Filed 8/28/13 P. v. Easter CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

BRIAN DEMETRIUS EASTER et al., 

Defendants and Appellants. 

F063263 

(Fresno Super. Ct. No. F09905302) 

OPINION

 APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. 

Harrell, Judge. 

 Robert Derham, under appointment by the Court of Appeal, for Brian Demetrius 

Easter, Defendant and Appellant. 

 Patricia J. Ulibarri, under appointment by the Court of Appeal, for Mark Patrick 

Thompson, Defendant and Appellant. 

 Stephen M. Hinkle, under appointment by the Court of Appeal, for Ernest Tevin 

Williams, Defendant and Appellant. 

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

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and 

Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent. 
2. 

-ooOooINTRODUCTION

 Appellants/defendants Ernest Tevin Williams, Mark Patrick Thompson, and Brian 

Demetrius Easter were charged with committing a series of armed robberies against three 

different victims over a two-day period. Two of the victims reported that they were 

robbed by three men. 

During his postarrest interview, Williams confessed his participation in the three 

robberies, and said the gunman in one of the crimes was “Alex.” Williams did not 

identify Easter as a suspect. At their joint jury trial, Thompson testified and admitted he 

participated in two robberies with Williams, and he was the gunman in one of the crimes. 

Easter did not make any pretrial statements and testified at trial that he did not commit 

any of the robberies. However, two of the victims identified Easter as the third suspect 

who robbed them. 

After a joint jury trial, Williams, Thompson and Easter were convicted of counts I 

and II, the second degree robberies of, respectfully, Garrett Gaynor and Joshua Franco 

(Pen. Code,1 § 211), and the jury found gang enhancements true for those offenses 

(§ 186.22, subd. (b)). The jury also found that Thompson personally used a firearm in 

count I, and Easter personally used a firearm in count II (§ 12022.53, subd. (b)). 

Williams was separately convicted of count III, second degree robbery of Nicholas 

Flechsing; Thompson and Easter were not charged with this robbery. All three 

defendants were convicted of count IV, active gang participation in a criminal street gang 

(§ 186.22, subd. (a)), identified as the “Playboyz” by the prosecution’s gang expert. 

Defendants received lengthy prison terms. 

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

 Defendants have filed separate notices of appeal and appellate briefs, and their 

cases have been consolidated.2 Thompson and Easter contend the court should have 

granted their motions to bifurcate and sever the gang evidence and allegations in this 

case. Thompson and Williams also contend there is insufficient evidence to support the 

jury’s findings on the gang allegations. 

Williams contends there is insufficient evidence to support his conviction for 

count I, the robbery of Garrett Gaynor, because he merely ran away with the victim’s 

property and did not use force or fear. Williams also challenges the instructions given for 

that count. 

Easter contends his defense attorney was ineffective for failing to file pretrial 

motions to exclude the victims’ identifications of him as the third robbery suspect, 

because the victims looked at a single photograph which showed Williams and Easter. 

Easter argues the identification procedures for him were unduly suggestive, unreliable, 

and violated his due process rights. 

Easter raises an issue based on the trial court’s decision to exclude the portion of 

Williams’s postarrest interview where he said that he committed the robberies with 

Thompson. The court excluded that evidence based on People v. Aranda (1965) 63 

 2 In their appellate briefs, each defendant generally requested to join the issues 

raised by the other parties to the extent applicable to each of them. (Cal. Rules of Court, 

rule 8.200(a)(5).) However, none of the defendants have offered specific arguments as to 

how any of the issues raised by the other parties affected their unique circumstances and 

the facts surrounding their own convictions. “Joinder may be broadly permitted 

[citation], but each appellant has the burden of demonstrating error and prejudice 

[citations] ....” (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) “Because of 

the need to consider the particulars of the given case, rather than the type of error, the 

appellant bears the duty of spelling out in his brief exactly how the error caused a 

miscarriage of justice. [Citations.]” (Paterno v. State of California (1999) 74 

Cal.App.4th 68, 106.) Defendants have failed to make particularized prejudice 

arguments. In any event, we will find all the issues raised by the parties are without 

merit. 
4. 

Cal.2d 518 (Aranda), and Bruton v. U.S. (1968) 391 U.S. 123 (Bruton), since Williams 

did not testify. The court admitted the evidence that Williams said the gunman was 

“Alex” and did not identify Easter as a suspect.3 Easter contends his defense attorney 

should have renewed his motion to admit Williams’s statements that he committed the 

robberies with Thompson, since Thompson testified at trial and admitted he committed 

the robberies, and the entirety of Williams’s statement would have had more credibility 

with the jury. 

Finally, Easter contends the court should have granted his motion to reopen the 

defense case to call a witness who would have testified about Easter’s character and his 

purported alibi. 

 We will affirm. 

FACTS

Robbery of Josh Franco (count II; defendants Williams, Thompson, Easter)

 Josh Franco, a high school teacher, placed a cell phone for sale on Craigslist, an 

Internet sales site. Franco listed his personal cell phone as the contact number. 

At 11:00 a.m. on September 7, 2009, Franco received a call from a 408 area code. 

A man said he wanted to meet and look at the phone. The caller, later identified as 

defendant Williams, said he needed to delay the meeting because he was in church. At 

1:30 p.m., Williams again called Franco and said to meet him in a church parking lot at 

Ashlan and Hughes. 

 3 As we will explain in issue VIII, post, the Aranda/Bruton rule “declares that a 

nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the 

other defendant is generally unreliable and hence inadmissible as violative of that 

defendant’s right of confrontation and cross-examination, even if a limiting instruction is 

given. [Citation.]” (People v. Anderson (1987) 43 Cal.3d 1104, 1120, superseded by 

statute on other grounds as explained in People v. Letner (2010) 50 Cal.4th 99, 163, fn. 

20.) 
5. 

 At 3:00 p.m., Franco drove into the church’s parking lot. Williams called and said 

he was running late. Franco waited for 15 minutes and was about to leave when he saw a 

black SUV driving on the adjacent street. The SUV pulled into an apartment complex. 

Franco believed there were more than three people in the vehicle and thought the 

occupants were looking at him. 

About five minutes later, three African-American males walked across the street 

and approached Franco’s truck. The three men tried to open the front passenger door, but 

it was locked. Franco got out of his vehicle and spoke to the men. One of the men asked 

to see the cell phone. Franco believed this man was the person who called him 

(Williams). He looked at the phone and said it was in good shape. 

Within seconds, another man in the group pulled a gun and said: “ ‘Give us 

everything you got.’ ” Franco testified the gunman had shoulder-length dreadlocks and a 

goatee. He was wearing a white T-shirt, black shorts, and a black baseball cap. Williams 

and the third man emptied Franco’s pockets in about 10 seconds. The three men then ran 

across the street, toward the apartment complex. Franco testified none of the men said 

anything about gangs during the robbery. 

As we will explain, post, Williams and Thompson admitted their participation in 

this robbery. Easter denied committing the crime. Franco identified Easter as the suspect 

with the dreadlocks, and said he was the gunman. 

Based on this offense, defendants Williams, Thompson, and Easter were charged 

and convicted of count II, second degree robbery of Franco. The jury found true the gang 

enhancement, and that Easter personally used a firearm. 

Robbery of Nicholas Flechsing (count III; defendant Williams, only)

 Nicholas Flechsing, a college student, listed his Xbox video game console for sale 

on Craigslist. In the late morning or early afternoon of September 9, 2009, Flechsing 

received a call from a phone with a 408 area code. The caller, later identified as 
6. 

Williams, said he wanted to buy the Xbox. Flechsing told Williams to meet him at Fig 

Garden Village, and Williams agreed. 

 Flechsing rode his bicycle to Fig Garden Village and waited for 20 minutes, but 

the prospective buyer did not appear. Flechsing called him back, and the man said he 

was “taking a little bit longer than usual.” Williams asked if they could meet somewhere 

else. They agreed to meet at the corner of Ashlan and Palm. Flechsing rode his bicycle 

there, but the man never showed up. 

 Flechsing made another call, and Williams said that he was on his way. Flechsing 

rode his bicycle toward the railroad tracks at Ashlan and Fruit, and waited for 5 to 10 

minutes. Williams called Flechsing and said he could see him down the street, and 

directed Flechsing to meet him at the corner of Fruit and Swift. 

 Flechsing rode his bicycle to the new location. Williams was standing on the 

street. Williams walked up to his bicycle. Flechsing opened his backpack and showed 

the Xbox to Williams, and asked for $400. 

Flechsing testified that Williams started to grab his backpack. Suddenly, another 

man appeared and pulled a handgun from his waistband. The gunman was AfricanAmerican, and his hair was shoulder-length and in dreadlocks. 

Flechsing testified the gunman cocked the weapon, loaded the chamber, and 

pointed the gun at his chest. The gunman ordered Flechsing to give him his property. 

Flechsing gave Williams his backpack with the Xbox; his cell phone; and his wallet, 

which contained his identification and $200. 

Williams and the gunman looked Flechsing “up and down,” and then ran down the 

street. Flechsing started to ride away on his bicycle. The gunman turned around and 

pointed his handgun at Flechsing. Flechsing raised his hands and said, “ ‘I’m not going 

to do anything.’ ” Williams and the gunman ran away. Flechsing testified that neither 

suspect wore red or blue, and they did not say anything about a gang during the robbery. 
7. 

As we will explain, post, Williams confessed to his involvement in this robbery. 

Williams was separately charged and convicted of count III, second degree robbery of 

Flechsing. Prior to trial, Flechsing never identified anyone as the gunman or second 

robbery suspect. Thompson and Easter were not charged with or convicted of 

committing this robbery. 

Robbery of Garrett Gaynor (count I; defendants Williams, Thompson, Easter)

 Garrett Gaynor4 listed his Blackberry Gold phone for sale on Craigslist. Gaynor 

listed his own cell phone as the contact number. 

On September 9, 2009, the same day that Flechsing was robbed, Gaynor received 

a call from a 408 area code from a man who wanted to buy the Blackberry. Gaynor 

agreed to meet the man at a particular location. The prospective buyer, later identified as 

Williams, repeatedly called back and changed the location. Gaynor finally told Williams 

that he would meet him after work. They agreed to meet at the Walgreens parking lot at 

Ashlan and Marks. 

At 9:00 p.m., Gaynor arrived at Walgreens, parked his car, and waited. Williams 

called him again and asked if he was there. Gaynor said yes. Gaynor testified that three 

young African-American men appeared at his car. Williams asked Gaynor if he was 

selling a phone. Gaynor said yes. Williams was holding a white T-Mobile cell phone. 

Gaynor testified the second man was wearing a red baseball cap and blue jeans. 

The third man had shoulder-length black hair, which was in dreadlocks with red tips. 

Gaynor got out of his vehicle and met the three men at the back of his car. He 

showed them the Blackberry and handed it to Williams. Williams examined the 

Blackberry and asked if it could hold a charge. Gaynor said he had the power plug and 

 4 On appeal, defendant Thompson erroneously describes this victim as “Robert 

Gaynor.” 
8. 

suggested they walk to Walgreens to charge the phone. As the group started to walk 

toward the store, Williams ran away with Gaynor’s phone.5

Gaynor testified that Williams ran toward an apartment complex. The other two 

men asked Gaynor where Williams went. Gaynor replied: “... I don’t know, let’s go get 

him. And as that started happening, they had taken off, as well, across the street,” in the 

same direction as Williams. 

Gaynor testified: “I proceeded to follow them, or chase them.” The two men ran 

toward an apartment complex’s side gate. They went inside, and the gate closed behind 

them. 

Gaynor ran to the gate, but it was locked. Gaynor testified that when he got to the 

gate, the three men “were just all pretty much standing there and the one individual came 

back out and put a gun to my head ....” 

Gaynor testified the gunman was the man who was wearing the red baseball hat. 

Gaynor testified Williams and the man with red-tipped black dreadlocks were clearly 

visible to him. They stayed inside the apartment gate, and they stood there and watched 

the gunman. 

Gaynor testified the gunman put the gun to his forehead and order him to turn over 

everything he had, and threatened to kill him. The gunman reached into Gaynor’s 

pockets and took Gaynor’s wallet and personal cell phone. Williams and the man in the 

dreadlocks stayed in their same location and watched. The gunman placed the gun under 

Gaynor’s chin and threatened to kill Gaynor if he turned around. 

 5 In issue IV, post, we will address and reject Williams’s contention that his 

conviction for robbery should be reversed because he ran away with Gaynor’s cell phone 

without using force or fear. 
9. 

After taking the property, the gunman ran back inside the apartment gate, joined 

Williams and the other man, and all three men ran away. Gaynor testified the three 

suspects never said anything about gangs during the robbery. 

As we will explain, post, Gaynor identified Williams and Thompson during an 

infield show-up on the night of the robbery and said Thompson was the gunman. Gaynor 

later identified Easter from a single photograph as the third suspect with the dreadlocks. 

Williams and Thompson admitted their involvement in this robbery. Easter denied 

committing the crime. 

Based on this offense, Williams, Thompson and Easter were charged and 

convicted of count I, second degree robbery of Gaynor. The jury found true the gang 

enhancement, and that Thompson personally used a firearm. 

INVESTIGATION OF GAYNOR ROBBERY

Discovery of handgun and stolen property

 Around 10:10 p.m. on September 9, 2009, several officers responded to the 

Walgreens parking lot and interviewed Gaynor about the robbery. Based on Gaynor’s 

information, the officers spoke to the manager of the apartment complex on Ashlan and 

Marks. The manager’s information led them to a particular apartment. The tenant gave 

the officers permission to enter.6

Defendants Thompson and Williams were in the apartment. The officers found 

Flechsing’s stolen Xbox and videogames in the living room, and his ATM card in another 

room. 

 6 At trial, Thompson testified this apartment was his grandmother’s residence. 
10. 

The officers found a large stereo speaker box in the bedroom. It contained a ninemillimeter semiautomatic handgun and a magazine. The magazine was loaded with live 

nine-millimeter rounds and appeared to fit the weapon.7

The same stereo speaker box also contained three cell phones: Gaynor’s 

Blackberry that he showed to Williams and he ran away with; Gaynor’s personal cell 

phone that was taken by the gunman; and a white T-Mobile cell phone. 

Gaynor’s identification of Thompson and Williams

As the investigation continued on the night of September 9, 2009, the officers 

drove Gaynor past two or three men standing on the street, near the apartment complex, 

and asked Gaynor if any of these men were the robbery suspects. Gaynor said no. 

Later that night, an officer escorted Gaynor to an infield show-up of three other 

men: Williams, Thompson, and a third man. Easter was not present. 

Gaynor immediately identified Thompson and Williams as two of the robbery 

suspects, and said Thompson was the gunman. Gaynor said he was 100 percent certain 

of the identifications. Gaynor said the third man in the show-up was not involved in the 

robbery.8

The record implies that Thompson and Williams were arrested that night. 

Williams’s postarrest interview

 In the early morning hours of September 10, 2009, Detective Mares interviewed 

Williams at the police substation. Mares advised Williams of the warnings pursuant to 

 

7 Detective Patrick Mares, the investigating officer, later testified that he did not 

try to obtain fingerprints from the handgun, and that was a “complete[] oversight on my 

part.” 

8 Detective Mares testified that Tyrone Williams was one of the men who Gaynor 

was asked to look at during an infield show-up on the night of the robbery. Mares 

described Tyrone Williams as African-American, tall, thin, and with short hair. Gaynor 

did not identify Tyrone Williams as one of the robbery suspects. 
11. 

Miranda v. Arizona (1966) 384 U.S. 436, and Williams waived his rights. Williams was 

16 years old. 

Detective Mares asked Williams about the while T-Mobile cell phone found in the 

apartment, next to Gaynor’s stolen phones. Williams said it was his cell phone and had a 

408 area code. Detective Mares determined that 14 calls were placed from Williams’s 

cell phone to Franco’s cell phone. There were 10 calls placed from Williams’s cell phone 

to Gaynor’s cell phone. 

During the interview, Williams admitted that he had been involved in the 

robberies in the church parking lot (Franco), the Walgreens parking lot (Gaynor), and the 

one involving the Xbox (Flechsing). Williams said that at the Walgreens robbery of 

Gaynor, he ran away with the victim’s cell phone. He also said a gun was used. 

Detective Mares testified that Williams said a gun was also used during the 

robbery in the church parking lot, and two cell phones were taken from the victim 

(Franco). Williams said the gunman’s name was “Alex” or “A-1.” Detective Mares 

testified that Williams did not identify Easter as the gunman or a suspect in the robbery.9

As for the Xbox robbery of Flechsing, Williams said that he took the victim’s 

backpack and the Xbox, and ran away. Williams said that a gun was also used during 

this robbery. He did not identify the gunman. 

The cell phone picture of Easter

Gaynor told the officers that the third robbery suspect was slightly taller, and his 

hair was in dreadlocks with red tips. Later on September 10, 2009, Detective Mares 

 9 As we will explain in issue VIII, post, Williams also said that he committed the 

robberies with Thompson. The court excluded Williams’s statements which implicated 

Thompson pursuant to Aranda/Bruton. The court admitted evidence that Williams 

identified “Alex” as the gunman, and he did not name Easter as a suspect. During trial, 

Thompson testified and admitted he committed the robberies. On appeal, Easter contends 

his defense attorney was prejudicially ineffective for failing to move for the admission of 

Williams’s implication of Thompson, once Thompson testified and admitted his guilt. 
12. 

reviewed the photographs on Williams’s T-Mobile cell phone to see if anyone matched 

Gaynor’s description. 

Mares found a photograph on Williams’s cell phone, identified as exhibit No. 7, 

which showed two African-American males: Williams, and a man with his hair in 

dreadlocks with red tips. The cell phone also contained a photograph of Williams, 

Thompson, and the man with the red-tipped dreadlocks. Officer Robert Yeager reviewed 

the images and identified the man with the dreadlocks as Brian Easter, based on Yeager’s 

prior contacts with him. 

Gaynor’s identification of Easter10

 On September 10, 2009, Detective Mares showed Gaynor the photograph of 

Williams and Easter, identified as exhibit No. 7, as it was displayed on the white TMobile cell phone. Mares did not reveal their identities, and he read the following 

admonition to Gaynor: 

“... I was in possession of a phone[,] that it was not my phone. I told him 

that there was a photograph on this phone that I wanted him to look at. I 

told him that I did not know who was in the photograph, I did not know the 

name of the individual. And I told him that, ‘It may or may not be involved 

in your case.’ ” 

 Detective Mares testified that Gaynor looked at the cell phone photograph and said 

both men were involved in the robbery. Gaynor testified that he had already identified 

one man on the night of the robbery, as the suspect who ran off with the Blackberry 

(Williams). Gaynor identified the other man in the photograph, with the red-tipped 

 10 In issue VII, post, we will address Easter’s contentions that his defense attorney 

was ineffective for failing to file pretrial motions to exclude the victims’ identifications 

of him as the third suspect. Easter contends the identification procedures violated his due 

process rights because they were unduly suggestive and unreliable, since the victims 

made the identifications from exhibit No. 7, a single photograph depicting Easter and 

Williams together, and they never reviewed any photographic lineups for the third 

suspect. 
13. 

dreadlocks, as the third robbery suspect. Gaynor said the man with the dreadlocks did 

not have the gun. 

Gaynor also said he recognized the white T-Mobile phone which contained the 

photograph because Williams was holding it during the robbery. 

Franco’s identification of Easter

 Also on September 10, 2009, Detective Mares showed Joshua Franco the 

photograph of Williams and Easter, as depicted on the white T-Mobile cell phone. Mares 

did not identify the men, and read the same admonition to Franco as he read to Gaynor. 

Franco identified Easter as the robbery suspect with the dreadlocks, and said this 

man held the gun during the robbery in the church parking lot. Franco also recognized 

the white T-Mobile cell phone, and said the smaller suspect (Williams) used it during the 

robbery. 

 Easter was arrested on November 14, 2009.11

Photographic lineups

 Detective Mares showed Franco several “six-pack” photographic lineups, which 

included pictures of Williams and Thompson. Franco identified Thompson as the man 

who went through his pockets during the robbery. Franco did not identify Williams from 

the lineups.12

Detective Mares never showed Franco or Gaynor any six-pack photographic 

lineups with Easter’s picture. Mares admitted that was “not standard operating 

procedure.” Mares confirmed he only showed a single photograph to Gaynor and Franco, 

 11 Officer Todd Turney testified that he came into contact with Easter on 

November 14, 2009, about two months after the robberies. At that time, Easter’s hair 

was short and almost shaved, and not in dreadlocks. Officer Yeager testified that by the 

time of trial, Easter had shaved his hair off. 

12 While Franco did not identify Williams from the photographic lineups, 

Williams confessed that he committed all three robberies, including the robbery of 

Franco in the church parking lot. 
14. 

Williams and Easter were in that picture, and he showed the picture to the victims after 

Williams had been identified. 

 Detective Mares testified that he looked for the suspect who Williams identified as 

“Alex” or “A-1,” but he never found such a person. 

THE VICTIMS’ TRIAL TESTIMONY AND IDENTIFICATIONS

Garrett Gaynor

Garrett Gaynor testified at trial that he identified Williams and Thompson during 

an infield show-up on the night of the robbery. Gaynor testified the police showed him 

several photographs to identify the third suspect, but none of the photographs showed that 

person. Gaynor testified he was finally shown a photograph of a single person, and 

identified that person – Easter – as the third suspect with the red-tipped dreadlocks.13

Gaynor testified that Detective Mares showed him a photograph of two men from 

a cell phone, which showed Williams and the suspect with the dreadlocks. Gaynor 

testified he also looked at a photograph with three individuals. When he looked at this 

picture, he had already identified two of the men on the night of the robbery, and he 

identified the third man as the suspect with the dreadlocks. Gaynor did not think that he 

identified Easter from the photographs which showed the suspects standing together. 

Gaynor testified that exhibit No. 3 showed the three men who robbed him: the 

first man who spoke to him and ran off with the Blackberry (Williams), the gunman who 

wore the hat (Thompson), and the man with the red-tipped dreadlocks (Easter). 

Also at trial, Gaynor identified Thompson as the gunman in the red hat. Gaynor 

identified Easter as the suspect who wore his hair in dreadlocks with red tips, even 

 13 While Gaynor testified that he identified Easter from a photograph that showed 

a single person, Detective Mares testified that Gaynor made the identification after 

looking at exhibit No. 7, the photograph from Williams’s cell phone which showed 

Williams and Easter. 
15. 

though Easter’s hair was now in a short buzz-cut. Gaynor identified Williams as the 

person who called him about the Blackberry, met him at his car, and ran away with the 

phone. 

Gaynor reviewed the photograph of the nine-millimeter semiautomatic handgun 

found in the apartment on the night of the robbery. Gaynor identified the firearm as the 

weapon the gunman held at his head, which had a silver barrel and black handle. Gaynor 

again identified the white T-Mobile cell phone as the device which Williams was holding 

when they met in the parking lot. 

Josh Franco

Josh Franco testified that a few days after the robbery, the police showed him a 

series of photographic lineups. Franco positively identified one man as being involved in 

the robbery, but he was not sure if that man was the gunman.14

Franco testified he also looked at a photograph of two men. He was read an 

admonition before he looked at this photograph, and told that it might not be the suspect. 

He identified one man as the gunman, and he was positive about the identification when 

he made it.15

 At trial, Franco identified defendant Thompson as one of the robbery suspects, and 

Thompson was not the gunman. He believed Thompson was the man he identified in the 

photographic lineup. Franco testified that he initially believed the man he identified in 

 14 Detective Mares testified that Franco identified Thompson from the 

photographic lineup, and said that Thompson went through his pockets during the 

robbery. Williams confessed to his involvement in the Franco robbery. 

15 Detective Mares testified Franco identified Easter as the robbery suspect with 

the dreadlocks, and said this man held the gun during the robbery in the church parking 

lot. 
16. 

the photographic lineup (Thompson), and the man in the single photograph (Easter), were 

the same person, but later realized they were different people.16

Franco reviewed the photograph of the handgun found in the apartment (Exhibit 

No. 26), and testified it was very similar to the firearm used by the gunman during the 

robbery. Franco recognized the silver barrel and the distinctive black handle. 

Nicholas Flechsing

Nicholas Flechsing testified that about three days after the robbery, Detective 

Torres showed him several photographic lineups. Flechsing identified Williams from one 

of the lineups (Exhibit No. 43), and said he was “absolutely positive” that Williams was 

the man who called him and met him on the street. Williams was not the gunman. At 

trial, Flechsing identified Williams as the man who met him on the street. Flechsing did 

not identify anyone from the photographic lineups as the gunman.17

Flechsing testified the chrome-plated handgun with the black grip, which was 

found in the apartment, was similar to the weapon used by the gunman during the 

robbery. 

THE PROSECUTION’S GANG EXPERT

As to counts I and II, the robberies of Gaynor and Franco, gang enhancements 

were alleged as to all three defendants (§ 186.22, subd. (b)(1)). In count IV, defendants 

 16 As we have already explained, exhibit No. 7 was the photograph on Williams’s 

cell phone depicting Easter and Williams. 

17 Prior to trial, Flechsing never identified anyone else as a suspect. At trial, 

however, Flechsing testified he thought Thompson was the gunman, although he thought 

that Thompson’s hair was shorter and no longer in dreadlocks. The record implies that 

Flechsing indicated that Easter was not the gunman. Williams, who confessed that he 

robbed Flechsing, was the only defendant charged with this robbery. Thompson and 

Easter were not charged with the offense, even after Flechsing’s trial identification of 

Thompson. 
17. 

were charged with the substantive offense of active participation in a criminal street gang 

(§ 186.22, subd. (a)). 

Fresno Police Officer Ron Flowers testified as the prosecution’s gang expert. He 

had been a gang investigator with the Multi-Agency Gang Enforcement Consortium 

(MAGEC) since 2003. He worked specifically with African-American gangs in Fresno. 

He had investigated close to 600 gang-related crimes. Flowers identified gangs, validated 

an individual’s gang membership, and tracked crimes committed by gang members. 

Flowers had qualified as a prosecution gang expert approximately 40 times. 

The “Playboyz” Gang

Officer Flowers testified that the “Playboyz” is an African-American criminal 

street gang. Flowers first became aware of the Playboyz in 2004 or 2005, when a 

shooting occurred which involved four victims. Flowers verified the four victims were 

members of the Playboyz gang. Flowers validated the existence of the Playboyz at that 

time.18

“My partner and I were able to verify that there was a group that 

called themselves the Playboyz here in Fresno [C]ounty, and eventually we 

were able to identify members of that particular group. And that was 

confirmed through certain crimes that occurred in the city of Fresno.” 

Officer Flowers testified the Playboyz’s primary colors were blue and red. 

Flowers acknowledged that blue was commonly claimed by the Crips, while red was 

claimed by the Bloods. However, Flowers explained that it was not unusual for a Fresno 

gang to claim both red and blue. “It is not like Bloods and Crips. We have gangs that 

have Bloods and Crips within themselves[,]” and “[i]t is not unusual here in Fresno to 

find those two groups in one gang ....” Flowers testified that African-American gangs in 

Fresno and Los Angeles had different philosophies about colors. For the gangs in Fresno, 

 18 Flowers testified there was also an unrelated southern Hispanic criminal street 

gang known as the “Playboyz.” 
18. 

colors were “not critical” and did not have “much of an adverse effect as it does in Los 

Angeles.” 

Officer Flowers believed there were approximately 34 to 35 members of the 

Playboyz in Fresno. Flowers personally knew three or more members of the gang. 

Flowers had conversations with members of the Playboyz about their lifestyles, loyalties, 

criminal gang activities, membership, signs, colors, tattoos, and graffiti. Flowers testified 

he reviewed about 60 police reports about the activities of the Playboyz. 

The Playboyz gang used the “Playboy” emblem from Hugh Hefner’s Playboy 

magazine as one of their symbols. The gang members also configured their hands to 

appear like Playboy bunny ears. Flowers had seen rivals mocking the same hand sign. 

Flowers testified that the area under the Playboyz’s “dominion of control” was in 

northwest Fresno, between Herndon and McKinley, and Polk and Marks. The Playboyz 

did not claim that area as its specific turf, but “there have been a lot of events specific to 

this group within that area.”19

Flowers had also seen the word “Playboyz” used in gang writings on clothing, 

documents, glass, and MySpace pages. However, he had never seen any Playboyzrelated graffiti in a particular area or anywhere else in Fresno. Flowers explained that 

some gangs are not “turf-oriented” and don’t have issues over particular territories. 

Primary activities20

 Officer Flowers testified that he had reviewed approximately 70 to 80 police 

reports involving members of the Playboyz gang. Flowers testified the primary activity 

 19 A defense investigator testified he did not find any graffiti in Fresno relating to 

the Playboyz gang, in the area where the gang allegedly claimed turf. The investigator 

admitted that he was not familiar with the gang’s different slang terms and abbreviations, 

and he only looked for pictures of rabbits. 

20 In issue II, post, we will address defendants’ contentions that there is 

insufficient evidence to support the “primary activities” element of the gang allegations. 
19. 

of the Playboyz gang was robbery, in violation of section 211. Flowers’s opinion was 

based on his review of approximately 12 police reports involving incidents where 

members of the Playboyz committed robberies, from 2006 to 2009. Flowers testified the 

gang had “the pattern, again the consistency of violating Penal Code [section] 211.” 

Flowers testified he had also investigated homicides, shootings, and firearm cases 

which involved members of that gang. 

Predicate offenses

 Flowers testified about several predicate offenses committed by validated 

members of the Playboyz gang, based on his review of certified copies of their 

convictions. These predicate offenses were not committed by any of the defendants. In 

2005, Christopher Williams was convicted of murder (based on a vehicular homicide), 

transportation of narcotics for sale, and possession of cocaine base for sale. In 2006, 

Duane Perry was charged with second degree robbery and convicted of attempted grand 

theft. In 2008, Anthony Skinner was convicted of illegal possession of a weapon. In 

2009, Rafael Houston pleaded guilty to illegal possession of a weapon. In 2009, Robert 

Tyler was convicted of illegal possession of a weapon; and in 2008, he was convicted of 

vehicle theft. 

 On cross-examination, Flowers conceded that while these predicate offenses were 

committed by members of the Playboyz gang, there were no gang enhancements alleged 

or found true in those cases. Flowers also conceded that none of the predicate offenses 

involved robbery charges. Flowers further testified that he did not believe anyone had 

been convicted of the substantive offense of active participation in a criminal street gang 

as a member of the Playboyz. 

Defendants’ memberships in the Playboyz

 Officer Flowers testified to his opinion that Thompson, Williams, and Easter were 

active members of the Playboyz gang. Thompson admitted being a member of the 

Playboyz on six occasions in jail classification settings in January and April 2008, and 
20. 

January, February, and September 2009. On January 5, 2009, Thompson admitted his 

gang affiliation to Fresno homicide detectives. 

Thompson had been documented as associating with Playboyz gang members in 

June 2003, August 2003, November 2004, and May 2007. Thompson was arrested with 

other members of the Playboyz on July 4, 2004, November 6, 2004, and January 23, 

2009. 

Officer Flowers classified Thompson as an active participant in the gang based on 

the crimes he had committed, and his regular association with other active members of 

the gang. Flowers identified Thompson in a photograph which showed him making the 

Playboyz hand sign, placing his fingers like rabbit ears. Thompson had a tattoo of the 

Playboy bunny on his left arm, with the word “Playboyz” written underneath it. 

Officer Flowers testified that Easter was arrested on February 14, 2006, with 

Tyrone Williams, a member of the Playboyz. On May 24, 2008, Easter was documented 

as associating during a shooting incident with Tyrone Williams, Anthony Silva and 

Maharie Kidan, who were also members of the Playboyz. On July 10, 2008, Easter was 

arrested with Robert Lee and Maharie Kidan. On January 3, 2009, Easter was with 

Tyrone Williams when he was contacted about being present during a homicide. On 

April 8, 2009, Maharie Kidan was arrested, and he claimed Easter provided him with a 

weapon. On May 28, 2009, Easter was contacted during a traffic stop with Anthony 

Skinner, a member of the Playboyz. 

Flowers testified that Easter’s nickname was “Kook.” Flowers classified Easter as 

an active participant in the Playboyz based on his behavior and nature and frequency of 

his contacts. 

Officer Flowers testified that on January 3, 2009, Williams was identified as a 

member of the Playboyz by homicide detective Todd Frazier. On April 27, and July 19, 

2009, Williams was documented as associating with, respectively, Tyrone Williams and 
21. 

Jason Bryant, members of the gang. On June 7, and September 10, 2009, Williams 

admitted to juvenile probation officers that he was a member of the Playboyz gang. 

Flowers testified Williams was an active participant in the Playboyz gang because 

“his behavior is more than nominal, as we outlined the many contacts through law 

enforcement and the related offenses during those investigations.” 

Williams’s cell phone and the videos

Williams’s cell phone contained a contact list. Officer Flowers testified the names 

included “PB Kook,” “PB Crane,” “PB Gunne,” and “PBJKIDDDDD.” Flowers 

believed “PB” was an acronym for “Playboyz.”21

There were also two videos on the cell phone. Both videos were played for the 

jury in this case.22

One video showed Easter, Thompson, Williams, and another man in the bathroom 

of the same apartment which was searched on the night of the robbery. Thompson was 

holding a semiautomatic handgun, which was similar to the weapon found in the 

apartment and identified by the victims. The “bathroom” video was recorded on 

September 4, 2009. 

Officer Flowers testified that defendants’ conduct on the “bathroom” video 

supported his opinion that they were members of the Playboyz, based on their dialogue, 

hand signs, displays of tattoos and the gun, and discussion of specific rivals. The 

defendants mentioned “The Mob, Klette Mob, also known as the Laidlaw Boys” as a 

rival gang. Terrance Bryant was the fourth man in the video, and he displayed a red 

tattoo of the letter “P” on his chest. 

 21 Easter testified at trial and admitted his nickname was “Kook.” 

22 The court admonished the jury that it could consider both videos for the limited 

purposes of determining the elements required to prove the gang-related crimes and 

enhancements; credibility of the expert witness; and whether the defendants had a motive 

to commit the charged offenses. 
22. 

The second video showed several young men in a parking lot. It was recorded on 

September 5, 2009. Officer Flowers testified the “parking lot” video showed Thompson, 

Williams, and other young African-American males. They were announcing “Playboyz,” 

and displaying Playboyz hand signs. Officer Flowers did not see Easter in that video. 

Flowers testified the expressions and statements made by defendants in the videos 

clearly promoted the Playboyz gang. “Judging from the content and the dialogue and the 

expressions made, I would be under the impression that these individuals had done 

something and were warning others and claiming their gang membership openly.” 

The charged offenses23

 Officer Flowers conceded that a gang member may commit a crime or a robbery 

for personal reasons and not for the benefit of the gang. Based on a series of similar 

hypothetical questions, Flowers testified to his opinion that the robberies were committed 

in association with a criminal street gang. All of the perpetrators were members of the 

same gang, they committed the crimes in concert, and they conspired together to commit 

the robberies. While the participants did not say the gang’s name during the robberies, 

the crimes benefitted the gang by building its reputation and each defendant’s notoriety. 

The robbery proceeds also benefitted the gang financially by enabling the gang members 

to buy guns, and increased their individual prestige and the gang’s prestige. 

 Officer Flowers further explained that gang members gain respect through 

committing acts of violence. These actions allow the gang members to instill fear in the 

community and among their rivals. “Other members see it, other members want to be a 

part of it. They want to repeat. They want to join. That’s the dangerous element about 

group participation.” 

 23 In issue III, post, we will address defendants’ contentions that the jury’s 

findings on the gang enhancements must be reversed because there is insufficient 

evidence the robberies were committed for the benefit of, at the direction of, or in 

association with a criminal street gang. 
23. 

DEFENSE EVIDENCE

 Thompson and Easter testified at trial; Williams did not testify. 

Thompson’s trial testimony

 Thompson, who was 23 years old, admitted he had prior convictions for felony 

statutory rape and petty theft in 2007. He obtained the “Playboyz” tattoo on his arm 

when he was 14 years old to show his cousin that he liked girls. 

 Thompson testified that he was depicted in the “bathroom” video, which was 

filmed in September 2009 at his grandmother’s apartment. Easter, Williams, and 

Terrance Bryant were also in the video. Thompson admitted that he held a gun in the 

video. Thompson testified that he was in a “bad place” in his life at that time. He was 

“... doing Ecstasy, smoking all kinds of weed, you know, just being stupid.” Thompson 

said he was in the parking lot video with his cousins. Williams filmed the video. Easter 

was not there. 

Thompson admitted that he was present during the Gaynor and Franco robberies, 

and Williams was also there. 

Thompson testified the robberies were not committed for the benefit of the 

Playboyz or any gang, but because he needed money for his rent and he did not have a 

job. Thompson testified he was not present during the Flechsing robbery. 

Thompson testified he robbed Gaynor at gunpoint and used the nine-millimeter 

handgun which was found in his grandmother’s apartment. Williams and an unknown 

third man were also present. He said that Williams made the telephone calls to set up the 

robbery. 

Thompson testified that he was present when Franco was robbed. Thompson was 

not the gunman, but the same gun was used from the Gaynor robbery. Thompson went 

through Franco’s pockets during the robbery. Williams and an unknown third man were 

present during the robbery. 
24. 

Thompson initially testified that the unknown suspect who was present during the 

Gaynor robbery was not the same unknown man who was present during the Franco 

robbery. As to the Gaynor robbery suspect, Thompson testified he met this man in the 

apartment complex, and the robbery was this man’s idea. 

Thompson testified he feared for his life if he identified the third suspect in the 

Franco robbery. Thompson knew this man from the apartment complex, and this man 

always wore blue and said he was a Crip. Thompson admitted he committed the Franco 

robbery in association with a Crip. 

During cross-examination, Thompson’s description of the third suspect began to 

change, and he admitted that the same man was the third suspect for both the Franco and 

Gaynor robberies. Thompson testified this man was a member of the Crips, and he knew 

the man was a Crip when they committed both robberies. 

Thompson testified that he knew about the Playboyz, but insisted it was not a 

street gang: “It’s a family .... [M]ost of the people that are in it are all family, all 

cousins and brothers.” “To us it is not a gang.” Thompson and some of his cousins 

referred to themselves as Playboyz, but he meant that he was a “player” with the girls. 

Thompson testified that the Playboyz partied and went to clubs when they were together. 

On further cross-examination, Thompson admitted he was a member of the 

Playboyz and there were about 20 members, including many people in his family. 

Thompson knew Christopher Williams, Anthony Skinner, Christopher Williams, Jason 

Bryant, Tyrone Williams, and Rafael Houston, and also knew they were members of the 

Playboyz. 

Thompson testified that members of the Playboyz did not get along with the 

“Northside” and “Murder Squad” gangs because they did not want to join those two 

gangs. Thompson repeatedly denied the Playboyz was a criminal street gang, that the 

members committed crimes, or that its primary purpose was to commit robberies. 

Thompson admitted that he claimed membership in the Playboy Crips during the jail 
25. 

classification interviews. He did so to avoid being jumped in jail. He said there was no 

such group as the Playboy Crips. 

Thompson testified that Williams was a member of the Playboyz. Thompson 

knew Williams was a member when they committed the robberies. Thompson testified 

that Easter was not a member of the Playboyz, and he was not present during the Gaynor 

and Franco robberies. 

On further questioning, Thompson testified he was not afraid to implicate 

Williams because he knew that Williams already talked to the police and said he was 

involved in the robberies. Thompson testified he knew that Easter had not implicated 

himself in the robberies. Thompson testified he was afraid to implicate Easter as the third 

suspect because Easter had not implicated himself. Thompson testified he was related to 

Easter, and Thompson had known Easter for his entire life. He did not want Easter to get 

into trouble, but denied that he would lie for Easter. 

Easter’s trial testimony

Easter testified he had known Thompson since elementary school. He did not 

know Thompson was a member of the Playboyz until he heard Thompson’s trial 

testimony. He had known Williams since high school, and did not know whether he was 

a member of the Playboyz. Easter testified the Playboyz were people who went to “dance 

parties, and like going out to the clubs and stuff ....” 

 Easter admitted that he was in the bathroom video with Thompson and Williams, 

and that he saw the gun that was shown in the video. Easter testified the fourth person in 

the bathroom video was known as “Gunne,” and Easter knew he had a “P” tattooed on his 

chest.24 Easter also knew that Thompson had a tattoo of a Playboy bunny on his arm, but 

these tattoos meant nothing to him. Easter testified he was present when Williams 

spelled out the word “Playboyz” in the bathroom video. Williams testified he did not 

 24 One of the contacts on Williams’s cell phone was “PB Gunne.” 
26. 

recall Williams talking about the Bloods and the Crips during the bathroom video, and 

the words meant nothing to him. Easter was not present during the parking lot video. 

Easter testified he had never been charged or convicted of a crime.25 Easter 

admitted he vandalized a shopping cart with Tyrone Williams in February 2006. He was 

taken to juvenile hall and released. He was arrested on September 10, 2008, for illegally 

discharging a firearm, and released the same day. 

Easter admitted he was present when a homicide occurred at a party in January 

2009. Easter denied that he gave a gun to Maharie Kidan on April 8, 2009. Easter was 

with Anthony Skinner during a traffic stop on May 28, 2009. Skinner was a close family 

friend, but Easter did not know if he was a member of the Playboyz. 

 Easter testified he was not involved in the Franco or Gaynor robberies. He was 

not a member of any gang, and he never committed any crimes for the benefit of a gang. 

Easter never called himself a member of the Playboyz, but he knew some people who 

used that name. Easter admitted he was known by the nickname of “Kook.”26

 Easter testified that in the fall of 2009, he was employed by a home care agency, 

and cared for his disabled mother under a program sponsored by the state. He lived with 

his mother, and he also shared an apartment with the mother of his child. 

Easter testified that at the time of the Franco robbery, he was working for the 

home care agency and providing services to his mother. On the night of the Gaynor 

robbery, he was staying with his daughter and the child’s mother, at their residence near 

Clinton and Brawley. He cut his hair sometime after the bathroom video was made in 

September 2009, and before he was arrested on November 14, 2009. 

 25 In issue IX, post, we will address Easter’s contentions that this testimony was 

sufficient to trigger either a defense instruction on character evidence or to reopen the 

defense case to call a character witness. 

26 One of the contacts on Williams’s cell phone was identified as “PB Kook.” 
27. 

Verdicts and sentences

After a lengthy joint jury trial, Easter, Thompson and Williams were convicted as 

charged with counts I and II, second degree robberies of, respectively, Gaynor and 

Franco (§ 211); and count IV, active participation in a criminal street gang (§ 186.22, 

subd. (a)). In count III, Williams was separately found guilty of the second degree 

robbery of Flechsing. 

The jury found Thompson personally used a firearm in the commission of count I, 

the robbery of Gaynor; and Easter personally used a firearm in count II, the robbery of 

Franco (§ 12022.53, subd. (b)). As to counts I and II, the jury found the gang 

enhancements true (§ 186.22, subd. (b)(1). 

Both Easter and Thompson were sentenced to 27 years 4 months in prison. 

Williams was sentenced to 18 years. 

DISCUSSION

I. Denial of severance/bifurcation motions on gang allegations and evidence

 Thompson and Easter contend the court abused its discretion when it denied their 

pretrial motion to sever count IV, the substantive gang offense (§ 186.22, subd. (a)), and 

bifurcate the gang enhancements (§ 186.22, subd. (b)(1)), from the three robbery charges. 

Defendants argue the gang evidence was irrelevant and prejudicial to the robbery charges 

because there was no evidence the suspects committed the robberies to benefit any gang. 

A. Background

 Prior to trial, Easter moved to bifurcate the robbery charges from count IV, the 

gang substantive offense, and the gang enhancements; Thompson and Williams joined 

the motion.27 They argued the gang evidence was irrelevant and prejudicial to the 

 27 As we will discuss, post, severance is the appropriate motion for a substantive 

charge, while bifurcation is the appropriate motion for enhancements. (People v. Burnell

(2005) 132 Cal.App.4th 938, 946, fn. 5 (Burnell).) 
28. 

robbery charges. The prosecutor replied the gang evidence was relevant to prove that 

defendants intended to aid and abet each other in the commission of the robberies, 

particularly during the Gaynor robbery. The prosecutor also cited to the “bathroom” 

video which showed all three defendants talking about the Playboyz gang, and throwing 

gang signs, while Thompson held the gun which appeared to have been used in the 

robberies. 

 The trial court denied defendants’ bifurcation motion: 

“[T]he court does not find the inclusion of the gang enhancement or the 

gang charge is such that it will unduly prejudice the defendants in their 

ability to receive a fair trial. It does not show any extraordinary prejudice 

in this Court’s mind. So the motion to bifurcate is denied. Because in 

essence what counsel is asking is not just for a bifurcation of the 

enhancements but for a severance of [count IV]. Because in essence it 

would be virtually impossible for counsel or for the Court to adequately 

explore the minds of potential jurors in this case concerning gangs during 

voir dire if the same jury was going to ultimately hear evidence on an 

enhancement and the gang count separate from the underlying charges. We 

couldn’t do that. We would have to have basically a new jury which would 

allow counsel and the Court to explore those attitudes. 

“Because by simply taking what [Williams’s attorney] said, by 

simply mentioning gangs in the context of a jury trial, that doesn’t have any 

information concerning gangs, at least so far as the jury is concerned. They 

wouldn’t know what is going on in this case. They would suspect but they 

would not know. It will cause them to speculate, in other words, if we were 

to start asking them questions about an enhancement, or charges or 

associations without there being any charges or enhancements in the case to 

begin with. 

“The Court is satisfied that the jurors – and the law recognizes that 

the jurors will do their responsibility and will follow the law. They will be 

informed as to any evidence concerning gang affiliation or gang conduct 

would be admitted for the sole purpose of determining whether the 

allegations are true concerning the enhancement and the charge, but they 

are not to consider that concerning the underlying robbery charges, only the 

gang charges. So the request to bifurcate is denied.” 
29. 

B. Bifurcation

A trial court has broad discretion to control the conduct of a criminal trial, 

including the power to bifurcate a gang enhancement from trial on the substantive 

charges. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) However, 

the need to bifurcate gang allegations is often not as compelling as for the bifurcation of 

prior conviction evidence. (Id. at pp. 1048-1049.) “A prior conviction allegation relates 

to the defendant’s status and may have no connection to the charged offense; by contrast, 

the criminal street gang enhancement is attached to the charged offense and is, by 

definition, inextricably intertwined with that offense. So less need for bifurcation 

generally exists with the gang enhancement than with a prior conviction allegation. 

[Citation.]” (Id. at p. 1048, original italics.) 

In moving for bifurcation, the defense must “ ‘clearly establish that there is a 

substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.]” 

(Hernandez, supra, 33 Cal.4th at p. 1051.) Bifurcation may be necessary where the 

predicate offenses offered to establish the pattern of criminal activity are “unduly 

prejudicial,” or where some of the other gang evidence may be “so extraordinarily 

prejudicial, and of so little relevance to guilt,” that it may influence the jury to convict 

regardless of the defendant’s guilt. (Id. at p. 1049.) We review the trial court’s denial of 

a motion to bifurcate for abuse of discretion. (Id. at p. 1048.) 

C. Severance

Joint trials of offenses which occur together are legislatively preferred over 

separate trials, and the party requesting severance of properly joined offenses has the 

burden to “clearly establish that there is a substantial danger of prejudice requiring that 

the charges be separately tried. [Citations.]” (People v. Bean (1988) 46 Cal.3d 919, 938-

939; Burnell, supra, 132 Cal.App.4th at p. 946; see § 954.) 

“In the context of severing charged offenses, we have explained that ‘additional 

factors favor joinder. Trial of the counts together ordinarily avoids the increased 
30. 

expenditure of funds and judicial resources which may result if the charges were to be 

tried in two or more separate trials.’ [Citation.] Accordingly, when the evidence sought 

to be severed relates to a charged offense, the ‘burden is on the party seeking severance 

to clearly establish that there is a substantial danger of prejudice requiring that the 

charges be separately tried. [Citations.]” (Hernandez, supra, 33 Cal.4th at p. 1050.) 

As with bifurcation, the court’s ruling on a severance motion is reviewed for abuse 

of discretion. (People v. Marshall (1997) 15 Cal.4th 1, 27-28.) “Whether a trial court 

abused its discretion in denying a motion to sever necessarily depends upon the particular 

circumstances of each case. [Citations.] The pertinent factors are these: (1) would the 

evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges 

unusually likely to inflame the jury against the defendant; (3) has a weak case been 

joined with a strong case or another weak case so that the total evidence on the joined 

charges may alter the outcome of some or all of the charged offenses; and (4) is any one 

of the charges a death penalty offense, or does joinder of the charges convert the matter 

into a capital case. [Citation.] A determination that the evidence was cross-admissible 

ordinarily dispels any inference of prejudice. [Citations.]” (Ibid.) 

D. The court did not abuse its discretion

The trial court did not abuse its discretion when it denied defendants’ motions for 

severance and bifurcation of the gang allegations and evidence in this case. The gang 

evidence was necessarily intertwined with the charged offenses as to several relevant 

issues, particularly aiding and abetting, identity, and bias. As we will discuss in issue IV, 

post, one of the key issues in the Gaynor robbery was the culpability of Williams and 

Easter, who stood by while Thompson pulled the gun and went through Gaynor’s 

pockets. Their joint gang status was clearly relevant as circumstantial evidence of their 

intent and knowledge to prove aiding and abetting to commit robbery. (See, e.g., Burnell, 

supra, 132 Cal.App.4th 938, 947; People v. Salgado (2001) 88 Cal.App.4th 5, 15-16; In 

re Jose T. (1991) 230 Cal.App.3d 1455, 1460-1461.) 
31. 

In addition, the defendants’ common gang membership was relevant and 

admissible as to identity, bias, and impeachment. In his postarrest statement, Williams 

said that “Alex” and not Easter was the gunman for the Franco robbery. At trial, 

Thompson refused to identify the third suspect in the Franco and Gaynor robberies, and 

gave equivocal testimony about whether Easter was that man. For example, in People v. 

Ruiz (1998) 62 Cal.App.4th 234, the defendant was charged with selling drugs to an 

undercover officer. The defendant argued that a third party was guilty of the offense, 

based on that person’s alleged confession to a defense investigator. Ruiz held the trial 

court properly permitted the prosecution to introduce evidence that the defendant and the 

third party were members of the same gang and likely knew each other, because the 

evidence was relevant for impeachment and bias. (Id. at pp. 240-243.) 

As relevant to the charges in this case, “to entirely eliminate the gang evidence 

would have required a severance ... of the street terrorism count and the bifurcation of the 

gang enhancements.” (Burnell, supra, 132 Cal.App.4th at p 947.) Defendants failed to 

carry their burden to clearly establish that there was a substantial danger of prejudice 

requiring that the charges be separately tried for severance. The gang evidence was 

cross-admissible as to aiding and abetting, identity, and bias of the witnesses. The 

substantive gang charge required much the same evidence to prove, and was no more 

potentially inflammatory than the other charges, such that severance would not have been 

appropriate. (See, e.g., Hernandez, supra, 33 Cal.4th at p. 1051.) In addition, the jury 

was correctly instructed on the limited purpose of gang evidence, including the limited 

admissibility of the two videos. (CALCRIM NO. 1403.) We presume the jury followed 

the instructions. (Cf. Hernandez, supra, 33 Cal.4th at pp. 1052-1053.) 

E. Due process

Finally, Thompson argues the denial of his motions for bifurcation and/or 

severance violated his due process right to a fair trial on the robbery charges, because of 

the alleged “gross unfairness” that resulted from the introduction of the gang evidence in 
32. 

this case. Thompson’s argument is based on People v. Albarran (2007) 149 Cal.App.4th 

214 (Albarran), which held: 

 “To prove a deprivation of federal due process rights, [the 

defendant] must satisfy a high constitutional standard to show that the 

erroneous admission of evidence resulted in an unfair trial. ‘Only if there 

are no permissible inferences the jury may draw from the evidence can its 

admission violate due process. Even then, the evidence must “be of such 

quality as necessarily prevents a fair trial.” [Citation.] Only under such 

circumstances can it be inferred that the jury must have used the evidence 

for an improper purpose.’ [Citation.] ‘The dispositive issue is ... whether 

the trial court committed an error which rendered the trial “so ‘arbitrary and 

fundamentally unfair’ that it violated federal due process.” [Citations.]’ 

[Citation.]” (Id. at pp. 229-230, fn. omitted.) 

 However, Albarran dealt with a factual scenario that was different from this case. 

In Albarran, the defendant was charged with multiple offenses based on his participation 

in a shooting at the victim’s home. He was not charged with the gang substantive 

offense, but gang enhancements were alleged. The trial court permitted the prosecution 

to introduce gang evidence to prove the defendant’s motive and intent. The jury 

convicted the defendant of the substantive offenses and found the gang enhancements 

were true. Thereafter, the trial court granted defendant’s posttrial motion and dismissed 

the gang allegations for insufficient evidence. (Albarran, supra, 149 Cal.App.4th at pp. 

217-222.) 

Albarran held that while the trial court may have initially found that the 

defendant’s gang activities were relevant and probative to his motive and intent, the court 

abused its discretion when it permitted the prosecution to introduce additional gang 

evidence that was irrelevant to the defendant’s motive or the substantive criminal 

charges. (Albarran, supra, 149 Cal.App.4th at p. 217.) The irrelevant evidence included 

other gang members’ threats to kill police officers, and references to the Mexican Mafia 

prison gang. Albarran characterized the irrelevant gang evidence as “overkill,” (id. at 

p. 228, fn. omitted) and “extremely and uniquely inflammatory, such that the prejudice 
33. 

arising from the jury’s exposure to it could only have served to cloud their resolution of 

the issues.” (Id. at p. 230, fn. omitted.) Albarran found the gang evidence was so 

inflammatory that it “had no legitimate purpose in this trial,” and held admission of that 

evidence violated defendant’s due process rights. (Id. at pp. 230-231.) 

In contrast to Albarran, the instant case is not “one of those rare and unusual 

occasions where the admission of evidence has violated federal due process and rendered 

the defendant’s trial fundamentally unfair.” (Albarran, supra, 149 Cal.App.4th at p. 

232.) The defendants in this case were charged with both the gang substantive offense 

and enhancements. The trial court did not grant a posttrial motion to dismiss either count 

IV or the enhancements. As we have explained, the jury was properly instructed on the 

limited admissibility of the gang evidence. As we will also explain in issues II and III, 

post, the jury’s findings on the gang substantive offense and enhancements are supported 

by substantial evidence. 

More importantly, Officer Flowers’s expert testimony regarding the criminal 

activities of the Playboyz was not similar to the sensational and prejudicial testimony 

admitted in Albarran. While Flowers addressed predicate offenses committed by other 

members of the Playboyz, his testimony was limited to the essential facts which the 

prosecution was required to prove for the elements of both the gang substantive offense 

and the enhancements. The gang evidence in this case was no more sensational than the 

evidence as to the three Craigslist armed robberies committed against the victims in this 

case. The court did not abuse its discretion when it denied bifurcation and severance of 

the gang allegations, and the admission of the gang evidence did not violate defendant's 

due process rights. 

II. Substantial evidence of “primary activities”

 Thompson and Williams contend there is insufficient evidence to support the 

“primary activities” element of count IV, the gang substantive offense (§ 186.22, subd. 

(a)), and the gang enhancements found true for counts I and II, the Gaynor and Franco 
34. 

robberies (§ 186.22, subd. (b)(1)). Defendants acknowledge that Officer Flowers 

testified that robberies were the primary activities of the Playboyz, but they argue 

Flowers’s testimony was insufficient because he merely referred to police reports as the 

basis for his opinion, and he failed to offer specific testimony about the nature of these 

alleged robberies. 

A. Substantial evidence

 “In assessing the sufficiency of the evidence, we review the entire record in the 

light most favorable to the judgment to determine whether it discloses evidence that is 

reasonable, credible, and of solid value such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is 

unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient 

substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 

Cal.4th 297, 331.) The same substantial evidence standard applies when reviewing a 

jury’s true finding on gang enhancements. (People v. Albillar (2010) 51 Cal.4th 47, 59-

60 (Albillar).) 

B. Primary activities

To establish that a group is a criminal street gang within the meaning of section 

186.22, for purposes of both the gang substantive offense and the gang enhancement, “the 

People must prove: (1) the group is an ongoing association of three or more persons 

sharing a common name, identifying sign, or symbol; (2) one of the group’s primary 

activities is the commission of one or more statutorily enumerated criminal offenses; and 

(3) the group’s members must engage in, or have engaged in, a pattern of criminal gang 

activity. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457, italics added; 

People v. Vy (2004) 122 Cal.App.4th 1209, 1221-1222; § 186.22, subd. (f).) 

“The phrase ‘primary activities,’ as used in the gang statute, implies that the 

commission of one or more of the statutorily enumerated crimes is one of the group’s 

‘chief’ or ‘principal’ occupations,” as opposed to the “occasional commission of those 
35. 

crimes by [one or more of] the group’s members.” (People v. Sengpadychith (2001) 26 

Cal.4th 316, 323 (Sengpadychith.) “Sufficient proof of the gang’s primary activities 

might consist of evidence that the group’s members consistently and repeatedly have 

committed criminal activity listed in the gang statute,” and may be accomplished through 

expert testimony. (Id. at p. 324, original italics.) 

The enumerated criminal acts which consist of the “primary activities” include 

unlawful homicide, manslaughter, assault with a deadly weapon or by means of force 

likely to produce great bodily injury, burglary, robbery, narcotics offenses, shooting at an 

inhabited dwelling or motor vehicle, discharging a firearm from a motor vehicle, felony 

vandalism, and grand theft. (§ 186.22, subd. (e).) 

To make the required showing of primary activities, the prosecution may rely on 

evidence of the presently charged crimes, past offenses, and evidence of crimes 

committed by other gang members. (Sengpadychith, supra, 26 Cal.4th at pp. 323-324; 

People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); Duran, supra, 97 Cal.App.4th 

at p. 1465.) 

“Evidence of past or present conduct by gang members involving the 

commission of one or more of the statutorily enumerated crimes is relevant 

in determining the group’s primary activities. Both past and present 

offenses have some tendency in reason to show the group’s primary activity 

[citation] and therefore fall within the general rule of admissibility 

[citation].” (Sengpadychith, supra, 26 Cal.4th at p. 323.) 

The primary activities element may also be established through expert testimony 

regarding the gang’s activities. (Sengpadychith, supra, 26 Cal.4th at p. 324; Gardeley, 

supra, 14 Cal.4th at p. 617; People v. Vy, supra, 122 Cal.App.4th at p. 1226) “The 

testimony of a gang expert, founded on his or her conversations with gang members, 

personal investigation of crimes committed by gang members, and information obtained 

from colleagues in his or her own and other law enforcement agencies, may be sufficient 

to prove a gang’s primary activities. [Citations.]” (Duran, supra, 97 Cal.App.4th at p. 
36. 

1465; People v. Killebrew (2002) 103 Cal.App.4th 644, 657, disapproved on other 

grounds in People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3.) 

For example, the California Supreme Court has explained that the primary 

activities element might be satisfied by expert testimony of the type found in Gardeley, 

supra, 14 Cal.4th 605, where a police gang expert testified that the defendant’s gang 

“was primarily engaged in the sale of narcotics and witness intimidation, both statutorily 

enumerated felonies. [Citation.]” (Sengpadychith, supra, 26 Cal.4th at p. 324.) 

Similarly, Duran held there was substantial evidence that one of the gang’s 

primary activities was the commission of one or more of the statutorily enumerated 

offenses because the gang expert’s “testimony supported a jury finding that members of 

the [gang] were engaged in more than the occasional sale of narcotics, robbery, or 

assault. [The gang expert] testified that the [gang] members engaged in these activities 

‘often,’ indeed often enough to obtain ‘control’ of the narcotics trade in a certain area of 

Los Angeles. Evidence of the [charged] robbery and [a gang member’s prior] conviction 

[for felony possession of cocaine base for sale] further corroborated [the expert’s] 

testimony, providing specific examples of [gang] members’ commission of robbery and 

narcotics offenses.” (Duran, supra, 97 Cal.App.4th at p. 1465.) 

C. Analysis

There is substantial evidence to support the primary activities element of the gang 

allegations in this case based on Officer Flowers’s testimony. It is well settled that expert 

testimony about gang culture and habits is the type of evidence a jury may rely on to 

reach a verdict on a gang-related offense or a finding on a gang allegation. (Gardeley, 

supra, 14 Cal.4th at p. 617; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) “Expert 

testimony may be founded on material that is not admitted into evidence and on evidence 

that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of a 

type reasonably relied upon by experts in the particular field in forming opinions. 

[Citation.] Thus, a gang expert may rely upon conversations with gang members, his or 
37. 

her personal investigations of gang-related crimes, and information obtained from 

colleagues and other law enforcement agencies. [Citations.]” (Duran, supra, 97 

Cal.App.4th at pp. 1463-1464.) 

Officer Flowers testified that he was familiar with the Playboyz because he had 

validated the gang’s existence, he had spoken to members of the gang, he was familiar 

with the gang’s activities, and he reviewed numerous police reports about the gang’s 

activities. Based on his extensive background and experience, he testified to his opinion 

that the primary activity of the Playboyz gang was robbery. Flowers’s opinion was based 

on his review of approximately 12 police reports involving incidents where members of 

the Playboyz committed robberies, from 2006 to 2009. Flowers testified the gang had 

“the pattern, again the consistency of violating Penal Code [section] 211.” Flowers 

testified he had also investigated homicides, shootings, and firearm cases which involved 

members of that gang. 

Thompson and Williams argue Officer Flower’s testimony was insufficient to 

establish the gang’s primary activities, based on the holding in In re Alexander L. (2007) 

149 Cal.App.4th 605 (Alexander L.).) In that case, the court held the gang expert’s 

testimony lacked foundation and was insufficient to support the primary activities 

element. The officer testified only about general offenses committed by the gang, and 

about a predicate offense in which the alleged gang member was actually acquitted of the 

gang allegation. The officer failed to explain how he knew about the offenses. (Id. at 

pp. 611-612.) On cross-examination, the officer conceded that the vast majority of cases 

related to the gang involved graffiti, and he failed to specify whether the incidents 

involved misdemeanor or felony vandalism. (Ibid.) Alexander L. held that since 

“information establishing reliability was never elicited from [the expert] at trial,” it was 

“impossible to tell whether his claimed knowledge of the gang’s activities might have 

been based on highly reliable sources, such as court records of convictions, or entirely 

unreliable hearsay.” (Id. at p. 612, fn. omitted.) 
38. 

 As explained in People v. Martinez (2008) 158 Cal.App.4th 1324 (Martinez), the 

gang expert in Alexander L. “never specifically testified about the primary activities of 

the gang. He merely stated ‘he “kn[e]w” that the gang had been involved in certain 

crimes.... He did not directly testify that criminal activities constituted [the gang’s] 

primary activities.’ [Citation.]” (Martinez, supra, 158 Cal.App.4th at p. 1330.) The 

court in Martinez contrasted the gang expert’s testimony in that case with the insufficient 

foundational testimony in Alexander L.: “[In Martinez ], on the other hand, [the gang 

expert] had both training and experience as a gang expert. He specifically testified as to 

[the gang’s] primary activity. His eight years dealing with the gang, including 

investigations and personal conversations with members, and reviews of reports suffices 

to establish the foundation for his testimony. [Citation.]” (Martinez, supra, 158 

Cal.App.4th at p. 1330; see also People v. Margarejo (2008) 162 Cal.App.4th 102, 107-

108 [distinguishing Alexander L.].) 

 In this case, Officer Flowers’s testimony provided substantial evidence about the 

primary activities of the Playboyz. Flowers established the foundation for his testimony, 

he did not equivocate about the basis for his opinions, and he did not contradict himself 

about his opinions on the activities of the Playboyz. In contrast, the expert in Alexander 

L. failed to establish the foundation for his testimony, failed to testify the crimes he cited 

constituted the gang’s primary activities, equivocated on direct examination, and 

contradicted himself on cross-examination. Flowers’s testimony did not suffer from 

these foundational defects. (Cf. Alexander L., supra, 149 Cal.App.4th at pp. 611-612.) 

Flowers had a sufficient foundation for his opinions based on his own interactions with 

members of the Playboyz, his personal investigation into the gang’s activities, his 

conversations with other law enforcement officers, and his review of law enforcement 

reports about the Playboyz. 
39. 

III. Substantial evidence to support gang enhancements

 Thompson contends there is insufficient evidence to support the gang 

enhancements found true as to counts I and II, whether the robberies of Gaynor and 

Franco were “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 ....” (§ 186.22, subd. (b)(1).) Thompson argues the Franco 

and Gaynor robberies were committed for his personal benefit, and there was no evidence 

any of the robbery suspects wore gang attire or colors, flashed gang signs, or made any 

remarks regarding the alleged “Playboyz” gang when the robberies were committed. 

A. Elements of the gang enhancement

 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), 

italics added.) 

 As to the first element, “[n]ot every crime committed by gang members is related 

to a gang.” (Albillar, supra, 51 Cal.4th at p. 60.) However, the gang-related requirement 

for the enhancement may be shown by evidence indicating that several defendants “came 

together as gang members” to commit the offense, or that the offense could benefit the 

gang by elevating the gang’s or gang members’ status or advancing the gang’s activities. 

(Albillar, supra, 51 Cal.4th at pp. 62-63, original italics; see Gardeley, supra, 14 Cal.4th 

at p. 619.) If the evidence is sufficient to establish the crime was committed “in 

association” with a gang, the prosecution need not prove that it was committed for the 

benefit of or at the direction of a gang. (People v. Morales (2003) 112 Cal.App.4th 1176, 

1198 (Morales).) 

 As for the second element of specific intent, it does not require “that the defendant 

act with the specific intent to promote, further, or assist a gang; the statute requires only 
40. 

the specific intent to promote, further, or assist criminal conduct by gang members.” 

(Albillar, supra, 51 Cal.4th at p. 67, original italics.) “[S]pecific intent to benefit the 

gang is not required.” (Morales, supra, 112 Cal.App.4th at p. 1198, original italics.) The 

specific intent element “applies to any criminal conduct, without a further requirement 

that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction 

sought to be enhanced.” (Albillar, supra, 51 Cal.4th at p. 66, original italics.) The 

scienter requirement is “the specific intent to promote, further, or assist in any criminal 

conduct by gang members – including the current offenses – and not merely other 

criminal conduct by gang members.” (Albillar, supra, 51 Cal.4th at p. 65, original 

italics.) 

 “[I]f substantial evidence establishes that the defendant intended to and did 

commit the charged felony with known members of a gang, the jury may fairly infer that 

the defendant had the specific intent to promote, further, or assist criminal conduct by 

those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.) “Commission of a crime in 

concert with known gang members is substantial evidence which supports the inference 

that the defendant acted with the specific intent to promote, further or assist gang 

members in the commission of the crime. [Citation.]” (People v. Villalobos (2006) 145 

Cal.App.4th 310, 322.) 

The prosecution’s gang expert may testify about whether the defendant acted for 

the benefit of, at the direction of, or in association with a gang, even though it is an 

ultimate factual issue for the jury to decide, because these are matters far beyond the 

common experience of the jury. (People v. Valdez, supra, 58 Cal.App.4th at pp 508-

509.) 

 “A gang expert[’s] testimony alone is insufficient to find an offense gang related. 

[Citation.] ‘[T]he record must provide some evidentiary support, other than merely the 

defendant’s record of prior offenses and past gang activities or personal affiliations, for a 

finding that the crime was committed for the benefit of, at the direction of, or in 
41. 

association with a criminal street gang.’ [Citation.]” (People v. Ochoa (2009) 179 

Cal.App.4th 650, 657.) 

B. Commission of crimes “in association with” a criminal street gang

 Thompson argues there is no evidence he committed the robberies to “benefit” the 

Playboyz. However, several cases have found substantial evidence to support gang 

enhancements where gang members commit offenses “in association” with fellow gang 

members within the meaning of section 186.22, subdivision (b)(1). 

 For example, in Morales, supra, 112 Cal.App.4th 1176, the defendant and two 

fellow gang members committed a robbery and other offenses, and the jury found the 

gang allegations true. The prosecution’s gang expert testified that, based on a 

hypothetical, the crimes were committed in association with a criminal street gang 

because “they involved three gang members acting in association with each other. The 

gang provided ‘a ready-made manpower pool....’ That is, one gang member would 

choose to commit a crime in association with other gang members because he could 

count on their loyalty. They would ‘watch his back....’ In addition, the very presence of 

multiple gang members would be intimidating. The crime would benefit the individual 

gang members with notoriety among the gang, and the gang with notoriety among rival 

gang members and the general public.” (Id. at p. 1197.) 

Morales rejected the defendant’s argument that there was insufficient evidence 

that he committed the offenses to benefit his gang, and instead noted the gang expert’s 

focus was on “a crime committed, not just by a gang member, but by several gang 

members, acting in association with each other. Also, [the expert] did not testify that 

such a crime necessarily would benefit the gang, merely that it would be committed 

either for the benefit of, or at the direction of, or in association with the gang.” (Morales, 

supra, 112 Cal.App.4th at p. 1197, original italics.) 

 “Defendant argues that reliance on evidence that one gang member 

committed a crime in association with other gang members is ‘circular....’ 
42. 

Not so. Arguably, such evidence alone would be insufficient, even when 

supported by expert opinion, to show that a crime was committed for the 

benefit of a gang. The crucial element, however, requires that the crime be 

committed (1) for the benefit of, (2) at the direction of, or (3) in association

with a gang. Thus, the typical close case is one in which one gang member, 

acting alone, commits a crime. Admittedly, it is conceivable that several 

gang members could commit a crime together, yet be on a frolic and detour 

unrelated to the gang. Here, however, there was no evidence of this. Thus, 

the jury could reasonably infer the requisite association from the very fact 

that defendant committed the charged crimes in association with fellow 

gang members. 

 “If defendant is arguing that there was insufficient evidence of the 

specific intent element (as opposed to the benefit/direction/association 

element), we disagree. Again, specific intent to benefit the gang is not 

required. What is required is the ‘specific intent to promote, further, or 

assist in any criminal conduct by gang members....’ Here, there was 

evidence that defendant intended to commit robberies, that he intended to 

commit them in association with [his fellow gang members], and that he 

knew that [they] were members of his gang. Moreover,... there was 

sufficient evidence that defendant intended to aid and abet the robberies 

[his fellow gang members] actually committed. It was fairly inferable that 

he intended to assist criminal conduct by his fellow gang members.” 

(Morales, supra, 112 Cal.App.4th at p. 1198, original italics.)28

 In People v. Romero (2006) 140 Cal.App.4th 15, the defendant drove fellow gang 

members to the site of a drive-by shooting, and the court found the gang enhancements 

were supported by substantial evidence because the defendant committed the offenses in 

association with fellow gang members. “There was ample evidence that [defendant] 

intended to commit a crime, that he intended to help [his accomplice] commit a crime, 

and that he knew [his accomplice] was a member of his gang. This evidence creates a 

reasonable inference that [defendant] possessed the specific intent to further [his 

accomplice’s] criminal conduct.” (Id. at p. 20.) 

 28 Cf. People v. Rodriguez (2012) 55 Cal.4th 1125, 1145 [gang member who 

commits a felony but acts alone does not violate section 186.22, subdivision (a), active 

participation in a criminal street gang].) 
43. 

 A similar result was reached in People v. Martinez, supra, 158 Cal.App.4th 1324, 

where the defendant admitted membership in a criminal street gang, and he committed 

robberies with another admitted member of that gang. The defendant argued there was 

insufficient evidence to support the gang enhancement because his accomplice was also 

his brother-in-law, and they committed the offenses for their own personal benefit. (Id. at 

pp. 1332-1333.) Martinez rejected the argument and noted the gang expert testified “this 

evidence showed defendant committed the robbery in association with the gang. The 

elements of the gang enhancement may be proven by expert testimony. [Citation.] Nor 

does it matter that defendant did not commit the crime on or live in gang turf or that [the 

gang expert] had never heard of defendant or [his accomplice]. Defendant did not even 

need to be an ‘ “active” ’ or ‘“current, active” ’ gang member. [Citation.]” (Id. at 

p. 1332, italics added.) “Here defendant, an admitted gang member sporting gang tattoos, 

actually committed the robbery with a gang confederate. That he was not in his gang’s 

territory, by itself, does not necessarily overcome the other supporting evidence.” (Id. at 

p. 1333.) 

 In People v. Leon (2008) 161 Cal.App.4th 149 (Leon), the defendant and an 

accomplice were members of the same gang, and they stole a car and threatened an 

eyewitness. The defendant argued there was insufficient evidence that he committed the 

offenses for the benefit of his gang. Leon relied on Morales and Romero, and rejected 

this argument because “a ‘specific intent to benefit the gang is not required.’ [Citation.]” 

(Leon, supra, at p. 163.) Leon held there was substantial evidence that the defendant 

committed the offenses in association with a fellow gang member. There was also 

evidence of the defendant’s specific intent because he intended to commit the offenses, 

he intended to do so in association with his accomplice, and he knew his accomplice was 

a member of his gang. (Ibid.) 
44. 

C. Analysis

Thompson argues there is insufficient evidence the Gaynor and Franco robberies 

were gang related, based on several cases which affirmed gang enhancements in 

situations where gang members committed particular offenses for the benefit of their 

particular criminal street gangs because they were claiming gang turf, selling drugs on 

that turf, shouting gang names, and/or seeking to instill fear in the area. (See, e.g., 

Albarran, supra, 149 Cal.App.4th at pp. 220-221; In re Frank S. (2006) 141 Cal.App.4th 

1192, 1197-1199; People v. Ferraez (2003) 112 Cal.App.4th 925, 928; People v. Ochoa, 

supra, 179 Cal.App.4th 650, 661-664.) 

Thompson’s reliance on these cases is misplaced. In this case, as in Morales, 

Martinez, and Leon, there is substantial evidence to support the gang enhancements 

because each defendant, an active member of the Playboyz criminal street gang, 

committed the Franco and Gaynor robberies “in association with” two other active 

members of the Playboyz. The defendants acted in concert with each other. Williams 

placed the telephone call, pretending to be interested in the sales item, and lured the 

victims to secluded or dark areas to conduct the transaction. Williams approached the 

victim at the designated location, and again stated his intent to look at the item. 

Thompson and Easter arrived, and took turns as the gunman. The three defendants 

arrived and fled together, taking the victims’ property. The videos on Williams’s cell 

phone demonstrated that each defendant knew that the other defendants claimed 

membership in the Playboyz. There was thus overwhelming evidence that defendants 

knew their associates were gang members, they each intended to commit the robberies in 

association with the others, and the stolen property from all the robberies were found in 

the apartment of Thompson’s grandmother, where Thompson and Williams were arrested 

shortly after the Gaynor robbery. We conclude that the jury’s true findings on the gang 

enhancements in this case are supported by substantial evidence. 
45. 

D. Albillar

Defendant Thompson further argues that gang connection in this case was 

“incidental” to the Gaynor and Franco robberies because he committed the crimes for 

personal reasons, and he “sought back up from family” who happened to be members of 

the Playboyz. Defendant Thompson asserts his “position is somewhat borne out” by 

Albillar, supra, 51 Cal.4th 47, where the California Supreme Court addressed a 

substantial evidence challenge to the gang enhancements found true as to defendants’ 

sexual assault convictions in that case. The defendants in Albillar argued the sexual 

assaults were not “gang-related” because the defendants were related to each other, they 

lived together, and it was conceivable that “ ‘several gang members could commit a 

crime together, yet be on a frolic and detour unrelated to the gang.’ [Citation.]” (Id. at 

pp. 59-60, 62.) 

Albillar rejected defendants’ arguments and found there was substantial evidence 

to support the gang enhancements for two reasons: the offenses were committed in 

association with gang members, and the offenses were committed for the benefit of the 

gang. (Albillar, supra, 51 Cal.4th at p. 60.) “The record supported a finding that [the] 

defendants relied on their common gang membership and the apparatus of the gang in 

committing the sex offenses against [the victim].” (Ibid.) In particular, the court cited 

expert testimony about how gang members earn respect and status by committing crimes 

with other members, and that gang members choose to commit crimes together in order 

to increase their chances of success and to provide training for younger members. (Id. at 

pp. 60-61.) 

Albillar concluded that defendants’ conduct, where each participant assisted the 

others without a word being spoken, and each could rely on the silence of the others and 

group intimidation of the victim, “exceeded that which was necessary to establish that the 

offenses were committed in concert.” (Albillar, supra, 51 Cal.4th at p. 61.) 
46. 

“Defendants not only actively assisted each other in committing these 

crimes, but their common gang membership ensured that they could rely on 

each other’s cooperation in committing these crimes and that they would 

benefit from committing them together. They relied on the gang’s internal 

code to ensure that none of them would cooperate with the police and on 

the gang’s reputation to ensure that the victim did not contact the police.” 

(Id. at pp. 61-62.) 

Albillar also found substantial evidence the crimes were committed to benefit the 

gang. (Albillar, supra, 51 Cal.4th at p. 63.) The court cited the gang expert’s testimony, 

that “ ‘[w]hen three gang members go out and commit a violent brutal attack on a victim, 

that’s elevating their individual status, and they’re receiving a benefit. They’re putting 

notches in their reputation. When these members are doing that, the overall entity 

benefits and strengthens as a result of it.’ Reports of such conduct ‘rais[e] the[ ] level of 

fear and intimidation in the community.’ ” (Ibid.) Albillar explained: 

“Expert opinion that particular criminal conduct benefited a gang by 

enhancing its reputation for viciousness can be sufficient to raise the 

inference that the conduct was ‘committed for the benefit of ... a[ ] criminal 

street gang’ within the meaning of section 186.22[, subd.] (b)(1).” (Ibid.) 

 Thompson asserts Albillar supports his evidentiary challenge to the gang 

enhancements in this case based on several factors: there were strong family ties between 

Williams, Easter, and Thompson, these ties prompted the family to “work together,” the 

robberies were committed solely for Thompson’s personal benefit to pay his rent and not 

for any gang, and Officer Flowers did not offer expert testimony similar to the expert 

who testified in Albillar, that defendants committed the robberies to intimidate others, 

and enhance their reputation and status in the gang. 

 Thompson presented similar arguments to the jury, when he testified that he 

committed the robberies because he needed the money to pay his rent, and he did not 

intend to benefit any gang. These arguments were completely dependent on the jury’s 

determination of Thompson’s credibility, and the verdicts and findings in this case infer 

the jury rejected Thompson’s veracity. 
47. 

 As acknowledged by Albillar, not every crime committed by gang members is 

gang-related for purposes of the enhancement, and the mere fact that gang members 

commit a crime together does not mean the crime is gang-related for purposes of section 

186.22, subdivision (b). (Albillar, supra, 51 Cal.4th at pp. 60, 62.) As in Albillar, 

however, there was substantial evidence to support the gang enhancements in this case 

because the three defendants “came together as gang members to [rob the victims] and, 

thus ... they committed [the substantive offenses] in association with the gang.” (Id. at 

p. 62, original italics.) 

Thus, as to the first element of the enhancement, defendants Williams, Thompson 

and Easter came together to commit a series of robberies in association with each other, 

the “bathroom” video demonstrated their knowledge of each other’s affiliation, and they 

committed offenses which Officer Flowers identified as the primary activity of the 

Playboyz. As to the second element of the enhancement, there was evidence the 

defendants intended to, and did commit, the robberies with known members of a gang, 

and the jury could have fairly inferred that defendants had “the specific intent to promote, 

further, or assist criminal conduct by those gang members.” (Albillar, supra, 51 Cal.4th 

at p. 68.)29

IV. Substantial evidence to support Williams’s conviction for Gaynor robbery

 Defendant Williams contends there is insufficient evidence to support his 

conviction in count I, the robbery of Gaynor. Williams argues that his involvement was 

limited to holding Gaynor’s Blackberry cell phone while they were standing in the 

Walgreens parking lot, and then running away with it. Williams argues he cannot be 

guilty of robbery because he ran away with the cell phone without using any force or fear 

 29 Given our finding that the gang enhancement is supported by substantial 

evidence, we need not address defendant Thompson’s further contention that the related 

firearm enhancement could not be imposed under section 12022.53, subdivision (e). 
48. 

against Gaynor. Williams argues the actual robbery occurred later on, when Thompson 

pulled the gun on Gaynor, and Williams was not involved in that act. 

A. Robbery

In order to address Williams’s substantial evidence challenge, we must review the 

elements of robbery, and the application of force or fear. “Robbery is the felonious 

taking of personal property in the possession of another, from his person or immediate 

presence, and against his will, accomplished by means of force or fear.” (§ 211.) 

“Robbery is larceny with the aggravating circumstances that ‘the property is taken 

from the person or presence of another’ and ‘is accomplished by the use of force or by 

putting the victim in fear of injury.’ [Citation.]” (People v. Anderson (2011) 51 Cal.4th 

989, 994.) Robbery is a continuing offense, and all the elements must be satisfied before 

the crime is completed. (People v. Gomez (2008) 43 Cal.4th 249, 254 (Gomez).) A 

robbery remains in progress and is not complete until the perpetrator has reached a place 

of temporary safety. (People v. Wilson (2008) 43 Cal.4th 1, 17; People v. Young (2005) 

34 Cal.4th 1149, 1177; People v. Cooper (1991) 53 Cal.3d 1158, 1161 (Cooper).) 

“For robbery, a felonious taking requires both a taking (caption) and a carrying 

away (asportation). [Citation.] It is sufficient if either the caption or the asportation is 

accomplished through force or fear. [Citation.]” (People v. Alvarado (1999) 76 

Cal.App.4th 156, 161, disapproved on other grounds in People v. Lopez (2003) 31 

Cal.4th 1051, 1056.) “[A] taking is not over at the moment of caption; it continues 

through asportation. [A] robbery can be accomplished even if the property was 

peacefully or duplicitously acquired, if force or fear was used to carry it away.” (Gomez, 

supra, 43 Cal.4th at p. 256.) “[A]sportation is not confined to a fixed point in time. The 

asportation continues thereafter as long as the loot is being carried away to a place of 

temporary safety.” (Cooper, supra, 53 Cal.3d at p. 1165, fn. omitted.) 

Even if property is initially taken without use of force or fear, the crime may 

become a robbery if force or fear is used to hold onto the property while it is being 
49. 

carried away. (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8.) “[M]ere theft becomes 

robbery if the perpetrator, having gained possession of the property without use of force 

or fear, resorts to force or fear while carrying away the loot.” (Ibid., italics added.) “If 

the aggravating factors are in play at any time during the period from caption through 

asportation, the defendant has engaged in conduct that elevates the crimes from simple 

larceny to robbery.” (Gomez, supra, 43 Cal.4th at p. 258.) 

“In California, ‘[t]he crime of robbery is a continuing offense that begins from the 

time of the original taking until the robber reaches a place of relative safety.’ [Citation.] 

It thus is robbery when the property was peacefully acquired, but force or fear was used 

to carry it away. [Citation.]” (People v. Anderson, supra, 51 Cal.4th at p. 994.) The 

“force or fear” and “immediate presence” elements may occur at any point during which 

the property is being carried to a place of temporary safety, as the crime has not yet 

concluded while it is being carried away. (Gomez, supra, 43 Cal.4th at p. 257.) 

The scene of a robbery is not a place of temporary safety. (People v. Young, 

supra, 34 Cal.4th at p. 1177.) “Evidence may support the conclusion that no place of 

temporary safety has been reached while the robber is still encumbered with the victim, 

‘who at first opportunity might call the police.’ [Citations.]” (People v. Barnett (1998) 

17 Cal.4th 1044, 1153.) “ ‘When the perpetrator and victim remain in close proximity, a 

reasonable assumption is that, if not prevented from doing so, the victim will attempt to 

reclaim his or her property.’ [Citation.]” (Gomez, supra, 43 Cal.4th at p. 264.) 

Regardless of whether the victim gives chase, however, the perpetrator of a robbery has 

not reached a place of temporary safety while still in flight. (People v. Johnson (1992) 5 

Cal.App.4th 552, 559.) 

“Robbery is not confined to a fixed location, but may be spread over a 

considerable distance and varying periods of time. [Citations.]” (People v. Johnson, 

supra, 5 Cal.App.4th at pp. 561-562.) “[N]o artificial parsing is required as to the precise 

moment or order in which the elements are satisfied.” (Gomez, supra, 43 Cal.4th at 
50. 

p. 254.) “Defendant’s guilt is not to be weighed at each step of the robbery as it unfolds. 

The events constituting the crime of robbery, although they may extend over large 

distances and take some time to complete, are linked by a single-mindedness of purpose. 

[Citation.]” (People v. Estes (1983) 147 Cal.App.3d 23, 28.) 

Whether a robber has reached a place of temporary safety is a question of fact for 

the jury. (People v. Carter (1993) 19 Cal.App.4th 1236, 1251.) An objective standard is 

used to determine whether “a robber had actually reached a place of temporary safety, not 

whether the defendant thought that he or she had reached such a location.” (People v. 

Johnson, supra, 5 Cal.App.4th at p. 560.) 

B. Aiding and abetting

 It is undisputed that Williams was not the gunman during the Gaynor robbery, and 

he was convicted as an aider and abettor. “A person aids and abets the commission of a 

crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) 

and with the intent or purpose of committing, facilitating or encouraging commission of 

the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission 

of the crime. [Citation.]” (Cooper, supra, 53 Cal.3d at p. 1164.) The prosecution must 

show that the defendant “intended to facilitate or encourage the principal offense prior to 

or during its commission.” (Id. at p. 1160.) 

 “[T]he commission of a robbery for purposes of determining aider and abettor 

liability continues until all acts constituting the robbery have ceased. The asportation, the 

final element of the offense of robbery, continues so long as the stolen property is being 

carried away to a place of temporary safety. Accordingly, in order to be held liable as an 

aider and abettor, the requisite intent to aid and abet must be formed before or during 

such carrying away of the loot to a place of temporary safety.” (Cooper, supra, 53 

Cal.4th at p. 1161, original italics; Gomez, supra, 43 Cal.4th at p. 256.) 
51. 

C. Analysis

 Defendant Williams contends his conviction in count I for the robbery of Gaynor 

must be reversed because he did not use force or fear to take the Blackberry from 

Gaynor. Williams argues that at most, he committed a larceny in the Walgreens parking 

lot when he asked to look at the Blackberry, Gaynor handed it to him, and Williams ran 

away with the cell phone. Williams argues that he cannot be culpable for Thompson’s 

subsequent act of pulling a gun on Gaynor and taking property from his pockets. 

 However, the entirety of the record provides substantial evidence to support 

Williams’s conviction as an aider and abettor. At trial, Thompson testified that Williams 

made the telephone calls to set up the robbery of Gaynor. Gaynor testified that Williams 

kept changing the time and meeting location. Williams used the same tactic when he 

contacted Franco and Flechsing – he repeatedly changed the time and location for their 

meeting, and lured the victims into relatively isolated areas for the actual robberies. With 

Gaynor, the meeting was ultimately set for 9:00 p.m. in the Walgreens parking lot. 

 When defendants met Gaynor in the parking lot, they arrived together and 

Williams asked Gaynor about the Blackberry. Gaynor handed it to Williams so he could 

look at it. Williams asked if the cell phone could hold a charge. Gaynor suggested they 

walk to Walgreens to test the power plug. Gaynor testified that he started to walk toward 

the store with the three defendants, and Williams suddenly ran away with the Blackberry. 

The record clearly suggests the reason – Williams and his companions did not want to be 

in the more populated area of the store as compared to the parking lot. 

 Williams asserts that he completed the crime of larceny at this point. However, 

the record suggests that his conduct was likely the result of Gaynor’s decision to walk 

into the store. Easter and Thompson ran after Williams, Gaynor chased them to the 

apartment complex, and Thompson pulled his gun on Gaynor and demanded all his 

property. After emptying Gaynor’s pockets, the three defendants ran away. 
52. 

As explained ante, “mere theft becomes robbery if the perpetrator, having gained 

possession of the property without use of force or fear, resorts to force or fear while 

carrying away the loot.” (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8.) “If the aggravating 

factors are in play at any time during the period from caption through asportation, the 

defendant has engaged in conduct that elevates the crimes from simple larceny to 

robbery.” (Gomez, supra, 43 Cal.4th at p. 258.) Williams, Easter, and Thompson did not 

want to confront Gaynor at Walgreens. The record strongly suggests that they ran so they 

could lure Gaynor away from the store. Gaynor told Easter and Thompson that he was 

going to follow them, and he chased them to the apartment complex. At that point, 

Thompson pulled the gun to both prevent Gaynor from continuing to follow them and 

possibly reclaim his Blackberry, and to take whatever property was still in Gaynor’s 

possession. 

“Evidence may support the conclusion that no place of temporary safety has been 

reached while the robber is still encumbered with the victim, ‘who at first opportunity 

might call the police.’ [Citation.]” (People v. Barnett, supra, 17 Cal.4th at p. 1153.) 

“ ‘When the perpetrator and the victim remain in close proximity, a reasonable 

assumption is that, if not prevented from doing so, the victim will attempt to reclaim his 

or her property.’ [Citation.]” (Gomez, supra, 43 Cal.4th at p. 264.) While defendants 

had reached the apartment gate, that area was not a place of temporary safety since 

Gaynor followed them, he was standing directly adjacent to their position, and he was 

clearly not inclined to leave. The robbery was not complete when Williams ran away 

with the Blackberry, it was still in progress when Gaynor chased the defendants and, 

under the circumstances, defendants had not reached a place of temporary safety. 

There was substantial evidence to find that Williams was an aider and abettor 

since he set up the initial meeting, kept changing the location, and lured Gaynor out of 

the parking lot. Once Gaynor reached the apartment gate, Thompson pulled the gun to 

ensure that they kept the stolen Blackberry, Gaynor did not try to recover it, and take the 
53. 

rest of Gaynor’s property. (See, e.g., People v. Haynes (1998) 61 Cal.App.4th 1282, 

1294.) 

V. Robbery instructions

 Defendant Williams raises two related instructional issues regarding his conviction 

in count I for the robbery of Gaynor. First, Williams contends the court had a sua sponte 

duty to give the unanimity instruction so the jury could agree which act constituted the 

robbery of Gaynor – when Williams ran away with Gaynor’s Blackberry, or when 

Thompson produced the gun and emptied Gaynor’s pockets. Second, Williams argues 

the court should have given the jury a special verdict form, so the jury could have 

explained which act it relied upon to find defendants guilty of the robbery of Gaynor. 

Both arguments are meritless. 

A. Background

 During the instructional phase, Easter’s attorney asked the court to consider giving 

the unanimity instruction. The court said it had considered the issue but decided not to 

give the instruction for the Gaynor robbery, because the prosecution had charged a single 

crime against the three defendants. 

“It does appear that there were two different contacts between the 

defendants and Mr. Gaynor, allegedly, but we’re not talking about two 

separate instances of the crime of robbery, we’re talking about one that is 

being charged by the People. And I think that is the purpose of [the 

unanimity instruction] is where the People are ... alleging two different 

instances which the jury can make a determination. Some may vote one 

way, others may vote another way, and there is no clear showing that the 

jurors were unanimous as to what took place. Now, it is arguable that the 

jurors may conclude that there was a robbery at one location and at another 

location there was not a robbery. That is perfectly clear in the evidence. 

But then again the jurors can also conclude that this was one continuous 

course of conduct from one location to the other which was very close in 

time and proximity and allegedly involved the same individuals. So in the 

Court’s mind, it is not distinct enough for there to be the requirement that 

the Court give the unanimity instruction.” 
54. 

 Easter’s attorney argued there were two separate acts in the Gaynor incident, and 

Easter was present when Williams ran away with the Blackberry and Thompson later 

pulled the gun. The court replied there were not “two separate instances of an alleged 

robbery.” 30

B. Unanimity

“The key to deciding whether to give the unanimity instruction lies in considering 

its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be 

unacceptable if some jurors believed the defendant guilty of one crime and other jurors 

believed [him] guilty of another. But unanimity as to exactly how the crime was 

committed is not required. Thus, the unanimity instruction is appropriate ‘when 

conviction on a single count could be based on two or more discrete criminal events,’ but 

not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete 

criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court 

must ask whether (1) there is a risk the jury may divide on two discrete crimes and not 

agree on any particular crime, or (2) the evidence merely presents the possibility the jury 

may divide, or be uncertain, as to the exact way the defendant is guilty of a single 

discrete crime. In the first situation, but not the second, it should give the unanimity 

instruction.” (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) 

 When the evidence shows only a single discrete crime “but leaves room for 

disagreement as to exactly how that crime was committed, the jury need not unanimously 

agree on the theory under which the defendant is guilty. [Citation.]” (People v. 

Benavides (2005) 35 Cal.4th 69, 101.) In addition, the unanimity instruction is not 

required “if the case falls within the continuous-course-of-conduct exception, which 

 30 Williams did not join Easter’s request for the unanimity instruction, “but we 

may overlook this forfeiture because [Williams] is now arguing that the trial court is 

under a sua sponte duty to instruct. [Citation.]” (People v. Quiroz (2013) 215 

Cal.App.4th 65, 73.) 
55. 

arises ‘when the acts are so closely connected in time as to form part of one transaction’ 

[citation], or ‘when the statute contemplates a continuous course of conduct of a series of 

acts over a period of time’ [citation].” (People v. Jennings (2010) 50 Cal.4th 616, 679.) 

C. Analysis

 The unanimity instruction was not required in this case. As explained, ante, 

robbery is a continuing offense, and all the elements must be satisfied before the crime is 

completed. (Gomez, supra, 43 Cal.4th at p. 254.) “Robbery is not confined to a fixed 

location, but may be spread over a considerable distance and varying periods of time. 

[Citations.]” (People v. Johnson, supra, 5 Cal.App.4th at pp. 561-562.) “[N]o artificial 

parsing is required as to the precise moment or order in which the elements are satisfied.” 

(Gomez, supra, 43 Cal.4th at p. 254.) A robbery may fall within the continuous conduct 

exception if multiple encounters between the victim and the perpetrator’s are so closely 

connected in time. (People v. Haynes, supra, 61 Cal.App.4th at p. 1295.) 

 As noted by the trial court, the Gaynor robbery was a continuous course of 

conduct which began when Williams ran with the Blackberry and lured Gaynor away 

from the parking lot, and continued as Easter and Thompson further induced Gaynor to 

follow them, Gaynor chased defendants, and Thompson pulled the gun to stop Gaynor 

and take the rest of his property. 

 The jury herein was fully and correctly instructed on the elements of robbery as to 

all counts, including count I, the robbery of Gaynor. These instructions demonstrated 

that the jury could only convict defendants of robbing Gaynor if it found that property 

was taken from his immediate presence by force or fear. CALCRIM No. 1600 defined 

the elements of the offense, particularly whether the property was taken against the 

person’s will, and the defendant used force or fear to take the property or to prevent the 

person from resisting. CALCRIM No. 1600 further stated: “The defendant’s intent to 

take the property must have been formed before or during the time he used force or fear. 
56. 

If the defendant did not form this required intent until after using the force or fear, then 

he did not commit robbery.” 

 The jury received CALCRIM Nos. 400 and 401, which correctly defined the 

general elements of aiding and abetting. The jury also received CALCRIM No. 1603: 

“To be guilty of robbery as an aider and abettor, the defendant must 

have formed the intent to aid and abet the commission of the robbery before 

or while a perpetrator carried away the property to a place of temporary 

safety. [¶] A perpetrator has reached a place of temporary safety with the 

property if he or she has successfully escaped from the scene, is no longer 

being pursued, and has unchallenged possession of the property.” (Italics 

added.) 

 Based on these instructions, the jury could not have convicted Williams of robbery 

simply based on his act of running away with the Blackberry, since it was undisputed that 

defendants had not used force, fear, or any type of intimidation to initially take the 

Blackberry from Gaynor or prevent Gaynor from following them. The jury was fully 

instructed on aiding and abetting, and only could have convicted Williams if it found that 

force or fear was used against Gaynor, and Williams formed the intent to aid and abet 

before the robbery or while the property was being carried away. Such evidence is 

supplied by Thompson’s trial testimony, that Williams placed the calls to Gaynor to set 

up the robbery. In addition, the jury was instructed on the lesser offense of theft but 

obviously rejected that theory. 

 The unanimity instruction was also not required based on the nature of the 

prosecutor’s closing argument. The prosecutor asserted the robbery of Gaynor was based 

on the entirety of the encounter, which began when Williams ran away with the 

Blackberry, and culminated in Thompson’s act of pulling the gun after Gaynor chased 

them. The prosecutor never argued that Williams could be guilty of robbery when he ran 

away with the cell phone. 
57. 

 For the same reasons, Williams’s related instructional argument is also meritless. 

The court was not required to instruct the jury to return some sort of special verdict to 

specify which act constituted the robbery of Gaynor. 

VI. The victims’ identifications of Easter

 As set forth in the factual statement, Gaynor and Franco identified Easter as one of 

the robbery suspects after they separately looked at a single photograph which showed 

Williams and Easter standing together. 

Easter contends that his defense attorney was prejudicially ineffective for failing 

to file a pretrial motion to exclude the victims’ identifications based on that single 

photograph. Easter contends the photographic identification process was unduly 

suggestive and violated his due process rights because the picture showed Easter with his 

hair in dreadlocks and standing next to Williams, who had already been identified as one 

of the suspects. 

A. Background

 Easter did not file any pretrial motions to argue that the identifications made by 

Gaynor and Franco, from the single photograph which showed Easter and Williams, 

violated his due process rights or was the result of unduly suggestive and unreliable 

procedures. 

 After Easter was convicted, he filed a motion for new trial and argued the court 

should have suppressed the identification evidence because the single photographic 

show-up was inherently suggestive and unreliable since it showed Easter and Williams 

together, the victims never looked at photographic lineups for the third suspect with the 

dreadlocks, and Franco did not identify Easter in court. 

 The People replied that Easter had waived this issue since he never objected to or 

moved to exclude the identification evidence. In the alternative, the People asserted the 

identification procedure for Easter was reliable and not suggestive. 
58. 

 The trial court denied Easter’s motion for new trial and found the identification 

procedure for Easter was not unduly suggestive, and it did not cause Easter to “stand 

out.” The court believed the victims looked at a photograph which only showed Easter, 

and the picture did not show Thompson or Williams.31

 The court held there was nothing in that photograph that suggested Easter stood 

out compared to the other live witnesses and photographs that were viewed by the 

victims. The victims “described very accurately” Easter’s hairstyle, “even to the point of 

the dreadlock hairstyle having red tips.” While there were inaccuracies in Franco’s 

description of the suspect’s height and facial hair, Franco immediately identified Easter 

from the photograph and said he was the gunman. 

“[C]onsidering all the circumstances under which this identification took 

place, the Court is not satisfied that the ... procedure was unduly 

suggestive. It was not. These ... victims in the case had the opportunity to 

view others live and in photographs and did not select those individuals. 

They selected the person that they believed based upon ... what they went 

through to be the person who was involved.” 

 The court also found that both victims received appropriate admonitions before 

they looked at the photograph, and the identifications were close in time to the robberies. 

B. Suggestiveness

 We begin with the well-settled principles about pretrial identification procedures, 

which violate due process if such procedures are so impermissibly suggestive as to give 

rise to a very substantial likelihood of irreparable misidentification. (People v. Sanders

(1990) 51 Cal.3d 471, 508.) “ ‘The issue of constitutional reliability depends on (1) 

 31 As we will explain, post, the court’s statement about the nature of the 

photograph used to identify Easter conflicts with the trial evidence. Detective Mares 

testified that Gaynor and Franco separately identified Easter when they looked at the 

photograph identified as exhibit No. 7, which showed both Easter and Williams. When 

Gaynor testified, he thought he identified Easter after looking at a photograph which only 

showed one person, but agreed that he also looked at exhibit No. 7. 
59. 

whether the identification procedure was unduly suggestive and unnecessary [citation]; 

and if so, (2) whether the identification itself was nevertheless reliable under the totality 

of the circumstances, taking into account such factors as the opportunity of the witness to 

view the criminal at the time of the crime, the witness’s degree of attention, the accuracy 

of his prior description of the criminal, the level of certainty demonstrated at the 

confrontation, and the time between the crime and the confrontation [citation]. If, and 

only if, the answer to the first question is yes and the answer to the second is no, is the 

identification constitutionally unreliable.’ [Citation.] In other words, ‘[i]f we find that a 

challenged procedure is not impermissibly suggestive, our inquiry into the due process 

claim ends.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).) 

“To determine whether a procedure is unduly suggestive, we ask ‘whether 

anything caused defendant to “stand out” from the others in a way that would suggest the 

witness should select him.’ [Citations.]” (People v. Yeoman (2003) 31 Cal.4th 93, 124.) 

“[F]or a witness identification procedure to violate the due process clauses, the state 

must, at the threshold, improperly suggest something to the witness – i.e., it must, 

wittingly or unwittingly, initiate an unduly suggestive procedure.” (Ochoa, supra, 19 

Cal.4th at p. 413.) “A procedure is unfair which suggests in advance of identification by 

the witness the identity of the person suspected by the police.” (People v. Slutts (1968) 

259 Cal.App.2d 886, 891 [photographic lineup violated due process where child shown 

several pictures, but only one had beard drawn on it].) 

 The defendant bears the burden of demonstrating that the identification procedure 

was suggestive, unreliable, and so unfair that it violated his due process rights. (People v. 

DeSantis (1992) 2 Cal.4th 1198, 1222; People v. Sanders, supra, 51 Cal.3d at p 508.) 

The defendant must show “unfairness as a demonstrable reality, not just speculation.” 

(People v. DeSantis, supra, 2 Cal.4th at p. 1222.) If the defendant raised and preserved 

the issue, we independently review the trial court’s ruling that a pretrial identification 

procedure was not unduly suggestive. (People v. Avila (2009) 46 Cal.4th 680, 698.) 
60. 

C. Single-person photographic identifications

 A single-person photographic show-up is not inherently unfair or impermissibly 

suggestive. (Ochoa, supra, 19 Cal.4th at pp. 413, 425-426; People v. Clark (1992) 3 

Cal.4th 41, 136, overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393, 

462; People v. Floyd (1970) 1 Cal.3d 694, 714, overruled on other grounds in People v. 

Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) “Showing the witnesses a single photo of 

the defendant is no more impermissibly suggestive than an in-court identification with the 

defendant personally sitting at the defense counsel table in the courtroom. [Citations.]” 

(People v. Yonko (1987) 196 Cal.App.3d 1005, 1008-1009, original italics.) 

 However, numerous cases have also “condemned the use of a single photo 

identification procedure.” (People v. Contreras (1993) 17 Cal.App.4th 813, 820.) Single 

person show-up procedures are considered unfair when they are not neutral, and 

unnecessarily suggest to the witness in advance the identity of the person suspected by 

the police. (People v. Yeoman, supra, 31 Cal.4th at pp. 123-124; Ochoa, supra, 19 

Cal.4th at pp. 412-413; People v. Slutts, supra, 259 Cal.App.2d at p. 891.) We must look 

to the totality of the circumstances of the identification procedure. If we find the 

challenged procedure is not impermissibly suggestive, the due process claim fails. 

(Ochoa, supra, 19 Cal.4th at p. 412.) 

D. Analysis

 Defendant Easter did not file a pretrial motion to challenge the photographic 

identification procedure. He filed a posttrial motion for new trial based on the inherent 

suggestiveness of the identification procedure, and the trial court denied that motion. On 

appeal, however, he has not challenged the court’s denial of his new trial motion. 

 Defendant Easter’s failure to file a timely objection to alleged suggestiveness of 

the identification procedure results in waiver of that issue. (People v. Cunningham

(2001) 25 Cal.4th 926, 989.) Easter acknowledges this problem and raises the alternate 

contention that his defense attorney was prejudicially ineffective for failing to file a 
61. 

pretrial motion to challenge the single photographic show-up which led to Franco and 

Gaynor identifying him as the third robbery suspect. 

 “To establish ineffective assistance, defendant bears the burden of showing, first, 

that counsel’s performance was deficient, falling below an objective standard of 

reasonableness under prevailing professional norms. Second, a defendant must establish 

that, absent counsel’s error, it is reasonably probable that the verdict would have been 

more favorable to him. [Citations.]” (People v. Hawkins (1995) 10 Cal.4th 920, 940, 

overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v. 

Blakeley (2000) 23 Cal.4th 82, 89.) 

 We first note that while Easter’s attorney did not file a pretrial motion to exclude 

the identifications, he was not oblivious to this issue. He extensively cross-examined 

Detective Mares on how and why he only used a single photograph for the identification 

of Easter, and about his failure to use a photographic lineup. When Franco testified, 

Easter’s attorney sought to undermine the accuracy of Franco’s identification of Easter, 

and Franco became confused as to whether he had identified Thompson and/or Easter. 

Finally, Easter’s attorney used closing argument to attack the reliability of the Gaynor 

and Franco identifications of Easter based on inconsistencies in Franco’s description of 

the third suspect, Franco’s trial confusion, and the use of a photograph with both 

Williams and Easter. Easter’s attorney urged the jury to review the instruction about the 

factors to evaluate eyewitness identifications, and argued the victims’ identifications of 

Easter were not reliable and should be rejected. The jury was fully and correctly 

instructed by CALCRIM No. 315 on the factors to evaluate eyewitness identification 

testimony. 

 In any event, “[i]f a defendant has failed to show that the challenged actions of 

counsel were prejudicial, a reviewing court may reject the claim on that ground without 

determining whether counsel’s performance was deficient. [Citation.]” (People v. 

Kirkpatrick (1994) 7 Cal.4th 988, 1008, overruled on other grounds in People v. Doolin
62. 

(2009) 45 Cal.4th 390, 421, fn. 22.) Thus, the ultimate question before this court is 

whether the failure of Easter’s attorney to file a pretrial challenge to the identification 

procedure was prejudicial, i.e., whether there is a reasonable probability the result would 

have been different if such a motion had been made. 

1. Suggestiveness

We believe the answer to that question is no for several reasons. First, the use of a 

single photograph is not inherently unfair or impermissibly suggestive, and the fact the 

officers used that procedure did not violate due process by itself. 

Second, there is no evidence the investigating officers engaged in any conduct 

which improperly suggested to Gaynor and/or Franco that the officers believed Easter 

was one of the suspects. Indeed, Gaynor had looked at numerous suspects before he 

identified Easter. Just after the robbery, police officers drove Gaynor past two or three 

men standing on the street near the apartment complex and asked Gaynor if any of these 

men were the robbery suspects. Gaynor said no. Later that night, Gaynor was taken to 

an infield show-up of three men. He immediately identified Williams and Thompson as 

two of the robbers, but did not identify the third man as a suspect. 

When Detective Mares showed Gaynor and Franco the photograph of Easter from 

Williams’s cell phone (on separate occasions), Mares read admonitions to them that the 

photograph may or may not show someone involved in his case. Franco also looked at 

different photographic lineups. Thus, the officers’ efforts to identify all three suspects 

were not limited to showing the single photograph of Easter to the robbery victims. 

 Defendant Easter argues the single photograph shown to the victims was 

inherently suggestive because it depicted Easter and Williams together, and Williams had 

already been identified as one of the robbery suspects. The People contend that Easter 

was the only person in the photograph that was shown to the robbery victims. In support 

of this contention, the People cite to the trial court’s findings when it denied defendant’s 

new trial motion. 
63. 

When the trial court made these findings, however, it acknowledged that it was 

doing so from memory. The court’s memory appears inconsistent with the trial evidence. 

Detective Mares testified that he showed the photograph marked exhibit No. 7 to Franco 

and Gaynor, the photograph had been found on Williams’s cell phone, and it depicted 

two African-American males: Easter, who had red-tipped dreadlocks, and Williams.32

We note that the mere fact that Williams and Easter were in the single photograph 

together does not mean the identification procedures were suggestive. On the night of the 

robbery, Gaynor was taken to an infield show-up and asked to look at three men: 

Williams, Thompson, and a third man. Gaynor identified Williams and Thompson as two 

of the robbery suspects, and did not identify the third man. Thus, the presence of another 

man with two of the identified suspects did not influence Gaynor to identify that man, or 

cause him to hesitate about identifying the other two suspects. As for Franco, he looked 

at photographic lineups, which contained pictures of Thompson and Williams. He 

identified Thompson as the man who went through his pockets, but he failed to identify 

Williams. Thus, the record suggests that Franco looked at the photograph without having 

already identified Williams. 

2. Reliability

In any event, even if it was suggestive to show the victims a single photograph, the 

identifications were reliable under the totality of the circumstances, considering the 

victims’ opportunity to view the perpetrator at the time of the offense, the accuracy of 

their descriptions, the level of certainty they demonstrated at the time of the 

identifications, and the lapse of time between the robberies and the identifications. 

 32 The court may have relied on Gaynor’s testimony when it made this finding. 

Gaynor testified he identified Easter from a photograph which showed a single person, 

and he thought he looked at a photograph other than exhibit No. 7 when he made the 

identification. Gaynor also testified that at some point, he looked at exhibit No. 7 and 

recognized both Williams and Easter in the picture. 
64. 

(People v. Kennedy (2005) 36 Cal.4th 595, 608 (Kennedy), disapproved on other ground 

in People v. Williams (2010) 49 Cal.4th 405, 459.) Both Gaynor and Franco were in 

close proximity with all three robbers, they consistently described the third man’s redtipped dreadlocks, Gaynor made his identification less than 24 hours after he was robbed, 

and Franco’s identification was within two to three days after he was robbed. Franco and 

Gaynor both said they were certain of their identifications at the time they viewed the 

photograph, and Franco further identified Easter as the gunman in his robbery. While 

Franco and Gaynor may have been shaken by being victims of an armed robbery, they 

were sufficiently observant to also identify the white T-Mobile cell phone as the device 

which Williams held during the robberies, and describe the firearm consistent with the 

weapon which was found in the apartment with the stolen cell phones. 

Defendant Easter argues the victims’ identifications were not reliable because they 

gave inconsistent descriptions of the third suspect’s precise height, and whether he had 

gold or silver teeth. Easter also points out that during his trial testimony, Franco 

confused Easter with Thompson, and he did not identify Easter at trial as the third 

suspect. 

There are two cases which dealt with similar issues about suggestiveness and 

reliability. In Kennedy, supra, 36 Cal.4th 595, a seemingly suggestive identification 

process was found to be reliable under similar circumstances. In that case, a witness to a 

murder at a rest stop described the perpetrator to police and attempted to aid in preparing 

a composite sketch of the man. (Id. at p. 603.) She said the perpetrator had no facial 

hair. (Ibid.) When an arrest was made, the witness saw a newspaper photograph of the 

arrestee, the defendant, and expressed her concern to police because of the defendant’s 

eyes and beard. (Id. at pp. 605, 610.) A detective showed her a picture of the defendant 

without a shirt, which revealed his tattoos of a swastika, a gun, and the name of his gang. 

The witness could not identify the defendant because his eyes were downcast in the 

picture. When shown a videotape of the arrest, however, the witness saw the defendant’s 
65. 

eyes, immediately identified him, and expressed disbelief for failing to notice his beard. 

The witness later positively identified the defendant at trial. (Ibid.) The trial court found 

the identification procedure was not unduly suggestive. 

Kennedy held the identification evidence “was admissible as reliable under the 

totality of circumstances ....” (Kennedy, supra, 36 Cal.4th at p. 610.) Kennedy found 

that the facts that the witness had inaccurately described the suspect to police, and did not 

recognize him in the newspaper photograph, were outweighed by her proximity to the 

perpetrator, she had looked at him for 30 to 60 seconds, only three weeks passed between 

the crime and the identification, and the certainty of her later identifications upon seeing 

the video and in court. (Id. at pp. 610-611.) 

 In People v. Contreras, supra, 17 Cal.App.4th 813, the court held that a 

prosecutor’s act of showing a single photograph of the defendant to a victim witness was 

suggestive, but the identification did not violate due process. (Id. at p. 820.) The victim 

had been told there were two suspects in custody. The victim personally knew one of his 

attackers, and he knew the police wanted him to identify the other one. Contreras held 

the showing of the single photograph necessarily suggested to the witness that it depicted 

the other attacker. (Ibid.) 

However, Contreras further held that the trial court’s decision to allow the 

identification evidence did not violate due process. (Contreras, supra, 17 Cal.App.4th at 

p. 823.) The jury was made fully aware of the witness’s failure to select the defendant 

from photographic lineups prior to the identification at the preliminary hearing. (Ibid.) 

The jury saw the single photograph of the defendant and was able to assess its clarity. 

The jury was also able to determine whether the witness should have been able to identify 

the defendant given the circumstances of the attack, it was instructed on the factors 

bearing upon the accuracy of an eyewitness’s identification, and defense counsel 

strenuously argued that the identification was not credible. At that point, the 
66. 

identification issue became “largely one of credibility,” which was a question for the 

jury. (Id. at pp. 823-824.) 

In this case, as in Kennedy and Contreras, the jury was well aware of the single 

photograph identification procedure. Easter’s attorney ably developed the evidence 

which showed the procedures used to identify Easter, the nature of the photograph used 

for that identification, Franco’s confusion at trial between Easter and Thompson, and the 

possible differences between the victims’ descriptions of the third suspect and Easter’s 

appearance. The jury was also fully instructed on the factors to evaluate eyewitness 

identification testimony, and defense counsel urged the jury to discount the victims’ 

identifications of Easter as inaccurate. 

Easter cites People v. Nation (1980) 26 Cal.3d 169, as an example where a defense 

attorney’s failure to challenge the identification procedure was prejudicial. The instant 

case, however, is not similar to Nation. In Nation, the defendant was charged with 

threatening and molesting children. Two weeks after the event, the children viewed 

photographs at the police station. One child selected the defendant’s mug shot. She told 

the other children that she had identified the assailant, and, after some discussion, the 

other children agreed. An officer gave the mug shot to the children, so they could take it 

home and show other possible witnesses. Almost four months later, the children failed to 

identify the defendant in a live lineup, and they identified another individual. They were 

told they had selected the “wrong” man. (Id. at p. 174.) 

Nation held that the photographic identification evidence was so extraordinarily 

suggestive that it was doubtful that the prosecutor could have submitted it over the timely 

objection of trial counsel. Nation further held defense counsel’s failure to object to the 

identification procedure deprived defendant of constitutionally adequate assistance. 

(People v. Nation, supra, 26 Cal.3d at pp. 174, 179-181.) As illustrated, ante, such 

suggestive and unreliable circumstances are completely absent from this case. 
67. 

3. Prejudice

 Finally, given the nature of defendant’s ineffective assistance claim, the record 

demonstrates another reason that it is not reasonably probable that a more favorable result 

would have occurred. Defendant Easter contends defense counsel’s conduct was 

prejudicial because there was no other evidence which implicated him in the robberies, 

aside from the victims’ identification testimony, and Thompson’s trial testimony which 

exonerated him. 

The entirety of Thompson’s trial testimony cannot be characterized as exonerating 

Easter. Thompson testified that he committed two of the robberies with Williams, and 

Easter was not the third person. Thompson initially claimed that the third suspect in the 

Franco robbery was not the same person who committed the Gaynor robbery. He said he 

met both these men at the apartment complex. One man was associated with the Crips; 

he did not really know these men; and he feared for his life if he identified them. 

 On cross-examination, however, Thompson’s description of two different men as 

the third suspect began to break down. Thompson admitted that the same man committed 

both the Gaynor and Franco robberies, but still refused to identify him. When asked why 

he was willing to implicate Williams, Thompson replied that he knew Williams had 

already talked to the police and admitted he committed the robberies. 

 The most crucial part of Thompson’s testimony was his admission that he knew 

that Easter had not implicated himself in any of the robberies. Thompson testified he was 

afraid to implicate Easter as the third suspect because Easter had not implicated himself. 

“Q So isn’t it true that you’re afraid that if you were to say that Brian 

Easter was the person, the third party involved in this robbery that you 

would be implicating him where he hadn’t previously done so? 

“[EASTER’S ATTORNEY]: I’m going to object to the form of the 

question as argumentative, compound, and vague. 

“THE COURT: Overruled. 
68. 

“[THOMPSON]: Can you say it one more time for me? 

“(Thereupon the question was read by the court reporter.) 

“[THOMPSON]: Yes.” 

Thompson insisted that was not the reason that he said the third suspect was 

someone other than Easter. However, Thompson also testified he was related to Easter. 

Thompson had known Easter for his entire life, and he did not want Easter to get into 

trouble. Thompson denied that he would lie for Easter. 

 While Thompson may have claimed Easter was not the third suspect, and he 

would not lie for Easter, he conceded he was afraid to implicate someone who had not 

already confessed to the crimes. Thompson’s testimony thus raised the extremely strong 

inference that Easter was the third robbery suspect. 

 We thus conclude that based on the entirety of the record, defense counsel’s 

failure to challenge the pretrial identification of Easter was not prejudicial because the 

victims’ identifications were otherwise reliable, and any erroneous admission of their 

identifications was harmless given Thompson’s trial testimony. 

VII. Admissibility of Williams’s postarrest statements about Thompson

 Easter raises another ineffective assistance argument based on defense counsel’s 

efforts to introduce Williams’s postarrest statement that he committed the robberies with 

Thompson. The court allowed evidence that Williams did not identify Easter as a 

suspect, and claimed the gunman was named “Alex” or “A-1.” However, the court 

excluded that portion of Williams’s statement when he said that he committed the 

robberies with Thompson, since Williams did not testify and the evidence violated the 

Aranda/Bruton rule. Thompson later testified at trial and admitted he committed the 

robberies. 

On appeal, Easter contends his defense attorney should have renewed his motion 

to introduce the portion of Williams’s statement which implicated Thompson, once 

Thompson testified and admitted his guilt. Easter argues that Thompson’s trial testimony 
69. 

eliminated any Aranda/Bruton problem. Easter further argues the entirety of Williams’s 

statement would have demonstrated his credibility when Williams did not identify Easter 

as a suspect, since he admitted his own guilt, identified Thompson, and Thompson later 

testified and admitted he committed the robberies. 

A. Williams’s postarrest statement

 As explained in the factual statement, ante, Williams and Thompson were arrested 

shortly after the Gaynor robbery. Detective Mares interviewed Williams after he was 

arrested. Williams admitted he committed the Gaynor, Flechsing, and Franco robberies. 

Williams said he committed the robberies with Thompson. Williams said the gunman 

during the Franco robbery was named “Alex” or “A-1.” Williams did not identify Easter 

as the gunman or a suspect. 

 Neither Thompson nor Easter gave statements or implicated themselves prior to 

trial. 

B. Easter’s pretrial motions about Williams’s statement

 During pretrial motions for the joint jury trial, Easter’s attorney moved for 

severance of all the charges against Easter from that of Thompson and Williams. The 

court denied the motion because Easter failed to show prejudice from a joint trial. 

As pretrial motions continued, the prosecutor stated that he would call Detective 

Mares to testify about Williams’s postarrest confession, and exclude the portion which 

implicated Thompson and exonerated Easter because those statements were inadmissible. 

 Easter’s attorney objected because he wanted to introduce the entirety of 

Williams’s statement, particularly Williams’s identification of someone else as the 

gunman, and his failure to name Easter as a suspect. Thompson’s attorney objected to 

Easter’s motion, and argued the entirety of Williams’s statement violated Thompson’s 

rights under Aranda/Bruton. 

 Easter’s attorney acknowledged there were Aranda/Bruton issues as to Thompson, 

but argued such issues would be eliminated if the court granted his motion to sever 
70. 

Easter’s trial from the other two defendants. Easter’s attorney argued the entirety of 

Williams’s statement was credible because he implicated himself and another person 

while failing to name Easter. Easter’s attorney renewed his motion for severance so that 

the entirety of Williams’s statement could be admitted. 

 The court excluded that portion of Williams’s statement which implicated 

Thompson pursuant to the Aranda/Bruton rule, unless Williams testified. The court 

granted Easter’s motion that he could ask Detective Mares if Williams implicated a third 

party named “Alex” and not Easter, as long as Thompson was not mentioned. The court 

denied Easter’s motion for severance because of “the very strong policy issues in favor of 

nonseverance, given the interrelatedness of the allegations and frankly the evidence ....” 

C. Easter’s motion for new trial

 In his motion for new trial, Easter argued the trial court committed prejudicial 

error when it denied his motion to sever his trial from Thompson and Williams. Easter 

again argued that the entirety of Williams’s statement was crucial to Easter’s defense 

since he failed to identify Easter, had implicated Thompson, and Thompson admitted his 

guilt, and severance should have been granted to avoid the Aranda/Bruton issues as to 

Thompson. 

 In opposition, the People argued Easter did not suffer prejudice from the 

consolidated trial because Williams’s statement was not cross-admissible, a weak case 

was not joined with a strong case, defendants were charged with the same crimes, and the 

charges were not inflammatory as to Easter compared to the other two defendants. The 

People also noted that the jury heard evidence that Williams exonerated Easter from 

committing the robberies, and identified the gunman as “Alex” or “A-1.” 

 The court denied Easter’s new trial motion. 

D. Analysis

On appeal, Easter has not challenged the trial court’s denial of his motion to sever 

his jury trial from that of Williams and Thompson; the trial court’s initial ruling that 
71. 

Williams’s statements about Thompson were inadmissible in this joint trial because of the 

Aranda/Bruton rule; or whether the court improperly denied his new trial motion based 

on these issues. 

Instead, Easter contends his defense attorney was prejudicially ineffective because 

once Thompson testified and admitted he committed the robberies, counsel should have 

renewed his motion to admit the portion of Williams’s statement when he implicated 

Thompson, since the Aranda/Bruton problem was no longer an issue after Thompson’s 

admissions. Easter argues that Williams’s failure to name Easter as one of the robbers, 

and his identification of “Alex” as the gunman, would have been more credible if the jury 

heard Williams’s implication of Thompson, in light of Thompson’s trial admission of 

guilt. 

 As explained, ante, the Aranda/Bruton rule “declares that a nontestifying 

codefendant’s extrajudicial self-incriminating statement that inculpates the other 

defendant is generally unreliable and hence inadmissible as violative of that defendant’s 

right of confrontation and cross-examination, even if a limiting instruction is given. 

[Citation.]” (People v. Anderson, supra, 43 Cal.3d at p. 1120.) 

 Easter concedes that Williams’s implication of Thompson was inadmissible under 

Aranda/Bruton. Easter also concedes the jury heard Detective Mares’s testimony that 

Williams confessed his guilt for the three robberies, did not identify Easter as a suspect, 

and said the gunman in the Franco robbery was named “Alex” or “A-1.” However, 

Easter insists the court would have granted a renewed motion to introduce the entirety of 

Williams’s postarrest statement once Thompson testified and eliminated the 

Aranda/Bruton issue. 

1. Chambers

 In making this argument, Easter also concedes that Williams’s statements about 

Thompson’s guilt still would have constituted inadmissible hearsay since Williams did 

not testify at trial, and there was no applicable hearsay exception to permit the 
72. 

introduction of this evidence. However, Easter argues that Williams’s statements were 

nonetheless reliable and crucial to establish his innocence, and should have been admitted 

pursuant to Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers) to preserve his due 

process right to present a defense, despite the hearsay problems. 

 In Chambers, a defendant in a murder trial called a man as a witness who had 

previously confessed to the murder. (Chambers, supra, 410 U.S. at p. 294.) After the 

witness repudiated his confession on the stand, the defendant was denied permission to 

examine the witness as an adverse witness based on Mississippi’s “ ‘voucher’ rule” 

which barred parties from impeaching their own witnesses. (Id. at pp. 294-295.) In 

addition, Mississippi did not recognize an exception to the hearsay rule for statements 

made against penal interests, thus preventing the defendant from introducing evidence 

that the witness had made self-incriminating statements to three other people. (Id. at 

pp. 297-299.) The United States Supreme Court noted that the State of Mississippi had 

not attempted to defend or explain the rationale for the voucher rule. (Ibid.) The court 

held that “the exclusion of this critical evidence, coupled with the State’s refusal to 

permit [the defendant] to cross-examine [the witness], denied him a trial in accord with 

traditional and fundamental standards of due process.” (Id. at p. 302.) 

 In People v. Ayala (2000) 23 Cal.4th 225 (Ayala), the California Supreme Court 

considered whether the defendant “had either a constitutional or a state law right to 

present exculpatory but unreliable hearsay evidence that is not admissible under any 

statutory exception to the hearsay rule.” (Id. at p. 266.) The defendant relied on 

Chambers and argued the trial court had “infringed on various constitutional guaranties 

when it barred the jury from hearing potentially exculpatory evidence.” (Id. at p. 269.) 

Ayala rejected the defendant’s argument and held that “ ‘[f]ew rights are more 

fundamental than that of an accused to present witnesses in his own defense. [Citations.] 

[But in] the exercise of this right, the accused, as is required of the State, must comply 

with established rules of procedure and evidence designed to assure both fairness and 
73. 

reliability in the ascertainment of guilt and innocence.’ [Citation.] Thus, ‘[a] defendant 

does not have a constitutional right to the admission of unreliable hearsay statements.’ 

[Citations.] Moreover, both we [citation] and the United States Supreme Court [citation] 

have explained that Chambers is closely tied to the facts and the Mississippi evidence law 

that it considered. Chambers is not authority for the result defendant urges here.” (Ibid.) 

 Indeed, the United States Supreme Court has clarified that Chambers “does not 

stand for the proposition that the defendant is denied a fair opportunity to defend himself 

whenever a state or federal rule excludes favorable evidence.” (U.S. v. Scheffer (1998) 

523 U.S. 303, 316.) The California Supreme Court has similarly held “ ‘[t]he same lack 

of reliability that makes ... statements excludable under state law makes them excludable 

under the federal Constitution.’ [Citations.]” (People v. Butler (2009) 46 Cal.4th 847, 

867.) 

Easter argues that Williams’s postarrest statements about Thompson and Easter 

were reliable and admissible under Chambers, because Williams also implicated himself 

and Thompson later admitted his guilt. However, there are several factors which 

undermine the reliability of Williams’s failure to identify Easter, based upon facts which 

were known to Williams when he gave this statement. Williams and Thompson were 

apprehended in the apartment of Thompson’s grandmother a short time after Gaynor was 

robbed. Williams knew the police searched the apartment, which contained the Xbox, 

videogames, and identification stolen from Flechsing earlier that day; the two cell phones 

stolen from Gaynor shortly before the search; and the firearm which was used for all 

three robberies. Williams and Thompson were asked to stand outside while someone 

identified them, and they were both arrested. 

Based on these circumstances, Williams knew that Thompson had been identified 

and arrested, and the stolen property was found in his grandmother’s apartment. Thus, 

Williams did not implicate Thompson in a vacuum. Williams also knew Easter was not 

in the apartment and had not been arrested with them. However, Williams’s own cell 
74. 

phone was found hidden in the same location as the stolen cell phones and the gun. 

Williams likely realized there were images on his cell phone which showed Easter posing 

with Williams and Thompson in that same apartment, while Thompson displayed the gun 

used in the robberies.33 These factors thus seriously undermine the reliability of 

Williams’s postarrest failure to identify Easter, his high school friend, as one of the 

suspects, and his identification of “Alex” or “A-1” as the third suspect. Defense 

counsel’s failure to renew his motion to admit the entirety of Williams’s statement was 

not prejudicial because Williams’s statements were not admissible since they were made 

under circumstances suggesting they were not reliable. (Ayala, supra, 23 Cal.4th at p. 

270.) 

VIII. Denial of Easter’s motion to reopen

 Easter contends the court committed prejudicial error when it denied his motion to 

reopen his defense case to call a purported alibi and character witness. Easter argues that 

he should have been allowed to reopen to call rebuttal witnesses, based on the nature of 

Easter’s trial testimony. 

A. Easter’s trial testimony

As set forth in the factual statement, Easter testified at trial and denied committing 

the robberies. Easter testified that on the night of the Gaynor robbery, he was staying at 

the residence of his child and the child’s mother. Easter testified he had never committed 

a crime. 

 33 The record contains circumstantial evidence that Williams was well aware of 

the images on his cell phone. The photographs on Williams’s cell phone which show 

Williams and Easter (exhibit No. 7), and Williams, Easter, and Thompson (exhibit No. 

3), were taken while defendants posed in a mirror as Williams himself held up his white 

cell phone and recorded the same images. 
75. 

 After Easter completed his testimony, the court asked his attorney whether he had 

any further witnesses. Easter’s attorney said no. The court asked the other two defense 

attorneys and the prosecutor if they had further evidence, and they said no. 

B. The instructional conference

After the parties rested, the court excused the jury and conducted the instructional 

conference. Easter’s attorney asked the court to give CALCRIM Nos. 350 and 351, on 

the jury’s consideration of favorable traits of the defendant’s character, based on Easter’s 

testimony that he had never committed a crime. The prosecutor objected and argued such 

testimony was not character evidence. 

Defense counsel responded that if the court decided not to give the instruction, 

then he would move to reopen to call Carlisa Daily, the mother of Easter’s child, as a 

character witness. The prosecutor objected because the request was untimely, there was 

no discovery or offer of proof, and he had never heard this witness’s name. Easter’s 

attorney replied that Daily would be a rebuttal witness. 

Easter’s attorney advised the court that Daily had been seated in the courtroom 

during Easter’s testimony. The prosecutor again objected. Defense counsel explained 

that Daily had not been considered a witness until after Easter’s testimony. The court 

deferred ruling on the matter, and the parties continued to address the instructions. 

C. Easter’s motion to reopen

After the lunch recess, Easter’s attorney stated that Daily was present in the 

courtroom and was ready to testify. Easter moved to reopen the defense case so she 

could testify about Easter’s character for peacefulness or nonviolence. The prosecutor 

objected because the defense failed to provide any discovery, which left him unable to 

prepare for further rebuttal. Easter’s attorney made an offer of proof, that Daily would 

testify that she had known Easter since 2006, they had a child together, and she had never 

seen or heard of him acting violently. 
76. 

 The court interrupted defense counsel and asked Daily to step outside the 

courtroom. The court then said it was concerned that Daily “has been in and out of the 

court for some time throughout the trial, including this morning when Mr. Easter 

testified.” 

Defense counsel replied the alibi issue did not arise until cross-examination, when 

the prosecutor asked Easter where he was on the night of the robberies, and counsel had 

thought Easter’s testimony was sufficient for the character evidence instruction. Defense 

counsel conceded his request to call Daily had not been timely, but argued her testimony 

was relevant as rebuttal evidence because of the prosecutor’s questions about Easter’s 

whereabouts on the night of the robberies. 

 The prosecutor stated that he did not know Daily’s identity and had no idea she 

was in the courtroom during Easter’s testimony. The prosecutor argued it was not 

appropriate for Daily “to watch the testimony of Easter and then testify as an alibi 

witness to exactly what she observed on the witness stand. That is the purpose for 

excluding witnesses. And frankly, I was not in the position to know that she was in the 

courtroom.” 

D. The court’s denial of the motion

 The court denied Easter’s motion to reopen and call Daily as a witness. 

 “The Court believes the timing of the request to call this witness as a 

character witness is very significant. Again, it was done after everyone had 

announced that they had rested, it was after the People had raised these 

issues that everyone was aware of.... The issue is that this is a potential 

witness who was present during the testimony of the witness about whom 

the person is going to be giving evidence. This witness was not made 

known to the People until ... after we excused the jurors for the noon 

recess. It was only after the Court indicated that it would not be giving [the 

defense character instructions].... And the Court does not see what 

amounts to character evidence. 

 “The Court believes at this point the request was untimely, that it is 

something that could have and should have been raised earlier, that it could 
77. 

involve the Court in a much longer examination. For example, if this 

witness were to testify that, as was pointed out on the offer of proof, that 

she has not known Mr. Easter to ever be involved in violent conduct, the 

question then remains whether she saw the video [from Williams’s cell 

phone] and whether there’s conduct in that video which may suggest 

otherwise. And, again, that involves the jurors seeing the video yet again, 

and that can raise other issues.” 

 The court further found the probative value of Daily’s testimony was substantially 

outweighed by undue consumption of time and confusion of issues. 

E. Analysis

“We review for abuse of discretion a trial court’s ruling on a motion to reopen a 

criminal case to permit the introduction of additional evidence. [Citations.]” (People v. 

Marshall (1996) 13 Cal.4th 799, 836.) “In determining whether a trial court has abused 

its discretion in denying a defense request to reopen, the reviewing court considers the 

following factors: ‘(1) the stage the proceedings had reached when the motion was made; 

(2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the 

prospect that the jury would accord the new evidence undue emphasis; and (4) the 

significance of the evidence.’ [Citation.]” (People v. Jones (2003) 30 Cal.4th 1084, 

1110.) 

The trial court “may exclude from the courtroom any witness not at the time under 

examination so that such witness cannot hear the testimony of other witnesses.” (Evid. 

Code, § 777, subd. (a).) “The courts of this state have consistently held that the violation 

of a witness exclusion order [citations] does not render the witness incompetent to testify, 

and does not furnish grounds to refuse permission to testify, at least where the party who 

seeks to offer the testimony was not ‘at fault’ in causing the witness’s violation of the 

exclusion order. [Citations.]” (People v. Redondo (1988) 203 Cal.App.3d 647, 654; 

People v. Adams (1993) 19 Cal.App.4th 412, 436.) 

 In this situation, the court ordered all witnesses excluded, but Daily was never 

identified as a witness. However, Daily’s existence was obviously well-known to Easter; 
78. 

she did not suddenly appear as a surprise witness at the close of the defense case. When 

he moved to reopen, Easter’s attorney never stated that he did not know about Daily’s 

existence, or that she could provide Easter’s alibi for the night of the Gaynor robbery. 

Instead, defense counsel argued that he did not believe Daily’s testimony was going to be 

relevant until the court declined to give the character evidence instructions for the 

defense. More importantly, both the court and the prosecutor were apparently unaware of 

Daily’s identity, appearance, or presence in the courtroom during the entirety of the trial, 

and particularly during Easter’s trial testimony. Defense counsel never challenged the 

factual accuracy of their comments on this point. For these reasons, the trial court did not 

abuse its discretion when it denied Easter’s motion to reopen and call Daily.34

DISPOSITION

 The judgment is affirmed. 

 _____________________ 

 Poochigian, J. 

WE CONCUR: 

______________________ 

Gomes, Acting P.J. 

______________________ 

Detjen, J. 

 34 Given our resolution of all the issues raised by the defendants, we further find 

there were no cumulative errors.