Filed 6/18/14 P. v. Washington CA2/2 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

GREGORY LEE WASHINGTON et al., 

 Defendants and Appellants. 

 B240012 

 (Los Angeles County 

 Super. Ct. No. TA115915) 

 APPEAL from judgments of the Superior Court of Los Angeles County. Ricardo 

R. Ocampo, Judge. Affirmed as modified. 

 Holly J. Jackson, under appointment by the Court of Appeal, for Defendant and 

Appellant Gregory Lee Washington. 

 Ronald White, under appointment by the Court of Appeal, for Defendant and 

Appellant Joseph Anthony Adams. 

 Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and 

Appellant Brandon Marquice Smith. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Blythe J. 

Leszkay, Deputy Attorneys General, for Plaintiff and Respondent. 

* * * * * * 
2 

 Appellants Gregory Lee Washington, Joseph Anthony Adams, and Brandon 

Marquice Smith appeal from judgments entered against them following their convictions 

by jury of two counts of second-degree robbery (Pen. Code, § 211).1 As to both counts, 

the jury also found to be true firearm allegations pursuant to sections 12022, subdivision 

(a)(1) and section 12022.5, subdivision (a), and the allegation that the offenses were 

committed for the benefit of, at the direction of, or in association with a criminal street 

gang (§ 186.22, subd. (b)(1)(C)). Smith admitted a prior prison term allegation (§ 667.5, 

subd. (b)). 

 The trial court sentenced Washington to 26 years in state prison. Adams received 

a sentence of 28 years in state prison. The trial court sentenced Smith to 31 years and 

eight months in state prison. 

 Appellants contend the People committed Brady error (Brady v. Maryland (1963) 

373 U.S. 83 (Brady). They also raise contentions relating to the sufficiency of the 

evidence to support the robbery convictions and gang enhancement finding. They 

contend the trial court erred in its denial of motions to: (1) bifurcate trial on the gang 

enhancements; (2) disclose juror information; and (3) specially instruct the jury. 

Appellants also assert sentencing errors. 

 We modify appellants’ sentences to reflect the corrected sentences for the gang 

enhancement allegations and Smith’s prior prison term enhancement. In all other 

respects, the judgments are affirmed. 

FACTS 

Prosecution Case 

The Robbery 

On December 21, 2010, Ronisha Butler was working as a prostitute on Long 

Beach Boulevard in the City of Compton. Sometime between 9:00 and 10:00 p.m. she 

was approached by a car driven by Otis Hawkins. They discussed prices and she got into 

 

1 All further statutory references are to the Penal Code unless otherwise indicated. 
3 

the car. Hawkins drove to a Bank of America and went to the ATM. He then drove to a 

more secluded residential street about a mile and a half away. Butler and Hawkins were 

about to engage in a sex act when a car pulled up behind them. Smith, armed with a 

handgun, walked up to Hawkins’s car. He opened the driver’s door and said something 

like, “Give me the fucking money.” Hawkins handed Smith his money and a black cell 

phone. 

 Washington came to the passenger side of the car. He banged on Butler’s window 

with a gun and told her to roll down the window. He demanded she give him her purse. 

Butler refused and Washington told Smith to get the money from the purse. Butler gave 

Smith $150. Washington told Butler to give him the “rest of the fucking money” and she 

gave him an additional $100. Washington and Smith got into a grey or silver Nissan 

Altima or Maxima, driven by Adams, and left. Hawkins had a second cell phone and 

used it to call 911. He handed the phone to Butler and followed appellants in his car. An 

audio recording of the 911 call was played for the jury. Butler tried to get a license plate 

number as they drove but appellants were “driving crazy.” Appellants turned down 

“back streets” and were driving fast. 

 Butler recognized all three appellants because she had seen them earlier in the day 

on Long Beach Boulevard. They were harassing other women working on the street and 

Adams asked Butler if she had a pimp. Butler put her head down and walked away. She 

knew if she had responded they would have kidnapped her and taken her away. Butler 

told the 911 operator that appellants were pimps and had been following her all night. 

She was unsure if there was a fourth person in the car which she described as an Altima. 

The Investigation 

At approximately 9:30 p.m. Los Angeles Sheriff’s Department (LASD) Deputy 

Mike Barraza responded to a robbery call and interviewed Butler and Hawkins. Butler 

told Deputy Barraza that Hawkins was robbed by three men in front of the Bank of 

America ATM. Butler testified that she spoke to five or six different police officers on 

the night of the robbery and told different parts of her story to different officers. She 
4 

remembered Adams wore a black shirt, Washington wore a black hoodie and grey pants, 

and Smith wore a black hoodie jacket with green stripes and black pants. 

 LASD Sergeant Noe Garcia heard a radio transmission about a robbery at 

gunpoint. The perpetrators were African-American males and the vehicle involved was 

“a green Nissan Altima or Maxima.” An updated broadcast stated the color of the car 

was silver or grey, and a partial license plate description was “3MM.” He stopped one 

car that was similar to the description broadcast earlier but immediately let it go when he 

determined the driver was female and alone in the car. Another broadcast stated the 

suspects were three or four African-American men in a grey Altima and mentioned a 

black hooded sweatshirt. Sergeant Garcia continued to look for the suspects’ vehicle on 

Long Beach Boulevard. 

 At approximately 11:00 p.m., Sergeant Garcia saw a Nissan Altima that matched 

the description in the broadcast traveling southbound on Long Beach Boulevard. He 

made a U-turn and began to follow it. The car was several blocks ahead of Sergeant 

Garcia and even though he sped up he was not “able to gain ground at all.” The Nissan 

made a fast turn westbound and Sergeant Garcia lost sight of it. Sergeant Garcia spotted 

the Nissan in the drive-through lane of a McDonald’s restaurant. He pulled his vehicle 

behind the Nissan at McDonald’s. He activated his lights, called for backup, and held the 

occupants of the vehicle at gunpoint until other officers arrived. The Nissan was 

registered to appellant Adams’s mother. The license plate was 6HMV526. All three 

appellants were in the vehicle and one was wearing a black hoodie. 

 The day after the robbery, Butler met with LASD Detective Brian Richardson at 

the Compton police station. She read, signed, and understood a standard admonition 

form before viewing any photographs. The interview was recorded. When Butler 

viewed the first photo six-pack, she was unsure because the photos in position number 

one and position number six looked like Adams. The photo used in the six-pack was an 

old booking photo of Adams. She testified that she initially circled two photos on the 

six-pack but Detective Richardson gave her a new card and asked her to circle the person 
5 

whom she was sure was Adams. After thinking about it for a while she eventually 

selected his photo in position number six and wrote, “Following me all day. Driver of the 

car. Harassing me. Driving a Nissan Maxima or Altima.” Butler testified she “balled” 

up the photo six-pack on which she had circled two photos. 

 Detective Richardson initially testified that Butler showed no hesitation in 

selecting Adams from the photo six-pack. He later agreed that she spent some time 

deciding between two photos before circling the person she believed committed the 

crime. He denied she ever circled two photos and did not know what Butler meant when 

she talked about redoing it so she did not “look stupid.” When he listened to the 

recording of Butler’s interview, he agreed that another six-pack was pulled but he did not 

know why. 

 Butler identified Washington from another photo six-pack and wrote, “My side of 

the window. Banged on it. Told me to give him my money. Gestured to the gunner to 

tell him to get the rest of my money. I gave him a hundred dollars.” She identified Smith 

from a photo six-pack and wrote, “Jumped out of the car. Opened the driver door. 

Pointed the gun at friend. Told him to give him money and phone. Pointed gun at me for 

me to empty my wallet. He took the remainder of my money, $150.” 

 Butler, who received immunity from prosecution for prostitution, positively 

identified all three appellants at trial. She had previously described Adams as lightskinned and “short as fuck.” She described Washington as tall. Counsel had appellants 

stand together in court and Detective Richardson acknowledged that Adams was taller 

than the other two appellants. Butler insisted Adams was “short and fat” and explained 

that people tend to look short when they are overweight. Butler agreed that Washington 

was not tall but explained that he had been standing on the curb next to her window and 

she had been sitting down. Butler told Detective Richardson that Smith had a beard. His 

booking photo from the night of the robbery showed he had a beard growing out. At 

trial, Smith was clean shaven. 

 When the appellants were arrested, Washington was wearing a black hoodie and 
6 

grey sweatpants, Adams was wearing a black sweater and black pants, and Smith was 

wearing a white T-shirt and jeans. A black jacket with green stripes was not found, nor 

was a gun or the cell phone belonging to Hawkins. Smith had $11 on his person, and 

Adams and Washington had no money. 

Gang Evidence 

 LASD Detective Grant Roth testified as a gang expert. After detailing his 

background, training, and experience, he testified concerning the culture and habits of 

criminal street gangs. He explained the various ways a person can join a gang and how 

they show allegiance to the gang by committing crimes. He explained the importance of 

respect in gang culture and how respect equals fear. He testified about the diminishing 

importance of gang colors and tattoos in the modern street gangs because it made the 

gang members more easily identifiable to law enforcement. Detective Roth and his 

partner handled all of the gangs in Lynwood. The Palm and Oak Crips gang2 (Palm and 

Oak) was established in the 1970s and had about 110 documented members at the time of 

trial. Detective Roth had personal contact with approximately 30 Palm and Oak gang 

members and investigated crimes in which they were suspects or victims. 

 The principal and primary activities of the Palm and Oak gang were criminal in 

nature and included vandalism, burglaries, robberies, assaults with or without firearms, 

murders, extortion, narcotic sales, and pimping. The gang’s members “consistently and 

repeatedly” engaged in those activities. Detective Roth testified to the commission of 

two predicate crimes committed by members of the Palm and Oak gang. Kevin Donte 

Williams was convicted of carrying a loaded firearm in 2006, and Cory Partridge was 

convicted of vehicle theft in 2007. Williams and Partridge both admitted to law 

enforcement that they were members of the Palm and Oak gang. 

 Detective Roth opined that Washington, Adams, and Smith were members of the 

Palm and Oak gang based on several factors. Detective Roth reviewed appellants’ field 

identification cards, their tattoos, and their known associates. Furthermore, all appellants 

 

2 The name came from the intersection of the streets at the center of their territory. 
7 

self-admitted to membership of the Palm and Oak gang. During a postarrest interview, 

Adams said his moniker was Joe Joe and Washington stated his moniker was Scooter. 

Smith stated he was a member but did not provide a moniker. 

 Responding to a hypothetical question based on the facts of this case, Detective 

Roth opined that the crimes benefitted the Palm and Oak gang. Three individuals from 

the same gang working together in the commission of the crime helped boost their 

individual reputations and word of the crime would get around. Butler’s refusal to work 

for them as a prostitute was “a slap in the face to them” and “a show of disrespect.” 

Failure to retaliate would be a sign of weakness. By robbing Hawkins and Butler, 

appellants showed they were violent, able to handle business, and prepared to do what it 

takes to earn money for the gang. Detective Roth testified that because robbery is a 

means of getting money for the gang, it is common for gang members to go outside their 

territory to commit such crimes. Generally, gang members committing a robbery invoke 

the gang’s name only if they are within their own territory or if the victim was a rival 

gang member. 

Washington’s Defense Case3

Dr. Mitchell Eisen testified as an expert on eyewitness memory and identification. 

He explained how stress and trauma impacts memory and how the presence of a weapon 

can dominate a witness’s attention. Eisen also testified about the suggestive nature of 

six-pack photo lineups. Accurate identifications usually occur in under 30 seconds. The 

witness expects the photo lineup to include the suspect and will find the photo that most 

closely matches their memory. Dr. Eisen testified that it was possible to get some details 

wrong about an identification such as the person’s height and still correctly identify the 

person. 

 

3 Adams and Smith did not present any evidence on their own behalf. 
8 

DISCUSSION 

I. Brady and Trombetta-Youngblood 4 Motions 

Appellants contend the trial court erred when it refused to dismiss the case for 

discovery violations and destruction of evidence. 5 

A. Background 

 1. Six-Pack Photo Identification by Butler 

On cross-examination, Butler denied she rewrote the information on the photo sixpacks. Counsel showed her the transcript of her interview to refresh her recollection but 

Butler maintained she did not “re-do” the six-packs. After Butler was excused and prior 

to leaving the courtroom, she told the prosecutor she did re-do a six-pack regarding 

Adams. The prosecutor promptly informed the trial court and counsel that he wanted her 

“to go back up and clarify” because he was “trying to do this right.” He stated, “She told 

me. I got to do it.” 

 Butler testified that two photos initially looked familiar when she first looked at 

the Adams photo six-pack. She was “debating on one of them being short . . . and lightskinned” and circled both photos. Detective Richardson gave her another copy of the sixpack and asked her to circle the photo that she was sure was Adams. She “balled . . . up” 

the six-pack with the two circled photos and “after talking and looking at the pictures” 

identified Adams on the new photo six-pack. The prosecutor then called Detective 

Richardson and asked him if Butler picked anyone other than Adams in his six-pack. 

Detective Richardson said she did not. Counsel for Adams requested a sidebar and court 

was recessed. 

 

4 California v. Trombetta (1984) 467 U.S. 479, 488-489 (Trombetta), and Arizona v. 

Youngblood (1988) 488 U.S. 51, 57-58 (Youngblood). 

5 Appellants join arguments of the others to the extent they may inure to their 

benefit (Cal. Rules of Court, rule 8.200(a)(5)). Where appropriate we discuss each 

argument in reference to the appellant asserting it. 
9 

 Adams’s counsel argued there was a Brady violation and moved for a mistrial or a 

dismissal. He argued the police report did not accurately reflect what took place at the 

photo identification of his client during Butler’s police interview. Washington’s counsel 

also moved for a dismissal based on a Brady violation, and Smith’s counsel joined. 

The trial court noted that the discarded six-pack was not turned over by the 

investigating officers. Information about it was not included in Detective Richardson’s 

report and the court was concerned with Detective Richardson’s testimony that Butler 

had not identified anyone but Adams. The court found this was exculpatory evidence 

that was not turned over to the defense and stated, “The question as to Brady though is, 

Brady is obviously dangerous when you find the Brady information after the fact.” The 

court noted that the evidence had been brought out in front of the jurors and all counsel 

and stated, “[t]he question is if they can effectively cross-examine based on that.” The 

court ordered the prosecution not to talk to Detective Richardson before he resumed his 

testimony and sustained a defense objection to the prosecution asking leading questions 

that would alert him to the information counsel had received from Butler regarding the 

photo six-packs. The court denied without prejudice the mistrial and dismissal motions. 

The court wanted to hear further testimony with respect to the Brady issue to determine 

whether the defense was prejudiced. 

 Detective Richardson returned and testified that he believed the entire interview 

with Butler was recorded. Under questioning by defense counsel, Detective Richardson 

testified that he believed Butler chose Adams’s photo immediately and he did not 

remember her saying it might be someone else. He would have written in his report if 

Butler had pointed to someone else and was not sure of her identification. Detective 

Richardson was asked to review a portion of the transcript of the Butler interview and 

after further questioning remembered Butler narrowing down her choice between two 

photos. Detective Richardson listened to the portion of the taped interview where Butler 

stated, “Redo it? Yeah, so I don’t look stupid?” He testified he did not know what that 

referred to, and he did not remember doing a second six-pack. 
10 

 The following day, Detective Richardson resumed the stand and testified that his 

responsibilities included collecting and turning over evidence that might point to 

innocence, including evidence that might challenge a witness’s credibility. If a witness 

circled two photos on a six-pack he would have an obligation to turn that over to the 

prosecution. He would be subject to discipline or firing if he discarded something like 

that or falsified reports or evidence. Portions of the audio recording were played again in 

court. Detective Richardson stated he had listened to the interview on his own overnight. 

He agreed it was “undeniable” a second six-pack was pulled but did not remember why it 

was done. He insisted it was not because Butler had circled two photos. He remembered 

Butler was confused and may have “put[] the wrong defendant as far as what they did, 

rather who had the gun or who didn’t have the gun.” The first six-pack was not 

documented in the police report and was not turned over to the prosecution. He testified 

that Butler did not ball up or discard any six-pack. That had “never happened before” 

and he would remember it. He did not include in his report that Butler had to “redo” the 

six-pack because he believed it was irrelevant. 

 After Detective Richardson’s testimony, defense counsel renewed the motion to 

dismiss based on a Brady violation. In the alternative, counsel asked the court to declare 

a mistrial for prosecutorial misconduct because law enforcement is deemed an arm of the 

prosecution. The court denied the motions. The court had reserved ruling on the Brady 

issue because it wanted to assess Detective Richardson’s entire testimony to see “whether 

and what kind of prejudice resulted.” The court then commended all counsel stating, “I 

don’t believe that the cross-examination or the challenge to that effect or the challenge 

due to the lack of evidence or the failure to turn over what could have been challenged by 

cross-examination more effectively than what I have heard from all counsel. I mean, the 

counsel has confronted--I am not the trier of fact, but I think effectively has been able to 

explore that issue with the detectives. And it’s raised some issues, I think, of credibility, 

whether it be with the witness or with the victim--alleged victim--or the witness, 
11 

Detective Richardson. So, I don’t think that there is any effect that would have resulted 

other than what has been established in cross-examination.” 

 At the close of evidence, the trial court denied appellants’ Trombetta-Youngblood 

motion stating the destruction of evidence was a credibility issue, and appellants were not 

prejudiced. 

 2. Field Show-Up Involving Butler 

During a lunchtime break in trial, Butler informed the prosecutor that she had 

participated in a field show-up. The prosecutor and defense counsel were unaware the 

field show-up had occurred. Butler was questioned outside the presence of the jury. 

Butler testified that shortly after the robbery two police officers asked her to go with 

them. She asked them to handcuff her so she would not look like a snitch. Hawkins was 

taken in a different car. Butler was taken to a location where the police had stopped a 

blue Altima driven by a man who was “dark and very tall.” Butler told the officers, “It 

wasn’t him.” 

 The prosecutor stated he intended to elicit the same testimony before the jury. All 

three defense counsel objected. The trial court indicated that it was inclined to allow the 

testimony but with an admonishment. Defense counsel asked for an instruction on late 

discovery if the testimony was admitted. The trial court agreed to instruct the jury 

accordingly. The testimony was never elicited in the presence of the jury. 

B. Analysis 

 1. Brady

Appellants contend the prosecutor violated Brady, supra, 373 U.S. 83, by failing 

to turn over the initial six-pack with two circled photos as described by Butler. They 

argue, notwithstanding that the prosecutor did not know of the existence of the six-pack 

until after Butler testified, the People are responsible for failing to disclose known or 

unknown exculpatory or impeachment evidence. 

 Our review is de novo. (People v. Letner (2010) 50 Cal.4th 99, 176 (Letner); 

People v. Salazar (2005) 35 Cal.4th 1031, 1042 (Salazar).) As our Supreme Court held 
12 

in Letner, “We independently review the question whether a Brady violation has 

occurred, but give great weight to any trial court findings of fact that are supported by 

substantial evidence. (Salazar, [supra, 35 Cal.4th] at p. 1042.)” (Letner, supra, 35 

Cal.4th at p. 176.) We find no error because evidence of the six-pack was admitted at 

trial and appellants have failed to establish the materiality element of a Brady violation. 

 Under the federal due process clause and Brady, the prosecution has a selfexecuting duty to disclose to the defense any evidence that is favorable to the accused 

and material to the issues of guilt or punishment. (People v. Verdugo (2010) 50 Cal.4th 

263, 279 (Verdugo); People v. Bohannon (2000) 82 Cal.App.4th 798, 804, disapproved 

on another point in People v. Zambrano (2007) 41 Cal.4th 1082, 1135, fn. 13.) The 

prosecutor has a duty to learn of any evidence favorable to the defendant known to the 

police because the rule encompasses evidence known only to the police, even though not 

known to the prosecutor. (Strickler v. Greene (1999) 527 U.S. 263, 280-281; see also 

People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 47 (Meraz) [prosecutor’s 

duty applies to evidence the “prosecution team” possesses; “prosecution team” includes 

investigative agencies].) 

 However the failure to disclose exculpatory evidence does not always violate 

Brady. There are three components to a failure to disclose exculpatory testimony 

violation: first, there was evidence favorable to the accused; second, the evidence was 

suppressed by the prosecution; and third, there was prejudice to the defendant. (Letner, 

supra, 50 Cal.4th at p. 176; People v. Bowles (2011) 198 Cal.App.4th 318, 325.) Our 

Supreme Court has explained: “Prejudice in this context, focuses on ‘the materiality of 

the evidence to the issue of guilt and innocence.’ (United States v. Agurs [(1976) 427 

U.S. 97, 112, fn. 20; accord, U.S. v. Fallon (7th Cir. 2003) 348 F.3d 248, 252) . . . 

[Materiality requires that a defendant show] a “reasonable probability of a different 

result.’” (Banks v. Dretke (2004) 540 U.S. 668, 699.)” (Salazar, supra, 35 Cal.4th at p. 

1043; accord, Letner, supra, 50 Cal.4th at p. 176.) The United States Supreme Court has 

likewise held: “The evidence is material only if there is a reasonable probability that, had 
13 

the evidence been disclosed to the defense, the result of the proceeding would have been 

different. A ‘reasonable probability’ is a probability sufficient to undermine confidence 

in the outcome.” (United States v. Bagley (1985) 473 U.S. 667, 682 (Bagley); accord, 

Salazar, supra, 35 Cal.4th at p. 1042.) Defendant bears the burden of showing 

materiality. (People v. Hoyos (2007) 41 Cal.4th 872, 918; In re Sassounian (1995) 9 

Cal.4th 535, 545.) 

 The first element was met as the evidence was favorable to the accused. However, 

the record indicates the evidence was not suppressed as Butler testified at trial that she 

initially circled two photos on Adams’s six-pack and that she “balled it up.” Detective 

Richardson could not remember why a second six-pack was needed but eventually 

testified that he provided one to Butler. Butler’s recorded interview was played for the 

jury, including the part where she and Detective Richardson talked about “redoing” a sixpack. All counsel extensively cross-examined both Butler and Detective Richardson on 

the issue. Therefore, although the actual six-pack with the two circled photos was not 

available to be presented at trial, evidence of its existence was not suppressed. (Verdugo, 

supra, 50 Cal.4th at p. 281, citing People v. Morrison (2004) 34 Cal.4th 698, 715 [“In 

any event, evidence that is presented at trial is not considered suppressed, regardless of 

whether or not it had previously been disclosed during discovery”].) 

 While there is no doubt that Butler circling two photos on the initial six-pack is 

favorable to Adams and possibly also to the other appellants, it is not such evidence as 

would “‘“put the whole case in such a different light as to undermine confidence in the’”” 

outcome. (People v. Jenkins (2000) 22 Cal.4th 900, 955, quoting Stickler v. Greene, 

supra, 527 U.S. at p. 290.) This is particularly true under the circumstances here, where 

the information was introduced at trial, and appellants had ample opportunity to crossexamine Butler about her identification of someone else on the six-pack. Not only would 

presentation of the physical six-pack have added little to what the jury knew, it 

potentially could have strengthened the prosecution’s case. If the discarded six-pack 

showed two people circled, it bolstered her credibility because she volunteered this 
14 

information. If the discarded six-pack showed only Adams circled, it bolstered her 

identification of him. Therefore, appellants have not shown that the impeaching evidence 

was material within the meaning of Brady in that they suffered prejudice. The appellants 

have not established that they suffered prejudice, that is, appellants have not established 

there was a reasonable probability the result would have been more favorable to them had 

the impeachment evidence been timely disclosed. (Letner, supra, 50 Cal.4th at p. 176; 

People v. Hoyos, supra, 41 Cal.4th at p. 918.) 

 The trial court recognized that the prosecution was unaware of the discarded sixpack photo, and that it was law enforcement that failed to turn it over. The trial court did 

not decide the Brady issue on that basis and Adams’s argument to the contrary 

misconstrues the court’s ruling. The trial court found that exculpatory evidence was not 

turned over to the defense but denied the Brady claim because it found appellants had 

suffered no prejudice from the absence of the physical six-pack. 

 Evidence of the field show-up where Butler stated the person detained was not one 

of the robbers was not improperly suppressed under Brady. The evidence was available 

to appellants and was not suppressed. More importantly, the evidence was not 

exculpatory. Butler was taken to view an African-American man who was stopped by 

law enforcement while driving an Altima. Butler did not identify him as one of the 

robbers which showed her ability to remember important descriptive details and also 

strengthened her later identification of appellants. The prosecutor recognized the 

inculpatory nature of the evidence and wanted it admitted. All three defense counsel 

objected to its admission. 

 There is no reasonable probability that had the undisclosed information pertaining 

to the discarded photo six-pack or the field show-up been provided to defense counsel 

even earlier, the outcome would have been more favorable to appellants. Accordingly, 

there was no suppression of evidence and no Brady violation. 
15 

 2. Trombetta-Youngblood 

Contrary to appellants’ argument, the unavailability of the initial Adams photo sixpack did not deprive them of a fair trial. The failure to preserve or the destruction of 

evidence by the prosecution was specifically addressed in Trombetta and Youngblood. In 

Trombetta, the court held that the government has a duty under the United States 

Constitution to preserve evidence “that might be expected to play a significant role in the 

[defendant’s] defense.” To meet this standard, the evidence must “both possess an 

exculpatory value that was apparent before the evidence was destroyed, and be of such a 

nature that the defendant would be unable to obtain comparable evidence by other 

reasonably available means.” (Trombetta, supra, 467 U.S. at pp. 488-489.) 

 Here comparable evidence existed and was presented to the jury. The recording of 

Butler’s interview which discussed the attempt to “redo” the identification and referenced 

a second six-pack was played for the jury. Additionally, Butler volunteered information 

about the content of the discarded six-pack which was consistent with the recording. 

 In Youngblood, the court added that, to show a denial of federal constitutional due 

process from the destruction of such evidence, the defendant must also show that the 

police acted in bad faith. (Youngblood, supra, 488 U.S. at p. 58.) Our Supreme Court 

has expressly adopted the holdings of Trombetta and Youngblood. (People v.Frye (1998) 

18 Cal.4th 894, 942-943.) 

 “[A] trial court’s inquiry whether evidence was destroyed in good faith or bad 

faith is essentially factual: therefore, the proper standard of review is substantial 

evidence.” (People v. Memro (1995) 11 Cal.4th 786, 831.) Under this standard, “we 

must determine whether, viewing the evidence in the light most favorable to the superior 

court’s finding, there was substantial evidence to support its ruling.” (People v. Roybal

(1998) 19 Cal.4th 481, 510.) The testimony of a single witness, even if he is a party to 

the case, may be sufficient. (Evid. Code, § 411.) We do not decide the credibility of 

witnesses, as that is the function of the trier of fact. (People v. French (1978) 77 

Cal.App.3d 511, 523.) 
16 

 Although the court appeared skeptical of Detective Richardson’s testimony, it did 

not make a finding of bad faith on his part. Detective Richardson repeatedly stated he did 

not remember why a second six-pack was needed and was only able to speculate at the 

time of trial. He testified that he did not dispose of the first six-pack and that was 

consistent with Butler’s testimony that she “balled it up.” Even if one accepts that the 

first six-pack was discarded, there is no evidence that it was done in bad faith. (People v. 

Ochoa (1998) 19 Cal.4th 353, 417 [negligent failure to preserve evidence does not violate 

due process].) 

II. Substantial Evidence Supported the Gang Enhancements and Robbery 

Conviction 

A. Contentions 

Appellants contend there was insufficient evidence to support the gang 

enhancement in connection with the charged offense of robbery. Specifically, Smith 

argues the prosecution failed to establish that Palm and Oaks Crips was a criminal street 

gang within the meaning of section 186.22. Washington argues the evidence was 

insufficient to prove appellants had the specific intent to promote, further, or assist in any 

criminal conduct by gang members. Adams also challenges the sufficiency of the 

evidence to support the conviction for robbery. 

B. Relevant Authority 

 A gang enhancement finding is reviewed under the substantial evidence standard. 

(People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa).) “[T]he court must review 

the whole record in the light most favorable to the judgment below to determine whether 

it discloses substantial evidence—that is, evidence which is reasonable, credible, and of 

solid value—such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. 

Virginia (1979) 443 U.S. 307, 317–320.) We must presume in support of the judgment 

the existence of every fact the jury could reasonably deduce from the evidence. (People 

v. Albillar (2010) 51 Cal.4th 47, 60.) “If the circumstances reasonably justify the trier of 
17 

fact’s findings, reversal of the judgment is not warranted simply because the 

circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 

‘A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ 

[Citation.]” (Ibid.) 

 To establish a gang enhancement, the prosecution must prove two elements: 

(1) that the crime was “committed for the benefit of, at the direction of, or in association 

with any criminal street gang,” and (2) that the defendant had “the specific intent to 

promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, 

subd. (b)(1).) The crime must be “‘gang related.’” (People v. Gardeley (1996) 14 

Cal.4th 605, 622, 625, fn. 12; People v. Castaneda (2000) 23 Cal.4th 743, 745 [gang 

enhancement statute “increases the punishment for some gang-related crimes”]; People v. 

Mendez (2010) 188 Cal.App.4th 47, 56 [gang enhancement statute “applies when a crime 

is gang related”].) A defendant’s mere membership in the gang does not suffice to 

establish the gang enhancement. (People v. Gardeley, supra, at pp. 623–624.) Rather, 

‘“[t]he crime itself must have some connection with the activities of a gang.’” (In re 

Frank S. (2006) 141 Cal.App.4th 1192, 1199.) “[T]o prove the elements of the criminal 

street gang enhancement, the prosecution may, as in this case, present expert testimony 

on criminal street gangs. [Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 

1047–1048.) 

C. The Prosecution Proved the Primary Activities Element of the Gang 

Enhancement 

Section 186.22, subdivision (b)(1) provides an enhanced sentence to a person 

convicted of a felony committed “for the benefit of, at the direction of, or in association 

with any criminal street gang, with the specific intent to promote, further, or assist in any 

criminal conduct by gang members.” (People v. Gardeley, supra, 14 Cal.4th at pp. 616–

617.) It applies to “gang-related” crimes. (People v. Castaneda, supra, 23 Cal.4th at p. 

745.) 
18 

 “To trigger the gang statute’s sentence-enhancement provision (§ 186.22, subd. 

(b)), the trier of fact must find that one of the alleged criminal street gang’s primary 

activities is the commission of one or more of certain crimes listed in the gang statute.” 

(People v. Sengpadychith (2001) 26 Cal.4th 316, 322 (Sengpadychith).) The requirement 

may be satisfied by the testimony of a police gang expert who opines that the primary 

activities of the gang are statutorily listed crimes, including crimes reflecting past 

conduct by members of the gang. (Ibid.; Gardeley, supra, 14 Cal.4th at p. 620.) 

 Detective Roth’s testimony, combined with the facts of the case, provided 

substantial evidence that robbery was a primary activity of the Palm and Oaks gang. 

The jury was instructed that a criminal street gang has “as one or more of its primary 

activities” the commission of robbery, vehicle theft, and carrying a loaded firearm.6 

The instruction explained that “to qualify as a primary activity, the crime must be one of 

the group’s chief or principal activities rather than an occasional act committed by one or 

more persons who happen to be members of the group.” 

 Detective Roth testified regarding his familiarity with the Palm and Oak gang. He 

had personal contact with about 20 to 30 members of the gang. It was one of the gangs 

he was charged with investigating and he investigated about 90 percent of reported Palm 

and Oak gang crimes in which their members were suspects or victims. He listed the 

gang’s primary criminal activities which included robbery. He described the activities as 

the chief and principal occupations of the gang and testified that they engaged in those 

activities “consistently and repeatedly.” Appellants were Palm and Oak gang members 

who had been harassing Butler and other prostitutes on Long Beach Boulevard. Butler 

walked away from them when they asked her if she had a pimp. Approximately one hour 

later, appellants robbed Butler and Hawkins at gunpoint. 

 Appellant Smith relies on In re Alexander L. (2007) 149 Cal.App.4th 605, and 

argues that Detective Roth’s testimony was conclusory and without adequate foundation. 

 

6 Each of those crimes is a qualifying primary activity pursuant to section 186.22, 

subdivision (e). (§ 186.22, subd. (e)(2), (25), & (33).) 
19 

Smith’s reliance is misplaced. In Alexander L., when asked about the gang’s primary 

activities, the gang expert testified “he knew” the gang had committed “quite a few” 

enumerated crimes. No information establishing the reliability of his opinion was 

elicited. On cross-examination, the expert testified that the majority of the cases 

connected to the gang that he had run across were graffiti related. The court found there 

was not an adequate foundation for his opinion because he did not explain the sources of 

his information. (Id. at pp. 611-612.) In contrast, Detective Roth’s opinion was based on 

his several years of experience investigating gang crimes in general, and in particular the 

Palm and Oak gang to which he was assigned. Detective Roth was unequivocal that the 

“primary” activities of the gang included robbery. The court’s analysis in Alexander L. is 

not persuasive. (People v. Martinez (2008) 158 Cal.App.4th 1324, 1330.) 

D. The Prosecution Proved the Specific Intent to Benefit the Gang Element 

of the Gang Enhancement 

 Sufficient evidence established that appellants acted with “the specific intent to 

promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, 

subd. (b)(1); see People v. Morales (2003) 112 Cal.App.4th 1176, 1198.) Because 

substantial evidence supports a finding that the crimes benefitted the gang, reversal 

cannot be justified by the possibility that the evidence might have been reconciled with a 

finding that appellants acted only for personal reasons. (See People v. Albillar, supra, 51 

Cal.4th at p. 60.) 

 Even if appellant Washington was correct that the evidence was insufficient to 

show that the robbery of Butler and Hawkins benefitted the gang, his contention fails. 

“There is no further requirement that the defendant act with the specific intent to 

promote, further, or assist a gang; the statute requires only the specific intent to promote, 

further, or assist criminal conduct by gang members.” (People v. Albillar, supra, 51 

Cal.4th at p. 67.) Appellants were all members of the Palm and Oak gang. They 

harassed women on Long Beach Boulevard. They approached Butler but their advances 

were rejected. They robbed Butler and Hawkins at gunpoint. They attempted to outrun a 
20 

police car that followed them. They were arrested together a couple of hours after the 

robbery. These facts combined with Detective Roth’s opinion support the jury’s finding 

that appellants associated with each other and assisted in the criminal activity. 

 Appellant Washington further contends the evidence supporting his gang 

membership is “suspect” because appellants admitted membership in the “Palm and Oaks 

Compton Crips” as opposed to the “Palm and Oak Crips.” He argues there is no such 

gang and Detective Roth had never heard of the Palm and Oak gang coming from 

Compton. Washington’s contention is without merit. Detective Roth testified that some 

gangs “have five or six different ways that they can say the name” of the gang. Adams 

and Smith lived in Compton and a lot of Lynwood gangs considered themselves to be 

Compton gangs. 

 Washington’s reliance on In re Daniel C. (2011) 195 Cal.App.4th 1350 does not 

help him. In In re Daniel C., the appellate court determined the evidence was insufficient 

to support a gang enhancement on a finding the minor committed robbery, where there 

was no evidence that the minor and his companions acted in concert to rob the store 

manager of a bottle of liquor, or that they had made it known to the manager they were 

gang members, or that the minor’s act of striking the store manager with the liquor bottle 

before fleeing the store was anything more than a spur-of-the-moment reaction to the 

manager’s attempt to retrieve the liquor bottle. (In re Daniel C., supra, 195 Cal.App.4th 

at p. 1363.) In fact, the minor told police that his companions were unaware of his intent 

to steal the liquor bottle; they left the store before he did. (Id. at pp. 1354, 1361.) 

 The instant case is clearly distinguishable in that the crimes were committed by 

multiple gang members who coordinated their efforts. Smith approached the car from the 

driver’s side, Washington was on the passenger side. They ordered Butler and Hawkins 

to give up the money. Adams remained in the car and acted as the getaway driver. 

E. Substantial Evidence Supported the Robbery Conviction 

 Appellant Adams challenges the sufficiency of the evidence solely on the issue of 

his identification as one of the robbers. 
21 

 Butler testified that she had seen appellants and been harassed by them earlier in 

the evening. Adams approached her and asked her if she had a pimp. During the 

robbery, she testified that Smith was on the driver’s side of Hawkins’s car, and 

Washington was on the passenger side. She described appellants’ car as a grey or silver 

Nissan Altima or Maxima driven by Adams. Hawkins and she followed appellants’ car 

and called 911. She told the 911 operator that the men who robbed her were pimps who 

had been following her all night. The car in which all three appellants were apprehended 

was registered to Adams’s mother. Butler described Adams as wearing a black shirt 

during the robbery and when he was arrested he was wearing a black sweater. The day 

after the robberies, Butler identified all three appellants in six-pack photo lineups. At 

trial, Butler positively identified all three appellants and stated that Adams was the driver. 

 Butler’s testimony had some inconsistencies and Adams argues her identification 

“does not inspire confidence in its accuracy.” But inconsistencies and suspicions cannot 

serve as a basis for overturning the jury’s credibility determination, only inherent 

improbability and obvious falsehood can. (People v. Thornton (1974) 11 Cal.3d 738, 

754, overruled on other grounds by People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) 

We find nothing inherently improbable in Butler’s testimony. Adams’s arguments to the 

contrary, credibility issues are for the jury to resolve. (People v. Lewis (2001) 26 Cal.4th 

334, 361.) 

 Therefore, viewing the evidence in a light most favorable to the judgment, we 

believe any reasonable trier of fact could have found Adams guilty of robbery under these 

facts. 

III. Bifurcation of Gang Enhancement 

 Appellants contend the trial court abused its discretion by refusing to bifurcate the 

gang allegations. 

A. Background 

Prior to trial, Washington moved to bifurcate the gang enhancement allegations. 

Smith and Adams joined. They argued the gang evidence was weak and there was 
22 

“literally nothing to distinguish this robbery from a regular street robbery that [did] not 

involve alleged gang members or gang associates.” The prosecutor explained the gang 

evidence was relevant to motive. All appellants were admitted Palm and Oak gang 

members and the gang expert would testify one of the primary activities of the gang was 

committing robberies. The court indicated that it would review the preliminary hearing 

transcript prior to issuing a ruling. 

 After the lunch recess, the court denied the motion. The court indicated that the 

prosecution’s theory was that the robbery was committed with a gang motive. The court 

stated that there was “no way” it would prevent the prosecution from “presenting 

evidence as to the motivation of the crime, whether it be, for example, someone kills 

someone or robs something, because they don’t have any money, for example. It might 

be a weak theory, but that is not for the court to decide if there is a motive or not and how 

strong that motive is. That is for the fact finder. That is for the jurors to determine or 

not.” The court stated it had analyzed the strengths and weaknesses of the gang evidence 

and found the probative value of the evidence outweighed the prejudicial effect. Defense 

counsel again argued that the motive in any robbery is financial gain and there were no 

facts to show that gang membership or affiliation was the motive in this case. The court 

acknowledged that robberies can be motivated by financial gain but reiterated that the 

court would not prevent the prosecution from presenting its theory that the robbery was 

committed for gang-related purposes. 

B. Relevant Law 

 The denial of a motion to bifurcate the trial of a gang enhancement is reviewed for 

abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1050 (Hernandez).) 

 While “[t]he Legislature itself has specifically recognized the potential for 

prejudice when a jury deciding guilt hears of a prior conviction . . . . the Legislature has 

given no indication of a similar concern regarding enhancements related to the charged 

offense, such as a street gang enhancement.” (Hernandez, supra, 33 Cal.4th at p. 1049.) 

“Evidence of the defendant’s gang affiliation--including evidence of the gang’s territory, 
23 

membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the 

like--can help prove identity, motive, modus operandi, specific intent, means of applying 

force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the 

extent the evidence supporting the gang enhancement would be admissible at a trial of 

guilt, any inference of prejudice would be dispelled, and bifurcation would not be 

necessary.” (Id. at pp. 1049-1050.) Further, in instances where evidence would be 

inadmissible at the trial of the substantive crime as unduly prejudicial when no gang 

enhancement is alleged, the court may still deny bifurcation. (Id. at p. 1050.) “[T]he trial 

court’s discretion to deny bifurcation of a charged gang enhancement is similarly broader 

than its discretion to admit gang evidence when the gang enhancement is not charged.” 

(Ibid.) 

C. Analysis 

The gang evidence was relevant in this case to prove the motive for the robbery 

and to prove the participation of each of the three appellants in the coordinated effort. 

Detective Roth testified that the Palm and Oak gang engaged in pimping. Butler testified 

that she saw appellants before the robbery harassing women on Long Beach Boulevard. 

Adams specifically asked Butler if she had a pimp. Butler kept her head down and 

walked away from appellants. Detective Roth also explained the importance of respect in 

gang culture. If gang members were ignored, they would interpret it as a sign of 

disrespect and have to get back at that person. Detective Roth testified that gang 

members committed robberies for purposes of prostitution and to make money for the 

gang. A few hours after Butler disrespected appellants, they robbed her and Hawkins at 

gunpoint. 

 The gang testimony was relevant and not so prejudicial that the prejudice 

outweighed its probative value, as it was not unduly inflammatory in comparison to the 

evidence that the appellants were armed and banged on the windows and demanded 

money from Butler and Hawkins seated in the car. The concept of “undue prejudice” 

within the meaning of Evidence Code section 352 is not so sweeping as to include any 
24 

evidence the opponent finds inconvenient. Evidence is not prejudicial under section 352 

merely because it undermines the opponent’s position or shores up that of the proponent. 

(People v. Branch (2001) 91 Cal.App.4th 274, 286.) 

 Furthermore, the trial court gave CALCRIM No. 1403. That instruction 

effectively told the jury that they were to consider the gang evidence only in connection 

with the gang allegation or that appellants had a motive to commit the robbery, and the 

jury was not to consider the gang evidence as propensity evidence. We see nothing in the 

record to suggest that the jury considered the gang evidence for an improper purpose, and 

we presumed the jury followed the limiting instruction. (See People v. Waidla (2000) 22 

Cal.4th 690, 725.) 

 Appellant Smith relies on People v. Albarran (2007) 149 Cal.App.4th 214 

(Albarran). Albarran did not concern bifurcation. In Albarran, the defendant was tried 

on substantive charges with gang allegations. A “panoply” of “extremely inflammatory” 

gang evidence was admitted at trial over defense objections. (Albarran, supra, 149 

Cal.App.4th at p. 227.) The jury found the defendant guilty of the substantive charges 

and found the gang allegations true. However, the trial court granted the defendant’s 

motion for a new trial on the gang allegations on the ground of insufficiency of the 

evidence, and the prosecution dismissed the gang allegations. On appeal, the defendant 

asserted that the court should have granted a new trial on the substantive counts because 

the gang evidence was so inflammatory and irrelevant to the substantive counts that it had 

prejudiced him on the substantive counts. (Albarran, supra, at p. 217.) The Fourth 

District majority agreed with the defendant. (Albarran, supra, at p. 227.) “[C]ertain 

gang evidence admitted was so extraordinarily prejudicial and of such little relevance that 

it raised the distinct potential to sway the jury to convict regardless of Albarran’s actual 

guilt.” (Albarran, at p. 228.) In the majority’s view, the gang evidence’s “paramount 

function . . . was to show Albarran’s criminal disposition . . . .” (Albarran, supra, at p. 

228.) 
25 

Albarran has no bearing here. The gang evidence in this case was not 

inflammatory or extraordinarily prejudicial. Detective Roth provided background 

information about gangs and their culture and testified that appellants were gang 

members. He described two predicate offenses committed by people unconnected with 

appellants except by the fact that they were also Palm and Oak gang members, and he 

explained how the robberies benefitted the Palm and Oaks gang. 

 The gang evidence was intertwined with the substantive offenses and was not 

unduly prejudicial. It showed the robbery was done to seek revenge on Butler who had 

disrespected appellants and to put money in the gang coffers. The robbery also showed 

the coordinated efforts of three gang members working together. Given the court’s 

broader latitude to deny bifurcation when the gang enhancement is charged, appellants 

have not established that there was a substantial danger of prejudice requiring separate 

trials. 

 In sum, the court did not abuse its discretion and did not violate appellants’ 

constitutional rights, as the trial was not rendered fundamentally unfair.

IV. Juror Contact Information 

Appellants contend the trial court erred by denying the motion to disclose juror 

identifying information. They argue that a “sufficient showing to support a reasonable 

belief that jury misconduct occurred” was presented to the trial court. We do not agree 

because appellants’ allegations of juror misconduct were speculative, vague, and 

conclusory, and failed to set forth a sufficient showing to support a reasonable belief that 

jury misconduct occurred. (People v. Rhodes (1989) 212 Cal.App.3d 541, 553-554 

(Rhodes).) 

A. Background 

 1. Appellant Smith’s Motion 

On November 14, 2011, approximately one month after the jury’s verdict, Smith 

filed a petition for the release of confidential juror information pursuant to Code of Civil 

Procedure sections 206, subdivision (g), and 237, subdivision (b). The motion was based 
26 

solely on counsel’s declaration. The declaration stated, “I was informed that during the 

course of deliberations one of the jurors was to say that she was ‘tired of this case and she 

was ready to go.’” The declaration also stated, “I was informed that when the verdict was 

read in open court, several of the jurors appeared visibly upset. In fact several of the 

jurors were crying. Specifically juror numbers 3, 4, 6, 9, 10, 12 were observed crying in 

the jury box, during the reading of the verdict.” The declaration concluded by stating, 

“After the verdict was read and recorded the jurors were escorted across the hall in the 

courthouse into another courtroom. During the movement of the jurors from Department 

J to the courtroom across the hall, several of the jurors openly cried. One of the jurors 

was heard to say ‘they did not let us review the evidence.’” 

 2. Hearing and Ruling 

On December 13, 2011, the trial court found the hearsay allegations in the motion 

insufficient, stating, “The declaration basically is just hearsay allegations. They are 

indications of someone hearing something with no statement from that individual or no 

declaration from that individual as to what they heard.” Appellant Smith’s counsel stated 

the case was unusual and argued that the jurors should be questioned “out of an 

abundance of caution” to find out why they were crying and whether the “impropriety” 

by Detective Richardson “might have affected their decision.” The court denied the 

motion. The court stated many cases have emotional verdicts that affect jurors because 

they are asked to make a difficult decision. The court cannot engage in a “fishing 

expedition” to see why jurors acted the way they did, when there is “no basis 

whatsoever” other than speculation. The court stated the jurors were told after the trial 

that if they wished to speak to counsel they would be given an opportunity to do so. All 

of the jurors indicated they did not want to speak to counsel and asked to be escorted out 

of the building. The court denied the motion finding that appellants had failed to 

establish good cause. 
27 

B. Applicable Legal Principles 

After a jury verdict in a criminal case, the court’s record of personal juror 

identification information (names, addresses, and telephone numbers) is sealed. (Code 

Civ. Proc., § 237, subd. (a)(2).) On a petition filed by a defendant or his or her counsel, a 

trial court may in its discretion grant access to such information when necessary to the 

development of a motion for new trial or “any other lawful purpose.” (Code Civ. Proc., 

§ 206, subd. (g).) 

 The applicable test for good cause in this context is set forth in Rhodes, supra, 212 

Cal.App.3d 541. The party seeking disclosure must make “a sufficient showing to 

support a reasonable belief that jury misconduct occurred, that diligent efforts were made 

to contact the juror[] through other means, and that further investigation is necessary to 

provide the court with adequate information to rule on a motion for new trial.” (Id. at 

p. 552.)7 There is no good cause where allegations of jury misconduct are speculative, 

conclusory, or unsupported, or where the alleged misconduct is not “of such a character 

as is likely to have influenced the verdict improperly.” (Evid. Code, § 1150, subd. (a); 

see Rhodes, supra, at pp. 553-554.) 

 Trial courts have broad discretion to allow, limit, or deny access to jurors’ 

personal contact information (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091), 

and we review the denial of a petition filed pursuant to Code of Civil Procedure 

section 237 for an abuse of discretion (People v. Jones (1998) 17 Cal.4th 279, 317). 

 C. Analysis 

The court did not abuse its discretion in denying the motion for release of the 

sealed juror contact information because Smith’s motion and the declaration filed by his 

counsel failed to cite facts “sufficient to establish good cause” for the release of the 

information as required by Code of Civil Procedure section 237, subdivision (b). The 

 

7 Although Rhodes was decided before the revision of section 206 and the 

enactment of section 237 of the Code of Civil Procedure, the Rhodes test remains 

applicable. (See People v. Carrasco (2008) 163 Cal.App.4th 978, 990.) 
28 

claim of juror misconduct was wholly speculative. The accusations of misconduct 

contained in the motion were based solely on hearsay statements by unknown declarants. 

During the hearing on the motion, Smith’s counsel neither identified the jurors who made 

the alleged statements nor the person or people who heard the jurors make the statements. 

 Furthermore, the allegations, even if true, did not establish a reasonable belief that 

the type of misconduct that would improperly influence the jury did occur. The 

allegation that some of the jurors were upset or crying does not indicate misconduct. 

Other factors provide a possible explanation for the jurors reaction. Echoing the trial 

court’s comment, this was a gang robbery case and emotional verdicts are not unusual 

when jurors are asked to make a difficult decision. Additionally, appellant Smith had a 

violent, profanity-laced outburst during the reading of the verdicts. He stood up and 

resisted the bailiff’s efforts to restrain him. He was eventually handcuffed and removed 

from the courtroom. 

 The remaining allegations involved comments made by unknown jurors. In one 

instance a juror expressed frustration about the pace of the trial–jury selection began on 

September 22, 2011, and the verdicts were reached on October 17, 2011. Another 

comment complained about the jurors’ ability to review the evidence. Smith’s suggestion 

that “the jurors were subjected to undue pressure to reach a verdict before the weekend” 

does not find support in the record. The jury deliberated for about five and a half hours 

on October 13, 2011 and requested several pieces of evidence. After a juror was 

replaced, the newly-constituted jury deliberated for about four and a half hours over two 

days. The jury returned a verdict on Monday, October 17, 2011. The jurors were 

individually polled about each of their verdicts, and every juror confirmed his or her 

verdicts as to each appellant. 

V. Jury Instruction–Failure to Disclose Evidence 

 Appellants argue the trial court erred when it refused their request to instruct the 

jury with a special instruction regarding untimely disclosure of evidence. They argue that 
29 

CALCRIM No. 306 which was modified by the trial court was inadequate. We find no 

prejudicial instructional error. 

Defense counsel proposed a pinpoint instruction based on the prosecution’s failure 

to disclose the initial Adams photo six-pack prepared by Butler and Detective Robinson. 

The proposed instruction included the following: “This photo six-pack was ‘re-done’ by 

Ms. Butler @ the request of Detective Richardson. The existence of the original 

photographic six-pack was disclosed to the defense, for the 1st time, during the jury trial. 

By this time, the photographic six-pack was either lost or destroyed. In evaluating the 

weight and significance of that evidence, you may consider the effect, if any, of that late 

disclosure. The failure to provide this information to the defense violates the discovery 

rules which have been designed to insure a fair trial. Because people violated the 

discovery rules, you may draw an adverse inference to the people’s evidence, which may 

be sufficient to raise a reasonable doubt as to the charges in this case.” 

 The prosecutor argued “the existence of the six-pack . . . was implicitly disclosed” 

based on the recording, and defense counsel were able to fully cross-examine the 

witnesses on the issue. The prosecutor objected to the instruction because it incorrectly 

implied that failure to disclose the evidence was sufficient to raise a reasonable doubt. 

The court found that disclosure of the recording approximately two weeks before trial 

was untimely. The court also found the six-pack had never been disclosed because it was 

either lost or destroyed, and some instruction was appropriate. After a brief recess, 

counsel reviewed the modified instruction prepared by the court. Defense counsel asked 

the court to include stronger language to let the jury know they could draw “an adverse 

inference from [the] untimely disclosure . . . sufficient to raise a reasonable doubt.” 

 The trial court gave the following instruction: “Both the People and the defense 

must disclose their evidence to the other side before trial, within the time limit set by law. 

Failure to follow this rule may deny the other side the chance to produce all relevant 

evidence, to counter opposing evidence, or to receive a fair trial. Detective Richardson 

failed to disclose the existence of an original six-pack containing Mr. Adams’s 
30 

photograph shown to Ronisha Butler. In addition, Detective Richardson failed to provide 

the same original six-pack to the defense. In evaluating the weight and significance of 

that evidence, you may consider the effect, if any, of that late disclosure and failure to 

provide the original six-pack.” 

“As a general proposition a defendant is entitled to an instruction as to any 

recognized defense for which there exists evidence sufficient for a reasonable jury to find 

in his favor.” (Mathews v. United States (1988) 485 U.S. 58, 63.) Appellants cite no 

authority persuading us that the instruction here was inadequate. The court’s instruction 

informed the jury of the negative consequences that could arise as a result of failing to 

follow the discovery rules. The jury was informed that Detective Richardson failed to 

disclose the existence of the first Adams six-pack and failed to turn it over to the defense. 

The jury was told they could consider Detective Richardson’s failures when evaluating 

the evidence. The court was not required to go as far as appellants suggest and instruct 

the jury that Detective Richardson’s failures “may be sufficient to raise a reasonable 

doubt.” A jury instruction is improperly argumentative if “it would invite the jury to 

draw inferences favorable to the defendant from specified items of evidence on a 

disputed question of fact, and therefore properly belongs not in instructions, but in the 

arguments of counsel to the jury.” (People v. Wright (1988) 45 Cal.3d 1126, 1135.) 

 The evidence regarding the discarded six-pack was presented to the jury and the 

witnesses were thoroughly cross-examined by counsel. All defense counsel focused on 

the issue in closing arguments. Adams’s counsel argued the absence of the six-pack 

alone was “enough for reasonable doubt.” Washington’s counsel argued, “Detective 

Richardson is a liar. He’s the investigating officer on this case. That should cause you a 

doubt.” Smith’s counsel argued that appellants could not get a fair trial due to the 

absence of the six-pack. The jury was able to judge the credibility of Detective 

Richardson and the impact of the discarded six-pack based on the evidence presented at 

trial. The inference to be drawn from the evidence was properly presented in closing 
31 

argument and was not appropriate for the court’s instruction to the jury. (Wright, supra,

45 Cal.3d at p. 1135.) 

VI. Sentencing Issues 

Appellants contend and the People agree that the trial court made several 

sentencing errors which we address in turn. 

A. Appellant Washington’s Sentence 

Appellant Washington’s sentence must be reduced to 18 years and eight months. 

The trial court sentenced appellant Washington to 26 years in state prison. On count 1, 

the court sentenced Washington to 14 years comprised of the midterm of three years for 

the robbery, plus one year for the firearm enhancement (§ 12022, subd. (a)(1)), plus 10 

years for the gang enhancement (§ 186.22, subd. (b)(1)(C)). On count 2, the court 

sentenced Washington to a consecutive term of 12 years comprised of one year for the 

robbery (one-third the midterm), plus one year for the firearm enhancement, plus 10 

years for the gang enhancement. 

 Section 1170.1, subdivision (a), provides that “[t]he subordinate term for each 

consecutive offense . . . shall include one-third of the term imposed for any specific 

enhancements applicable to those subordinate offenses.” A firearm enhancement under 

section 12022, and a gang enhancement under section 186.22, are specified 

enhancements to which the one-third rule applies. (§ 1170.11.) 

 The trial court selected count 1 as the principal term, and count 2 was the 

subordinate term. On count 2, the court correctly imposed one-third the midterm for the 

substantive offense, but imposed the full one year for the firearm enhancement and the 

full 10 years for the gang enhancement. When a court pronounces a sentence which is 

unauthorized by the Penal Code, that sentence must be vacated and a proper sentence 

imposed whenever the mistake is appropriately brought to the attention of the court. 

(People v. Massengale (1970) 10 Cal.App.3d 689, 693.) 

 Appellant Washington’s sentence on count 2 must be reduced to four years and 

eight months comprised of one year for the robbery (one-third the midterm), plus four 
32 

months for the firearm enhancement, plus three years and four months for the gang 

enhancement. 

B. Appellant Adams’s Sentence 

Appellant Adams’s sentence must be reduced to 20 years and eight months. The 

trial court sentenced appellant Adams to 28 years in state prison. On count 1, the court 

sentenced Adams to 16 years comprised of the high term of five years for the robbery, 

plus one year for the firearm enhancement (§ 12022, subd. (a)(1)), plus 10 years for the 

gang enhancement (§ 186.22, subd. (b)(1)(C)). On count 2, the court sentenced Adams to 

a consecutive term of 12 years comprised of one year for the robbery (one-third the 

midterm), plus one year for the firearm enhancement, plus 10 years for the gang 

enhancement. 

 For the same reasoning applicable to appellant Washington’s sentence (see Part 

VI. A, ante), appellant Adams’s sentence on count 2 must be reduced to four years and 

eight months comprised of one year for the robbery (one-third the midterm), plus four 

months for the firearm enhancement, plus three years and four months for the gang 

enhancement. 

C. Appellant Smith’s Sentence 

Appellant Smith’s sentence must be reduced to 23 years. The trial court sentenced 

appellant Smith to 31 years and eight months in state prison. On count 1, the court 

sentenced Smith to 16 years and four months comprised of the high term of five years for 

the robbery, plus one year and four months for the firearm enhancement (§ 12022.5, 

subd. (a)), plus 10 years for the gang enhancement (§ 186.22, subd. (b)(1)(C)). On count 

2, the court sentenced Smith to a consecutive term of 12 years and four months 

comprised of one year for the robbery (one-third the midterm), plus one year and four 

months for the firearm enhancement, plus 10 years for the gang enhancement. Appellant 

Smith admitted a prior conviction and the court imposed an additional three year sentence 

pursuant to section 667.5, subdivision (b). 
33 

 For the same reasoning applicable to appellant Washington’s sentence (see Part 

VI. A, ante), appellant Smith’s sentence on count 2 must be reduced to five years and 

eight months comprised of one year for the robbery (one-third the midterm), plus one 

year and four months for the firearm enhancement, plus three years and four months for 

the gang enhancement. 

 Furthermore, it appears the trial court erred in imposing three years for the prior 

prison term enhancement instead of one year. There was one allegation pursuant to 

section 667.5, subdivision (b). That section states in part that “the court shall impose a 

one-year term for each prior separate prison term.” (§ 667.5, subd. (b).) 

DISPOSITION 

 The judgments are modified. Washington’s sentence is modified as follows: on 

count 2, a consecutive sentence of one year for the substantive offense (§ 211), plus an 

additional four months for the firearm enhancement (§ 12022, subd. (a)(1)), plus an 

additional three years and four months for the gang enhancement (§ 186.22, subd. 

(b)(1)(C)). Washington’s sentence on count 1 is 14 years. His sentence on count 2 is 

four years and eight months. Total sentence is 18 years and eight months. 

 Adams’s sentence is modified as follows: on count 2, a consecutive sentence of 

one year for the substantive offense (§ 211), plus an additional four months for the 

firearm enhancement (§ 12022, subd. (a)(1)), plus an additional three years and four 

months for the gang enhancement (§ 186.22, subd. (b)(1)(C)). Adams’s sentence on 

count 1 is 16 years. His sentence on count 2 is four years and eight months. Total 

sentence is 20 years and eight months. 

 Smith’s sentence is modified as follows: on count 2, a consecutive sentence of one 

year for the substantive offense (§ 211), plus an additional one year and four months for 

the firearm enhancement (§ 12022.5, subd. (a)), plus an additional three years and four 

months for the gang enhancement (§ 186.22, subd. (b)(1)(C)). Smith’s sentence on count 

1 is 16 years and four months. His sentence on count 2 is five years and eight months. 
34 

Smith’s sentence for the prior separate prison term (§ 667.5, subd. (b)), is one year. Total 

sentence is 23 years. 

 The trial court is directed to amend the abstract of judgment to reflect these 

modifications and to forward certified copies of the amended abstracts to the Department 

of Corrections and Rehabilitation. (§§ 1213, 1216.) The judgments are affirmed as 

modified. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

_____________________, J. *

 FERNS 

We concur: 

____________________________, P. J. 

 BOREN 

____________________________, J. 

 ASHMANN-GERST 

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.