” that it would be “ ‘entirely
unreasonable’ ” for an officer to believe such cause existed.’ [Citation.] ‘The question is
whether “a well-trained officer should reasonably have known that the affidavit failed to
establish probable cause (and hence that the officer should not have sought a warrant).”
[Citation.] An officer applying for a warrant must exercise reasonable professional
judgment and have a reasonable knowledge of what the law prohibits. [Citations.] If the
officer “reasonably could have believed that the affidavit presented a close or debatable
question on the issue of probable cause,” the seized evidence need not be suppressed.’ ”
(People v. Garcia (2003) 111 Cal.App.4th 715, 723.)
Moreover, even if the evidence might have been suppressed, Denard has not
established a reasonable probability that the outcome at trial would have been different.
While the guns and gang paraphernalia seized helped to establish his access to guns and
his gang membership, Denard’s access to weapons and gang membership was well

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documented in his social media postings and the images and videos recovered from his
phone.
Disposition
The judgment is affirmed and the petitions for writ of habeas corpus are denied.
Pollak, Acting P.J.
We concur:
Siggins, J.
Jenkins, J.

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