Filed 9/25/13 P. v. Johnson CA5 Opinion following remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. COREY RAY JOHNSON et al., Defendants and Appellants. F057736 (Super. Ct. Nos. BF122135A, BF122135B & BF122135C)



### OPINION

APPEAL from a judgment of the Superi or Court of Kern County. Gary T. Friedman, Judge. Susan D. Shors, under ap pointment by the Court of Appeal, for Defendant and Appellant Corey Ray Johnson. Joseph Shipp, under appointment by th e Court of Appeal, for Defendant and Appellant Joseph Kevin Dixon. Sharon G. Wrubel, under appointment by the Court of Appeal , for Defendant and Appellant David Lee, Jr. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Atto rney General, Brian G. Smiley and Laura Wetzel Simpton, Deputy Attorneys Gene ral, for Plaintiff and Respondent. -ooOoo-2. INTRODUCTION Corey Ray Johnson, Joseph Kevin Dixon, and David Lee, J r., (Johnson, Dixon, and Lee, respectively; collectiv ely, defendants) were charge d by first amended indictment as follows:

 Count one (Johnson and Lee only): Marc h 21, 2007, attempted murder of Edwin McGowen, involving th e personal discharge of a firearm proximately causing great bodily injury, and comm itted for the benefit of a crim inal street gang (Pen. Code, 1 §§ 186.22, subd. (b)(1)(C), 187, subd. (a ), 664, 12022.53, subds. (d) & (e)(1)).

 Count two (all defendants): April 19, 2007 , premeditated murder of James Wallace, involving the personal discharge of a firearm proximately causing death, committed by an active participan t in and for the benefit of a criminal street gang, and constituting one of multiple murders (§§ 186. 22, subd. (b)(1)(C), 187, subd. (a), 190.2, subd. (a)(3), (22), 12022.5 3, subds. (d) & (e)(1)).

 Count three (all defendants): April 19, 2007, premeditated murder of Vanessa Alcala, involving the pe rsonal discharge of a firearm proximately causing death, committed by an active participan t in and for the benefit of a criminal street gang, and constituting one of multiple murders (§§ 186. 22, subd. (b)(1)(C), 187, subd. (a), 190.2, subd. (a)(3), (22), 12022.5 3, subds. (d) & (e)(1)).

 Count four (all defendants): April 19, 20 07, premeditated murder of Baby Boy Alcala, involving the personal discharg e of a firearm proximately causing death, committed by an active participan t in and for the benefit of a criminal street gang, and constituting one of multiple murd ers (§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2, subd. (a)(3), (22), 12022.5 3, subds. (d) & (e)(1)).

 Count five (all defendants): April 19, 2007 , attempted murder of Anthony Lyons, involving the personal discharge of a firearm proximately causing great bodily

1 All statutory references are to th e Penal Code unless otherwise stated.3. injury, and committed for th e benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 66 4, 12022.53, subds. (d) & (e)(1)).

 Count six (Dixon only): April 19, 2007 , possession of a firearm by one previously convicted of a fe lony, committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1 ), 12021, subd. (a)(1)). 2

 Count seven (all defendants): August 11 , 2007, attempted murder of Adrian Bonner, involving the personal discharge of a firearm proximately causing great bodily injury, and committed fo r the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 66 4, 12022.53, subds. (d) & (e)(1)).

 Count eight (all defendants): August 11, 2 007, discharge of a firearm at an occupied vehicle, involving the personal disc harge of a firearm proximately causing great bodily injury or death, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 246, 12022 .53, subds. (d) & (e)(1)).

 Count nine (all defendants): March 2, 2007- August 22, 2007, conspiracy to violate any or all of sections 186.22 , subdivision (a), 187, 211, and 245, subdivision (a)(2), committed for the benefit of a criminal street gang (§§ 182, subd. (a)(1), 186.22, subd. (b)(1)(C)).

 Count ten (Dixon only): August 9, 2007 -August 18, 2007, possession of a firearm by one previously convicted of a felo ny, committed for the be nefit of a criminal street gang (§§ 186.22, subd. (b)(1), 12021, subd. (a)(1)).

 Count eleven (all defendants): March 2, 2007-August 22, 2007, active participation in a criminal stre et gang (§ 186.22, subd. (a)).

2 Effective January 1, 2012, former sec tion 12021, subdivision (a)(1) was repealed and reenacted as section 29800, subdivision (a )(1) without substantiv e change. (Stats. 2010, ch. 711, § 4, p. 4036 [re pealed]; Stats. 2010, ch. 711, § 6, p. 4169 [reenacted].)4. It was further alleged that Dixon was previously convicted of a serious felony (§ 667, subd. (a)) that was also a strike ( §§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and for which he served a term in prison (§ 667.5, subd. (b)). The People elected not to seek the death penalty against any defendant. Following a joint jury trial, defendants were convicte d as charged, and the murders were determined to be first degree. All special circumstance and enhancement allegations, including Dixon’s prior co nvictions, were found to be true. 3 Johnson’s motion for a new trial was denied, and each de fendant was sentenced to three consecutive terms of life in prison withou t the possibility of parole plus additional determinate and indeterminate terms, and was ordered to pay restitution and various fees and fines. Originally, we affirmed the judgme nts with some minor exceptions and modifications. In particular, we held that a ch arge of conspiracy to actively participate in a criminal street gang is not permitted. Th e California Supreme Court granted review as to that issue, reversed, and remanded the case to us for further proceedings consistent with its opinion. ( People v. Johnson (2013) 57 Cal.4th 250, 268.) We now vacate our earlier opinion and, the cause having been submitted pursuant to California Rules of Court, rule 8.256(d)(2), we issue this opinion . We again affirm th e judgments with some minor exceptions and modifications.

3 The jury was unable to reach a decision as to Dixon, and made no finding as to Lee, with respect to several of the overt acts alleged in co nnection with count nine. The parties stipulated to not true findings for those acts.5. FACTS
I
P ROSECUTION E VIDENCE Events Surroundin g March 21, 2007 Early on the morning of March 20, 20 07, someone shot Venesta Grinnage’s vehicle, which was parked in front of her ho me in the 4300 block of Deborah Street in Bakersfield. 4 Grinnage’s son, Daniel Davis, fre quented the house, a lthough he did not live there. Multiple shell casi ngs from three different semiau tomatic firearms were found in the street. Although no suspects could be developed, a neighbor reported seeing a burgundy Honda drive slowly by shortly after 3: 30 a.m. and again about 15 minutes later. The car had tinted windows and she could not see inside it. About 4:00 a.m., she heard what sounded like numerous gunshots. Just after midnight on March 21, Bakersfield Police Officers Shaff and Williamson, both members of the police department’s Special Enforcement Unit (also known as SEU or the gang unit) were dispatch ed to an address on Myrtle Street in response to a call in which the reporting party said he had been shot at and his vehicle had been hit with bulle ts. Upon arrival, Shaff contactedLee, who reported he had been standing by his vehicle in front of a residen ce in the 800 block of Deanna Way, talking with some friends, when an ol der silver or green Jeep drove by and shots were fired at

4 All dates are in the year2007 unless otherwise stated. Some of the law enforcement officers who testified had received promotions or retired by the time of trial. To the extent po ssible, we refer to th em by the titles they had at the time of events. A number of peripheral acto rs in the case were regularly referred to at trial by their nicknames or monikers. For the most part, we use the same appellations for the sake of clarity. Last, exact addresses we re given at trial.6. him and his friends. Lee said the incident oc curred about half an hour before he called the police, and that he had left the area a nd gone home. Shaff noted that Lee seemed unusually vague in terms of information he was giving. For instance, he would not identify the friends who had been present, and he seemed very hesitant when Shaff asked for specifics about the other ve hicle and its occupants. There were what appeared to be bullet holes in Lee’s vehicle, a 2000 Chevrolet Tahoe that belonged to his father. Shell ca sings and bullet fragments from at least one gun were found in the 800 block of Dean na Way, where Lee said the shooting had occurred. As of March 21, the area of Monterey and Inyo in Bakersfield was known to SEU officers as an area that was controlled by the Bloods criminal street gang, a group that was associated with the color red. The Country Boy Crips, who were associated with the color powder blue, were active rivals of the Bloods at the time. The Bloods had somewhat of an alliance with the Westside Crips, and were not actively quarrelling with the Eastside Crips. The corner was a known narcotics location, with sales being made out of the apartment complex th ere. The territory of a loca l Hispanic gang, which also sold narcotics, began nearby. Around 6:45 that evening, Edwin McGo wan was talking to friends outside the apartments when he hear d some shots. He tried to run, but fell, having been struck. He saw a male wearing a burgundy hoodie shooting a little gun over the top of a car. When McGowan fell, the person ran behind him and shot him two more times, th en took off running. McGowan could see the eyes and upper nose of this person, who was not wearing a mask. McGowan denied ev er having seen defendants. Officer Meek interviewed McGowan in the emergency room. McGowan described the shooter as a tall, light-skinnedAfrican-American male, 17 to 21 years old, wearing a red hooded sweatshirt, dark pants, a dark ball cap, and clear glasses. Meek7. confirmed that McGowan was certain the race was African-American and not Hispanic. When asked, McGowan said he would be ab le to identify the person if he saw him. 5 At the scene, adult-sized footprints, witha stride length suggesting the person had been running, led from the area in which McGowan had lain in front of one of the apartments, toward where a hole had been cut in the chain-link fence at the far corner of the parking lot. 6 Three spent .25-caliber shell casings were found near the door of the apartment where McGowan had lain, and anothe r was recovered from the parking lot. All four had been fired from the same gun. All told, McGowan was struck three ti mes in the back. He suffered major abdominal injuries that necess itated multiple surgeries. Take n together, his injuries were life-threatening. Sometime between 8:00 p.m. and 10:45 p.m. on March 22, Michael Wilcox was inside his home in the 4200 block of Deborah Street, when he heard six to 10 gunshots. Looking out, he saw a person, who appeared to be in the area of the Grinnage house, shooting at a van that was driv ing away. The van was white with blue trim, and Wilcox

5 McGowan denied telling Meek that a li ght-skinned African-American male shot him. Rather, he told Meek the shooter coul d have been Hispanic or “a bright-skinned” male. McGowan told the grand jury that the shooter was a ve ry light-skinned person, but he could not tell his race. Mc Gowan did not consider any of the defendants to be lightskinned. They all appeared to be African-American to him. On October 4, Bakersfield Police Detective Darbee showed McGowan a photographic lineup that include d a picture of Johnson, whom Darbee considered to be light to medium-skinned. McGowan said hedid not recognize anyone, and did not know who shot him because the person had a hoodie over his face. When confronted with the fact that he had told Meek he would beable to identify th e shooter, McGowan was hesitant to answer and asked if Darbee knew what would happen to his family if he were to identify anyone or testify ag ainst anyone in court.
6 A canal ran parallel to Monterey Str eet about a block away. A traversable alleyway ran along both sides of the canal.8. had seen it before in the neighborhood. The driver was an African-American male; Wilcox could not tell if anyone else was in the vehicle. Around 10:45 p.m., Jorge Garcia, who liv ed in the vicinity, was cleaning his garage when he heard around three gunshots. Before that , there had been some males behind his house, drinking and playing loud music. When he heard the shots, he went to the back to see if th ey were having a fight, but nobody was around. Garcia returned to cleaning the garage with the door open, then Lee walked in, said he had been shot, and asked Garcia to give him a ride around the co rner. Lee had been shot in the left arm and the right hand and fingers. Garcia took him to the location in the 800 block of Deanna Way at which Lee’s vehicle had previously be en shot. The people there called the police and an ambulance. Bakersfield Police Officer Hernandez respond ed to the scene. At the same time, the Kern County Sheriff’s Deputies Chandler and More no were responding to a report of “an illegal shooting” in the 43 00 block of Ke nny Street, one street east of Deborah Street. 7 Chandler attempted to talk to Lee, but Lee did not respond to any of Chandler’s questions. Lee was not in possession of a handgun. Investigation revealed broken automobile gl ass and what appeared to be part of an automobile window frame near the Grinnage ho use. On the east side of Deborah Street were a number of spent shell casings. Some were grouped in one place, while two were apart from the others. Eight had been fire d from the same gun, while one was from a different firearm — the same firearm as so me of the shell casings recovered from the March 20 shooting of Grinnage’s vehicle. Chandler and Moreno contacted Lee in th e hospital emergency room. Told shell casings had been found in the 4300 block of Deborah Street, Lee said he had been

7 The 4300 blocks of Deborah, Kenny, and Eve Streets are in a county pocket; hence, the different law en forcement jurisdictions.9. walking southbound in the 4300 block of Deborah Street, wh en he saw subjects in a green 1995 or 1996 Jeep pull up alongside him. He saw a flash and heard five to six shots. He described the route he ran before reaching Garcia’s gara ge. A blood trail was found in that area, but no weapon. Events Surrounding April 19, 2007 As of April 19, James Wallace resided wi th his mother, Kathie Oats, not far from McNew Court in Bakersfield. Dixon’s moth er and Wallace’s father, who lived on Watts Drive in a part of town called the Country, were cousins, although Oats believed Dixon and Wallace had only been intr oduced once. Wallace had ne ver been arrested and was not in a gang. On April 19, Wilma Shaw, the aunt of Wallace’s best friend, held a barbecue in the front yard of her residence in the 1300 block of McNew Court. Her guests, who included Wallace and her nephew s, Anthony and Othe lon Lyons, were outside off and on most of the day, talking and playing music in the front yard. 8 When it began to get dark, Shaw went inside to attend to her grandchildren. Not long after, she heard multiple gunshots. Anthony had been at his aunt’s house a ll day, as he usually was during this time period. Just before 8:00 p.m., he was in th e front yard, hooking up music with his cousin, Curtis Miller, in Miller’s Tahoe. The vehicl e was parked in the driveway of Shaw’s apartment complex. Helping him were his younger brother, Othelon, and Wallace. At some point, another cousin, Albert Darrett, arrived with his girlfriend in a black Tahoe and parked on the wrong si de of the street. Anthony went up to the driver’s side of th e vehicle to talk to Darrett, and leaned in as they conversed. Anthony was moving away from the vehicle when he saw a tall

8 For the sake of clarity, we refer to Anthony and Othelon Lyons, and Mikeshiea and Myeshia Herring, by their first name s. No disrespect is intended.10. person, weighing about 200 pounds, in the mi ddle of the street. The person, who was dressed all in black, started shooting toward the house. Anthony only saw one person, and could not tell if it was a man or a woman or the person’s race, because the person had on a hoodie with the hood up. 9 Anthony ran toward the back door of Shaw’s residence. He believed Wallace was by Miller’s truck, and Miller was inside the truck. Wa llace was running ahead of Anthony toward the house, then Anthony saw Wallace fall down. Anthony ran through the back entrance and out the front. Wallace was on the front porch, lying on his stomach on the step in a pool of blood. Anthony believed he heard about five shots. He was struck above the right hip. The bullet remained in hi s body at the time of trial, as he refused to have it removed for fear of possible complications. 10

9 Anthony had no visi on in his right eye, having been shot in 2004. He was also grazed in the head in 2005. His older half-brother, Deshawn Peterson, was shot and killed on Feliz Drive about four years earlier. Anthony had met Johnson, who was Peterson’s cousin, one time about six years earlier. Anthony was a child when he last saw Johnson, and would not recognize him if he saw him again. He did not see Johnson on the night of April 19, although he had heard that Johnson used to cut people’s hair in the area. At some point, Anthony was shown pho tographic lineups containing Johnson’s and Lee’s pictures. Anthony di d not identify either defendant as one of the shooters. He said it was dark and he did not get a good look at the people who shot him.
10 Sheriff’s Sergeant Marshall interviewed Anthony at the hospita l on the evening of the shooting. Anthony related that he saw a Black male, about five feet eight or nine inches tall, wearing a black h oodie, walking from west to eas t across the street near a white van. The shooter was by the white va n, and when the shooting started, Anthony ran. He was in the parking lot of the apartm ent complex when he fe lt himself get hit with a bullet. When Marshall explained that he r eally needed th e bullet as physical evidence, Anthony agreed to have an elective procedure so it could be retrieved. He did not express any hesitation about having the surgery.11. As of April 19, Albert Darrett resided in Bakersfield with his girlfriend, Vanessa Alcala, and her mother and child. Alca la was pregnant with Darrett’s son. Darrett worked in oilfield construction. 11 On April 19, he needed to cash his paycheck, so he picked up Al cala and they drove in his black Chevrolet Tahoe to the store on the corner of Feliz Drive and Cottonwo od Road. After he ca shed his check, they went south on Cottonwood Road to the first street, McNew Court, and went to Shaw’s house. Shaw was Darrett’s aunt, and it was his habit to stop by her house for a few minutes every day after work. On April 19, family and friends were in her driveway. Curtis Miller was one of the cousins who was there. Like Darrett, Miller drove a black Chevrolet Tahoe, which was park ed at Shaw’s residence. Darrett pulled over on the wrong side of the street (facing west) next to the driveway, left his vehicle running, and starte d talking to his cousin, Anthony, who was at the driver’s side door. Alcala remainedin the passenger seat. Darrett and Anthony conversed for a couple of minutes. It wa s light out, but getting dark. Darrett saw two people walking up the opposite side of the street, headed in the direction of Cottonwood Road. They were about halfway down the bl ock when he first saw them, and he did not pay much attention to them. He did not see ei ther of them get out of an automobile or come out of a house, and he saw nothing in either one’s hands. Darrett continued to talk to Anthony, then glanced at the two and saw them crossing the street in a diagonal direction towa rd him. They crosse d the street together, then came up to the car and spre ad out so they were a coupl e of feet apart. One was

11 Darrett admitted being booked into the Kern County jail four days before the shooting, and stating at that time that he asso ciated with the Crips. He denied saying, however, that he wanted to be kept away from Country Boy Crips. He initially denied, but then admitted, once having a tattoo on hi s arm that read “805 ESC,” meaning the area code for Bakersfield and East side Crip. He was about 15 years old when he got the tattoo. He was older by the time of trial a nd not in a gang, although he knew people who were in the Eastside Crips.12. toward the passenger’s side of the vehicle, while the other was right in front of it. Both were no more than five feet from the vehicle, and both then started shooting. One shot toward the apartment complex, while the other shot toward th e vehicle. Darrett tried to duck. He did not hear anything from Alcala or see what she or anyone else did. After the shooting stopped, Darrett saw th e two men running back in the direction from which they had come. A lthough he did not see their faces, he believed they were African-American. They appeared to be around 5 feet 10 or 11 inches tall, and were thin. Although Darrett could not tell their approxim ate ages, he believed they were younger than him. 12 Both were dressed all in black. At least one, and possibly both, wore a black hooded sweatshirt with the ho od pulled over his head. Darre tt tried to run them over, but was unsuccessful because they ran back the other direction, toward Cottonwood Road. They separated, with one running north to ward Feliz Drive, and one running south toward Cannon, via the dirt alle yway next to Shaw’s apartmen t. Darrett did not see either of them taking off their clothes or trying to jump a fence to get away. Halfway up the block, Darrett turned to look at Alcala. She was bleeding and unresponsive, and he realized sh e had been shot. He drove her to Kern Medical Center. He did not see either of the sh ooters exit onto Feliz Drive or any cars leaving or trying to flee, but he was not really paying attention. At 7:58 p.m., the Kern County Sheriff’s Department received a 911 call from the McNew Court address, reporting a shooting. Senior Deputy Lost aunau arrived four minutes later, and the helicopter and other deputies shortly af ter that. Lostaunau, who was in the gang unit at the time, had driven down several of the streets in the area before the shooting was reported, looking for people to contact or anything that appeared to be out of the ordinary. He did not come acr oss any parked car containing three African-

12 Darrett was 31 years old as of December 19, 2008. Dixon was between five feet six and five feet seven inches tall.13. American males or make contact with a gro up of three African-American males on foot. He did not see anybody jumping fe nces or running, or any vehicle fleeing at a high rate of speed. Lostaunau parked a few feet west of th e driveway into the apartments and found empty cartridge casings on the ground at his feet when he got out of his car. 13 He also smelled gunpowder and saw a pers on down on the ground in fro nt of the apartment. He could hear screaming comi ng from the apartment. Lostaunau approached the apartment a nd asked what happened and who did it. Someone inside yelled that it was a Black ma le, and Lostaunau broa dcast that over his radio. He then started attending to Wallace. When he put his ha nd on Wallace’s back, he felt it rise at least once with a breath. W ithin seconds, however, Lostaunau could feel no more breathing and was unable to find a pulse. Deputy Adams, a former paramedic, determined Wallace was deceased. Around 8:00 p.m., Leon Reyes was asleep in the back room of his house on the south side of McNew Court, in the same block as Shaw’s residence, when he heard a racket at the fence separating his front yard from his back yard on the west side of the house. He stepped out onto his back porc h and saw someone jump the fence separating

13 Five spent .38-caliber Super Plus P sh ell casings were found. That kind of ammunition normally is used insemiautomatic firearms. No fingerprints were found on the casings. The core of a round of ja cketed ammunition was found in the front passenger side door of Darrett’s vehicle. The spent shell casings found on McNew Court were fired from the same firearm. A partia l fingerprint, which could not be identified when compared to the prints of defendants, Darrett, and Alcala, wa s found on the rear passenger window exterior. Detective Armendariz investigated a number of vehicles at or near the scene of the shooting. None were registered to or asso ciated with any defendant. The white van parked across the street and to the west of Shaw’s reside nce belonged to the Fuentes family.14. his back yard from his neighbor to the south. He could not see who it was, but the person could have been wearing dark clothing. Reyes immediately went to the front yard to check on his car. As he did, he saw Deputy Ollague going down Mc New Court. Reyes informed Ollague that a subject wearing white tennis shoes and da rk clothing had just gone over his fence. Ollague and a K-9 deputy searched the front and ba ck yards, but found nothing. One of the units responding to the scene was the helicopter, Air One. It did not report anyone who appeared to be fleeing the scene, although it did report a subject walking on Feliz Drive near Co ttonwood Road, a location one block north of the shooting and east of where the dirt alley from McNew Court came out onto Feliz Drive. The subject appeared to be weari ng dark clothing and white shoe s. Contact was made with this person, a teenager, who was sear ched, questioned, and released. Just before 8:00 p.m. on April 19, Reb ecca Martinez, who livedin the 1200 block of McNew Court, heard five to six gunshots, a scream that sounded female, and tires “peeling out.” Martinez called 911. When Sheriff’s Sergeant Rennie contacted her, she pointed him to the house directly across the street, where a large dog was barking near the east fence line. Martinez suggested Re nnie check that yard, because the residents were not home and the dog rarely barked. Rennie checked the house and saw that it appeared to be secu re. When he looked under one of the vehicles parked in the driv eway of the house immediately to the east, which was across the street and four houses down from the location of the shooting, however, he saw a small pile of dark clothing that consisted of a dark-colored baseball cap bearing the Boston Red Sox logo (a red B ), a Nike brand U.S.A. Basketball Michael Jordan jersey, a dark blue or black Navy-sty le Volcom-brand pea coat, and a beige or tan American Dawn-brand smock-type shirt. A Samsung cellular telephone was found in15. one of the coat pockets. The clothes did not be long to anyone in th at household, and had not been there earli er that evening. 14 Senior Deputy Little contacted Othelon atthe scene. After learning that Othelon had witnessed some of what ha ppened, Little took Othelon to his patrol car, activated his tape recorder, and took his statem ent. Othelon was cooperative.

14 From March 16 through April 12, Johnson attended Ba kersfield Barber College. Students were required to wear a tan, short- sleeved smock. The school generally issued students a Brick McMann-brand smock w ith an American Dawn logo. Following their arrests, DNA sample s were obtained from defendants and compared to DNA extracted fro m various places on the items of clothing. All three defendants were among the five or more contributors to the DNA found on the coat. Because of the number of contributors, the astr onomically rare frequencies (probability of finding that genetic profile in the general po pulation) typically found with a single-source genetic profile were not obtained. Thus, fo r example, although Johnson was included as a contributor to the mixture found on the co at collar, approximately one in 25 people could also have had the same profile and been contributors. The frequencies were similarly common with respect to Lee and Di xon. Where such common frequencies were obtained, Gary Harmor, the senior forensic serologist at the Serological Research Institute who conducted the DNA analysis in this case, c ould not say with certainty that a particular defendant touche d the particular item. DNA extracted from various places on the smock was also a mixture of contributors, with all three defendants includ ed. Frequencies again were common, except with respect to the three-contributor mixture found on the in side front collar. Johnson’s genetic types showed up strongly enough that it could be de termined only approximately one out of every 1.1 m illion people would havegenetic types consistent with what was found in the ev idence compared to Johnson. DNA extracted from the jersey was also a mixture of contributors. Lee was excluded as a possible contributor. Dixon c ould not be excluded. Johnson was included as a possible contributor; with respect to th e mixture found on the inside front collar, only one in 8.8 million people could have the same types. A frequency calculation of that magnitude was quite significant wh ere a mixture was concerned. DNA extracted from the sweatband of the cap was a mixture of at least four contributors. Johnson could no t be excluded as a contributor, but the statistical analysis showed that approximately one in 1144 pe rsons would have a type similar to that contributor. Lee and Dixon were excluded as contributors to the DNA on the baseball cap.16. Othelon told Little that he was sitting in the backseat of his cousin’s truck, eating and hooking up music, when his cousin Darre tt and Alcala pulled up. They were facing west, and Anthony, Miller, and Wallace were st anding by the driver’s side, talking to Darrett. Othelon heard shots. He opened th e door and looked back , and saw one of the assailants jump the fe nce into a field. This person wa s wearing a black hoodie with the hood up, and a white Pro Club shirt over th e black hoodie. He was African-American, 18 to 20 years old, around six feettall and 180 to 185 pounds, and with a dark complexion. Othelon did not see this one w ith a gun. The other one ran down the alley. He was dressed all in black. He had a handgun po inted toward Shaw’s house and was running southbound. He was African-American, 18 to 19 years old, about 5 feet 10 inches tall, weighed 160 or 165 pounds, and was dark-complected. One of the two had a “punk” hairstyle, a “short bush [A]fro.” 15 The gun was all black and sounded like a ninemillimeter. Nothing was said before the shooting started. After, everyone ran into the house. Wallace only made it to the porch. Othelon related that he did not see any cars come up and stop anywhere in the area before the shooting started, and that he di d not notice the shooters until after they had stopped shooting. Othelon estim ated he heard at least eight shots, and that it sounded like they all came from the same gun. He did not recognize either of the assailants, although he believed he would probably recogn ize them if he saw them again. 16

15 Little was in contact with Johnson sometime after the shooting. Johnson did not have an Afro, nor was a small Afro wig found. Little also saw Dixon two days after the McNew Court shootings. There was no indicati on Dixon shaved or cut his hair in the preceding couple of days, nor were any wigs found on him.
16 At trial, Othelon testified that just be fore the shooting, he was sitting in Miller’s truck, installing stereo speakers. He further testified that the only time he ever saw Dixon was when they both were in prison sometime after the shooting, but the two were in different locations and never met. Beyond th at, Othelon claimed that he was unable to remember anything, did not want to testify, and was not going to iden tify anyone. He did not remember talking to Little or what he told the grand jury.17. When brought into the hospital, Alcala wa s in a deep coma. She had a penetrating injury to the posterior portion of the occipital area of the brai n, with the entry site on the right lower back portion of the skull and the bulle t’s direction of travel upward to the left, and back to front. There were bone and metallic fragments in her brain. She died during surgery performed in an attempt to control her continue d rapid bleeding. The cause of death was gunshot wound of the head. Alcala was pregnant with a boy whose gestational age was approximately 12 to 14 weeks. The fetus was medi cally healthy and died as a result of the mother’s guns hot wound to the head. Wallace suffered an entrance gunshot wo und to the right side of his chest, underneath the armpit, with an exit wound in the left shoulder area. The bullet traveled right to left and slightly upward. The absenc e of soot or stippling indicated the weapon was more than three to four feet from him wh en the shot was fired. The cause of death was gunshot wound of the chest. As the bullet injured internal organs and major vasculature of the heart, he lived a matter of a minute to minutes after he was shot. The day after the shooting, Marshall a nd Little began investigating the Samsung cell phone found in the coat pocket. Mars hall ultimately was ab le to determine the phone’s number. At about 2:00 p.m., the phone rang, and the caller asked for “Dodo.” Little checked some law enfo rcement databases and discove red that Dixon used the moniker Dodo. Little obtained photographs of Dixon maintained by law enforcement.

Kern County Sheriff’s Senior Deputy Pratt spoke to Ot helon on Februa ry 1, 2008, while Othelon was in prison. Othelon admitted being a gang member. He said he was Eastside or Stroller Boys, and that at the tim e of the shooting, thi ngs had been “pretty tense” between Eastside and the Country. Pratt again talked to Othelon on December 10, 2008, after Othelon paroled, w ith respect to a rumor Pratt had heard about Othelon being threatened by Dixon while in prison. Othelon denied bei ng threatened and said that if Dixon had threatened him, Othe lon would have “taken him out.” Othelon told Pratt that he used to live in the Country and knew Dixo n from his childhood, when they would ride dirt bikes together. Othelon sa id Dixon told him, as kind of an apology, “I didn’t know it was your auntie’s house.”18. They revealed that Dixon bore tattoos related to the Country Boy Crips and its Watts and Lotus clique. There were photographs of Di xon stored in the phone’s memory. The screensaver for the phone r ead, “Watts wit it.” Further investigation into Dixon led Littleto an apartment in the 2600 block of Chandler Court, Bakersfield, which was th e residence of Myeshia Herring. Myeshia related that Dixon had called her and said he needed a place to stay because of some parole issues. She texted him the address. He moved in Wednesday, April 18; she did not see him at all on Thursday, April 19; they left together on Frid ay, April 20; when she got back early Saturday morning, he was not there, but he was there when she got up later that day; later on Saturday, he left with Myeshia’s friend, Gi na Stewart, in a white 1990’s Chevrolet Caprice. Little examined Myeshia’s cell phone , which contai ned the number of the Samsung cell phone found in the coat pocket in the address book under the name “friend.” Little told Myeshia to tell Dixon to call Little when she saw Dixon. About three hours later, Dixon contacted Little and then voluntarily came to the sheriff’s office. Little took identifying photographs a nd more detailed photographs of Dixon’s tattoos. Dixon, who was wearing dark blue pant s and light blue boxers, was allowed to leave after he was photographed. On April 25, Little in terviewed Myeshia again. 17 Myeshia reiterated that Dixon needed a place to stay, and sh e simply replied by text messa ge to whatever number he used to contact her. Dixon moved into the apartment Wednesday an d spent the night. Thursday, the night of the McNew Court sh ootings, he was at the apartment in the daytime, but not at night. When Myeshia w oke Friday morning, Dixon was not there, but

17 At trial, Myeshia either denied, or testified she did not recall, telling Little anything about Dixon during the interview. A video recording of the interview was shown to the jury.19. he did spend the night Friday. Myeshia relate d that she had Dixon’s number stored in her phone as “friend,” and that he had grown susp icious of her after Little interviewed her the first time. Myeshia related that her nickname was “Messy 1,” and that she had known Dixon since they were in junior high school. She said she saw Dixon on the day he got out of prison. With respect to the Samsung cell phone found in the coat po cket, Myeshia related that her sister Mikeshiea gave the cell phone to Dixon shortly after his release from prison. Myeshia said that every time she called that phone, Dixon answered. Myeshia related that about a week befo re this interview, Dixon called Myeshia from a number she did not recognize. When she asked him about why he was calling from that number, he said he did not have his other phone because he had lost it. When she asked how he lost it, he told her not to worry about it. Myeshia said she had known Johnson for several years. He had a girlfriend who was Hispanic and several years older than him. Myeshia said she had never known Johnson and Dixon to be close. Dixon was always by himsel f or with “the girls.” Meanwhile, Marshall obtained a search warrant for the subscriber information and tolls for the Samsung cell phone found in the coat pocket. Records listed the phone’s subscriber as Dominique S. Clay ton, with an address in the 4400 block of Balboa Drive, Bakersfield. The phone was activated on Marc h 10. On the evening of April 27, Rennie and Little went to an apartm ent in the 4400 bloc k of Balboa Drive — the same street address as the subscriber of the phone found in the coat — to interview Mikeshiea. Mikeshiea’s middle name was Dominique, and she had a child by Gary Clayton. Mikeshiea gave Little and Re nnie permission to enter to look for Dixon. They did not find him. Mikeshiea denied knowing anyone named Dominique Clayton or ever giving Dixon a cell phone, a lthough she admitted knowing someone named Dodo and identified Dixon’s photograph.20. Little examined Mikeshiea’s cell phone. The screen read“Messina #2.” When he inquired of Mikeshiea, she said that she and her sister Myeshia used the names “Messy 1” and “Messy 2.” Mikeshiea said she was Me ssy 2, while Myeshia was Messy 1. Little found no reference in Mikeshiea’s phone’s c ontents to the number of the Samsung cell phone found in the coat pocket or to the name Dodo. Ther e was, however, a number for “Pook,” whom Mikeshiea identified as Colu mbus Holford and with whom Little was familiar. 18 Cell phone records showed calls between Dixon’s phone that was found in the coat pocket at the McNew Court crime scen e and Mikeshiea’s and Holford’s phones.

18 Mikeshiea testified at trial that she and Myeshia never went by the nicknames Messy 1 and Messy 2. On Mikeshiea’s MySp ace page, however, she referred to herself as Messy, while people who postedmessages to her referred to her as Messy or Messy 2. At trial, Mikeshiea testified that she had ne ver heard of or called the number of the cell phone found on McNew Court and did not kn ow Dixon personally, although she knew him to be a friend of her sister. She denied ever giving him a cell phone. Myeshia also denied telling Little the things to which he testified. She testified that she had only known Dixon, whom sh e knew as Dodo, for a couple of years. Although she was aware he went to prison, she did not meet with him the first day he got out. She did not know if Dixon had a cell phone. She and Mikeshiea did not help him get that phone. Myeshia had seen Johnson and knew who he was, but had not spoken to him. Myeshia knew Lee, as he had lived on the same street as her grandmother, and he and Myeshia went to the same church. Ho wever, she denied ever talking to him. Myeshia admitted allowing Dixon to use her address as a maili ng address, but denied that he ever moved in with her. She deniedever texting Dix on her address. The phone found at the scene listed Messy 1 and Messy 2 as the first two contacts in its address book. A text message stored in the phone from Mess y 2, dated April 21, read, “Friend, are you okay? Call me. It’s important. Plea se call me.” Another text message in the phone, dated April 16 and from Messy 1, gave an address in the 2600 block of Chandler Court. The address, which was the same as that determined to belong to Dixon, was Myeshia’s apartment. One of the text mess ages from Messy 1 was directed to Dodo. One of the texts, date d March 27, read, “F-u-c-c U.” Kern County Sheriff’s Senior Deputy Pratt had seen that sp elling in the course of gang investigations. According to some people, “CK” is not us ed because it stands for “Crip Killer.” According to others, “CC” stands for “Country Boy Crips.”21. Records further showed a series of eight calls, beginning at 7:19 p.m., made from Dixon’s phone to a number determined to belo ng to Lee’s cell phone. A search warrant was obtained, and records seized, for Lee’s phone number. Cell phone and cell tower records for Dix on’s phone showed a grouping of calls occurring in the vicinity of the cell phone antenna with coverage of the McNew Court area, from 7:14 p.m. through 7:45 p.m. The first six were made on the antenna consistent with the shooting scene in the 1300 block of McNew Court. The seventh call, which was made beginning at 7:45 p.m., was almost f our minutes long. It began on the antenna consistent with the 1300 bloc k of McNew Court, but ende d on the antenna consistent with the 1200 block of McNew Court. The eighth call did not register on an antenna, which was consistent with th e phone being powered off, eith er intentionally or because the battery died. This lastcall was an incoming call from Lee’s phone that occurred at 7:54 p.m. Records further sh owed activity that was consiste nt with Dixon’s phone being in the area of Inyo and Monterey at 6:45 p.m. on March 21. Records for Lee’s phone s howed that when the 7:19 p.m. call was received from Dixon’s phone, Lee’s phone was north of Hi ghway 58, which in turn was north of McNew Court. By the time the 7:25 p.m. call was received, Lee’s phone had moved south of Highway 58, in an area covered by the antenna that had coverage of the McNew Court vicinity. The third call from Dixon’s ph one to Lee’s phone occurred at 7:40 p.m. Dixon’s phone was on the antenna that enco mpassed the 1300 block of McNew Court. The next incoming call was the nearly fou r-minute one; Lee’s phone was still on the same antenna. The outgoing call at 7:54 p.m. was moving away from that antenna. The next call, made at 8:02 p.m., which was afte r the shootings were reported, was from the antenna that covered Cottonwo od Road and Highway 58. Th e phone was probably north of the highway at the time; the call was out going to a number asso ciated with Joseph Gage, whose moniker was “Gage.” Dixon’s p hone had contact with that number before the shootings.22. Events Surrounding August 11, 2007 Sometime after 9:00 p.m. on March 25, Adrian Bonner was getting a tattoo at a tattoo parlor in the vicinity of H and 20th Streets, in dow ntown Bakersfield, when Lee and a light-skinned, green-eyed Black male came in. Bonner knew of Lee, although he did not know him personally, b ecause each had once dated Sale ta Roseburr. Bonner last saw Lee about a month before Lee wa lked into the tattoo parlor. When Lee walked in , he and Bonner made eye cont act, and Lee acknowledged the people he knew there. He asked Bonner’s female friend if this was her “dude.” When she said yes, Lee talkeda little more and then walked back outside. Lee was outside a minute or two. Bo nner did not know what he was doing. Lee then walked back inside, went up to Bonne r, and asked if Bonner was a Blood. He also said something like, “[T]his Little Gunner Loc from South Side Crip. I just want you to know where you’re at.” Bo nner was aware the Bloods were a criminal street gang and that their color was red. He did not belie ve he was wearing any red that night. The tattoo artist said it was a place of bus iness and that they did not have to worry about any of that there. The situation caused Bonner to start feeling nervous, and so he asked for a cell phone so he could call a fa mily member and let that person know his whereabouts. His girlfriend handed him her ph one, and he dialed all the relatives he thought would be home, but got no answer. During this time, Lee produced a cell pho ne and started showing everyone the pictures on it and telling them to look at what was done to his hand, which was bandaged, and his truck. Curious, Bonner as ked to see. He saw a picture of injuries to Lee’s finger, and of a truck with bullet hol es in the windshield. The artist was still doing Bonner’s tattoo, a nd Lee went outside and came back in a couple more times. At some point, one of the other males said, “your homeboy Rifle’s here.” Lee walked outside, then returned a few second s later with Johnson, whom Bonner had never seen before. Lee sat down, but Johnson kept walki ng in and out of the23. parlor and looking at Bonner in an awkwar d kind of way. By this point, Bonner was feeling very intimidated. When the tattoo was finished, Bonner got up, shook the artis t’s hand, and paid him. Lee was sitting on the couch a few fe et from Bonner, talking about how his pain medicine had him tired. Bonner also shook another male’s hand. He then extended his hand to the third male, but that person just looked athim and said, “nah, Watts.” 19
Bonner knew what this meant and that Watts was located in the Country. Bonner turned to leave. As he was on his way out, however, Johnson, who was standing in the doorway, struck him in the face with his fist. The person to whom Bonner had extended his hand also started hitting hi m. Both Johnson and the other man struck Bonner multiple times. Dazed and almost unc onscious, Bonner tried to cover up as he lay on the floor of the tattoo parlor, being hit and kicked. He did not know where Lee

was. At some point, the blows stopped. Bonne r got up and ran. He could hear voices coming from the alley, threatenin g to get him and kill him. He ran until he felt he was a safe distance away, ending up a couple of blocks away at a men’s shelter. He went inside and stayed there for 45 minutes to an hour, th en one of the residents was able to contact Bonner’s girlfriend. She took him to his cous in’s house, and Bonner contacted his father. Although Bonner did not give a statement to police that night, his father did. Bonner was not a Blood, but he had fri ends and family members who were. He associated with Bloods “all the time.” The Eastside, We stside, and Country were the Bloods’ rivals. As of Marc h, Bonner was acquainted with Daniel Davis (Grinnage’s son), who lived on Deborah Street. Bonner wo uld regularly visit Davis at that house, as would Bloods. In Bonner’s estimation, that house was a Blood hangout. A couple blocks away, on Deanna Street, was a house where C ountry Boys tended to congregate. Bonner

19 Neither of these males was Dixon, who was not in the tattoo parlor.24. had seen Lee there on a couple of occasions. Lee was driving a Tahoe at the time, the same one in the pictures in Lee’s cell phone. At the time, the Bloods did not really have a territory, just certain places they would be at. One of th ese places was on the east side, near Monterey Street. Between March 25 and August 11, Bonner saw Lee a couple of times in traffic. Both times, Lee was in a black Vo lkswagen Jetta or Passat. On August 11, Bonner wa s living with his sister in the southwest part of Bakersfield. About 10:30 that morning, he borrowed a car and drove to the Denny’s on White Lane. He was alone. While he waite d for his order, which he had already called in, he talked to Saleta Rose burr, who worked there. Bonner felt someone staring at him, and turned to see a person he knew as “C utty Pete.” Bonner knew him from a prior incident in which he and Bonne r’s cousin had had an altercati on. At that time, Cutty Pete said he was from the Country, mean ing he was a Country Boy Crip. Bonner and Cutty Pe te exchanged words. Cutty Pete threatened to hurt Bonner, who laughed at him. Bonner got his order and got back in his vehicle, at which time Cutty Pete came to the door of the restaurant and started “[t]hrowing up signs” through the window and saying things Bonner coul d not hear. This occurred shortly after 11:00 a.m. Bonner did not see Cutty Pete any other time that day. Later that morning, Bonn er picked up his friends, Paul and Dwayne, who lived directly south of the Foods Co. at White Lane and South H Street, and headed toward a barbershop in the vicinity of Real and Wilson Roads. They were at the barbershop for approximately three hours. Another friend wa s there, and he asked for a ride. Bonner took him home, then took Paul and Dwayne back to their house. Bonner next went to the Taco Bell by F oods Co. to eat. It was around 4:00 or 5:00 p.m. Although he was wearing all red that day, he was not trying to dress like a Blood; it simply happened to be what he had on. As he was leaving the parking lot, he saw Lee two, to two and a half, car lengths aw ay from him in a 2001 or later small, four-25. door, reddish-burgundy car th at Bonner believed was a Su zuki Forenza. Lee, who appeared to be alone, did a double- or triple-t ake, and Bonner made eye contact with him. Bonner then pursued him in the vehicle, and ended up directly behind him, headed east on White Lane. Bonner wanted to fight Lee because of what had happened at the tattoo parlor. The light at South H Street and White Lane turned red, and both cars stopped. It looked like Lee was goi ng to go straight, but then he ra n the red light and turned left, heading north on South H Str eet. Bonner did not follow, but instead made a U-turn and headed back to Paul’s house. He wanted to let Paul know that Lee was in the area. Bonner was concerned that if Lee had seen B onner in the car earlier in front of Paul’s house, something could happen at the house. Bonner remained at Paul’s house for five or 10 minutes, then he aded out to return the car. His route took him north on South H Str eet, then west on Planz. As he came to where Real Road dead-ends into Planz, the light turned red for traffic on Planz. Bonner stopped. His was the fourth car back from the intersection. He was listening to music when he heard a loud popping sound and felt his body jolt. Ou t of the corner of his eye, he saw a burgundy vehicle passi ng by the passenger side of his car. He did not know if it was the same car Lee had been driving earlier, although it was the same color, or even if the shots came from that car. He did not see who or how many were in the vehicle. Bonner knew immediately it was a gunshot, but did not know if it was more than one, as it all sounded like one drawn-out noise. He felt something hit him, and checked himself over. His vision blurred, and when he began to move, he started to feel a burning sensation in his abdomen. He tried to get ou t of the car, but could not move his legs. He felt only tingling in his lower body. He was ab le to get the car to roll, and so made a right turn onto Real Road, and the first left turn possible, wh ich was into the driveway of someone’s house. Someone there called 911 and an ambulance. About 20 minutes had elapsed from when he saw Lee on South H Street to when he was shot.26. When talking to the officer at the scene, Bonner neve r mentioned Lee or the other defendants. He said he did not know who sh ot him and could not describe the suspects, although he thought the shooter was the pers on with whom he had had the altercation at Denny’s. In light of Cutty Pete’s be lligerence and aggressiveness, Bonner had considered the incident with him more signi ficant than the incident with Lee in the parking lot. Christopher Calloway lived at the house on the corner of Real Road and Planz. Around 7:22 p.m., he was outside when he heard at least two gunshots. He saw a car waiting at the red light. A second car pulle d up on the right side and someone in the second car shot toward the other car. Calloway believed there were three individuals in the car from which the shots were fired. The shooter was a darker-skinned AfricanAmerican male wearing a black hat or do-rag, sitting toward the left side of the vehicle in the back seat. The driver and front passenge r also were African-A merican and, Calloway believed, male. The shooter’s arms, shoulde rs, and head were outside the window until after the second shot. The gun was a blac k handgun. The car was a burgundy color, possibly a newer-model (late-1990’s or early 2 000’s) Ford Taurus or something of that nature. Calloway believed it was a four-door model. The car rounded the corner and then sped north on South Real Road. Calloway could not say whether any defendant was in the car from which the shots were fired. Ruben Gonzaga and some friends were outsi de a house on the south side of Planz, talking, when Gonzaga heard a loud pop. Hesaw gun smoke outside one of the windows of a cherry red, four-door car — possibly a Ch evrolet sedan or Ford Taurus — that sped off. He believed he heard two shots. He could see at least two people in the car, but believed there may have been three or four. Gonzaga was unable to tell who in the car was shooting or the race of an yone in the vehicle. Talia Zarate and Bryan Kunzmann were traveling westbound on Planz and had to stop for a red light at Real Road. There was one car stopped in front of them. They had27. been at a full stop for a couple of seconds when a small, four-door, maroon or cranberrycolored car pulled up beside the vehicle st opped in front of Zarate. A young, darkcomplected African-American ro lled down the driver’s side rear window. He was wearing a black beanie cap and had a goatee. Half of his body came out of the vehicle, and he started shooting a black gun at the vehi cle in front of Zarate. He was using a twohanded grip. Zarate did not kn ow if anyone other than the shooter and the driver was in the car. She did not know if any defendants were in the car. Kunzmann described the car as being either dark red or burgundy. It was a late, four-door model, and either a Ford Taurus or something with that type of rounded body style. 20 The shooter, whose arms were outside of the car window, was an AfricanAmerican male in his early 20’s, wearing a bl ack sweatshirt or long-sleeved T-shirt, and a black hat or beanie. He had a neatly trimmed goatee. There were three people in the car, all African-American males: the driver, the front passenger, and the driver’s side rear
passenger. Bonner was shot in the right side of the chest, close to the armpit. 21 The bullet caused major, life-threatening abdominal inju ries, including the loss of a kidney and damage to the spinal cord. He underwent almost immediate surgery to control internal exsanguinating hemorrhage. As a result of the gunshot wound, Bonner was left a permanent paraplegic. The bullet was not rec overed, because it was lodged in the spine, and the neurosurgeons felt it w ould be too dangerous to attempt to remove it.

20 In his 911 call, Kunzmann said the car wa s red and looked like a Toyota Corolla.
21 He suffered a second injury in the same area, but it could not be identified with certainty as a bullet wound. When Kunz mann spoke to him immediately after the shooting, however, Bonner said he had been h it twice. In addition, Officer Vasquez saw two bullet holes in the car, one on the right re ar passenger quarter panel, and the other on the passenger-side front by the door handle. Two expended nine-millimeter shell casings were found on the east side of the intersection. They had been fire d from the same gun.28. Later that month, Kunzmann was s hown three photographic lineups, one containing each defendant. He did not identify, select, or eliminate anyone. However, records for Lee’s cell phone show ed that calls made or rece ived between 10:17 a.m. and 3:52 p.m. were routed through the cell antenna site near Lee’s residence on Myrtle Street. Calls between 4:22 p.m. and 4:34 p.m. were routed on the antenn a at South Real and Wilson Roads. Calls between 4: 58 p.m. and 6:48 p.m. were routed on the antenna that covered an apartment complex at Eye Street, although the calls moved from the side of the antenna facing due north to the side facing southeast during that time. Between 6:48 p.m. and 7:01 p.m., there were se veral calls between Johnson’s residence on Thoreson Court and Lee’s phone. At 7:18 p.m., a call was made from Lee’s phone that, given the cell phone tower on which it originated , was consistent with the phone being to the east, or at the corner, of South Real Ro ad and Planz. At 7: 28 p.m., the antenna registered a call that was consistent with the phone being in the Thoreson Court area. The phone then moved north. On August 16, Kern County Sheriff’s Senior Depu ty Little, and Bakersfield Police Detectives Heredia and Darbee, flew to Las Vegas, Nevada, to interview Sara Agustin, a woman who had been in a prior relationship with Johnson. The detectives returned her to Bakersfield, where she pointed out various lo cations to them. Agustin also provided telephone numbers of people she knew during the time she lived w ith Johnson, together with photographs and credit card statements. Shortly after 8:00 p.m. on August 23, Bakersfield Police Officer Finney and his partner, Officer Ursery — both assigned to SEU — were on patrol on Dobrusky Drive in Bakersfield, an area within the traditional bo undaries of the Westside Crips. They observed a gray Nissan, motor running, parkedin front of a house from which Finney previously had seized firearms. Columbus Holford, who lived there and whom they knew to be a Country Boy Crip with the moniker “Pookie,” was speaking to three subjects inside the car.29. As the officers approached, Finney recognized Dixon as the Nissan’s driver. Aware Dixon was on parole, Finn ey yelled at him a couple of times to turn off the car and step out so he could perform a parole sear ch. At first there was no reaction, but then Dixon accelerated away. A vehicle pursuit ensued. In front of an apartment complex in the 100 block of L Street, Dixon stopped, and the occupant in the front passenger seat jumpedout of the vehicle. Ursery pursued him on foot. The individual was a dark-skinned A frican-American male, six feet or six feet one inch tall, about 175 pounds, with short ha ir. Ursery was unable to catch him. Meanwhile, Dixon again sped off. At one point, he drove th rough the 200 block of Eye Street, then subsequent ly returned to the apartment complex on L Street. There, the car again stopped. The driver’s door opened, then, after about 15 seconds, closed again and the pursuit resumed. On northbound Chester, the ve hicle pulled into the center turn lane in the 200 block and slowed si gnificantly. Dixon jumped out and ran, eventually climbing the back wall of the parking lot for an apartment complex in the 200 block of Eye Street. The vehicle continued on until it hit a curb and came to a stop. Finney followed it and found Le e sitting in the rear passenger-side seat. In a partially unzipped lunch pouch on the left rear seat, directly behind th e driver, were a loaded Tec9 pistol and additional rounds of ammunition. The Nissan had been reported stolen fro m an apartment in the complex in the 200 block of Eye Street, althou gh investigation revealed it had not actually b een stolen. Officers determined that Dixon had jumped a wall to the east of th e complex. On the west side of the wall, in the apartment comp lex’s rear parking lot, were three live rounds of ammunition. One of the cars parked in the lot at the back of th e complex at that time was red. Dixon was arrested shortly after midnigh t on August 24. He was taken into custody at his residence in th e 2900 block of Half Moon.30. On October 1, Kern County Sheriff’s Se nior Deputy Lopez and other officers executed a search warrant at th e residence on Myrtle Street in which Lee lived with his father. Lee was in custody at the time. Lope z found letters referencing gang activity that were addressed to Lee and appeared to be from his brother in prison, photographs depicting persons throwing gang signs, and rap lyrics contai ning references to gang activity. Also found were a gas mask, some articles of pow der blue clothing, multiple rounds of various calibers of ammunition, an d a baggie containing a usable amount of marijuana. That same day, Lopez and his team execu ted a search warrant at the apartment in the 2900 block of North Half Moon at whic h Dixon had been resi ding. Dixon was in custody at the time of the search. In additi on to some bills addressed to Dixon at that address, officers found a California id entification card for Johnson. Sara Agustin’s Testimony Sara Agustin, who testified under a grant of immunity, first met Johnson in late September 2006, when he was 20 years old and she was 36. She was driving to a market on Cottonwood Road and Casino to purchase marijuana, when she saw Johnson and his friend, “Fat-Fat,” walking to the market. Agustin pulled over and asked Johnson if he knew where she could purchase marijuana. Johnson eventually directed her to the house of a drug dealer, about three blocks away. The dealer’s nickname was “Reese,” and he lived on Reese Street. With money provide d by Agustin, Johnson pu rchased marijuana, then he, Agustin, and Fat-Fat went to the la tter’s apartment and sm oked some. Agustin and Johnson exchanged telephone numbers. During the next month to month and a half, Agustin and Johnson shared the common bond of smoking marijuana, and they had fun together. At the same time, Agustin’s relationship with he r husband deteriorated, and th ey separated just before Thanksgiving 2006. Johnson and Agustin then moved into an apartment in the 2500 block of Encina Street in Bakersfiel d. Agustin was employed at the time, but31. Johnson was not. He told Agustin he was selling crack cocaine, and showed her white rocks. He said he “post[ed]” himself at the market where they first met, meaning he sold the drugs there. Johnson saidhe got his cocaine from hi s uncle and “Two C’s.” When Agustin first met Johnson, she did not know whether he was in a criminal street gang. She became suspicious, howeve r, when he would take her to the Country and she would see his behavior. 22 They would be at an in tersection, and he would see one of what he called his homies, and he would make what sounded like bird noises and make signs with his hand. Early in 2007, J ohnson told Agustin that he was a member of the Country Boy Crips, and that they “pus hed the hood,” meaning they protected the neighborhood from rival gangs. Although Johnson did not grow up in the Country, he said he became a Country Boy Crip around th e age of 14 or 15. Johnson explained that he was jumped by rival gang members then. Th ey broke his jaw, and he began to “have hate towards certain types of individuals.” Th at was what got him interested in being part of a gang. Johnson said the rivals of th e Country Boy Crips were the Bloods and the Eastside, whom he derogatorily called “slobs” and “eggs.” J ohnson told Agustin that the Country Boy Crips did drive-by shootings and sold drugs. Johnson had several monikers, but was most commonly called “Rife” and “Rifle.” 23 Johnson explained to Agustin that his “big hom[ie],” “Big Rifle,” had given him that name because Johnson was someone “who was bold enough to really push the hood.” Johnson said he admired Big Rifle, who was now deceased. When Agustin first met Johnson, Johnson had several tattoos. On the first three fingers of one hand were an “E,” an “S,” an d a “K,” which Johnson said meant Eastside Killers. A tattoo on his chest read, “fuc[c] th em other niggas.” Johnson explained it was

22 The Country is considered the southeast part of Bakersfield. The main street is Cottonwood Road.
23 Agustin’s daughter heard one person call him “Rifleman.”32. derogatory to his rival gangs. While they we re living on Encina Stre et, he got a tattoo on his lower back that said “2007” and “NC.” Jo hnson explained that 2007 was “the year of the Country,” and that NC stood for Neighborh ood Crips. He also pointed out Watts and Lotus to her and said he cl aimed or “pushed” Watts. Agustin encouraged Johnso n to quit selling drugs and l earn a trade. He began going to barber school in early 2007. She al so discouraged him from participating in the gang. Over the course of their relationship, however, Johnson began to tell Agustin about his gang activities. With respec t to the gang, Johnson said he was the boss, so he pretty much did what he wanted to do . In order to have that pos ition of leadership, he said he did anything necessary. During the middle of the relationship, whil e they were living on Encina Street, Johnson told Agustin that he was a hit man. He said that if other people in the gang needed something done, they called him, be cause he was the one who could get the job done. He was not afraid of anybody. Agustin met Lee in around October 2006, when she had known Johnson a couple of weeks to a month. She met him through Jo hnson. Johnson referred to his friends as homies, loc, and cuz. He expl ained that Crips called each other Cuz. He also explained that powder blue was the colo r of the Country Boy Crips. Johnson sometimes wore that color, but he would wear any color. Sometimes his friends wore po wder blue, but not on a regular basis. After Agustin met Lee, she saw him ofte n, as he was Johnson’s best friend. Johnson said they had known each other si nce childhood. Lee liv ed on Myrtle Street with his father. Myrtle Street was in Central Bakersfield, not in the Country. However, Lee’s mother lived in th e Country. At some point, he told Agustin that he worked in Los Angeles as a respiratory therapist. She sa w him in various automobiles during the time she lived on Encina Str eet, most often a powder blue Magn um that he liked to rent. He also had his own car, a small black vehicle. In the first part of 2007, Agustin and33. Johnson were at Lee’s house on Myrtle Str eet. Somehow, the topic came up, and Lee said he hid guns in the backyard. He did not give a specific location. Sometime after February, while living on Encina Street, Agustin heard Johnson and Lee talk about being Country Boy Crips. They carried on conversations about their neighborhood and activities. They discussed drive-by shoo tings. On August 13, Agustin heard Johnson call Lee “Gunman.” This was the only time she heard Lee called anything but “Dave.” Agustin never saw Lee flash hand signs. Johnson was more blatant about being in a gang than Lee. Lee did not dress like a gang member. Agustin knew Dixon only as Dodo. A lthough she did not meet him until the spring of 2007, he and Johnson were together almost daily during the time Agustin and Johnson lived on Encina Street . They were together even more frequently in July and August, after Agustin moved away and then returned to Bakersfield with Johnson. Agustin also often saw Lee with them while she lived on Encina Street, and more often during July and August. Occasionally, Dixon ta lked to Johnson, in Agustin’s presence, about being a Country Boy Crip . In addition, Johnson toldAgustin that Dixon was a Country Boy Crip, as was Lee. Johnson al so identified “Big Gage,” “Little Gage,” “Nip,” a woman named “Cece,” her husband Ji m Herron (also known as “Big Boy” or “Big Jim”), Bradley Walker (also known as “Bus Loc” or “Buzz Loc”), “Goo,” “DKeys,” “Two C’s,” and someon e Johnson referred to as “the light hom[ie]” as Country Boy Crips. Johnson obtain ed marijuana from Herron when ever he wanted. Agustin never saw him pay Herron. He rron also provided Johnson wi th Ecstasy. Agustin saw Dixon at Herron’s house one time, and Lee there more than once but not often. In January, around Martin Luther Ki ng, Jr.’s birthday, Johnson and Agustin attended a barbecue in Casa Loma Park, which was located in the Country. Johnson said34. it was the year of the Country, an d they were going to celebrate it. 24 Johnson wore a black shirt that he designed. Lee had an iden tical shirt. Accordin g to Johnson, he and Lee drove to Los Angeles and had the shirts made specifically for them. Johnson’s shirt read, from top to bottom, “2007,” “S,” “Win gstone,” “Watts Bloc c,” “monstas.” Johnson explained that S stood for Southerner, the si de of town on which their gang neighborhood was located. Watts was the name of a street in Johnson’s neighborhood in the Country, and the block he represented was Watts block. Monstas meant monsters, and Johnson said he was a monsta. The b ack of the shirt read , again from top to bottom, “Naybors,” “Southsiders,” “Shell Killa,” “Country.” She ll was one of the monikers used for rival gangs. It meant eggs. The phrase meant Johnson was a shell killer, i.e., someone who would kill an egg. Country was Johnson’s ne ighborhood. Each sleeve bore the letters “SSC,” for Southsider Country. Two or three times in early 2007, Ag ustin went with Johnson to purchase marijuana at a house a couple of blocks o ff Pacheco Road. Agustin never met anyone who lived at the house, and ne ver saw Dixon or Lee there. However, in the first part of 2007, Agustin was present when Lee and Johnson discussed Lee’s car being hit by gunfire in the area of Pacheco Road. 25 Lee said he and Johnso n had gone to the location on Pacheco Road to purch ase some marijuana, and in the process, they were shot at by some individuals. Both told Agustin they themselves were not armed. Lee said his vehicle was shot numerous times. He and Jo hnson both were angry, and Johnson said they needed to go back and retaliate. Lee wanted to submit the damage to his insurance company, but he said he regretted submitti ng the claim because th e insurance company

24 Dixon was in prison at th e time. Agustin did not belie ve Lee was present, as she did not see him that day.
25 The neighborhood containi ng Deborah Street and Deanna Way is north of Pacheco Road and just east of Monitor Street.35. required a police report, and that was how th e police department found out the shooting had taken place. Lee and Johnson did not talk about the specifics of what they were going to do or when. Within a day or two, Lee came to the house on Encina Street with his arm bandaged. Agustin and Johnson were present. Lee unwrapped his arm and talked about how he had gotten shot in the arm when they went back to retaliate for the initial shooting on Pacheco Road. 26 Lee said they park ed away from where the initial shooting occurred so that their vehicle would not be spotted by those who livedin that location. Johnson said that after they parked , they began walking toward the location where the initial shooting had taken place. Lee said they were walking to ward where the individuals lived, or were thought to live, when they spotted a vehicl e driving toward them. The individuals in the vehicle were the same one s who had shot at Lee’ s vehicle, and they now began to shoot toward Lee and Johnson. Johnson told Agustin th at he pulled out his gun, but as he went to fire, the gun jammed. He and Lee then began to run from the individuals in the vehicle, who continued shoo ting at them. Johnson related that he and Lee ran in different directions. Lee said he jumped over a fence, but it broke and he injured himself. Lee was very angry and said he wanted to get them back. Johnson said those who had shot Lee were thei r rival gang on the east side. During this time, Johnson was attendi ng barber college on the east side of Bakersfield, on Niles Street. One day within a couple of days after Lee was shot, Agustin picked Johnson up from school. Johnson then drove on a dirt road beside a canal in a neighborhood in the area of Mo nterey and Niles. He saidhe was scouting rival gang members who were hanging out in that location, and he pointed out a residential area. He drove through and pointed out some African-A merican males who were standing outside, right off of Monterey Street. One was we aring red, which Johnson also pointed out.

26 Agustin was already aware Lee had been shot, because Johnson had told her.36. Johnson said they were coming into the barbershop, and he wa s scared for his safety. He said he could not take his gun into the barbershop because the owner, who was his teacher, had security cameras, and he was feeli ng really helpless without his gun. He said that now he would have to start taking his gun to the barbershop, butthat he would leave it in the vehicle. One morning after this time, Johnson gave Agustin a pair of white Nike tennis shoes with red on the emblem and a red h oodie sweatshirt Agustin had bought him, and told her to destroy the items because they had been involvedin a drive-by shooting he had committed in the canal area. He said that a couple of days earlier, he and Lee went to the area. Lee was driving his black vehicle. Lee parked in an alley and Johnson got out. He put on a mask and walked to the front of a residence, where a couple of individuals were sitting. 27 Johnson walked up to one and started shooting. Johnson sa id he shot this person several times and thought he had kille d him. Johnson told Agustin that Lee wanted to go and retaliate for the shootin g that took place on Pacheco Road, but Lee could not shoot the gun himsel f because his arm had been in jured and so Johnson had to shoot on Lee’s behalf. Agustin burned the sweatshirt in the firepl ace of the Encina Street residence, and discarded the shoes in her trash can, because Jo hnson told her to get rid of the items. She did not feel she had a choice. By that time in the relationship, he often hit her. Although she knew she was helping Johnson cover up a crime, she felt helpless, because he had

27 When Agustin and Johnson lived on En cina Street, Johnson possessed a black mask that looked almost lik e a gas mask. Agustin’s cred it card receipt showed she bought the mask for him on March 30. Johnson said he wanted it fo r smoking marijuana. Johnson did not tell Agustin what he was weari ng or the kind of mask he used during the shooting. During the time the couple lived on Encina, Agus tin’s daughter observed a black ski mask in a duffel bag Johnson kept in Agustin’s closet. On one occasion, Agustin’s daughter saw Johnson leaving the house with the du ffel bag. He appeared to be in a hurry.37. told her he would kill her if she ever left him or told on anything he did. Johnson subsequently told her that the person he shot had survived. On March 25, Johnson and Agustin went to Disneyland and Santa Monica. They came straight home, because Johnson was in a hurry to get home and be with his friends. Agustin believed they reachedBakersfield around nightfall, and she was almost certain he then went out with his friends. Johnson said nothi ng to her around this date about beating up a Blood gang member or someone at a tattoo parlor. For Christmas of 2006, Agustin bought Johnson a black Volcom-brand pea coat. For Johnson’s birthday on April 12, Agustin b ought him a blue hat with “B” or “S” on it and a white jersey. While attending barber co llege, Johnson had to wear a tan, zippered smock. 28 Johnson normally came home around 11:00 p.m. or midnight. Agustin did not know what he was doing at those times, although he went out a lot with Lee. About a week after his birthday, however, he came home several hours earlier than usual. He was very startled. He told Agustin that he had done something and that they needed to go back to the location, but thatthey had to wait until 3:00 a.m ., when it would be safe and there would be no police around. A few hours later, Johnson told Agustin that he, Lee, and Dixon had driven to a certain location on McNew Court. Lee was driv ing. He parked the car, and they watched a particular vehicle. Lee and Dixon thenstayed in the car while Johnson got out, approached the other vehicle, and started shoo ting. Johnson said he could not see inside the vehicle, but he thought there was someone inside. Johnson told Agustin that after he shot, he ran to another location, then took off the clothes he was wearing and hid them

28 At trial, Agustin identified the pea co at, hat, and shirt found on McNew Court as the ones she had purchased for Johnson. The smock found on McNew Court was the same kind worn by Johnson at the barber college.38. underneath a vehicle. He did not specify what he was wearing. Johnson wanted Agustin and her daughter, who was livi ng with Agustin at the time, to say that he was at home with them, watching movies, if anything ever came up about that night. He said he needed to go pickup a gun, but he want ed to wait until 3:00 a.m. because he thought all the police would be g one from the area. At exactly 3:00 a.m., Johnson told Agus tin that it was time to go. Agustin drove, with Johnson directing her, through the McNe w Court area. Because she did not have her glasses and could not see well, her driv ing was somewhat erratic. Upset, Johnson told her that she need ed to be more careful, because they could get pulled over by the police and that would jeopardize him. They drove past McNew Court. As far as Agustin could see, there were no law enforcement officers in the area. Johnson directed Agustin to turn one block past McNew Court, and then to make a U-turn. He then had her park as close to the curb as possible by the mailbox of a house with a bric k wall and wrought-iron fencing, and that had a van or similar large vehicle parked in front. Johnson then reac hed out of Agustin’s vehicle, took a dark-colored gun out of the mailbox, and placed it on his lap. 29 Johnson had guns at the house on En cina Street, and this appeared to be one of them. 30

29 When Agustin subsequently pointed out locations to law enfo rcement officers, she identified a house in the 1000 block of Feliz Drive, near Jastro, as the place where Johnson retrieved the gun. Se nior Deputy Little determined that the mailbox in front of that house was too far from the curb for a pe rson sitting in the passenger seat of a car to reach inside. Two houses to the west, how ever, was a similar-looking house with a mailbox much closer to the curb.
30 Agustin observed Johnson to have a sma ll revolver that he referred to as a .22, another revolver that jammed frequently and wh ich he called a .38, and a large gun, about three feet long, that Agustin believed was a Tec-9 because she had heard Johnson use the term. He also had a grayish-black gun that was about the same length as the .38, but it was not a revolver and had a slide on it. He also had a black one like police officers carry. It was an older model. The .22, .38, and large gun be gan appearing at the residence in the early part of 2007. At so me point, she did not see the large gun or the39. Agustin and Johnson went straight home. Johnson told her how scared he was, then went to the back yard and hid the gun. He told Agustin th at he needed to get rid of it right away. Johnson subsequently told Agustin he had sold the gun, but did not say to whom. A day or two after Agustin took John son to the McNew Court area, Johnson received a telephone call from Dixon. Dixo n was extremely upset at Johnson because Johnson had left the clothing he was wearing at the shooting, and inside the coat pocket was Dixon’s cell phone. The police had foun d the phone and were harassing Dixon. Dixon was upset that Johnson had gotten very careless. Jo hnson wanted to know what the police were asking and what kind of in formation Dixon was giving them. Johnson did not tell Agustin why he ha d Dixon’s cell phone, but just that Dixon was angry at him because he had taken off his clothes and put th e cell phone in the pocket. Johnson said he put the clothes underneath a vehicle not far from the crime scene. Johnson expressed concern that since the police ha d found the clothes, he and the others were going to get caught. On Saturday, April 21, Agustin and Johnson went to Pismo Beach alone for a night. The trip was unplanned. Johnson said he wanted them to get out of town to have some quality time together. After the McNew Court shooting, John son’s demeanor changed and he began drinking heavily. About a week after the shooting, Agustin asked him why. He said he had found out that he had killed a pregnant woman. Johnson seemed remorseful. After the shooting, Dixon stopped comi ng to Agustin and Johnson’s house for a few weeks. After that time, however, he started coming over to the house again. He said

.38 anymore, but she still saw the .22. Ag ustin was unable to tell which gun Johnson retrieved from the mailbox because it was too dark. She knew from its size that it was not the .22. It appeared to be the same size as the .38, but did not appear to be a revolver.40. the police had stopped coming to his house as often as they ha d in the beginning. Dixon told Johnson that Johnson had gotten careles s. Dixon was concer ned he would end up being blamed, since the police had no eviden ce that Johnson was involved. Johnson and Dixon discussed the car used in the shoo ting on McNew Court; both said it was Lee’s black car. At some point in early May, Johnson told Agustin that things were “getting pretty hot” and he was afraid he was going to get caught, so he left the Encina Street house and moved to San Jose to live with his sister , Lynell Johnson. Johnson asked Agustin to move with him, because he wanted to start over. He said he was going to change his life. She did not believe him, but, hoping he really was going to change, moved in with Johnson and his sister in late May. After J ohnson moved, but before Agustin joined him, Johnson telephoned and asked if she could park Lee’s vehicle, a Volkswagen, in her garage. She said no, because she wanted no in volvement in wh at they had done. He then asked if she could at least drive the vehicle to the light homie’s house and park it there. Agustin agreed and took the car to 19th Street , just off of Cedar. She locked the keys inside it and left it there. A day or so later, Johnson telephoned and said that Lee had tried to retrieve the vehicl e, but the police had towed it. 31 After Agustin and Johnson moved back to Bakersfield from San Jose, they moved in with P.G. and Dreenie, who were close friends of Johnson. Dreenie had a wig that she occasionally wore. The hair was black and short, but not curly. One evening in late June or early July, Johnson asked if he could borro w it. Dreenie gave him the wig. After it

31 On the morning of May 2, police rece ived a complaint of an illegally parked vehicle in the 2500 block of 19th Street, between Pine and Cedar Streets. There, a 1999 four-door Volkswagen Passat, without current registration tags, was blocking a construction dumpster. Because the registration tags had been expired more than six months, the vehicle was impounded.41. grew dark, Johnson said he had something to do and would be back. He left the house with Lee in Agustin’s Expediti on. They were gone for 45 mi nutes to an hour or so. When Johnson, Dixon, a nd Goo returned, Agustin did not see her Expedition. Johnson told her that she needed to go ge t Lee “in the hood,” by R eese’s house. Agustin did not have a car, so she asked Dreenie to drive her. She and Dreenie drove around by Reese’s house but could not find Lee, so they returned to Dreenie’s house. When they arrived, Agustin’s Expedition was there, and Johnson, Dixon, Lee, and Goo were on the floor of the front room. There was a bunch of money all over the floor, along with three large sandwich bags of marijuana. The men were kneeling on the floor, counting the money and sorting it out among themselves. Agustin overheard themsay that they had robbed Reese. Two of them went inside to make it look like they were going to buy marijuana like usual, then Johnson and the f ourth one went in, dis guised and with guns. When they came in, they pointed the guns toward the others and demanded the money. Johnson said that one of the pe ople got so scared, he “prett y much went to the bathroom on himself.” Johnson said that to make it l ook good, he had to sock Lee in the face. Johnson, Goo, Dixon, and L ee were all discussing the robbe ry and laughing about how easy it had been. Since they now had money, Johnson told Ag ustin to get her things, as they were going to get a room somewhere else. They then moved out of P.G. and Dreenie’s house to a motel in Oildale. Johnson made Agus tin use the $400 he had given her from the robbery proceeds to pay for thei r room and food. When the money ran out after less than a week, Agustin contacted her best friend, Al ethia Larios, who lived on Thoreson Court, just down the street from Big Jim Herron. Larios allowed Agustin and Johnson to move in with her. This was during July. In early 2007, before Lee was shot, John son began getting physically violent with Agustin, often because she refuse d to give him the keys to her Expedition. There were multiple incidents; they includ ed him striking her with his fist and “busting” her nose,42. holding her head underwater in the bathtub, attempting to shoot her but having his gun jam, biting her hard enough to leave scars, dragging her by a belt around her neck, and threatening her with bodily harm and death. 32 Agustin and Johnson lived with Larios fo r slightly more than a month. During that time, their relati onship was worse than it had been when they were living on Encina Street. They fought all the time, and on August 7, Agustin contacted a battered women’s shelter. She was tired of the abuse and fearedfor her life, as Johns on had gone so far as to get his semiautomatic out of the closet and stick it in her mouth. 33 Agustin went to the shelter on August 7, and was in telephone contact with themfor several days after, but they had no beds available. Early on August 9, Johnson received a te lephone call. He subsequently told Agustin that he needed to take the car, and that something had happ ened. He did not go into any details, but was in a hurry. He left in Agustin’s Expedition. Concerned, Agustin telephoned Lee and then Dixon. Each told her not to worry, and that he would get a hold of Johnson. Several hours later, Johnson returned to the house in the Expe dition. He told Agustin that Cuckoo’s wife’s cousin had gotte n shot. Johnson related that the person had been shot in the face and several times in th e chest on Cheatham Str eet, which was in the Country next to Reese Street. Johnson saidthat one of his “hom[ie]s” had seen the shooting take place, and that the shooter had been a Mexican male. Johnson related that he (Johnson) had contacted the shooter on his cell phone and asked him to meet

32 Lee was not present on any of these o ccasions. Lee never threatened Agustin, and she was not afraid of him. Although she sa w Johnson and Dixon with a gun, she never saw Lee with one.
33 As far as Agustin saw, the black se miautomatic was the only gun Johnson had at this time. He kept it in a p illowcase in the closet, along with the mask that looked like a gas mask, a wig, and black clothing.43. somewhere so they could talk . When the individual refu sed, Johnson told him that Johnson was going to “get him where it hurt hi m the most.” Johnson said that he and Dixon had found out where the i ndividual’s father lived, which was out in the bluffs, and they had gone in Agustin ’s car to that location. 34 When they were walking toward the house, a vehicle approached. The individuals in that car saw them and made eye contact, and Johnson and Dixon got scaredand acted as if they were tying their shoes. When Agustin said she could not believe Johnson would do such a thing in her car, Johnson said he did not want to “do” her like that and have a shootout in her car, so he and Dixon left the area. On August 11, Johnson and Agustin we re still living on Th oreson Court, and Agustin was still trying unsuccessfully to ge t into the battered women’s shelter. That afternoon, the couple got into a physical a ltercation over Johnson taking Agustin’s vehicle. Johnson eventually said Agustin co uld go with him, but, once she got into the driver’s seat and he got in on the passenger side, he retrieved the black semiautomatic from between the passenger seat and the center c onsole, and he pointed it at her. She got out of the vehicle and ran back into the house . He followed her in and told her to come on, and she went with him. He had the gun stuffed in his pants at the time. The two ran an errand, then, near the in tersection of Ming Av enue and Real Road, Johnson got into an argument with a lady driving a green Tahoe over who had cut off whom. Johnson got mad, pulled out the semi automatic, and pointed it toward the lady. She immediately got on her cell phone, and Agustin feared that if she got the license plate number for Agustin’s Expedition, it would lead the police to Agustin.

34 Johnson did not say Lee was with them. Agustin assumed that by “the bluffs,” Johnson meant the area in northeast Bakersfi eld, by Bakersfield College and Panorama Drive.44. The lady and Johnson and Agus tin went in different directions at the intersection. Johnson and Agustin ran several more e rrands, which included Johnson buying some Ecstasy pills and forcing Agustinto ingest one. They retu rned to Larios’s house around 4:30 p.m., but Agustin was feeling the effects of the drug and drove alone to a market to purchase some beer. When sh e returned, she felt like some one was following her. She told Johnson and warned him to hide his gu n. Agustin then retu rned to the market, contacted her ex-husband, and ended up spendi ng the night at his house. She did not have any contact with Johnson the night of August 11. On Sunday, August 12, Agustin checke d her messages and learned Johnson had been looking for her and wondering why she never came home. She lied and told him that she had gone to a battered women’s shelte r. Johnson asked to see her, and she told him she could only get away from the shel ter for a certain period of time. At 8:00 p.m., Agustin arrived at Le e’s house on Myrtle Street, and Johnson greeted her at her car. As they talked, Agus tin heard a couple of noises. Johnson saw a vehicle approaching, and he grabbed Agus tin’s hand and said something had happened the night before. They then ra n to the back of Lee’s house. Lee and Dixon, who were by a tree in the front yard, also ran to the b ack. The vehicle that drove by was large, possibly a van or an SUV, an d Johnson said he suspected th e occupants were rival gang members. After a few minutes, Agustin told Johnson sh e needed to get back to the shelter. She then left and returned to her ex-husband’ s house. She did not have further contact with Johnson that night, although while at Lee’s house, she had made arrangements to pick Johnson up from Dixon’s house on Monday morning to take him to an appointment with his public defender. Instead, at 8:00 a. m. on Monday, August 13, Agustin went to the shelter in person. She was in fear and desperate to get away. Again unable to get a bed and with nowhere else to go because he r ex-husband did not want her coming back, she went to meet Johnson at his attorney’s office.45. After they left the office, Johnson said he wanted Agustin to see something. They went to the intersection at Planz and Real Ro ad, where Johnson told Agustin to look up at the signal light and asked what she saw. Wh en she said she saw a camera, he asked her what she thought it did. She said she did not know. She to ld him that the big square cameras in certain intersections took pictures if someone ran a red light, but that she did not know what this little camer a did. She said it possibly recorded things, but she was not sure. He then got scared. Johnson told Agustin that he had done a drive-by shooting at that intersection on Saturday night. He said Lee was driving, Dixon was in the fr ont passenger seat, and Johnson was in the back seat. 35 Johnson said he saw some one walking on the sidewalk, and so he stuck his head out an d fired twice, and he was conc erned that if the camera was recording, the incident would have been caugh t on camera. Johnson said he and Agustin needed to get out of town, and that his plan wa s for them to go to Las Vegas. He said he had a friend and extended family there. Johnson said he had some guns that he needed to sell so they could get some money. They then drove to a house in the 400 block of Eye Street. Agustin remained in the car; when Johnson cam e back a few minutes later, he said the individuals at the house had made him an acceptable offer of $400 and he needed to get the guns. Johnson and Agustin then drove south onEye Street to a set of apartments. Dixon, Lee, and Lee’s young s on were outside, and there were several women in the front yard. Johnson told Dixon and Lee to get in the car, because he had something to show them. Lee’s son stayed behind ; when Agustin asked, Lee said some friends lived there, and that his son was in good hands. Johnson then drove back to the intersection, pointed toward the pole, asked them if they had seen the camera and wh at they thought that

35 Agustin never saw Lee driving a vehicl e that was red, burgundy, cranberry, or
maroon.46. camera did. They said they did not know. Johnson said that if the camera was actually recording, it would be bad b ecause it would show that Lee was driving, the vehicle and the license plate, and that Di xon was in the front seat. Dixon responded that if it was going to show that, it was also going to sh ow when Johnson put hi s head out of the window and started firing. Johnson then told th em that he wanted to get out of town, and Dixon and Lee tried to disc ourage him from leaving. Johnson said he had found someone to pu rchase the guns, and so they drove back to the house on Eye Street. There, the three men went inside. When they came back out a few minutes later, Johnson was excited becaus e the people had actua lly raised the offer to $500. Johnson told Agustin that she needed to drive the three of th em to the Country so that they could dig up the big gun. Johnson actually drove, and they went to the home of Lee’s mother. There, Dixon retrieved a shove l, and they directed Agustin to drop them off at Watts and Lotus. She wa s then instructed to go to Larios’s house and get packed and ready to move. Johnson told her to wait fo r a phone call to come back and pick them up. Agustin left all three of them standing in the middle of the intersection with one shovel. About 15 minutes later, Agustin received a call from Johnson, telling her to come and get them. Only Johnson and Dixon were there. They went to a market on Casino Street, off Cottonwood Road, and Lee drove up in what looked like a white Explorer. Lee said it was his mother’s car. They then all went to hi s mother’s house. Johnson made some phone calls, trying unsuccessfully to sell the guns. Dixon called D-Keys to see if he was interested. Although D-Keys was out of town, Dixon told Johnson that DKeys had asked Dixon to pay Johnson, and th at D-Keys would reimburse Dixon when he returned. Dixon then handed Johnson $150 for the black semiautomatic. The last time Agustin saw that gun, Dixon had it. Johnson, Dixon, and Lee discussed how they had been unable to unbury the big gun, and Johnson instructed Lee to make sure he got rid of it.47. Johnson and Agustin then went to the home of one of Johnson’s friends to get directions to Las Vegas. By now, it was dark. They head ed for Las Vegas that night, sleeping in a rest area outside of that city an d arriving the next morning. They then went directly to a homeless shelter and then to the welfare department to apply for emergency food stamps. While there, Agustin was juststaring off, but a woman in line apparently thought Agustin was staring at her, and said something. Johnson sa id something to the woman, then got angry at Agustin for maki ng him “look bad” when Agustin refused to respond rudely to the woman. Johnson then decided he did not want to stay in Las Vegas, and demanded that Agus tin take him home. She refused, and he eventually calmed down. Johnson and Agustin did not return to the homeless shel ter in time to get beds, but Johnson said he had enough money for them to be able to get a room. They spent the night of August 14 in a hotel. That evening, they walked to a coup le of casinos. After they had both had some dri nks, Johnson brought up the incide nt at the welfare office and chastised Agustin for her response. Eventua lly, he got up and started walking out of the hotel. He cursed at Agustin, threatened her, threat ened to have his mother beat her up, and threatened to mess up her vehicle. Perhap s feeling the effect of the alcohol, Agustin got “a little bold” and told him that the last tim e he hit her was going to be the last time he hit her. She told him that if he hit her again, she would go to the police and tell them everything she knew about him. Johnson b ecame extremely angry, and Agustin ran inside a McDonald’s when he came toward he r. She asked the assistant manager to call the police. Agustin went to her car, but Johnson reache d it just before she did. He threw a rock through one of the Expedition’s window s. Agustin saw some one walking and asked to borrow his cell phone to call the police. Johnson started walki ng away, and Agustin called the police. She then wa ited with her vehicle, but, wh en no one came after what48. seemed like a long time, she drove it back to th e hotel. By the time she reached her room and fell asleep inside, it possibly was afte r midnight of Wednesday, August 15. Agustin was awakened by a knock at th e door. Looking through the peephole, she saw someone who appeared to be the light homie. She stepped away from the door, frightened, then looked through the peephole again. This time, she saw Johnson. He asked her to let him in. She refused. She saw him walking toward the office, then he entered the motel room with the light homie. Johnson ran toward Agustin and struck her in the forehead with hi s fist right above the left eye. She started gushing blood, and he started to punch and kick her. He told his friend to get everything out of the room. Agustin begged the friend to get Johnson to stop. Johnson got Agustin down onto the ground , then grabbed a pillow and began smothering her with it. At last, he let up. He told her that if he had his gun on him, he would kill her because she called th e police. He then told her to get inside the bathtub. She obeyed. The last thing he said to her was that he was going to go back and kill her son. She believed he would do it. When Agustin heard the door close, she called 911 and begged the Las Vegas police to call the Bakersfield Police Department and alert them to the threat Johnson had just made against her son’s life. At first, the Las Vegas police did not take her seriously and accused her of being drunk. As she told the officer ab out the incidents in which Johnson had been involved, however, the office r’s attitude toward her changed. A short time later, she was able to talk to Bakersfi eld Police Detective Burdick and tell him what had happened and what Johnson had told her. Upon her return from Las Vegas to Bakersfield, Agustin lived in battered women’s shelters. At some point, she agreed to testify if this case went to court. In September, she was placed in the Witness Relo cation Program and remained there as of January 2009, when she testified at trial. Through the program, her rent was paid, and she was given $450 a month for her other expe nses, by an investigator for the district49. attorney’s office. In addition, in late August, the di strict attorney’s office or law enforcement gave her money so she could retu rn to Las Vegas and get her vehicle out of impound, as well as food and travel expenses . They also bought her a cell phone. Prior to the Las Vegas incident, Agus tin did not report any of the domestic violence to law enforcement, nor did she report any of the crimes Johnson had told her about committing. She continued to live with and support Johnson despite the various incidents, even after learning a pregnant woma n had been killed. She left Bakersfield for Las Vegas because Johnson asked her to, and she wanted to be with him. She estimated that, between January and August, she sp ent thousands of dollars on Johnson. 36 Dupree Jackson’s Testimony At the time of trial, Dupree Jackson, w ho testified under a grant of immunity, was imprisoned on a parole violation. For most of his life, he lived in the south part of Bakersfield known as the Country. When he was little, he often saw sales of rock cocaine going on in front of his home. He also saw guns and driv e-by shootings. When he was around 13 years old, he began thinki ng about becoming a member of the Country Boy Crips. All his family was “from there,” and he did not se e anything else to do. He hoped to make money selling drugs. Someon e was not allowed to do that “in the hood” unless the person was in the gang. Jackson was “jumped in” to the gang, me aning two people physically beat him, when he was not quite 14. The point of bein g “jumped in” is to show the person is not scared of anything, and to give that person more reputation. Reputation for being tough

36 Psychologist Michael Mu sacco testified concerning Battered Women’s Syndrome (BWS), its cycle of violence, and its effects. He also discussed common symptoms of victims suffering from BWS, and why a battered woman would stay in an abusive relationship and not report the abuse to law en forcement. As defendants raise no issues concerning this testimony and the jury was instructed the testimony was not evidence Johnson committed any acts of violen ce, we do not summarize it further.50. is important “in the hood.” 37 Once in the gang, Jackson got to know other members. He had daily contact with them, a nd they would discuss their vari ous activities. At the time, the Country Boy Crips were engaged in selli ng drugs, gangbanging, and “riding on the enemies,” meaning they would shoot at rival gang members. Older people in the gang were called big homies, which was the same thing as an OG, meaning someone who had been there for a long time and had “a lot of say-so over the hood.” Younger gang members had a personal big homie, who looke d out for the younger member and taught him things. During the time Jackson was a Country Boy Crip, the gang’s enemies were the Eastside Crips and Westside Piru Bloods. Eastside was considered worse than the Bloods. 38 The Country Boy Crips were different than the Eastside, in that the Country Boy Crips did not jump in outsid ers. They were more like a family, with generation after generation growing up in the gang. By contra st, the Eastside jump ed anybody in. There were roles within the Country Boy Crips that certain gang members would have. Some — like Jackson — would sell drugs, particularly rock cocaine and marijuana, the proceeds from which would go toward buying guns, providing money for gang members in custody, and the like. 39 Some were “pretty boys,” who would affiliate

37 Jackson explained that if a person grew up in the Country or spent a lot of time there, he was then Country au tomatically and did not really need to get jumped in. Jackson was familiar with Wi ngstone. It was off of Watts, in the Country. (Jackson made a brief reference to the Co untry Girl Crips. Because we have no information concerning whether the practices of female gang members are the same as the practices of male gang members, we use only masculine pronouns to refer to gang members in general.)
38 Prior to Jackson’s involvement in the gang, the Westside Crips and Country Boy Crips were enemies. By the time he had joined the gang, however, the “beef” between the two had died down and there was some sort of truce.
39 Jackson’s role in the gang was a drug dealer. He sold rock cocaine.51. with the gang and bring in females, but who otherwise did not do much for the gang or get involved in anything serious. Some w ould patrol the boundaries of “the hood,” keeping out outsiders and enemies. 40 Some would “hang out.” Others would “ride with the guns, go put it down,” killing the gang’s enemies by walk-up and drive-by shootings. The OG’s basically would “call shots.” Thos e who “r[o]de on the enemies” had the highest status in the gang. They were re spected and feared. Firearms played an important role in the gang. They were us ed to protect the hood, to protect the gang member himself, and to go “riding on” the enemies. Gang members might trade or sell guns to other members, or might keep a gu n on one’s person sometimes and hide it other times. Jackson had never heard of hiding a gun underground. At a Country Boy meeting, one of th e OG homies instructed that walk-up shootings were preferable, because in drive- bys the enemy was often missed and innocent bystanders were hit instead. Jackson explaine d that a walk-up shooting involved taking a car to the enemy’s territory, getting out, and shooting at the enemy. A drive-by shooting involved shooting out of a car toward the enemy. If a participant in a walk-up shooting did not have a gun, he would not get out of the car. Th e driver would remain with the car; his role would be to get the shooter to an d from the location in rival gang territory at which the shooting took place. The driver would use a cell phone to communicate with the shooter about when the shooter would return, that th e driver was to have the car started, and similar subjects.

40 Seeing a rival gang member in one’s h ood would be a sign of disrespect to the Country, unless the rival had a relative in the Country. In th at case, the rival would be given a pass, and it would not be disrespectful for him to be there. A rival might also be given a pass if he was incarcerated with on e of the gang members and became friends with him. Crip factions are not kept separa te in prison, and Crip s in prison from Kern County have a kind of bond and call themselves “805,” for the old Bakersfield area code.52. During the time Jackson was a teenager, he estimated the Country Boy Crips had about 100 to 200 members. He personally knew the majority of them, or was aware of their reputation in the gang. The gang had s ubsets, called cliques. Jackson was in the Cottonwood clique, also called the Deep becaus e it was in the area of the Country that was farthest to the south, away from the East side. Other Country Boy Crip cliques were Reese and Cheatham, Mad Blocc, and Watts and Lotus. There were no territorial boundaries among the cliques, wh ich all got along together. The territorial boundaries of the Coun try Boy Crips were Belle Terrace on the north, Panama on the south, Union on the west , and Cottonwood Road on the east. There was a rival gang to the north of Belle Terrace, namely the Stroller Boys, who were part of the Eastside Crips. On the other side of the western border were the Westside Crips. There was nothing beyond Cottonwood Road, as it was mostly fields. The Bloods did not have a big territory. Th eir territory consisted of a large apartment complex near Bakersfield Memorial Hospital, in the area of 31st Street, Jewett Avenue, Columbus, and Union. Bloods would also congregate in the area of Pacheco Road and Calcutta. The boundaries remained pretty mu ch the same the entire time Jackson was in the gang. During the time Jackson was a Country Boy Crip, he observed that some Country Boy Crip members had tattoos, while others did not. Some people had tattoos that were not gang related, while othe rs had gang tattoos. Typica l ones were “CBC,” which stood for Country Boy Crip; “SS,” which stood for South Side; and Watts and Lotus. There were also tattoos about rival gangs. For instance, “ESK” stood for Eggshell killer, with eggshell being a derogatory term for the Eastside Crips. 41 Some tattoos would be pictures rather than letters or words. Fo r instance, someone might have a portrait of a dead homie, which would show that person respect; or a picture of an egg, which would

41 Bloods were derogatorily ca lled “dead rags” or “slobs.”53. be disrespecting the Eastside. Someone mi ght have a tattoo of hands throwing gang signs. Powder blue was the color associ ated with the Country Boy Crips. 42 Although someone did not have to wear that color to be in the gang, doing so let people know where the individual was from. Wearing the color meant bo th that the person was from the Country and that he was a gang membe r. Although gang members did not wear powder blue every day, every gang member wore the color at some time or another. Country Boy Crip members also used graffiti to label their territory and let people know where their hood was at. Jackson had seen words in which CK wa s replaced with CC. This was because CK stood for Crip kille r, which would be disr especting one’s own hood. In 2005, when he was 17 years old, Jackson pled gu ilty to possession of cocaine for sale and served 22 months in prison. He was initially released on parole in October or November of 2006, returned to Bakersfield, and again lived in the Country. Following a parole violation for assault with a deadly weapon against his sister, he was imprisoned from January 7 to June 7, then out of custody and living in the Country until his arrest on August 23 for absconding from parole. He was released again in December 2007 or January 2008, and was in the Witness Relocation Program fro m then until June 2008, in connection with this case. In June 2008, he again violated parole, this time by being around gang members, and was returned to custo dy. He expected to be released later in the month that he testified at trial (February 2009). Jackson and Johnson we re cousins, although they first met in junior high school. After that, they got to know each other fairly well. Johnson did not grow up in the

42 The colors of the Eastside Crips were royal blue and dark blue. The Eastside Crips were enemies of the Country Boy Crips because they kille d some Country Boy Crips “back in the days.”54. Country Boy Crip neighborh ood, but would visit about ev ery other day and claimed Country Boy Crip. Jackson and Johnson both were active gang members. Jackson saw Johnson sell rock cocaine, “rid e,” pack a gun, steal cars, a nd similar activity. Jackson was aware of Johnson’s reputation; from thatreputation, Jackson knew that Johnson’s role in the gang was as a shooter. Johnson’ s moniker was Little Ri fleman; he took the name from a big homie. When Jackson was released from prison in the fall of 2006, he made contact with Johnson, who was living with his girlfriend, a Hispanic woman in he r late 30’s. When Jackson was released again in June, he be came active in the gang again, hanging out, selling drugs, and smoking marijuana. Duri ng June, July, and August, he saw Johnson “[a]ll the time” “[i]n the hood.” Johnson was hanging out, selling a bit of drugs, smoking marijuana, drinking, and “banging” — being wild, packing a gun, and having an I-don’tcare attitude. Johnson was still claiming Watts and Lotus clique, and was active during that time, riding for the Country. Jackson knew these thi ngs because he saw them, and heard them from Johnson and other people in the hood. Jackson first met Dixon when Jackson wa s nine or 10. When Jackson was young, he was aware that Dixon went to prison for manslaughter for killing an Eastside Crip named “Freeway Joe.” Jackson knew Dixon fairly well before Dixon went to prison and knew, from Dixon’s tattoos, associates, and th e colors he wore, that he was a Country Boy Crip in the Watts and Lotus c lique. His moniker was Dodo. When Jackson was released from prison in June 2007, Dixon was also out of custody. The two got together almost every day in the hood. Dixon was in the gang at that time. Jackson saw him selling drugs, hanging with the homies , smoking marijuana, and riding for the hood. He was kind of a lead er in the gang. He had status based on going to prison for what he did, and he also had family status, because his mother’s family had a lot of reputation in the hood . Dixon grew up in the Country Boy Crip neighborhood.55. Jackson also knew Lee, having met him long ago at Lee’s mother’s house. Lee did not grow up in the neig hborhood, but had relatives w ho lived there. Jackson knew Lee to be a member of the Country Boy Crip s, because Lee was from Watts and Lotus. Lee’s role was “kind of low key,” basically hanging out with other people. Lee was “on the down low,” almost like undercover. Fo r instance, he did not dress like a gang member. Lee got his reputation from his older brothers, “Big Critter” and “Little Critter.” Before Jackson went to prison the fi rst time, however, he saw Lee selling drugs, hanging out on the corners, and riding. When Jackson was out of custody during the summer of 2007, he would see Lee at various locations in the hood, including at functions at homies’ houses, and at Lee’s mother’s house. 43 Lee claimed Country Boy Crip at th at time. His role in the gang was being a driver. He would drive people around or rent cars for them, as he had money. Lee hung out with Johnson and Dixon, his br others, and some of the other homies from the hood. During that summe r, Jackson saw Lee in the ne ighborhood about every other day. Jackson did not know Lee to have a moniker, but he would see Lee sometimes wear the hood’s colors. Jackson and Lee were not best of friends; Jackson learned, when he was released from prison, that the mother of his child had ha d a sexual relationship with Lee while Jackson was in cust ody. Jackson never discussed it with Lee, and it was his impression the relations hip had ended. Jackson knew the roles of a number of people who were Country Boy Crips during the summer of 2007. For instance, Tonrik o Shropshire’s role was drug dealer and gangbanger, meaning an active member in a gang. The role of Big Gage (true name, Joseph Gage) was hustling (selli ng drugs) and banging, and he was an OG. The role of D-Keys (true name, Darius Keys) was selling drugs, hanging out, and being an active gang member. The role of Bus Loc (true name, Bradley Walker) was gangbanger and

43 Lee’s mother liv ed on Wingstone.56. drug dealer. Walker and Dixon were fairly close friends. Jackson did not know anyone whose moniker was Big Boy. He did, howev er, know Big Jim, who had been a volunteer football coach when Jackson was growing up. Big Jim was an OG who sold marijuana, hung around, and “produce[d] a lot of stu ff for the Country,” m eaning he distributed money to buy guns and “call[ed ] some shots.” Jackson also knew Two C’s (true name, Marcus Bolden or Bowen), wh ose role was a drug dealer; he would push “major weight” by selling ounces of rock cocaine. Jackson also knew Nip (true name, Trent Abraham); his role was a drug dealer, active gang member, gangbanging, and riding. Jackson knew someone referred to as th e light homie. The person’s name was Chris Haynes; he was very light skinned, with hazel eyes, and was a member of the gang. He drove a Lexus with Nevada license plat es. His role was being a pretty boy, gangbanging, and hustling. Fat-Fat’s last name was Killebrew. He was from the Country, although he had fam ily who were Eastside. Before Jackson went to prison, FatFat’s role was being a hustler and active gang member. Jackson did not remember if he saw him out on the streets in the summer of 200 7. Jackson also knew Goo, although he could not remember his real name. Goo was a member of the Country Boy Crips; he was like a little homie, but always lis tened to what older homies said and “was down for whatever.” Pookie (true name, Columbus Holf ord) drove people around and sold Ecstasy and marijuana. Maniac (true name, Sterling Endsley) had the role of being an older homie, gangbanger, selling drugs, and riding. During the summer of 2007, Jackson saw defendants associate with each other, Bus Lo c, Goo, Maniac, Two C’s, Big Jim, and a couple of others. During the summer of 2007, a number of people sold marijuana from a house in the vicinity of Cheatham Street and Cottonwood Road. The house belong ed to John B. It was called the dodie house, be cause Jackson and the others were selling chronic (high-57. grade marijuana). 44 Jackson heard of a robbery that took place at the dodie house in the summer of 2007, and learned that Johnson and Dixon were suspected. John B told Jackson that he believed his cousin, Big Jim, sent them over to rob him because he was making more money selling marijuana in the h ood than Big Jim. John B also believed they robbed him because his co usin “Third,” an Eastsider, was allowed to sell marijuana there. It angered Jackson to learn the perpet rators were members of the same gang as the victims, and he started to question the l oyalty of the Country Boy Crips toward each other. Johnson also told Jackson about this robbery, and admitted defendants were the perpetrators. He said that Barry, Third (whose real name was Keathon), and Keshawn were the only people in the house. Lee acted as a decoy to go into the house, then Dixon entered and then Johnson. They pointed weap ons toward everyone’s heads and told them to get down. Johnson said they took an ou nce of chronic, about $3,200 in cash, and things like video games, computers, and laptops. That same summer, “Raybo,” one of Jack son’s older homies and someone with whom he was very close, was murdered. Ja ckson learned about it on August 9, when Two C’s called him to say th at Raybo had been found dead at the chronic spot. 45 Jackson learned that Keshawn Johnson, “Fumes” (Dav id Taylor), and John B were suspected of involvement. Raybo, Keshawn, and John B were all Country Boy Crips. Fumes was not, but had grown up around a couple of the older homies and was the father of Jackson’s sister’s baby. There had been bad blood between Fumes and Raybo; Fumes had told Jackson that Raybo had broken into Fumes’ s house and robbed him of some guns.

44 Jackson knew a female named Teresa who went by “Reese,” but no male who went by that moniker.
45 The certified death certificate showed that Larry Raymond Bowen was killed on August 9 at an address in the 1300 block of Cheatham Street, Bakersfield, and that the cause of death was gunshot wounds of the head.58. Fumes had told Jackson that he knew who did it and was going to get the person back. After Raybo was killed, Keshawn told Jack son that Keshawn se t Raybo up and then Fumes gunned Raybo down in the house. The fact one Country Boy had set up another Country Boy made Jackson feel depressed and angry. As a result, Jackson “hooked up” with defendants later the same day, and told them that he knew where Fu mes’s father lived. He also gave Johnson Fumes’s cell phone number. Jack son did not know what street the father’s house was on, but offered to take defendants there. Everyone got in the Expedition. Jo hnson was driving, Dixon was the front passenger, and Jackson and Lee were in the back seat, with Jackson behind the driver. Jackson saw a Tec-9, a nine-millimeter semi automatic, what appeared to be a Glock semiautomatic that was a bigger handgun than a nine-millimeter, a .32-caliber revolver, and a 12-gauge shotgun with the stock sawed off and duct tape wrap ped around it, all in the cargo area of the vehicle. Lee started handing them out. He gave Jackson the .32- caliber revolver, Johnson the Tec-9, Dixon th e Glock, and kept th e nine-millimeter for himself. The shotgun remained in the cargo area in the back. Jackson and defendants discussed their plan, which was for Ja ckson to show the others Fumes’s father’s house, where Jack son believed Fumes was hiding out. They were “[g]oing to go get revenge back for the hom[i e],” i.e., kill Fume s at his father’s house. 46 To this end, they got on a freeway. Jackson was able to find the house after getting lost a couple of times. Fumes’s father lived by Bakersfield College, off of Panorama Drive. 47

46 Jackson did not believe he was going up there to kill Fu mes’s father; his intention was simply to point out the location. He took the gun when th ey offered it to him because he did not want to lo ok scared or like “a punk.”
47 Records for Lee’s cell phone showed a call made at 8:58 p.m. on August 9, that registered on the cell phone antenna near Bakersfield College. Phone records also59. After Jackson located the house, the group circled around for a while to plan their escape route. They then park ed across the street and “scop[ed] out” the house. Nothing got done that day, however. Defendants saidthey were going to come back and get Jackson later on that night, but they never di d. Jackson did not know whether anybody went back to the house. He himself ab andoned the plan to shoot Fumes. Johnson drove them back down from the bluffs to the apartment complex on Eye Street, then defendants took the guns and he aded toward the apartm ents. They did not say why they were taking guns into those apartments or what was going on; Jackson just knew it was “a spot,” meaning a hangout. De fendants had always told him they were going to Eye Street, that they had a spot over on the Westside. Jackson remained in the Expedition. During the five to eight minutes before defendants returned to the vehicle, he saw a newer-model, red, four-door compact car, possibly a Toyota or a Kia, without tinted windows. On August 23, the day Jacks on was arrested for violating parole, he saw the car again, this time in the area of Ca sino Street and Cottonwood Road. Dixon and Bus Loc were in it. During the time Jackson was out of cu stody in the summer of 2007, Johnson talked to him about his involvement in some shootings and robberies. Near the end of June or early July, the two were sitting in the Expedition on Ch eatham Street, smoking marijuana, when Johnson talkedabout a shooting that had happened in the Stroller Boys area, off McNew Court. He also talked abou t a shooting off South Real Road and Planz.

showed three calls on August 9, and two on August 10, from Lee’s phone to what may have been Fumes’s cell phone. Those were the only calls to that number between February and September. (Tam Hodgson, th e district attorney’s investigator who obtained and analyzed the vari ous phone records, had inform ation from some sources that Fumes had one cell phone number, and from other sources that he had a slightly different number. Hodgson could not say which number was correct.)60. Johnson said he was stressing, and that if stuff hit the fan, it would link him back to the crimes. 48
Jackson had a second conversation withJohnson on the subject at a gathering on Anderson Street about a week after Raybo’s f uneral. Johnson again said he was stressed out, and that if the stuff came back on hi m, it would link him to the McNew Court shooting, where a female was supposed to ha ve gotten shot. Johnson said he was going over there to get at some Eastsider — Anthon y Lyons — but then stuff went “all bad.” Johnson related that he and Di xon were the shooters, while Lee was the driver and waited for them to come back. 49 Things went haywire. The police came or something, and Johnson accidentally dropped a hoodie and a cell phone and some stuff. Johnson was upset when he told this to Jackson. J ohnson also said that while he was attending a

48 The record is somewhat confusing as to when Jackson claimed to have first been told about the Real Road and Planz shooting by Johnson. Jackson was specifically asked how long it was after he got out of custody on June 9 until he had the conversation with Johnson in the Expedition abou t the Stroller Boys (McNew Court) shooting. Jackson responded that the conversation occurred at the end of June or beginni ng of July. Jackson also testified, however, that Johnson toldhim about two shoo tings during this conversation. One was in the Stroller Boys area off of McNew Court, and the other was off of South Real Road and Planz. On cro ss-examination, Jackson testified that Johnson told him about the Real Road shooting while they were in the Expedition on Cheatham Street, and that this was more than thr ee weeks before Raybo was killed. Jackson testified that he learned about Raybo’s murder on August 9. The implication is that he learned about this shortly after it happened, since when he was on Cheatham Street talking to Keshawn Johnson about what had happened, the police were still at the scene. Yet the shooting at Real Road and Planz, in which Adrian Bonner was wounded, took place on August 11, after Raybo was killed, not before, as necessarily would have had to be the case in order for Johnson to discuss it with Jackson in late June or early July.
49 On cross-examination, Jackson testifie d that Johnson did not say anything about Lee being involved in this incident, but only that John son and Dixon did the shooting. Jackson told the police that Johnson did not te ll him anything about a car or how they got away.61. funeral for his and Jackson’s deceased homie, a police officer named Mario was following him around. Johnso n was nervous about that. 50
Johnson related that he had also been in volved in another shooting. He said he, Dixon, and Lee were “rolling ar ound” at night when they bumped into some Bloods at a mini market somewhere off of South Real Roadand Planz. They sa w the Bloods again at the stoplight, and Johnson came out of the wi ndow and started shooting at the Bloods. Johnson said he was pretty sure he hit one, and he heard late r that the person was paralyzed. Johnson sa id the shooting was retaliation for Cutty Pete. Cutty Pete was a Country Boy Crip who was shot by the Blo ods. Jackson knew about that shooting from his homies and from what Cutty Pete told him. 51 In addition to Johnson, Jackson received information about the Real Road an d Planz shooting from hi s brother, who had a relationship with a Blood’s sister. Jackson was arrested on August 23 as a parole absconder. He to ld the officer that he could not afford to get lock ed up because he had a family to take care of, and that he knew some information about some shootings. Jackson decided to talk about what he knew because he was fed up with the Country due to the death of Raybo and the robbery, and he wanted out. He wanted a normal lifesty le. Officer Beasley, who arrested Jackson,

50 Raybo’s funeral was held at the Church of Higher Ground on August 18. Because of information there was a disturbance br ewing between rival gang members at the church, the Bakersfield Police Department’s gang unit had officers there, as was common with respect to gang members’ funerals. Se rgeant Jehle, whose nickname in the gang area was Mario, was present at the funeral an d made eye contact with Johnson, whom he then observed for a couple of minutes. Wh en people were dispersing, Jehle may have seen Johnson again. There were tensions at the funeral because factions from both the Eastside Crips and Country B oy Crips were there, as Bowe n had friends and family on both sides. Although there were posturing an d verbal exchanges, there was no physical altercation.
51 According to Adrian Bonn er, Cutty Pete appeared to be in “okay” physical condition at the time of their verbal altercati on the morning Bonner was shot. As far as Bonner could tell, Cutty Pete had not been shot.62. put Jackson in touch with Detectives Heredia and Darbee. Jackson sp oke with them later that night and told them about the McNew C ourt and Real Road shootings, but he held back some details because he was not sure how much he could trust them. They were former gang officers who had harassed Jackson a couple of times. In later interviews, he told everything he knew about the shootings. Following his arrest, Jacks on was booked into jail. He was in a holding cell when he saw Dixon, who was in a different holding ce ll. Later, they were placed in the same cell. Dixon told Jackson he was accused of ru nning from the police out of a car with Lee. Dixon said there was a Tec-9 in the car, and th at Maniac was in the car with them but got away. Dixon said he never even got to use the gun. Dixon sa id he (Dixon) also got away and made it home, but then the police came to his house and arrested him and accused him of running from the car. Dixon was angry at Lee because he thought Lee told on him. Dixon and Jackson were in the same cell for three or four days. 52 During that time, Dixon told Jackson that he was involvedin the shootings on McNew Court. Dixon said he and Johnson both were shooting and did not know which one hit the victims. After the shootings, they started going back to the car. Police or someone came, and Johnson dropped a hoodie or cell phone. Lee was waiting in the car, and they went back and got in. Dixon said he go t picked up later on and questi oned about that case, but he was not arrested for it. 53 Dixon said that when he got “out of this gun beef case,” he was

52 Jail records showed Jackson and Dix on were assigned to the same cell from August 24 to August 29.
53 On cross-examination, Jackson testified that when he first s poke to Dixon, Dixon said he and Johnson were involved in the Mc New Court shooting. He said nothing about Lee. On redirect examination, however, Jack son testified that he remembered telling the grand jury that Dixon said Lee was the driver during the Stroller Boy (McNew Court) shooting, and reiterated that Di xon told him, in jail, that Lee was the driver of the car during the McNew Court incident.63. going to slow down. He just wanted to get out and take care of his son. Dixon also said he thought he killed his own cousin “over there.” 54 Dixon said he had done things for the hood, but the homies were not showing him recognition and giving him money and things like that. Dixon also told Jackson ab out the shooting on South Real Road. He said he was in the car when Johnson came out of the wind ow on the “red rags,” meaning Bloods. Lee was driving, and Dixon was the one who pointed out the Bloods. 55 On August 29, Darbee and another detec tive asked Jackson if he would agree to testify if this case went to court. Jackson stat ed he was willing to do so, despite the fact it would make him a marked man for the rest of his life. Jackson then did his time on his parole violation and was released in January 2008, without any intervention from the Bakersfield Police Department. Upon his rele ase, he went into the Witness Relocation Program. He was in the pr ogram for about five months, during which time his rent was paid and he was given $400 to $500 per month for his other e xpenses. In June 2008, his parole was violated for be ing around a gang member. 56 It was his understanding that he would be placed back in the W itness Relocation Program after he finished testifying. Jackson was brought from prison to the c ounty jail on October 31, in preparation for his testimony at trial. Early in November, he was placed in a holding cell next to Lee,

54 Dixon did not go into fu rther detail, although Jackson knew Dixon was related to the Wallaces who lived on Watts Street. In one of his interviews with detectives, Jackson related that Dixon said his cousin ’s name was James Wallace.
55 On cross-examination, Jackson testified that when he was hearing this story, he was not hearing that Lee was in the car and, in fact, he told detectives that Dixon was the driver. On redirect examination, however, Ja ckson testified that he had told the grand jury that Dixon said Johnson shot the person on the corner of Real Road and Planz, and Lee was the driver of the car. Jackson reitera ted that that was indeed what Dixon told him while in custody on August 24.
56 This person had come to Jackson’s locati on. Jackson did not go into the Country; he left the Country Boy Crips when he decided to testify.64. who saw him and wanted to know what Lee di d to Jackson, and whether this was about Lee having a relationship with the mother of Jackson’s baby. When Jackson said it did not have anything to do with her, Lee wanted to know if Jackson was going to get on the stand and testify against them. Jackson said he did not know because he wanted Lee to leave him alone. When Lee kept on pressuring him, Jackson said he would not testify. Lee then told Jackson to sabotage the case by saying it was something about the mother of Jackson’s child that made Jackson mad an d caused him to lie. Jackson agreed he would do that so Lee would l eave him alone. At some point during the conversation, Lee said Rifleman wanted Jackson to say Jacks on was having a relations hip with Rifleman’s girl who drove the Ex pedition. Jackson knew nothi ng about whether a girlfriend of Johnson was going to testify, but told Lee that if it would help them, to “lay it out” to him. The last time Jackson saw or talked to Johnson’s girlfriend was in 2006, when he first got out of prison. After this conversation with Lee, Jack son had a conversati on with Johnson. Johnson told Jackson the samething Lee had. Johnson aske d if Jackson was being paid for his testimony, having heard Ja ckson received $10,000. Jo hnson also said that when he beat up his girl in Las Vegas, he got a ride back to Bakersfield with Chris Haynes. Johnson said he knew where Jackson was st aying, and he mentioned a motel. On another occasion in jail, Jackson was being placed in a holding tank when he saw Johnson in another holding tank. John son called Jackson a “bitch ass nigga.” In November 2008, Jackson’s custody situation was changed, and he was housed in his own isolated cell with his own television, and tran sported to court by a special team. He was testifying because he believed it was the right th ing to do. If he were to serve his parole violation in prison, however, he would not get hi s own cell or television. Testimony of Law Enfo rcement Gang Experts As of April 19, Kern Coun ty Sheriff’s Senior Deputy Little was in the gang unit, and responsible for all Black gang activity in Kern County. He was an expert on gangs,65. and particularly African-American gangs. The fi rst time he learned of Lee was in April, after the McNew Court shootings. However, in April 2007, there were approximately 750 to 1,000 members and affiliates of Afri can-American gangs, an d he did not know them all. He had known Johnson since 1998 or 1999 when Johnson’s name first came up in a gang context. Little had heard of Di xon in the context of Dixon’s manslaughter conviction, but did not know much about him. Little was unaware of any instances in which Johnson was searched and a firearm was found, or in which his or his family’s residence was searched and a gun or ammunition was found. On July 7, Little conducted a search of a residence in the 2900 block of North Half Moon, where Dixon was residing. Little found one letter from Juaqkeib Oliver and another from Frankie Baker. Both contained ga ng references. The letter from Oliver was signed “Munchy Locsta” and talked about the author being on an “egg hunt” because of being sentenced to a lengthy prison term. “Egg” is a derogatory term for Eastside Crip gang members. 57 Little found no hoodies, black pants, guns, or ammunition. During the course of his investigati on, Little searched the Internet site MySpace.com, to see if any de fendants had a MySpace page. 58 Little was unable to locate a MySpace page for Dixon or Johnson, but found one registered to a David Lee from Bakersfield that displayed photographs of the David Lee who was a defendant in this case. The screen name was “Gunn er,” and next to it was the acronym “P.E.N.U.T.E.” A photograph of Lee and Jo hnson had been selectedas the “this-is-whoI-am” photograph.

57 “Cornbread” is a derogatory te rm for Country Boy Crips.
58 It was Little’s experience that gang memb ers are often proud of their membership. They may use a social network, such as MySpace, to advertis e their membership, sometimes posting photographs of themselves displaying gang signs, writing about their gang ideology, and the like.66. By means of a search warrant, Little obt ained public and private information for the page from MySpace in August. 59 Public information incl uded a photograph of Lee and Johnson and, under “Gunner’s interests, ” a flashing message “Keepin’ it Gangsta.” There was also a photograph of Lee and a person known to Little to have Country Boy Crip connections. Private information incl uded a subscriber’s birth date, city of residence, and occupation that were consistent with Lee, as well as unread messages that were consistent with the dates Lee was in custody. Some comments contained gang references, such as “Cuz” (which Crip gang members call each other) and “South” (another name for Country Boy Crips, who also go by South Side Crips). A number of messages also contained gang references. Included in these was “900 block,” which refers specifically to the Stro ller Boy Crip subset of the Ea stside Crips and which derives from an address on Feliz Drive that is a famous location for the Strolle r Boy Crip subset. One of the messages, which was sent the morning of March 22 by someone accessing Lee’s MySpace page, referred to the Tahoe being shot up the previous night on Pacheco Road and the writer “bounc[ing] bacc,” and concluded, “it’s still ESK till I die. P.E.N.U.T.E. Bitch.” This message was cons istent with the shootin g of Lee’s Tahoe on Deanna Way, a location one or two blocks north of Pachec o Road. In Little’s opinion, based on his overall experience, the refere nce to bouncing backwas indicative of someone bouncing back and taking retaliation. It was plausible that the retaliation was the McGowan shooting, whic h fit with the timeline. 60

59 If a MySpace account has been set to priv ate, only those who request to be and are accepted by the account holder as MySpace friends can acce ss the private portion.
60 Little testified he could not cite a case in which gang member s said something to the effect of, “I bounced back,” to refer to a shooting of a rival. Little found no references to the McNew Court shooting or the shooting at Real Road and Planz on the MySpace page.67. Ultimately, Little obtained search warra nts for various other MySpace sites, including those of Lee’s family members. As a result, he learned P.E.N.U.T.E. stood for “Putting Egg Niggas Under the Earth.” From interviews with some who used the acronym, Little learned it was a clique of West side Crips and Country Boy Crips, but did not last long and was not considered to be an active clique anymore. Based on the Agustin interviews, the mate rials he reviewed, and particularly the MySpace investigation, Little opined that Lee was the owne r of the MySpace account under his name. Little further opined that th e Web site was indicative of gang activity on Lee’s part. Senior Officer Sherman of the Bakersfi eld Police Department testified as the People’s primary expert on gangs. He was familiar with the Country Boy Crips, which existed in 2007, from personal contact with Country Boy Crip members, their rival gang members, and investigating gang crimes in which Country Boy Crips were victims and suspects. In his opinion, the Country Boy Crips was a criminal street gang in 2007, as it had three or more people, its members ha d a common sign or symbol, and its members were involved in an ongoing pattern of criminal activ ity involving criminal offenses listed in the Penal Code. Sherman recounted the history and growth of the Crip movement in Bakersfield; the development of the Eastside, Westside, a nd Country Boy Crip factions; the traditional territories of those factions; and the various subsets of the Country Boy and Eastside Crips. Sherman testified that powder blue is the color associatedwith the Country Boy Crips, and that the North Carolina college team uses the same color. Sherman also explained the role played by gr affiti, to both mark territory a nd show disrespect to rivals. He also explained the role of tattoos, which, depending on the actual tattoo, show gang membership or allegiance. Th ey may also be indicative of disrespect to rivals, or pay tribute to deceased fellow ga ng members. Sherman explained that, while there will be members in every gang who have tattoos related to that gang, not every member will68. have a tattoo. Sherman also explained that cl othing can be used to show membership in a gang or to show disrespect to a rival ga ng. However, not all gang members wear their colors all the time, because they know the consequences of being documented by law enforcement in gang clothing and how it can affe ct a possible criminal trial. Just because someone does not wear colors does not mean he is not a gang member. In addition, gang members also use hand signs to communicate a nd show where they ar e from or that they are a rival. Sherman explained that respect is a very large part of the gang lifestyle, and in fact a lot of gang members get into the gang because they want that respect. A gang member can get respect by having a lot of money, being a good narcotic dealer, or being willing to go around with a weapon and shoot rival gang members. If a person who belongs to a gang is disrespected, that person has to answer back. If he does not, he ruins not only his own respect, but shows the other gangs that hi s gang is not very strong. Often, the retaliation must go above and beyond the nature of the disrespect. For instance, disrespect with words will be answered with physical assau lt. A physical assault might be answered with a shooting. A shooting mightbe answered with mu rder. Although the retaliation does not have to be i mmediate, it has to occur. In 2007, there were several Country B oy Crip hangouts — places where the gang members would congregate, usually either to conduct their criminal activity or to throw parties. The main ones were the D&A Market on Cottonwood Road, the Hollywood Market on East Planz, the Watts Market atWatts and Lotus, and residences in the 900 block of Bradshaw, the 1100 block of A ltus, and the residence on Deanna Way at which Lee’s vehicle was shot in March. The Eastside Crips also ha d particular hangouts, as did the Westside Crips. In 2007, a we ak alliance existed be tween the Country Boy Crips and the Westside Crips. That year, one of the latter’s common hangouts was a residence in the 400 block of Eye Street.69. In 2007, the Country Boy Crips had over 200 members. Their main rivals were the Eastside Crips and the Bloods. The ri valries were long-standing and ranged from simple assaults and fights to drive-by shootings to homicides. One of the major incidents between Eastside and Country was the Casa Loma shooting in 1999. Several Country Boy Crip and Westside Crip gang members we re at a wake at Casa Loma Park when several Eastside Crip gang members came by, fi red into the large crowd of people there, and so shot several affiliates and family me mbers of both gangs. Beginning in January 2007, the Eastside-Country rivalry showed itsel f in a number of shootings going back and forth between the two, where members from ea ch gang were victims of gang violence. Sherman opined that the McNew Court shootings in April were part of this pattern, which continued on into May. The Eastside Crips’ primary activities we re narcotics possession for sale, weapons possession, assaults, and homici des. In Sherman’s opinion, the Eastside Crips were an active criminal street gang in 2007. Base d on his research, he opined that Anthony Lyons, Othelon Lyons, Curtis Miller, and Albe rt Darrett were all Eastside Crip gang members in 2007. Sherman fo und no information, however, to indicate James Wallace or Vanessa Alcala were gang members. In 2007, the Bloods and Country Boy Crips were rivals. The Bloods’ primary activities were narcotic possession for sale, we apons possession, assaults, and homicides. The Bloods in Bakersfield did not have a traditional territori al boundary; rather, because they were small in number, they were mo re migrant and controlled small apartment complexes or a few blocks in an area for a wh ile until they usually we re run out. In 2007, their hangouts included Monterey and Inyo Streets and the Grinnage residence on Deborah Street. A lot of ro ck cocaine sales we re conducted at Inyo and Monterey Streets. In 2007, there were tensions be tween the Bloods and other rival gangs in Bakersfield.70. Based on his investigations, Sherman opined that the Bloods were an active criminal street gang in 2007. From his resear ch, he concluded that Adrian Bonner was at least affiliated with the Bloods, and Ed win McGowan was a Blood gang member, in 2007. In Sherman’s opinion, in 2007, the pr imary activities of the Country Boy Crips were sales and possession for sale of narcotic s, including rock cocaine (the primary drug sold), methamphetamine, and heroin; possession of conceal ed and loaded firearms; threats and intimidation of witnesses and victim s; burglaries; shootings; and murders. In Sherman’s experience, the sale of narcotics is used to fund the gang, allowing it to buy more narcotics and firearms, and to rent cars and properties and facilitate gang activities. The possession of concealed and lo aded firearms assist s the gang in that firearms are used to fight against rival gang members, to prot ect gang members from rival gang members, to protect their narcotic trafficking endeavors, and as a form of respect. A gang member who carries a firearm will be “more macho” than one who does no t. Burglaries are committed by gang members to st eal items to sell to gain money to further the gang’s narcotic activity, and also in an effort to locate firearms. Shootings and murders are used to fight against rival gang members, to show other gangs that they are not a gang to be “messed with,” and to get respect. Based on his investigations and the in formation he gathered from speaking with other officers and from working in the gang unit, Sherman opinedthat in 2007, the Country Boy Crip criminal street gang was e ngaged in a pattern of criminal activity. Based on his training and experience, he fu rther opined that gang members discussed crimes and court cases among themselves (and sometimes with law enforcement officers), and that the pattern of criminal ac tivity by the Country Boy Crips was a matter of common knowledge for gang members. For purposes of showing predicate offens es and a pattern of criminal activity, Sherman described the following cases:71.  Case No. BF95016A, involving Dixon. In that matter, in March 2001, Dixon and another African-Ameri can male were walking in Ea stside Crip territory when they shot at several teenager s sitting on a porch. A month later, Dixon shot and killed an Eastside Crip member who was in Country B oy Crip territory. On September 11, 2001, Dixon pled to manslaughter an d was sentenced to prison. In Sherman’s opinion, Dixon was a member of the Country Boy Crip gang when the offens e was committed.

 Case No. BF105692, involving Vertis Bayne. In that matter, in August 2003, Bayne shot an Eastside Crip while ridi ng past on a bicycle. He was convicted of attempted murder, assault with a firearm, and ex-felon in possession of a firearm with gang enhancements, and sentenced to pris on. In Sherman’s opinion, Bayne was a member of the Country Boy Crips wh en the shooting wa s committed.

 Case No. BF106522, involving Joseph Ferguson. In that matter, in April 2004, officers investigati ng a shooting tried to stop a vehicle driven by Ferguson, but a pursuit ensued. During the pursuit, an Uzi-type firearm was thrown from the vehicle. Ferguson was convicted of weapons violations, including gang member in possession of a firearm, and evading police w ith a gang enhancement, and sentenced to prison. In Sherman’s opinion , Ferguson was a member of the Country Boy Crips at the time of the offenses.

 Case No. BF115529, involving Eddie Pe terson, Sr. In that matter, in March 2006, officers conducting a parole search of Peterson’s motel room found narcotics and sales indicia. Peterson was co nvicted of possession of narcotics for sale and sentenced to prison. In Sherman’s opi nion, Peterson was a member of the Country Boy Crips at the time of the offense. In connection with the pres ent case, Sherman researched the criminal history of defendants in order to determine if they we re active gang members at the time the crimes were committed. He determined that John son, whose birthday wa s April 12, 1986, had the monikers Lil C, Rifle, and Little Riflem an, and that he had gang-related tattoos in72. several places on his body. He also dete rmined that Johnson had numerous police contacts, dating back to Oc tober 2000, in which Johnson variously associated with Country Boy Crip members, was in Country Boy Crip territory although he did not live there, admitted his own Country Boy Crip me mbership, or was involved in gang-related activity. Two of the contact s involved Johnson being th e victim of gang-related shootings, and another resulted in Johnson be ing convicted of being an accessory to a gang-related murder that took place in Eastside Crip territory. In addition, what was written on the shirt Johnson wore at the picnic in January 2007, showed his Country Boy Crip membership and his disrespect toward Eastside Crips. Also, rap lyrics written by Johnson referred to the gang, gang lifestyle, and violence asso ciated with that lifestyle. Sherman also reviewed Johnson’s jail bookings . In the bookings between December 2004 and September 2007, he claimed Crip and requested keep-away from the Bloods. 61 Based on everything Sherman reviewedand personal contact he had had with Johnson, Sherman opined th at between March 1 and Augus t 22, 2007, Johnson was an active member of the C ountry Boy Crips. Agustin’s and Jackson’s testimonies reinforced his opinion. Sherman also researched Lee, whose date of birth was October 17, 1984. Lee had what appeared to be a gang-related tattoo. His moniker was Gunner or Gunman. Lee had several prior contacts with law enforcement dating back to July 30 , 2005, at which time he was with known Country Boy Crip gang me mbers and associates. In February 2007, he was stopped in the company of Johnson and other Country Boy Crip members, in Country Boy Crip territory, although he did no t live in that area. On March 21, 2007, Lee was the victim of a shooting at a Country Boy Crip hangout on Deanna Way, but did not stay at the crime scene because he did not want to have police contact at the time for

61 The jail does not have enough housing to keep apart the various cliques of the gangs.73. “whatever personal reasons.” On March 22, he was again the victim of a shooting, this time in the vicinity of a Blood hangout ne ar the Country Boy Crip hangout on Deanna Way. Again, he initially did not want to te ll police about being shot, but later provided a

statement. 62 When contacted by Sherman and another officer th e next day, Lee admitted that his friends and family we re Country Boy Crips, although he did not admit that he himself was. In August, Lee was arrested wi th Dixon after a vehicle pursuit, and a Tec-9 handgun was found in the vehicle. Sherman also reviewed Lee’s MySpace page . There were gang references in some of the incoming and outgoing messages, wi th the writer (who gave Lee’s telephone number) identifying himself as a Country Boy Crip, referencing othe r Country Boy Crip members, and trading threat s with an Eastside Crip. 63 The page also contained a photograph of Lee making a “W” hand sign for Watts. In addition, letters seized during the search of Lee’s residence on Myrtle Street contained gang references and indicia. One of the letters from Robert (“Critter”) Lee expressed surprise that Lee was giving up his job “for the hood,” and warned that if L ee was going to do that, he could only trust a few people. Another from Robert Lee warned Lee not to tell thei r parents about what Lee and his brother, a Country Boy Crip, were doi ng. By contrast, Robert Lee’s letters to his father contained no gang references. Sherman also reviewed Lee’ s jail bookings. Lee did not claim a gang or request to be kept away from anyone. Based on everything he reviewed, however, Sherman opined that Lee was an active me mber of the Country Boy Crips between March 1 and August 22, 2007. Agustin’s and Jackson’s testimonies reinforced this opinion.

62 In Sherman’s experience, people who ar e in gangs are often victims of gang violence because of the lif estyle they are in.
63 Sherman conceded he di d not have personal knowle dge of the identity of the author of any of the entries, and did not compare the dates and times with records of Lee’s work history.74. Sherman also researched Dixon, whose date of birth was October 11, 1983. Dixon had the monikers Dodo and Baby Clacc, and he had gang-related tattoos on various parts of his body. Prior police contacts revealedthat in May 1998, Di xon was arrested for possession for sale of rock cocai ne while in the company of individuals who later became documented Country Boy Crip members. The ne xt month, he was acting as a lookout for narcotics sellers in Country Boy Crip territo ry. In September 1998, Dixon was arrested for possession of rock co caine and a firearm. In Decemb er 1999, Dixon was arrested in Country Boy Crip territory for possessing a lo aded firearm. In November 2000, Dixon was the victim of a drive-by shooting wh ile in Country Boy Crip territory. In March 2001, Dixon was contacted at Watts and Lotus, although he did not live in Country Boy Crip territory. InApril 2001 was the gang-relat ed shooting that resulted in Dixon’s manslaughter conviction. During a July 2007 parole search of Dixon’s residence, officers found letters containing gang references addressed to Dixon. In August 2007, Dixon was with Lee during the vehicle pursuit. Dixon fled, but was later arrested at his apartment. He was seen we aring light powder blue clothing, and a loaded Tec-9 was found in the vehicle. Sherman also reviewed Dixon’s jail boo kings. In May and August 2007, Dixon claimed Crip, with Country Boy Crip as the subset, and requested a keep-away from Bloods. Based on everything he reviewed, Sherman opinedthat Dixon was an active member of the Country Boy Crips be tween March and August 2007. Sherman did background checks on pers ons mentioned by Agus tin and Jackson in their testimonies. In addition to determining their true names, he opined that Bus Loc, Fat-Fat, D-Keys, Goo, Big Jim, Raybo, Two C’s, Nip, Cutty Pete, Riko, and Big Gage were all Country Boy Crip members, with Ga ge being an OG. Sherman also researched Agustin’s background. He found no gang -related contact with police for her. Sherman explained that all gang members ar e expected to “put[] in work” for the gang. “Putting in work” can mean selling narc otics, stealing items, getting guns, or even75. committing a shooting or assault. The type of work may vary according to the gang member’s personality or strengths . A shot-caller is an old gangster who has been around for a while, has put in his work, and is well re spected. He may be the one who directs the actions of others. There are shooters within the gang; these are the people who commit the assaults, drive-by shootin gs, and even homicides. Th ey are the aggressors and enforcers. These persons are respected be cause they are feared , even by fellow gang members. The status of the victim has an eff ect on the status of the shooter; if he shoots a rival gang member, he gains status and respect. By contrast, if, in tr ying to shoot a rival member he misses and kills aninnocent party, it will not n ecessarily create a backlash against him, but he will not get as much respect . It is common for sh ooters in a gang to brag to fellow gang members about whom they shot. They will not, however, take credit for something someone else did, as that w ould constitute disrespe ct toward the actual shooter. The bragging, which is done to get credit for the shooting, does not commonly involve a recitation of intricate details. Sherman explained that a walk-up shootin g involves walking up to the intended target and shooting. If it is done in rival ga ng territory, the perpetrators usually will have some sort of transportation. They will either driv e through the territory to scope out the target or see if it is availabl e, then park somewhere close, physically get out of their vehicle, walk up to the target, shoot, and then return to the vehicle and flee the rival gang territory. Communication with other gang me mbers during walk-up sh ootings usually is by phone; there needs to be communication between the shoo ters and the person left in the car in case somethi ng goes wrong and plans change. Clothing also plays a part; the shooters commonly wear neutral colors that w ill not make them stand out to witnesses. On the other hand, it can also be used as a ruse to throw suspicion onto a rival gang. Layers of clothing may be worn so the sh ooters can change their physical appearance after committing the crime and thus will not fit the descriptions given to police.76. Sometimes, gang members will stash clothing be fore the shooting and then change into it later. Sherman also explained that a drive-by shooting involves driving the car up to the target. Disadvantages are that the shooters’ vehicle is se en and a vehicle leaving the scene at a high rate of speed draws the atte ntion of arriving law en forcement officers. Shooters on foot can find somewhere to hi de and even wait out the police. According to Sherman, women play a su pportive role in the Country Boy Crips and other gangs. They provide the male gang member with financial support, a place to live, a car to use, or a cell phone or clothing. They also conceal or stash the male gang member’s illegal activities, su ch as guns or narcotics. Whether gang members discuss gang activities with the women depends on the trust factor between them. If the two are in an ongoing, serious relationship, he may di vulge some things to her, but is unlikely to go into depth regarding the inner workings of the gang. The male will instill in the female the idea that she is not to tell; if she does, she risks assault or death. Gangs have rules about not cooperating with law enforcement. One who cooperates is considered a sn itch. Even a gang member who is a victim of gang violence often will not cooperate, because he wants to get his respect back, and allowing the police to take care of it will not achieve that. Sim ilarly, a gang member will not want to come to court and testify, even against a rival gang member for that is considered snitching. A gang member who testifies may face threats, intimidation, and assault, both to him and to his family. In answer to hypothetical questions ba sed on the prosecution’s evidence, Sherman opined that the shooting at Monterey and In yo, shootings at McNe w Court, and shooting at Real Road and Planz were committed for the benefit of the Co untry Boy Crips, and were done with the intent to promote, further, or assist criminal conduct by the Country Boy Crips. Sherman further opined that if there was an agreement between the involved Country Boy Crips to do the shooting or the killing, plus an act of traveling to the77. location for that purpose, those acts also we re committed for the be nefit of the Country Boy Crips. A Country Boy Crip member promot es his gang by shooting at a rival gang. Sherman further opined that if a Country Boy Crip who was a convicted felon was in possession of a loadedfirearm in the vicinity of McNe w Court, that act would promote or benefit the Country Boy Crips gang, because that gang member was willing to carry the firearm and commit an act for the benefit of the gang. In addition, Sherman opined that if four Country Boy Crips, each armed and in agreement to locate and kill the person (or a relative of the person) they believed ha d murdered their fellow gang member, drove to a location near Panorama Drive to carry ou t their intention, those acts were committed for the benefit of, and with th e intent to promote, further, or assist conduct by, the Country Boy Crips. The Country Boy Crip who was killed was ther eby disrespected, and the four Country Boy Crips were acting to get the respect ba ck for their gang and their deceased friend. Even the act of getting toge ther with guns and going to the location would earn them respect, as they were willing to take matters into th eir own hands. If the felon who possessed a firearm helped a secondCountry Boy Crip se ll a firearm so the latter could leave Bakersfield after shooting a rival gang member, his acts would be done with the intent to promote or benefit the Country Boy Crips.
II
D EFENSE E VIDENCE Johnson’s Case Jim Dill lived in th e Encina Street residence in mid-September 2007. Before he cleaned the fireplace, there was a quarter inch of ash in it, but no burnt clothes or metal zippers. Theodore Richard was a cement mason at the time of trial, and had been doing that since June 2008. As of the time he testified, he was not doing anything else for money.78. Richard was Jackson’s cousin. Jackson wa s “like a brother” to Richard, who was testifying because of the various things Jack son had told him about this situation. Jackson had been frequently seeking Richar d out ever since Richard came home. Jackson told Richard that Jackson was not going to testify in this case. Jackson related that law enforcement had threatened to charge him with Raybo’s murder, and he was afraid of being prosecuted for that o ffense. During their conversations, Jackson mentioned a girl named Sara that he was dating. Jackson said she was supposed to be the ex-girlfriend of one of the defe ndants in this case. Jackson told Richard that he was lying about defendants. Richard never told Jackson not to come to court or what to say if he took the witness stand, but he did tell Jackson not to testif y to the lies Jackson was telling Richard. Richard denied ever being told by Jo hnson (whom he had never met) or anyone else to intimidate Jackson or try to convince him not to come to court. He admitted, however, having been convicted in federal co urt in February 1999 of conspiracy to distribute and possession for sale of cocaine. While in federa l custody in April 2000, he pled no contest in Kern County to felony assault with a firearm. Kevin Griffith saw the car involved in th e shooting of Adrian Bonner. It was like a red Nissan Sentra, and the paint on the back trunk hood was bleachedor oxidized by the sun. Later that night or possibly early the next morning, he saw what he was “pretty sure” was the same car again. 64 It had been pulled over at Fastrip on Real Road and Ming. Shannon Fowler’s car was not the car Griffith saw at the time of the shooting or later. Griffith was not able to clearly id entify anyone in the car at the time of the shooting. When he saw the car later, it c ontained three African-American men. The

64 In his 911 call, he said hewas positive it was the car.79. driver appeared older than defendants. The others in the car were “[m]ostly older” than defendants, perhaps in their late 30’s. 65
Dixon’s Case On August 11, 2007, Pamela Ginn’s gr andson had a birthday party at Camelot Park, an amusement park on Oak Street. The party began ab out 2:00 p.m. and lasted until it started to get dark. Ginn, who had known Dixon most of his life, saw him at Camelot Park that day. He was there until the party en ded, and helped put the gifts in the car. At no time did she see him leave the party. Dixon testified that he was born in Ba kersfield and raised in the Country. Growing up in that area, Dixon — who acqu ired the nickname Do do during childhood — saw drug sales and shootings every day. He grew up with a bunch of kids who got into the gang. They hung out together because they were friends an d grew up with each other. Dixon admitted that in addition to be ing called Dodo, he was sometimes called Baby Clacc, a name he took for himself becaus e he wanted to be like his cousin, Frankie Baker, who was known as Big Clacc. Di xon knew the Country Boy Crips were a criminal gang, but explained that those in th e gang looked on each other as family, as

65 In the summer of 2007, Aaron Norwood drove a red 1991 or 1992 Ford Tempo. The paint on Norwood’s car wa s pretty faded and dull. On August 11, Norwood work ed the 6:00 p.m. to 10:00 p. m. shift at PetsMart. He took no breaks, although the store’s employees may have left around 9:30 that evening at the manager’s behest. He drove his car to wo rk that day and parked it in front of the store. He did not drive the car during his shif t, no one borrowed it, a nd when he left to go home, it was in the same place that he had left it. After work, he we nt to a party, then, around 2:00 a.m., he was pulled over at the Fastrip at Ming and Real Road, which was about a mile from Real Road and Planz. At the time, he was with his cousin and a friend. The police searched the car, and the next day searched Norwood’s house. They found a live .38-caliber round of ammunition. It had belonged to Norwo od’s late brother, and Norwood had kept it. Norwoodwas interviewed at the police station and, after it had been confirmed with his boss that he and his vehicle had both been present at PetsMart at the time of the Adrian Bonn er shooting, released.80. there were several generations of people within the gang. In addition, because Bakersfield was so small, it was not unusual to have family members in the other gangs. For example, Dixon’s father usedto be an Eastside Crip. Dixon was 14 years old when he became a Country Boy Crip. The only crimes he ever committed were possessing firearms and se lling rock cocaine. He never shot a gun, but simply carried a firearm for protection. He sold drugs for himself. He did this in Country Boy Crip territory. The gang left hi m alone because his mother lived there and he was raised there. Dixon denied committing th e killing for which he pledno contest to voluntary manslaughter in 2001; he was charged with mu rder and wanted to go to trial, but his then-attorney told him juries did not like gangs. His attorney told him that he was facing a sentence of 56 years to life in prison versus six years. Dixon, who was only 17 at the time, did not want to do life. Dixon did not have an y tattoos until he went to prison. He got almost all of his tattoos when he was 18 and in prison, where tattoos are “just fashion.” Dixon was paroled on March 4, 2007. He moved in with his cousin Keshiea, who lived off of Pacheco Ro ad, but she got evicted. He th en moved in with Myeshia Herring on Chandler, then moved to an apartment on North Half Moon with Keanna King. Each time he moved, he notified his parole officer. After he paroled, he did not do anything for the gang, but just socializ ed with Country Boy Crips because all his friends were from there. As for Johnson, Dixon knew he was a gang member, but did not know what his role was in the gang. The two merely socialized, and Dixon never saw Johnson do any criminal activities. Around March or April, Johnson wa s cutting hair in different neighborhoods. When he cut hair, he some times wore his brown barber’s smock. Dixon had known Lee since elementary school. Lee was only known as Dave. Dixon never saw him sell any drugs; Lee did not grow up lik e that. When Dixon was in prison, he would hear that L ee’s brothers were “hanging out ,” but not Lee. Dixon had81. seen Lee smoke marijuana, but never with a mask. Dixon never saw him with any weapons of any kind. Lee never wore powder bl ue clothes. How he dressed in court was how he dressed on the street. Dixon did not have a cell phone when he was first paroled, but Myeshia and the others could not get in contact with him so she said her sister had a phone for him. He let other people use the phone if they needed it. He last sa w that phone on April 18, in Agustin’s Expedition. Johns on dropped Dixon off, and Dix on forgot the phone. Dixon called Johnson from the house ph one at Keanna King’s resi dence and told Johnson he would get it from him the next day. The next day or shortly after, however, Myeshia contacted him and said Deputy Little wanted to talk to him. Dixon calle d Little, who asked him to come in for an interview. Dixon went , but denied he was known as Do do, because that name had been used against him back in 2001. He also denied that th e cell phone found at the scene was his, because the officers were telling him they had an eyewitness who had seen him on McNew Court. They asked whether he was Rifleman. That was why Dixon subsequently called J ohnson; Dixon asked him why Dixon’s phone was at a crime scene. Dixon could not explain to the detectives about forgetting the cell phone in the Expedition, because if someone becomes a snitch, his family will disown him, and Dixon’s whole family was from the gang. After Dixon asked Johnson why Dixon’s phone was at a crime scene, Johnson left and went to San Jose. Johnson never explained why the phone was there. Dixon denied being presen t at the shootings on McNe w Court. James Wallace was his cousin, although they did not grow up together. Dixon denied robbing any drug dealer on Cheatham Street or Reese Street . Robbing one’s ow n homie would bring repercussions and would probably cause one’s own gang to turn agai nst the robber. Dixon was acquainted with Shannon Fowler. Among the people who lived in the apartments in the 200 block of Eye Street during August 2007 were Fowler, who was82. having a sexual relationship withLee, and Krystle, who was s eeing Johnson. In addition, a girl Dixon was seeing often vi sited her friends in the complex. Fowler had a red car, but she never let Dixon and the others drive it. Dixon had never been in that car. Dixon was familiar with the house in th e 400 block of Eye Street. The man who lived there sold drugs. Dixon grew up with the daughters of the woman who lived there. Dixon never went to that location to help Johnson try to sell a gun so he could go to Las Vegas. Johnson never took Di xon to the intersection at Real Road and Planz to show him

a camera. Dixon grew up with Raybo. When he learned from his aunt that Raybo had been killed, he borrowed his sister’s car and drove over to Reese and Cheatham Streets. He estimated there were about 200 people there when he arrived, including Johnson, Lee, and Raybo’s brothers. Everybody was discussing what ha d happened; everyone knew it was an inside job, meaning it had to be a homie who did it. During this discussion, Jackson arrived. Johnson wa lked over to him, and Dixon, Lee, Raybo’s brothers, and some other homies followed. Th ey all told Jackson that they had heard he killed Raybo. Jackson denied it and blamed it on Fumes (David Taylor). While everyone was talking to Jackson, Di xon left to pick up his sisters. He returned later to the area of Reese and Ch eatham, but never got into a vehicle with Jackson, Johnson, and Lee to go to the Bakersfield College area to kill Fumes or his father. Jackson was telling everyone that he knew where Fumes or Fumes’s father stayed, but to Dixon’s knowledg e, no one went up there. Dixon denied knowing Adrian Bonner or being at South Real Road and Planz at the time Bonner was shot. He was at Camelot Park, off California and Oak, at the time of the shooting. Dixon learned of the Bonner sh ooting shortly after it happened. When he and Ginn’s son left Camelot Park, they went to the residence of Columbus Holford. Bonner’s sister and Holford were friends, and she had called Holf ord right after the shooting.83. On August 23, the day he was arrested, Dixon was the driver of a car that also contained Lee and someone called “Set Trip,” whose real name Dixon did not know. The three were just talking. Di xon did not know there was a Te c-9 in the car until Set Trip told him to drive off b ecause he had the gun in the lunch pail. Set Trip tossed the gun in the back seat, and Dixon let him out. Dixon ju mped out of the car and ran because he did not want to go back to prison. After his arrest, he was bo oked into the Kern County jail and was placed in the same ce ll as Jackson. He never di scussed the shootings with Jackson, however. Although Dixon and Jacks on talked while celled, the talk was about them both changing and leaving the gang. Jackson was particularly worried about his parole violation. 66 Dixon pled guilty to particip ating in a criminal street gang in the case arising out of the vehicle pursuit, and was sentenced to prison. While ho used at Wasco State Prison, Dixon heard that Othelon Lyons was also im prisoned there. They were never on the same yard, however, and never had any contact or conversation. Emmanuel Burts, Jr., married Agustin in Se ptember 2008. At the time he testified, he was in jail as the result of her bringing charges against him. 67 When he was arrested, he telephoned and wanted to let the defense attorneys in this case know Agustin had lied on the stand. Before she had testified, Agustin a nd Burts lived in Fresno. Agustin had transcripts and went over them . She also went on the Intern et and looked at maps. She told Burts she was refreshing he r memory of the locations to which she went with her exboyfriend.

66 According to Dixon, he himself gave up the gang lifestyle wh en he was arrested for possession of the Tec-9.
67 Burts was pending charges of spousal abus e and felony threats. He had suffered a number of prior felony and misdemeanor convictions for various offenses.84. While Agustin was in Bakersfield testif ying in this trial, she telephoned Burts every day to let him know when she was back in her room. She told Burts that she was testifying truthfully, but was leaving out parts. She said she was not being truthful about certain things because she did not want her son involved. Johnson sold a gun to Agustin’s son, in Agustin’s pres ence, right before they went to Las Vegas. Agustin said it was the gun used in the homicide. In additi on, Agustin told Burts that either Lee or Dixon (Burts could not remember which) had nothing to do with the murder. In the time he had known Agustin, Burts formed the opinion that she was very deceiving and conniving. Burts was aware Agustin received $750 for rent and $450 for her personal things each month as a witness fo r the prosecution in th is case. In Fresno County, however, she applied fo r food stamps and welfare, and never reported she was receiving that money.
Lee’s Case According to Marc Taylor, a forensic sc ientist/criminalist a nd laboratory director of Technical Associates, Incorp orated, in Ventura, California, there are ways to preserve and process items, such as expended shell casings, so that they can be tested for fingerprints and potential DNA without inte rfering one with the other. Latent fingerprints and DNA both can be recovered from expended she ll casings. In his opinion, placing individual shell casings in on cottony cushioning in small white boxes, as was done in this case, could result in ridge lin es left by whoever touched the casing being wiped off by the cotton. Similarly, packagin g multiple expended shell casings together in an envelope could lead to a transfer taking pl ace or to the ability to detect a fingerprint being affected due to the rubbi ng together of various pieces of evidence. He could not, however, say whether that happened in this case. In DNA testing, when there is a goo d quantity of DNA, the peaks on the electropherogram will be well within the normal analytical range. There are specific procedures to test the analytical thresholds of the instrument to be su re that when there is85. a peak above a certain height, it represents a reliable result. If low levels of DNA from an individual are present, things may show up in certain areas of the electropherograms but disappear in others. Whether to includ e or exclude an individual as being in the profile can then become subjec tive. For example, when an allele is present but in a weaker range, there are limitations on what in terpretations can be made of that allele being present. Sometimes, the results are in conclusive. Taylor could not say whether there was a subjectivity to the analysis of th e DNA results in this case or whether there were low quantities of DNA. DISCUSSION 68
I
P RETRIAL I SSUES A. Change of Venue Dixon and Johnson contend the trial court erroneously denied a defense motion for change of venue, thereby denyi ng them due process, a fair trial, and trial by an impartial jury, as guaranteed by the state and federal Constitutions. The Peop le say the motion was properly denied. 1. Background Johnson moved, in limine, for a change of venue based on pr etrial publicity. Johnson pointed to a June 10, 2008, article in the Bakersfield newspaper in which he was called one of the top gang members in Ke rn County; a September 3, 2008, local television news story in which a liquor store surveillance video was played that depicted

68 Although the issues often overlap, we ha ve organized them to conform as closely as possible to the chronolog y of events at trial. In any instance where we find or assume error, we will discuss whether the error, standing alone, is cause for reversal. If it is not, we will discuss any adverse effect it may have had in conjunction withother errors when we addr ess defendants’ claims of cumulative prejudice.86. an unknown African-American male shooti ng a clerk in a February 2006 robbery, 69 and which reported that Johnson ha d now been named as the suspect in the shooting; and an October 21, 2008, article in the Bakersfiel d newspaper titled “Shot-callers, the 66,” in which the district attorney’s office included defendants among the 66 most dangerous or significant gang members in Bakersfield. Di xon joined in the moti on and noted that the information was also on the Internet. 70 The People opposed the motion, claimi ng Johnson and Dixon had failed to meet their burden of showing they could not receive a fair trial in Kern County. Attached to the People’s opposition were copies of the newspaper articles the People were aware of regarding the case and defendants. There we re three blurbs in the “[p]ublic safety” section the day after each of the three shootings ; a larger story, dated December 31, 2007, and titled “Homicides drop in2007,” that briefly desc ribed the year’s homicides, including the McNew Court shootings; an article dated May 7, 2008, and titled “MySpace pages help lead depu ties to 2007 murder suspects,” that discussed defendants’ arrests and charges; an article dated May 10, 2008, titled “Search warrants reveal how murder suspects were tracked down,” that discussed the case and contained a photograph of Vanessa Alcala and her child; and an artic le dated June 10, 2008, titled “New D.A. gang unit to target top offende rs,” that contained a list of27 gang members called “shotcallers” by the Kern Co unty District Attorney and who had cases pending against them. Defendants were included on the list and name d as Country Boy Crips, and the article was accompanied by a photograph of the district attorney at a news conference, standing next to a poster that included Johnson’s and Lee’s pictures, monikers, and charges.

69 According to Johnson, the video was also featured on America’s Most Wanted and the national news.
70 Lee expressly declined to join in the motion.87. After hearing argument and viewing th e poster, the trial court addressed the relevant considerations (discussed post) and denied the motion. It deferred to voir dire a determination whether the article had prejudiced the panel and an evaluation of whether a renewal of the motion wo uld be justified. Jury selection began on November 17, 20 08. Prospective jurors were questioned, inter alia, about any media expo sure they had had to defendants or the case, as well as any exposure to or personal knowledge of gangs. Those whose answers suggested a fixed prejudgment of the case, either becau se defendants purportedly were gang members or because of what was known about the cas e through media exposure, were excused for cause. At the time all sides accepted the panel as constituted, the defense had not exhausted all of its peremptory challenges. At the time the alternates were accepted, only Dixon had exercised all of hi s peremptory challenges. At no time did any defendant request that the change of venue motion be renewed. 2. Analysis “‘A change of venue must be grante d when the defendant shows a reasonable likelihood that in the absen ce of such relief, a fair trial cannot be had.’” ( People v. Panah (2005) 35 Cal.4th 395, 447; § 1033, subd . (a).) “‘[R]easonable likelihood’” means something less than “‘more probable than not,’” but so mething more than “merely ‘possible.’” ( People v. Bonin (1988) 46 Cal.3d 659, 673, overruled on another ground in People v. Hill (1998) 17 Cal.4th 8 00, 823, fn. 1.) Each case is resolved on its own facts, and the moving party bears the burden of proof. ( People v. Sanders (1995) 11 Cal.4th 475, 505.) “In contrast to pretrial appellate review by way of a petition for a writ of mandate, review on appeal is retrospective. Thus, ‘a ny presumption in favor of a venue change is unnecessary, for the matter may th en be analyzed in light of the voir dire of the actual, available jury pool and the actu al jury panel selected. The question then is whether, in light of the failure to change venue, it is reasonably likely that the defendant in fact88. received a fair trial.’ [Citation.]” ( People v. Jennings (1991) 53 Cal.3d 334, 360.) “On appeal, ‘“the defendant must show both that th e [trial] court erred in denying the change of venue motion, i.e., that at the time of the motion it was reasonably likely that a fair trial could not be had, and that the error was prejudicial, i.e ., that it [is] reasonably likely that a fair trial was not in fact had.”’ [Citation.]” ( People v. Jenkins (2000) 22 Cal.4th 900, 943.) On appeal, we review the trial court’s resolution of factual questions for substantial evidence, but we independently determine the u ltimate question of whether a fair trial was obtainable. ( People v. Sanders, supra, 11 Cal.4th at pp. 505-506; People v. Jennings, supra, 53 Cal.3d at pp. 359-360.) This de novo standard of review applies to our consideration of the five factors we mu st examine in making th at determination: (1) the nature and gravity of the offenses; (2) the nature and extent of the media coverage; (3) the size of the co mmunity; (4) the status of the defendants in the community; and (5) the popularity and promin ence of the victims. ( People v. Panah, supra, 35 Cal.4th at p. 447; People v. Jennings, supra, 53 Cal.3d at p. 360; People v. Harris (1981) 28 Cal.3d 935, 948.) With regard to the first factor, “[t]he peculiar facts or aspects of a crime which make it sensational, or otherwise bring it to the consciousness of the community, define its ‘nature’; the term ‘gravity’ of a crime re fers to its seriousness in the law and to the possible consequences to an accused in the event of a guilty verdict.” (Martinez v. Superior Court (1981) 29 Cal.3d 574, 582.) Special- circumstance murder is an offense of “utmost gravity,” even when th e death penalty is not sought. ( Williams v. Superior
Court (1983) 34 Cal.3d 584, 593.) The mu ltiple murders and attempted murders involved here are extremely serious offenses; thus, this factor favors granting a change of venue, but it is not dispositive. ( People v. Davis (2009) 46 Cal.4th 539, 578; People v.
Weaver (2001) 26 Cal.4th 876, 905 .) Although the fact a pregnant woman and her unborn child were among the victims impacts th e nature of this case, this is something89. that “will not change with a change of venue.” ( People v. Edwards (1991) 54 Cal.3d 787, 808.) “‘Prospective jurors would sympathize with the [victims’] fate’ no matter where the trial was held, and this symp athy stems from the nature of the crime, ‘not the locale of trial.’ [Citation.]” ( People v. Davis, supra, 46 Cal.4th at p. 578.) The second factor, the nature and extent of the media coverage weighs against a change of venue. It simply cannot be deemed “persistent and pervasive.” (Martinez v. Superior Court, supra, 29 Cal.3d at p. 585; see, e.g., People v. Lewis (2008) 43 Cal.4th 415, 448-449 [39 newspaper artic les, and 95 minutes of vide otaped television coverage, spanning period of 13 months, “c onsiderably less extensive” th an in other cases in which California Supreme Court affirmed deni als of motions to change venue]; People v. Panah, supra, 35 Cal.4th at p. 448 [18 articles ove r 12-month period “can hardly be characterized as ‘extensive’” ].) The coverage was largely factual and noninflammatory; although naming defendants as gang “shot-ca llers” was potentially prejudicial, evidence of defendants’ gang affiliation and level of involvement was admitted at trial, so no prejudice resulted. (See People v. Lewis, supra, 43 Cal.4th at pp. 449-450.) “[T]he fact that prospective jurors may have been exposed to pretrial publicity about the case does not necessarily require a change of venue. [Citation.] ‘“It is sufficient if the juror can lay aside his impr ession or opinion and render a verdict based on the evidence presented in court.”’ [Citations.]” ( People v. Panah, supra, 35 Cal.4th at p. 448.) Here, the prospective jurors had, at most, vague recollections of past news coverage, and any who appeared to have pr ejudged defendants’ guilt were excused. Defendants’ failure to exhaust their peremp tory challenges str ongly suggests they themselves concluded the jurors were fair. (Ibid .) Also weighing against a change of venu e is the size of the community, the third factor. “The larger the local population, th e more likely it is that preconceptions about the case have not become imbedded in th e public consciousness. [Citation.]” ( People v. Balderas (1985) 41 Cal.3d 144, 178.) During th e hearing on defendants’ motion, the90. prosecutor represented, without contradicti on, that Kern County had a population of almost 800,000 people. According to Californi a Department of Finance figures for 2007, the latest year available, Kern County had a population of just under 810,000, making it the 13th most populous of California’s 58 coun ties. (Cal. Statistical Abstract (48th ed. 2009) Dept. of Finance, table B-3, at <h ttp://www.dof.ca.gov/html/fs_data/stat-abs/ Statistical_Abstract.php> [as of Nov. 15, 2 009].) Venue changes have, almost without fail, not been granted or ordered on review in cases involving counties with such large populations. (See, e.g., People v. Weaver, supra, 26 Cal.4th at p. 905 [where adverse publicity “neither relentless nor virulent ,” Kern County’s “moderate size” (then exceeding 450,000) did not undermine trial court’s de cision to deny change of venue motion]; People v. Webb (1993) 6 Cal.4th 494, 514 [moti ons to change venue granted where county relatively isolated and small, in contrast to San Luis Obispo County (population then al most 200,000)]; People v. Fauber (1992) 2 Cal.4th 7 92, 818 [size and nature of Ventura County (population then of 619,300) did not support venue change; “[v]enue changes are seldom granted from counties of such a large size”]; People v. Daniels (1991) 52 Cal.3d 815, 852 [no change of venue; murder of two police officers garnered extensive media coverage, but co mmunity (Riverside County) had population exceeding 600,000]; People v. Hamilton (1989) 48 Cal.3d 1142, 1158 [most recent successful venue cases involved nonurban coun ties with substantially smaller populations than Tulare County (population then a pproximately 250,000, ranking it 20th among California counties in population size)]; People v. Balderas, supra, 41 Cal.3d at pp. 178- 179 [cases in which venue ch anges granted or ordered onreview generally involved counties with much smaller populations than Kern (population th en 405,600, ranking it 14th among California counties in that resp ect)].) We have no doubt Kern County’s population was of such a size that it neutralizedor diluted the impact of what scant media coverage there was. (See People v. Weaver, supra, 26 Cal.4th at p. 905.)91. Turning to the final factors — the status of the defendants, and prominence and popularity of the victims — we conclude th ey too weigh against a change of venue. Neither defendants nor the victims were out siders to the community, nor were they prominent personages. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1323; People v. Daniels, supra, 52 Cal.3d at p. 852.) Any promin ence achieved by th e victims through news accounts of the shootings did not favor a change of venue; since all led relatively obscure lives, “the community was not likely to have experienced a uniquely heightened sense of loss or anger which would presumably be alleviated by trial in another county. Any sympathetic features of the case would be apparent wherever it was tried.” ( People v. Webb, supra, 6 Cal.4th at pp. 514-515.) Likewise , any unsympathetic features of the case — the gang allegations and evidence — would also be apparent wherever the case was tried. In sum, the gravity and nature of the crimes supporteda change of venue. The other relevant factors did not. Accordingly, we conclude the trial court did not err in denying the motion made prior to jury selection. “‘[W]hen a trial court initially denies a change of venue moti on without prejudice, a defendant must renew the motion after voir di re of the jury to pr eserve the issue for appeal.’” ( People v. Maury (2003) 30 Cal.4th 342, 388-389.) Here, as we have noted, defendants did not renew the motion after voir dire. Even if we found no forfeiture, however (see People v. Prince (2007) 40 Cal.4th 1179, 1215 -1216), we wo uld conclude defendants’ failure to renew the motion an d to exhaust their peremptory challenges signified their apt recognition that the jury, as selected, was fair and impartial. ( People v.
Beames (2007) 40 Cal.4th 907, 922.) 71

71 Accordingly, we do not address defe ndants’ alternative claim of ineffective assistance of counsel.92. As the California Supreme Court stated in People v. Lewis , supra , 43 Cal.4th at page 450: “We ... conclude that on appeal defendant[s have] not shown a reasonable likelihood that [they] did not receive a fair trial before an impartial jury. The jury voir dire bore out the trial court’s conclusion that a fair jury could be chosen. Each juror assured the trial court that he or she could be unbiased notwithsta nding exposure to media reports about the case. Althou gh the jurors’ assurances of impartiality are not dispositive [citations], neither are we free to ignore them [c itations]. [Courts] have in the past relied on jurors’ assurances that they could be impartial. [Citations.] Absent a showing that the pretrial publicity was so pervasive and damaging that we must presume prejudice [citations], we do the same here. Considerin g all the circumstances, defendant[s have] not established a reasonable likelihood, as op posed to a mere possibility, that [they] did not in fact receive a fair trial be fore impartial jurors. [Citation.]” B. Severance Lee and Dixon contend the trial court abused its discretion by denying their pretrial motions for severance. They say the trial court’s ruli ng resulted in gross unfairness and denied them their constitutional right to a fair tr ial. The People say a joint trial was proper. 1. Background Prior to trial, Lee moved to sever his tria l from that of the other defendants, should the trial court deny his in limine motions to (1) exclude testimony related to Lee being arrested, charged, and convicte d in the case involving the Tec-9 found in the backseat of the car driven by Dixon; (2) exclude any te stimony by Agustin that Johnson told her Lee performed certain acts; (3) pr eclude the People from questioning any of its witnesses about Lee’s criminal history, allegations, or character evidence; (4) preclude any testimony concerning Agustin’s, Jackson’s, a nd Bonner’s fear of defendants; and/or93. (5) exclude any testimony concerning the dom estic violence incident between Johnson and Agustin that occurred in Las Vegas in August 2007. 72 The People opposed the motion, arguing in pertinent part that (1) a joint trial was preferred; (2) there existed no Aranda-Bruton 73 issues that required severance; (3 ) incriminating statements made by defendants were declarations against in terest; (4) no severanc e was required where inconsistent defenses were to be presented; and (5) no se verance was required since the evidence against all defendants was strong. During argument on various evidentiary in limine motions, all defendants joined in the motion for severance. After a lengthy di scussion, the trial court found no basis upon which to grant severance due to the introduction of expert testimony on BWS or evidence of domestic violence as it related to Johns on and Agustin. Accordingly, it denied the motion for severance as to that issue, but reserved its ru ling insofar as the motion was based on other issues. Defendants subsequently requested an Evidence Code section 402 hearing to determine whether Senior Offi cer Sherman was qualified to testify as a gang expert. In part, his testimony concerned Dixon’s prio r voluntary manslaug hter conviction and involvement in an earlier shooting. The Pe ople sought admission of evidence concerning the prior incidents both in terms of the information upon which Sherman relied in forming his opinions, and also pursuant to Ev idence Code section 1101, subdivision (b). After arguing admissibility of the evidence under that statute, Lee asserted that admission of prior gang-related shootings by another defendant was u nduly prejudicial to him, especially in light of the disparity in gang -related evidence vis-à-vis Lee as opposed to

72 Although Lee specified that particular incident, his argument appears to have encompassed any incidents of domestic vi olence between Johnson and Agustin.
73 Bruton v. United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518.94. the other defendants, and that the court co uld not mitigate the prejudice through an admonishment. Johnson joined. After extensive argument, the trial c ourt ruled that Dixon’s prior acts were admissible under Evidence Code section 1 101, subdivision (b), and not subject to exclusion under Eviden ce Code section 352. 74 Lee then renewed his motion for severance, citing the “vast[ly]” disproportionate evidence. Johnson joined the motion, requesting severance from Dixon. The Peopl e responded that severance would serve no purpose because Lee and Johnson were charge d with identical crim es, the evidence was strong against all defendants, and the eviden ce would be admissible against each in separate trials. After further argument concerning, in large part, th e admissibility against nondeclarant defendants of statements made by another defendant to Agustin or Jackson, the trial court denied the motion to sever without prejudice. Just before the start of ju ry selection, Lee again moved for severance of his trial from that of the other defendants. Lee cited the domestic violence incidents that were going to be admitted against Johnson; the tes timony of the BWS expert that was going to be admitted with respect to Agustin; the lengthy amount of gang ev idence that was going to be produced against Johnson; the st atements made between Johnson and Agustin, some of which would not be cross-admissi ble; the statements between Johnson and Jackson, some of which would not be cr oss-admissible; Dixon’s prior manslaughter conviction, service of time in prison, and subsequent parole st atus; the tattoos and photographs of Johnson and Dixon, that wo uld not be cross-admissible against Lee; statements between Dixon and Agustin that would not be cross-admissible; statements between Dixon and Jackson that would not be cross-admissible; and th e gang evidence as to Johnson and Dixon that wo uld not be cross-admissible against Lee. Lee expressed particular concern about spillover prejudice, and the disparate amounts and strength of

74 We will discuss the pr opriety of these rulings, post

.95. the evidence against each defe ndant. The People opposed the motion on the grounds that the evidence was strong as to each defendant, as well as cross-admissible. Finding Lee could receive a fair trial, the court denied the motion. 2. Analysis Section 1098 provides in part: “When tw o or more defendants are jointly charged with any public offense, ... they must be tried jointly, unless the court order separate trials.” Under this section, “a trial court must order a joint trial as the ‘rule’ and may order separate trials only as an ‘exception.’ [Citation.]” ( People v. Alvarez (1996) 14 Cal.4th 155, 190.) “‘A “classic” case for joint trial is presented when de fendants are charged with common crimes involving common events and vic tims.’ [Citation.] Though severance is in the sound discretion of the trial court, severance should generally be granted ‘“in the face of an incriminating confession [by a co defendant], prejudicial association with codefendants, likely confusio n resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separatetrial a codefendant would give exonerating testimony.”’ [Citations.]” ( People v. Pinholster (1992) 1 Cal.4th 8 65, 932, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Massie (1967) 66 Cal.2d 899, 916-917; cf. Zafiro v. United States (1993) 506 U.S. 534, 539.) The foregoing factors are not exclusive and are most often applied in cases involving defendants who are ch arged with crimes arising out of the same episode(s), as opposed to separate occasions. ( Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 938.) In the present case, defendants were jo intly charged with crimes arising out of the same episodes for the most part, but Dixon was not charged in count one, and Lee was not charged in counts six and ten. Under su ch circumstances, it has been held that the criteria guiding trial court disc retion with respect to joinder of counts (§ 954) are also instructive. ( Calderon , supra , at pp. 938-939.) They are: “(1) whether evidence of the crimes would be cross-admissible; (2) whether some charges are likely to inflame the96. jury against the defendant; (3) whether a weak case has been joined with a strong one, or with another weak case; and (4) whether any of the charges is a potentially capital offense.” ( Id . at p. 939.) “We review a trial court’s denial of a severance motion for abuse of discretion based on the facts as they appeared at the tim e the court ruled on the motion. [Citation.]” ( People v. Avila (2006) 38 Cal.4th 491, 575; accord, People v. Mendoza (2000) 24 Cal.4th 130, 160-161 [discussing review under § 954].) A trial court abuses its discretion when its ruling “falls outside the bounds of reason.” ( People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) “If we conclude the tria l court abused its discretion, reversal is required only if it is reasonabl y probable that the defendant would have obtained a more favorable result at a separate trial. [Citations.] If the c ourt’s joinder ruling was proper when it was made, however, we may reverse a judgment only on a showing that joinder ‘“resulted in ‘gross unfairness’ amounting to a denial of due process.”’ [Citation.]” ( People v. Lewis, supra, 43 Cal.4th at p. 452.) At the time of its rulings, the trial c ourt reasonably could have concluded the potentially prejudicial evid ence either would have been admi ssible in separate trials or, to the extent it would not have been, could be adequate ly compartmentalized among defendants by means of limiting instructions. “The fact that evidence of other incidents was admissible against some defendants and not others does not require separate trials. [Citation.]” ( People v. Goodall (1982) 131 Cal.App.3d 129, 141.) The court also reasonably could have conclude d severance was not warranted by potentially antagonistic defenses (see People v. Letner and Tobin (2010) 50 Cal.4th 99, 150 [trial court abuses its discretion in denying severance only where conflict between defendants alone will demonstrate to jury that defendants are gu ilty]), by the relative di ssimilarity of the quantity and quality of the evid ence implicating one defendant as compared to the others (see id . at p. 151; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 43), or by prejudicial association (see Letner and Tobin , supra , at p. 152 [prejudicial association97. justifying severance occurs wh ere evidence regarding one de fendant might make it likely jury would convict that defe ndant, and more likely find codefendant gu ilty based on relationship between the defendants rather than upon evidence separately implicating codefendant]). One asserting prejudice in this situation must prove it; a bald assertion is not enough. ( People v. Kemp (1961) 55 Cal.2d 458, 477.) “[ D]efendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials. [Citations.]” ( Zafiro v. United States, supra, 506 U.S. at p. 540.) We conclude the trial court did not abuse its discretion by denying the severance motions. However, we cannot reject, out of hand , Lee and Dixon’s claims that joinder resulted in such unfairness as to violate due process. We recognize that jurors are presumed to follow instructions limiting the purpose(s) for which evidence can be considered or the defendant(s) against whom it can be considered. ( People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 43-44.) Neverthele ss, there can be no doubt in the present case that these matters sometimes were complex. “Prejudice cannot be understood in a va cuum. The touchstone of the court’s analysis is the effect of jo inder on the ability of the jury to render a fair and honest verdict. Prejudice will exist if the jury is unable to assess the guilt or innocence of each defendant on an individual an d independent basis. ‘Rather, the ultimate question is whether under all of the circumstances, it is with in the capacity of th e jurors to follow the court’s admonitory instructions and, corre spondingly whether they can collate and appraise the independent evidence against ea ch defendant solely upon the defendant’s own acts, statements, and conduct.’ [Citation.]” ( United States v. Tootick (9th Cir. 1991) 952 F.2d 1078, 1082 [discussing joinder and se verance under Fed. Ru les Crim.Proc.].) As we cannot assess the fairness of trial without reviewing the trial record and analyzing many of the other claims of error made by defendants on this appeal (see People v.98. Cleveland (2004) 32 Cal.4th 704, 726), we will re visit the issue of severance in our discussion of cumulative prejudice, post

. C. Batson-Wheeler Defendants challenge the tria l court’s denial of their Batson-Wheeler 75 motions, which were predicated on the prosecution’s pe remptory excusals of physically disabled and African-American prospective jurors. 76 The People say the challenged peremptory strikes were constitutiona lly permissible. “The purpose of peremptory challenges is to allow a party to exclude prospective jurors who the party believes may be consciou sly or unconsciously bi ased against him or her.” ( People v. Jackson (1992) 10 Cal.App.4th 13, 17. ) “There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination. [Citations.]” ( People v. Bonilla (2007) 41 Cal.4th 313, 341.) Peremptory challenges may properly beused to remove prospective jurors believed to entertain specific bias, i.e., bias re garding the particular case being tried or the parties or witnesses thereto. ( Wheeler , supra , 22 Cal.3d at p. 274.) However, “‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias — that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or si milar grounds” — violates the ri ght of a criminal defendant to trial by a jury drawn from a representa tive cross-section of the community under

75 Batson v. Kentucky (1986) 476 U.S. 79 ( Batson ); People v. Wheeler (1978) 22 Cal.3d 258 ( Wheeler). Wheeler has been overruled in part by Johnson v. California (2005) 545 U.S. 162 ( Johnson ).
76 Defendants are African-American. Altho ugh there is no indication any is hearing impaired or otherwise physically disabled, a defendant and prospective juror(s) alleged to have been wrongly excused ne ed not be members of the same group in order for the defendant to complain. ( Powers v. Ohio (1991) 499 U.S. 400, 416.)99. article I, section 16 of the California Constitu tion. [Citations.] Such a practice also violates the defendant’s right to equal prot ection under the Fourteen th Amendment to the United States Constitution. [C itations.]’ [Citation.]” ( People v. Bell (2007) 40 Cal.4th 582, 596; see Batson , supra , 476 U.S. at pp. 88-89; Wheeler , supra , 22 Cal.3d at pp. 276- 277.) 77 “The United States Supreme Court has ... reaffirmed that Batson states the procedure and standard to be used by trial courts when motions challenging peremptory strikes are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide ... whethe r the opponent of the strike has proved purposeful racial discri mination.” [Citation.]’ [Citation.]” ( People v. Avila, supra, 38 Cal.4th at p. 541, quoting Johnson, supra, 545 U.S. at p. 168.) The California Supreme Court has “endorsed the same three-part structure of proof for state constitutional claims. [Citations.]” ( People v. Bell, supra, 40 Cal.4th at p. 596; see Wheeler , supra , 22 Cal.3d at pp. 280-282.) With these principles in mind, we turn to the case before us.

77 Defendants raise a separate equal prot ection claim under the state Constitution. “Our state constitutional guarantee of equal protection (Cal. Const., art. I, § 7) is substantially equivalent to that contained in the United States Constitution (U.S. Const., 14th Amend.), and our analysis of state and fede ral equal protection claims is substantially the same. [Citations.]” ( People v. Hofsheier (2006) 37 Cal.4th 1185, 1211; accord, People v. Leng (1999) 71 Cal.App.4th 1, 11; see People v. Taylor (2001) 93 Cal.App.4th 318, 322; In re Evans (1996) 49 Cal.App.4th 1263, 1270.) Accordingly, defendants’ contention is subsumed within our existing discussion, and we do not separately address it.100. 1. Physical Disabilities

a. Background 1. H.D. Prospective Juror H.D. was employed as a caterer. She was also a student at Bakersfield Adult School, where she was half way to getting her highschool diploma and was taking regular high school classes. In addition, she taught a parenting class at a counseling center. She helped the director with parents who had lost their children, especially through adoption. Her son was being raised by her sister. She had two brothers in gangs, but had no contact with th em. She had no prior jury service, no close friends or relatives in law enforcement, and di d not know anyone invo lved in the trial. She did not believe there was anything about th e nature of the case or charges that would affect her ability to be fair and impartial. Her home had been burglarized about eight months earlier, and she had pled no contest to misdemeanor disturbing the peace about 15 years earlier. She had never had an unpleasant experience with law enforcement. She promised she could and would be fair to both sides in this case. Because of her eyesight and hearing, H. D. did not watch much television or read much of the paper, and so had not heard anythi ng about this case othe r than what she had heard in court. She had heard all the ques tions asked by the attorneys of, and answers given by, her fellow prospective jurors. H.D. initially could not hear the prosecut or, whose microphone may not have been on at the start of the prosecution’s voir dire. When H.D. erroneously called the prosecutor “sir” and then apologized, the pr osecutor said, “There are a lot of them here.” 78 H.D. responded, “The y’re handsome too.”

78 All three defense attorneys, and one of the two prosecutors, were male. The lead prosecutor was female. (For the most part, we refer to “the prosecutor” as a single entity.)101. H.D. was using a device to help her he ar better, and she confirmed she had been able to hear the proceedings. 79 She was partially sighted, bu t could see the attorneys and the wall behind them. She had trouble with small things and used a magnifier to read small print. If she brought her magnifier, sh e would be able to read something like a typewritten document. It would not be too difficult for her to read things in this case; she was the kind of person, she told the prosecu tor, who, whatever was given, would do her work. She was very independent, too. Outside the presence of the prospective ju rors, the prosecutor related that she had “some concerns” about H.D.’s mental abilities. The prosecutor felt some of H.D.’s answers were somewhat appropriate, but thata lot were inappropriate. The prosecutor wanted to ask additional questions, and it was agreed H.D. would be questioned in chambers. During this further questioning, H.D. related that she had never been under a conservatorship and did not have a payee for the SSI benefits she received due to her eyesight. She was prohibited from having a driver’s license due to her eyesight, but could get a ride or take the bus to court. On a couple of occasions during this questioning, H.D. had to ask the prosecutor to repeat a question. At one point, the pros ecutor asked if H.D. re membered the previous discussion of the People’s burde n of proof in the case. H. D. answered affirmatively; when asked what that burden was, H.D. answ ered, “I’m okay with that.” She then asked the prosecutor to repeat the question, and th is time responded, “I have no burden of proof.” Once reminded of the People’s burden , H.D. said she had no problem with it. The prosecutor then asked if H.D. remember ed the discussion about past misconduct of defendants, and that it could be used for sp ecific purposes. When H.D. said yes, the

79 For best reception, the de vice had to be kept zeroed inon the other half of the court’s apparatus for hearing-impaired jurors, which was situated abov e the judge’s head.102. prosecutor asked if she rememb ered what those purposes were. H.D. responded, “Only on something that’s related to that and no other.” The prosecutor then questioned H.D. about her comment that the defense attorneys or the gentlemen at the table were handsome . Asked which ones she thought were good looking, H.D. responded that they were all good looking. She also to ld Lee’s attorney he had a good smile. When the lead prosecutor asked what about the male prosecutor, H.D. stated that he had a beard. Asked who did, H.D. referred to Lee’s counsel and said it was white. She thought about Chri stmastime when she saw it, because she thought he looked like Santa Claus. Asked if that would cause her to favor his side, she said no. It was just something nice on her part. It was a joke, and she did not feel she was rooting for either side. Questioning then passed to the defense. H.D. apparently could not hear counsel for Dixon until he turned on his microphone . H.D. related that she had no problem seeing him at counsel table, that she was bo rn completely blind and partially deaf, and that she had undergone many surgeries in her eyes and ears. When she went to school, she had trouble learning because of her hearing and eyesight. She did not get hearing aids until she was 19. They wo rked well, but it was difficult fo r her to hear in court with just her hearing aid because of interference from the background sound. She could hear everything with the court’s device, however. H.D. felt that in the jury room, she would have no problem talking to the other jurors or listening to them. She felt she was on an equal basis with them and wanted to be treated that way. Defense counsel all expressly passed fo r cause, and the prosecutor did not challenge for cause. The court found H.D. qu alified to serve as a juror, stating: “I listened to her. I watched her body language . And sure, she has some challenges, but she’s been able to overcome those handicaps. I don’t know if I could have done as well as she’s done.” It also observed that the judicial branch’s goals included fairness, diversity, and access.103. The next peremptory challenge belonged to the People, and th e prosecutor excused H.D. Told by the court that she was excused, H.D. responde d, “Who, me?” Counsel for Johnson then asked to take up a matter at sidebar. When he asked if H.D. could stay for a moment, a prospective juror said , “She can’t hear you.” The clerk said she would take care of H.D. After a brief conference, the court asked the prospective jurors , including H.D., to leave the courtroom while it heard a motion. Outside their presence, it asked if counsel for Johnson had any support for the notion that persons with visual and hearing impairments were cognizable groups for purposes of the Batson-Wheeler motion he had made at sidebar. Counsel responded that it was his understanding be ing blind or hearing impaired were not appropriate grounds upon wh ich to challenge a prospective juror, that H.D. could overcome her impairments with cert ain aids, and that sh e could keep an open mind. The court expressed its feeling that H.D. was not a member of a cognizable group for Batson-Wheeler purposes. The prosecutor statedthat assuming a cognizable class existed, no prima facie showin g had been made that H.D. was excused because of her physical disabilities. The prosec utor declined to offer reasons for excusing H.D. absent a request by the court because she did not thi nk a prima facie case had been shown, but she stated for the record that af ter the sidebar was requested, H.D. was wandering around the courtroom and tried to go in the back with th e court and counsel. The court noted that she did not have her hearing- impaired device with her. The prosecutor agreed, and pointed out that she tried to go behind defe ndants, then to ward an exit door, and another juror had to catch her and bring her back in. The prosecutor assert ed her confusion was obvious, and that if someone merely does no t know what is happe ning, that person does not try to go back into the judge’s chambers. The court invited counsel to address whether a prima facie case of systematic exclusion had been shown. Counsel for Johnson argued that he saw no reason for104. excusing H.D. other than her special needs, as she did not show a preference for either side. The court stated: “I don’t feel that sh e’s part of a cognizable group, but I can see good arguments for why she should be in a co gnizable group. [¶ ] But based on what I’ve seen here, I don’t feel that a prima facie case of group bias has been established in this case or evidence sufficient to permit me to draw an infe rence that discrimination has occurred in this case.” Aske d about the possibility counsel might find case law showing she was part of a cognizable group, the court stated it was assuming she was a member of a cognizable group, and was making that finding. Accordingly, it denied the BatsonWheeler motion for failure to show a prima facie case. 2. M.R. Prospective Juror M.R., a former scho ol teacher, had been retired for about 15 years. She had prior jury service in both criminal and civil case s. She knew of no close friends or relatives in law enforcement, did not know anyone involved in the case, and saw nothing about the nature of the case or charges th at would affect her ability to be fair and impartial. She had no knowledge of any pretrial pu blicity or the facts of this case. She heard all the questions asked of her fellow prospective jurors and the answers given; they brought nothing to mindthat she wanted to discuss. When the prosecutor asked in what c ounty M.R. had taught , M.R. responded it was in Los Angeles County. When the pros ecutor asked if she was “from L.A.,” M.R. responded, “Am I married?” When the questi on was repeated, M.R. began her answer by calling the prosecutor “Dear.” A short time later, the prosecutor asked what brought M.R. and her husband to Kern County. M.R. answered , “Fourteen years.” She subsequently echoed several of the prosecuto r’s questions, suggesting she did not hear them well. 80 Asked if she knew anything about gangs in Kern County or elsewhere,

80 For example, when the prosecutor aske d, “What does he [M.R.’s son] do for a living?” M.R. answered, “What does he do?”105. M.R. related that she had read a little bit about them in the paper, but not so much that she knew about them. She did not think sh e had developed an opinion about them. When the prosecutor then said jurors could not consider penalty or punishment when deliberating, M.R. responded that she could not hear the prosecutor. A short time later, she said she was having “a terrible time” he aring the prosecutor. She found it “a little better” when the prosecutor spoke in the microphone “up close.” The prosecutor and counsel for Johnson passed for cause, as did counsel for Dixon after further questioning. Counsel for Lee m oved around to ascertain where M.R. could best hear him. M.R. said she did not think it would interfe re with her ability to hear everything if an attorney were to walk from the witness box to the projector and point to something being projected without wearing a mi crophone. M.R. promised that she would raise her hand every time she did not hear a ques tion or answer. She al so related that she had a hearing device, but did not have the batteries neededfor it at that time. She promised to get them over the weekend. O ffered use of the court’s hearing-impaired device or to have the court bring batteries, M.R. declined, stati ng she would bring her own hearing aid. Counsel for Lee passed for cause. The next challenge was with the People; the prosecutor excused M.R. No obj ection was raised, nor was the Batson-Wheeler motion renewed. b. Analysis “In order to make a prima facie showing, ‘a litigant must raise the issue in a timely fashion, make as complete a record as feas ible, [and] establish that the persons excluded are members of a cognizable class.’ [ 81 ] [Citation.] The high court [has] explained that ‘a

81 We have been unable to find any case di rectly holding that th e physically disabled are a cognizable class for Batson and/or Wheeler purposes. In United States v. Watson (D.C. Cir. 2007) 483 F.3d 828, 829-835, a case dealing with visually impaired prospective jurors, the federal court determin ed that disability was not to be accorded106. defendant satisfies the requirements of Batson ’s first step by producing evidence sufficient to permit the trial j udge to draw an inference that discrimination has occurred.’ [Citation.] ‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logica l consequence from them.”’ [Citation.]” ( People v. Gray (2005) 37 Cal.4th 168, 186; Johnson , supra , 545 U.S. at pp. 168-170 & fn. 4; Batson , supra , 476 U.S. at p. 96.) “Though proof of a prima facie case ma y be made from any information in the record available to the trial court, [the Ca lifornia Supreme Court has] mentioned ‘certain types of evidence that will be re levant for this purpose. Thus the party may show that his opponent has struck most or all of the member s of the identified group from the venire, or has used a disproportionate number of his pe remptories against the group. He may also demonstrate that the jurors in question sh are only this one ch aracteristic — their membership in the group — and th at in all other respects they are as heterogeneous as the community as a whole. Next, the showin g may be supplemented when appropriate by such circumstances as the failu re of his opponent to engage these same jurors in more than desultory voir dire, or i ndeed to ask them any questi ons at all. Lastly, ... the defendant need not be a member of the excluded group in order to complain of a violation of the representative cross-section rule; yet if he is, and especially if in addition his alleged victim is a member of the group to which the majority of the remaining jurors belong, these facts may also be called to the court’s attention.’ [Citations.]” ( People v. Bell, supra, 40 Cal.4th at p. 597.)

heightened scrutiny for equal protection analysis. In People v. Green (Cty. Ct. 1990) 561 N.Y.S.2d 130, 131, 132-133, a lower court found a perempto ry challenge intended to eliminate a prospective juror solely because she could not hear, to violate New York’s state constitution. The soundness of Green ’s analysis was questioned in Lawler v. MacDuff (Ill.Ct.App. 2002) 779 N.E.2d 311, 32 0. We assume, for purposes of our analysis, that the physically disabled are a cognizable class.107. “When the trial court concludes that a de fendant has failed to make a prima facie case, we review the voir dire of the challenge d jurors to determine whether the totality of the relevant facts supports an inferenc e of discrimination. [Citations.]” ( People v.
Lancaster (2007) 41 Cal.4th 50, 74.) We find no such inference here. The information elicited during voir di re established ample disability-neutral reasons for excusing H.D. (See People v. Bonilla, supra, 41 Cal.4th at p. 343.) For instance, her lack of education made her a less-than-desirable juro r for a complex case such as this. She had brothers who were gang members and had been in and out of prison, and she herself had a prio r misdemeanor conviction. (See People v. Davis, supra, 46 Cal.4th at p. 584.) More importantly, a number of her answers were inappropriate, and the prosecutor was not required to accept the explanation that H.D. was joking with regard to her statements about defense counse l. In addition, the record supports the prosecutor’s claim that H.D. was confused for reasons beyond her hearing impairment when the sidebar conference was called, a clai m the trial court was in the best position to evaluate. 82 In light of H.D.’s answers and behavior, we decline to equate the prosecutor’s questioning her mental abilities, or peremptorily excusing her, with bias or the stereotyping of pe ople with disabilities. Defendants say we should consider th e prosecutor’s excusal of M.R. in determining whether there was sufficient evidence to support an inference of

82 In order to make as full a record as possible in Batson-Wheeler proceedings, the California Supreme Court has encouraged trial courts to solicit explanations for contested peremptory challenges from pros ecutors, even in the absence of a prima facie showing. Although the prosecutor here wa s within her rights to declin e to state her reasons unless and until the court found a prim a facie case, her voluntary d ecision to do so would not have constituted an admission or concession that a prima facie case existed, and so would not have converted a first-stage Batson-Wheeler case into a third-stage one. ( People v. Howard (2008) 42 Cal.4th 1000, 1020; People v. Zambrano (2007) 41 Cal.4th 1082, 1105, fn. 3, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)108. discriminatory intent. We decline to do so, because defendants did not renew their motion following her excusal and so failed to pr eserve the issue for appeal. “[T]he trial court’s finding is reviewed on the re cord as it stands at the time the Wheeler / Batson ruling is made. If the defendant believes that subsequent events shou ld be considered by the trial court, a renewed objection is requiredto permit appellate c onsideration of these subsequent developments.” ( People v. Lenix (2008) 44 Cal.4th 6 02, 624; see also People v. Hartsch (2010) 49 Cal.4th 472, 490, fn. 18; People v. Irvin (1996) 46 Cal.App.4th 1340, 1352.) Defendants claim any further objection would have been futile because it would not have changed the trial court’s finding that peop le with disabilities are not a cognizable group for Batson-Wheeler purposes. This assertion ignores the fact the trial court, while expressing doubt that persons with physical disabilities constituted a cognizable group, made an express finding th at H.D. was indeed part of a cognizable group but that no prima facie case had been shown. Under these circumstances, it would hardly have been futile to renew a motion following the presentation of circumstances defendants could have used as additional ev idence in support of a prima facie showing. 83 Were we to consider the prosecutor’s excusal of M.R., we would still find no inference of discriminatory in tent. “‘[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.’” ( People v. Bell, supra, 40 Cal.4th at p. 598 .) Defendants say H.D. and M.R. were the only remaining potential jurors with disabilities, but we do no t know this to be true. Moreover, we decline to take into account challenges for cause in determining whether the prosecution removed all prospective jurors with disabilities from the panel, thereby

83 We do not find counsel ineffective fo r failing to renew the motion, because the record does not affirmativel y show counsel had no rationa l tactical purpose for the omission. ( People v. Jackson (1989) 49 Cal.3d 1170, 1202; see People v. Holt (1997) 15 Cal.4th 619, 657.)109. evidencing discriminatory intent, as defendants apparently would have us do: The excusal of a prospective juro r whose physical disabilities would interfere with jury service simply does not raise an inference of discrimination, alone or in combination with other circumstances. Similarly, the fact th at a prospective juror was not subject to exclusion for cause does not support an infe rence that the exerci se of a peremptory challenge against him or her was motivated by group bias. ( People v. Cornwell (2005) 37 Cal.4th 50, 70, disapprovedon another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Additionally, voir dire elicited disability-n eutral reasons for ex cusing M.R. For instance, any prosecutor might have been co ncerned about her not having developed any opinion about gangs despite havi ng lived in Los Angeles and Ke rn Counties. In addition, questions remained about the extent of he r hearing problem and its potential impact on her abilities as a juror, since she neither got batteries for her own hearing aid despite necessarily knowing she was coming to court fo r jury service, nor accepted the court’s offer of the use of its device. Under the ci rcumstances, the prosecutor was not required to assume M.R. would be able adequately to hear everything, or that she would carry through on her promise to raise he r hand every time she could not. The trial court did not e rr by finding no prima facie case of discrimination was shown. Accordingly, having assumed for purpos es of our analysis that the physically disabled constitute a cognizable group for Batson-Wheeler purposes, we need not determine whether that is indeed so. 2. Race

a. Background Prospective Juror E.B. ha d been employed as a derrick hand on a drilling rig in the oil fields for approximately three years. E. B. was single, had no prior jury service, and had no close friends or relatives in law enfo rcement. Asked if there was any reason he could not be fair and impartial, E.B. answ ered no, but, when the court noted he had110. paused, stated, “I just want to go back to work, pretty much .” E.B. explained that he normally worked, and was paid for, a 12-hour t our, but this was decreased to eight hours when he was on jury duty. Asked if he would be able to get by financially if he served on the jury, he responded, “I don’t kn ow. I got a lot of bills.” The prosecutor questioned E.B. further about his financial situation and ascertained that E.B. would be losing substantially more than a third of his paycheck if he did not receive overtime pay for the extra four hours per tour. Asked if he could weather that kind of pay cut if the trial went into Ja nuary, E.B. answered, “I don’t know. I have to see what my check is like Friday.” E.B. di d not think he would be worrying about his finances rather than giving hi s full attention to the case. He acknowledged, however, that because his shift was four days on, four days off, there might be tim es when he would be working two 12-hour days on the weekend. E.B. was not familiar with MySpace or Facebook. He liked to watch sports on television, and sometimes a show called “Wife Sw ap.” He did not rea lly like to read, as he read enough at work. Noting that E.B. app eared to be similar in age to defendants, the prosecutor asked if he was concerned about a ny kind of sympathy he might have toward them. E.B. responded that he did not have any sympathy. Asked about victims who might be around his age, he said, “I don’t know them.” The prosecutor then called E.B.’s atte ntion to the prior discussion about the standards used for evaluating witnesses, and as ked if he had ever been in a situation at work where he had to evaluate whether someone was telling him the truth. When E.B. answered affirmatively, the prosecutor asked what sorts of situations. E.B. answered, “Just make sure they did their job, because most of the time they lie to you trying to just -- you have to go and check it.” E.B. explained that he was in charge of two other people on the job. Asked what kind of responsibilities he would have in a situation in which, for example, one of his employees was a couple of hours late and had obviously111. been drinking, E.B. said he would have no responsibilities, as he was just supposed to make sure they did their job and to keep them busy. The prosecutor then asked what type of responsibilities E.B. had if there were problems with the people he supervised. This ensued: “Q. Well, do you have any re sponsibilities for discipline, for instance? “A. If they talk too crazy or someth ing to you crazy, just tell them to meet you after work. [¶] ... [¶] “Q. Like to settle it in th e parking lot ki nd of thing? “A. Yeah. [¶] ... [¶] “Q. And what if someone that you ’re supposed to tell them what to do, what if they don’t do what they’re supposed to, what are you supposed to do?
“A. Just cuss them out. Just le t them know what’s up. They gotta respect what your position is. If not , you just try to send them home. “Q. Does that involve any paperw ork? Do you have to fill out a -- you know, write some paper on them about some problem you have with them? “A. No, I don’t have to. Just keep yelling at them all day until you make them quit. “Q. Do you like that part of your job? “A. Not really.” E.B. subsequently confirmed that he be lieved he would be able to judge which witnesses were telling the truth and which were lying. He was not familiar with the state’s gang laws, did not pay attention to them, and did not watch or follow the news. It did not cause him any c oncern when he heard there would be evidence in this case about previous convictions; he did not think anything when he heard that. It did not bother him112. at all. The judge’s explanation of how that evidence would be evaluated and used seemed fair. When counsel for Dixon noted that E.B. sp oke softly, E.B. responded that he was nervous. He felt, however, that he would be able to express his opinions to the other jurors during deliberations, as well as to lis ten to their opinions and change his if he found they were right. He woul d also be able to hold on to his opinion if he felt he was right. Counsel for Lee questioned E.B. further about how he handled those he supervised. This ensued: “Q. And taking them down to the parking lot is a way to take them apart and tell them what’s up. If they want to keep making that kind of money they don’t really have a choice . They have to do what you want them to do. Right?
“A. Yes. “Q. Kind of like kicking them in th e butt, so to spea k. Kind of like riding them during the day, like you said, right?
“A. Yes. “Q. If you don’t want to do the job that’s up here, then maybe we can find you some really dirty job and change your mind about being some part of the team, that kind of thing?
“A. Yeah. “Q. You didn’t mean you’d ask somebody to co me out in the parking lot so you could whoop them, right? “A. Sometimes you have to do that. [¶] ... [¶] “Q. Who wins those things? “A. You just don’t tell nobody.” All counsel passed for cause. Later, how ever, the People pe remptorily excused E.B., prompting defendants to object to what they asserted was the systematic exclusion113. of African-Americans and minorities. Counsel for Johnson pointed to the excusal of J.C., an African-American male; C.A., a Hispan ic-surnamed female; J.H., an AfricanAmerican male; and E.B., an African-Americanmale. Counsel for Lee added that the challenge to E.B. was the prosecutor’s 10th, and of the 10 challenged, three were African-American. The court estimated that th ere were seven or eight African-American prospective jurors, including on e currently in the box (Juror No. 1336880). Counsel for Lee argued that a comparison of the percentage of African-Americans in the venire with the percentage of African-Americans stricken by the prosecution alone gave rise to at least the inference required to show a prima facie case. The prosecutor argued that no prima faci e case had been shown, as the defense had not met its burden of show ing there was a discriminatory purpose in the excusing of E.B. She noted that the People had excused pe ople of all races from the jury, as had the defense. Counsel for Johnson responded that of the prosec ution’s 10 challenges, seven had been exercised against minorities. The court found the defense had establis hed an inference that the persons named by counsel for Johnson were challenged because of their group association of being Hispanic or African-American, and it asked th e prosecutor to explain the challenges. When the prosecutor asked if she was to explain only with respect to E.B., the court answered affirmatively, saying that was the challenge. The prosecutor then stated E.B. was excused because the prosecution believe d he was very young, had limited life experience, was single, had no children, had no post-high school education, did not look at the news and was unaware of the circumstan ces in the news with respect to the current world, was uncomfortable and fidgeting wh ile being questioned, mumbled, was very nervous, was very immature in failing to chec k out the financial consequences to him of jury duty, and most of all, solved workpl ace disputes in a comp letely inappropriate manner. The prosecutor argued that violence in the workplace was inappropriate even in the oil fields, and that E.B. was not ashame d of resorting to violence to resolve his114. disputes. The prosecutor also asserted that she felt E.B. was cavalier in some of his answers about Dixon’s prior conviction, and she thought his style of dress — wearing a black T-shirt with a large sku ll on the front in a murder case, and sagging pants — was inappropriate and immature and showed a lack of respect for the system. The prosecutor reiterated that this was a case involving people taking their disputes to the street in retaliation, and E.B.’s manner of dealing with people at wo rk showed him to have no place on the jury. The prosecutor felt him to be a “very immature and mean” person. Counsel for Lee argued that law enforcem ent and military academies used tactics such as cursing and beating to instill discipline and prepare students for the dangers of the job. He also argued that people dressed di fferently, and that clothing should not be the hallmark of showing respect in the courtroo m. Counsel also asked if the court saw fidgeting. Counsel for Dixon argued that E.B. said he could sit on the jury financially, and that this should be taken at face value. When counsel started to discuss the T-shirt, the court stated it had not seen the garment and so would not rely on it. As for fidgeting, counsel pointed out E.B. said he was nervou s, and that other potential jurors were nervous. Counsel also argued that E.B. was no t as young as the prosecutors believed, but rather was in his mid-20’s. Counsel furthe r argued that just b ecause E.B. could not always be heard did not makehim different from a number of other people. Counsel for Johnson joined in the other defense comments, and argued E.B.’s body language did not reflect an aggressive demeanor, and that E.B. was polite, attentive, and answered appropriately. He further did not show aggression when interacting with other prospective jurors. The prosecutor responded th at while he was talking to E.B., E.B. never stopped moving from side to side in his seat. As fo r his financial situation, E.B. would not know if there was a problem until he received his paycheck on Friday. 84 The prosecutor argued

84 The motion was heard on Wednesday, December 3, 2008.115. that E.B. had bills to pay and responsibilitie s, yet had not taken the step of calling his employer to find out what his paycheck wo uld be, and that this was indicative of immaturity. The prosecutor fu rther pointed to E.B.’s manner of exercising his workplace authority, specifically in te rms of committing a crime and then covering it up. After counsel for Lee resp onded, the court ruled: “Find that the reasons given for the challenge exercised on [E.B.] are group neutral. I find specifically that the prosecution was sincere in offering their challenges based on deme anor of [E.B.] based upon his young age, his immaturity, and indicati on of the type of way in which he settles disputes or exercises control by the exercise of self-help mechanisms in regards to co-employees on the drilling rig, his body language, his movement in his seat in shifting of position. All I think are indicative, especially the way in which he indi cates he would discipline or handle employees in the workplace. “Maybe if this was in a restaura nt or a bar setting or in a party setting or in some social gathering, but the way in which he would handle employees who were either under the influence or not performing to his expectation indicate to me how a sin cere ... party such as the prosecution could conclude that he is immature in the way in which he would exercise discipline and control other co-employees. So the challenge is denied.” b. Analysis The trial court ruled for the defense in step one of the Batson-Wheeler analysis by finding a prima facie case of discriminati on with respect to African-Americans and Hispanics. 85 African-Americans are a cognizable group ( People v. Alvarez, supra, 14 Cal.4th at p. 193), and we a ssume substantial evidence supports the court’s determination (see People v. Silva (2001) 25 Cal.4th 345, 384; Alvarez , supra , at p. 197). Accordingly, we move to step two.

85 Defendants do not claim the trial c ourt erred by limiting the hearing to the peremptory excusal of E.B. despite the broa der finding with respect to a prima facie showing. Accordingly, our an alysis concerns only E.B.116. At step two, the prosecutor must come forward with a race-neutral explanation for the challenged excusal. ( People v. Silva, supra, 25 Cal.4th at p. 384.) “A neutral explanation ... means an explanation based on so mething other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” ( Hernandez v. New York (1991) 500 U.S. 352, 360 (plur. opn. of Kennedy, J.).) Atthis stage, the explanation need not be persuasive, or even plausible. ( Purkett v. Elem (1995) 514 U.S. 765, 767-768.) “‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.] A prosp ective juror may be excused ba sed upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor may rely on any number of bases to select jurors, a legitimate reason is one that does not de ny equal protection. [Citation.]” ( People v. Lenix, supra, 44 Cal.4th at p. 6 13, italics omitted.) Whether the prosecutor has offered a race- neutral reason for his or her challenges is a question of law subject to our independent review. ( People v. Alvarez, supra, 14 Cal.4th at p. 198, fn. 9; Paulino v. Harrison (9th Cir. 2008) 542 F.3d 692, 699.) As no discriminatory intent was inherent in any of the prosecutor’s reasons, we conclude those reasons were race neutral. ( Hernandez v. New York, supra, 500 U.S. at p. 360 (plur. opn. of Kennedy, J.).) Hence, the prosecution met its burden with respect to step two of the Batson-Wheeler analysis. Accordingly, we move to step three. At this stage of the analysis, the trial court must decide whether the opponen t of the peremptory strikes has proved purposeful racial discrimination by a preponderan ce of the evidence. ( Purkett v. Elem, supra, 514 U.S. at p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992, 997-998.) Th e persuasiveness of the proffered justificati on now becomes relevant ( Johnson , supra , 545 U.S. at p. 171), as implausible or fantastic justifications w ill be found to be pr etexts for purposeful117. discrimination ( Purkett v. Elem, supra, 514 U.S. at p. 768). “What is required are reasonably specific and neutral explanations that are related to the particular case being tried.” ( People v. Johnson (1989) 47 Cal.3d 1194, 1218.) Once the prosecutor comes forw ard with such an explanation, the trial court must then satisfy itself that the explanation is genuine. ( People v. Hall (1983) 35 Cal.3d 161, 167.) “In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted th e prosecutor’s exercise of the particular peremptory challenge.” ( People v. Fuentes (1991) 54 Cal.3d 707, 720.) “This demands of the trial judge a sincere and reasoned atte mpt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which th e prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily, for ‘w e rely on the good judgment of the trial courts to distinguish bona fide reasons for such pere mptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ [Citation.]” ( People v. Hall, supra, 35 Cal.3d at pp. 167-168; see also People v. Lomax (2010) 49 Cal.4th 530, 570-571.) In undertaking this evaluati on, the trial court need not make affirmative inquiries, but must find the ra ce-neutral explanations to be credible. ( People v. Hamilton (2009) 45 Cal.4th 863, 907.) “When a trial court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror, we accord great de ference to its ruling, reviewing it under the substantial ev idence standard. [Citations.]” ( People v. Jurado (2006) 38 Cal.4th 72, 104-105; accord, People v. Lenix, supra, 44 Cal.4th at p. 627; see
Batson , supra , 476 U.S. at p. 98, fn. 21; Paulino v. Harrison, supra, 542 F.3d at p. 699.) Deference does not, of course, “imply aband onment or abdication of judicial review.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.) The record before us clearly establishes the trial court made a sincere and reasoned effort to evaluate each of the prosecutors’ st ated reasons for their peremptory challenge118. of E.B. Accordingly, application of the su bstantial evidence standard is appropriate. Such evidence suppo rts the trial court’s ruling; the co urt neither erred by accepting the prosecutors’ explanations nor failed in its duty to examine those reasons for racial discrimination. The prosecutors’ nondemeanor-based reasons for excusing E.B. were both inherently plausible and suppo rted by the record. (See People v. Silva, supra, 25 Cal.4th at p. 386.) Youth and a concomitant limited lif e experience are valid bases for excusal. ( People v. Gonzales (2008) 165 Cal.App.4th 620, 631; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.) By parity of reas oning, so is immaturity. The prosecutors were reasonably specific with respect to thei r concerns about E.B.’s workplace conduct, and the willingness to engage in violence to enforce on e’s authority on the job is something that, in a prosecutor’s subjec tive and sincere estimation, may render the prospective juror not the best type of individu al to sit on the case being tried. (See People v. Reynoso (2003) 31 Cal.4th 903, 924-925.) 86 As for the demeanor-based explanations, particularly E.B.’s constant movement, they are neither affirmatively contradicted by the record nor inherently improbable. (See People v. Reynoso, supra, 31 Cal.4th at pp. 925-926; People v. Jordan (2006) 146 Cal.App.4th 232, 256.) In f act, E.B.’s movement was implicitly confirmed by the trial

86 Defendants say that even if not pretextu al, E.B.’s conduct in resolving workplace disputes was not rationally related to his ability to serve as a juror in this case, especially where his conduct during voir dire was polite and appropriate, and he was unbiased and stated he could listen to others during jury deliberations. We disagree. In our view, there is a clear and rational relationship between the use of violence to resolve workplace disputes or impose one’s authority and will in the workplac e, and how one may act to resolve disputes or impose one’s opinions in the jury room. Even if th ere need be no fear the prospective juror would ac tually use violence in deliber ations, the apparent inability to use reasoning and persuasion to resolve dis putes demonstrates an immaturity that is rationally connected to his or her ability to serv e. In addition, the pr esent case involved a form of “self-help” — gang members taking their disputes to the streets instead of attempting to resolve them by other means.119. court. (Contrast Snyder v. Louisiana (2008) 552 U.S. 472, 479.) Generally speaking, a prospective juror’s demeanor may properly beconsidered by a prosecutor in deciding whether to exercise a peremp tory challenge. (See, e.g., People v. Ward (2005) 36 Cal.4th 186, 202; People v. Turner (1994) 8 Cal.4th 1 37, 170-171, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Cummings (1993) 4 Cal.4th 1233, 1282.) The trial court here was in the best position to observe E.B., and its acceptance of the prosecutors’ reasons is entitled to great deference. ( People v. Stanley (2006) 39 Cal.4th 913, 939.) Under the circumstances, the fact defense counsel did not observe something, or interpreted it differently thanthe prosecutors, does not call into question the credibility of the prosecutors’ stated reason. ( People v. Jordan, supra, 146 Cal.App.4th at p. 255.) Moreover, the trial court was in the best position to observe the prosecutors’ demeanors, and the manner in which they exercised their peremptory challenges, in assessing th e prosecutors’ credibility. ( People v. Stanley, supra, 39 Cal.4th at p. 939; see People v. Lomax, supra, 49 Cal.4th at pp. 570-571.) Relying on Miller-El v. Dretke (2005) 545 U.S. 231, defe ndants put forth several arguments in support of their assertion the prosecutors’ reasons for excusing E.B. were pretexts for excusing him becau se he was African-American. First, defendants point out that seven of the prosecution’s first 10 challe nges were used against minorities, three of whom were African-Americans. Three out of four African-Americans in the jury box were excused peremptorily by the prosecution. Thus, defendants say, a great percentage of African-Americans were removed by the pros ecution, a fact that supports a strong inference of purposeful discrimination on the basis of race. (See id . at pp. 240-241.) Statistics cannot be considered in a v acuum. Here, although defendants were themselves African-American, so too were most of their victim s. Thus, this is not a case in which the defendants were members of th e excluded group, while their alleged victims were members of the group to which the ma jority of the jurors belonged. (See People v. Cleveland, supra, 32 Cal.4th at pp. 733-734.) In additi on, at least one trial juror, Juror120. No. 1336880, was African-A merican. “‘While the fact that the jury included members of a group allegedly discriminated against is not conclusive, it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.’ [Citation.]” ( People v. Ward, supra, 36 Cal.4th at p. 203; accord, People v. Lewis, supra, 43 Cal.4th at p. 480.) In addition, the circumstan ces surrounding the excusals of the other two AfricanAmerican prospective jurors cannot be ignored. J.H. had a son serving life in prison for what J.H. believed was a gang-related murder. He had served on two juries before and felt he never knew when a lawyerwas giving him all the facts or telling the truth. Asked by the prosecutor if, were he in her position, he would think it good to have 12 jurors with his state of mind, J.H. stated he co uld not be in her pos ition and could not put himself in her position. When the prosecutor questioned J.H. further about his prior jury experience, this ensued: “Q. Now, is there anything abou t that experience that would cause you to -- “A. Absolutely not. “Q. Are you feeling irritated with me right now? “A. Absolutely not. “Q. Are you sure? Because it’s time to be honest. “A. Why do you ask me the same question over and over? If I lied the first time, I’m going to lie the second time. I told you the truth the first time. I’m going to do it again. “[PROSECUTOR]: Your Honor, atthis time I think I need to challenge for cause. “[J.H.]: Good.” Following voir dire by de fense counsel, the trial court denied the prosecutors’ challenge for cause. The next peremptory challenge was the People’s, and the prosecutor121. used it to excuse J.H. During the hearing on the Batson-Wheeler motion, the trial court observed that J.H. and been “a little short” with the prosecutor. The other African-American prospective juror who was peremp torily excused by the People was J.C. In pertinent part, J.C. stated that, although he knew jurors were not supposed to consider penalty orpunishment, if he were a juro r and were to return a guilty verdict, it would be “kind of like morally hard” on him. He noted th at defendants looked to be about his age, and the jury’s decision “could potentially determine the rest of their lives ....” Although J.C. felt he could listen to the evidence, keep an open mind, and reach a fair and just verdict based on the evid ence and the law, he admitted he was having a hard time not putting himself in defendants ’ position. Although he would try putting it out of his mind, he felt it would be hard to not think, during deliberations, about what would happen to defendants if convicted. The prosecutor challenged for cause, but, as J.C. said he believed he could find defendants guilty if the prosecution met its burden of proof and that he would follow the law as the court instructed, th e trial court denied the cha llenge. The prosecution then accepted the panel containing J.C. (and Juror No . 1336880) four times. Only after using its next two peremptory challenges agai nst other prospectiv e jurors, and having defendants exercise various pe remptory challenges, did the Pe ople excuse J.C. During the hearing on the Batson-Wheeler motion, counsel for Lee represented that the defense did not make such a motion with respect to J.C. because J.C. indicated he felt sympathy toward defendants based on their ages. In light of the foregoing, the bare statistics are misleadi ng in this case, and do not support an inference of purposeful discri mination based on race. Defendants say, however, that the prosecution us ed a different script for que stioning E.B. than it did for other prospective jurors and included a trick question designed to elicit cause to strike an African-American male and not discover how he would function as a juror, and that these122. circumstances were a strong indication of racial bias in questioning. (See Miller-El v. Dretke, supra, 545 U.S. at pp. 255-262.) Defendants point to the prosecutor asking E.B. if he had ever had to evaluate someone’s credibility at work an d then, rather than questioni ng E.B. about the process he might use in that regard, insteadasking how E.B. would handle a hypothetical situation. When an objection to the question was sustained, the prosecutor asked what type of responsibilities E.B. had if there were problem s with the people he was responsible for supervising, and if he was res ponsible for discipline. In light of E.B.’s previous answers concerning such things as his finances, youth, and lack of education beyond high school, and his demeanor, we find no trickery. Rath er, the question was desi gned to probe E.B.’s maturity and ability to work with other people, both of which were related to how he would function as a juror. The record does not support an inference the prosecutor anticipated E.B. would answer by admitting to the use of violen ce or in a way that would generate cause to strike a young African-American male. (Compare Miller-El v. Dretke,

supra, 545 U.S. at pp. 261-262.) As for allegedly disparate questioning, de fendants point to th e questions asked a number of non-African-American jurors and prospective jurors. However, the majority of these jurors were examined after denial of the Batson-Wheeler motion. Since we review the trial court’s finding on th e record as it stood at the time the Batson-Wheeler ruling was made ( People v. Lenix, supra, 44 Cal.4th at p. 624), we question defendants’ inclusion of jurors and prospective jurors who had not been the subject of voir dire at the time the trial court denied the Batson-Wheeler motion. Nevertheless, we include them in our analysis and accept defendants’ representation that those ju rors and nonjurors were in fact not African-American. Defendants first point to Juror No. 1314 332, who worked in th e oil fields as a compressor operator for a major oil company. When the pros ecutor ascertained the juror was the only one at the pl ant, this took place:123. “Q. You would not advocate violence out there in the oil fields, would you?
“A. No. “Q. You would agree that that ’s not the right thing to do. “A. No, it’s not.” Defendants say this was clearly a refere nce to E.B. and not a sincere question going to Juror No. 1314332 ’s suitability as a ju ror. While clearly e ngendered by E.B.’s responses, we find the questions proper, espe cially in light of the argument of Lee’s attorney at the time of the Batson-Wheeler motion concerning the training techniques used by law enforcement and military academies. The prosecutor asked prospective altern ate juror B.R., a supervisor for an oil company, if he had a “basic management phi losophy” for dealing with problems with employees. B.R. replied, “Get rid of them.” Asked if he consid ered himself a tough boss, B.R. stated, “Well, I think that we are only accountable to each other for ourselves.” Defendants say this answer puts E.B.’s re sponse into perspective. Indeed: It demonstrates that, while the oil fields may not be a workplace environment for sensitive people, neither is it necessary or common to resort to violence in order to deal with problem employees. Defendants say the prosecution did not ask similar questions about workplace conflict or discipline of G.H., Juror No. 1222064, B.M., Juror No . 1355968, M.B., or G.F., all of whom were non-African-Americans with similar jobs. However, the record supports the People’s response on appeal, namely that the prosecution’s questions were tailored to address potential concerns for each prospective juror in light of that individual’s previous answers. For instan ce, the prosecutor ques tioned G.H. at length about how he would determine credibility, especially since he was a friend of one of the law enforcement witnesses in this case. G.H. ultimately was excused pursuant to a defense challenge for cause. The record al so shows striking dissimilarities between E.B.124. and the individuals identified by defendants. For example, Juro r No. 1222064 had not worked in the oil fields in at least 12 years and, being re tired, was clearly considerably older than E.B. Similarly, B.M. had not worked in the o il business for 16 years. Juror No. 1355968 was several jobs removed from c ontact with the oil fields, and even then sold oil field equipment as opposed to workin g in the oil fields per se. M.B. was not a supervisor, but rather worked in a job in which he had some one telling him what to do. Prospective alternate juror G.F. was a lease operator who helped maintain production for several hundred oil wells. Having lived in Kern County for 55 years, he was considerably older than E.B., and the prosec utor ascertained that he did not supervise people, but rather worked togeth er with three other people, w ith G.F. usually being in the office and the other three being out in the field. In light of the fore going, the record does not support defendants’ claim that the disp arate questioning was a strong indication of racial bias. Defendants also say the pr osecution did not ask questio ns about employee conflict resolution or discipline during voir dire of similarly si tuated non-African-American prospective jurors S.F., K.M., L.D., and T.C. However, S.F.’s employees were in sales and marketing. K.M. had been employed for at least 31 years and had adult children. He was clearly significantly older than E.B. L.D. did not work in the oil fields, was significantly older than E.B., and was ques tioned by counsel for Johnson about making credibility determinations. Similarly, T.C. di d not work in the oil fields and, with a 16- year-old son, was at least somewhat older th an E.B. Given these differences, we again find no indication of racialbias in questioning. Last, defendants say the record reflects some sworn jurors shared characteristics with E.B. that the prosecution listed as reasons for dismissing him. (See Miller-El v. Dretke, supra, 545 U.S. at pp. 241-248.) We recogn ize that “[i]f a prosecutor’s proffered reason for striking a black panelis t applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tendi ng to prove purposefu l discrimination to125. be considered at Batson ’s third step. [Citation.]” (Id. at p. 241, italics added.) Accordingly, we have undertaken the requisite comparative analysis (see People v. Lenix,

supra, 44 Cal.4th at pp. 607, 621-622 ), keeping in mind that “[t] wo panelists might give a similar answer on a given point. Yet the riskposed by one panelist might be offset by other answers, behavior, attitudes or experience s that make one juror, on balance, more or less desirable. These realities, and the comp lexity of human nature, make a formulaic comparison of isolated responses an exceptiona lly poor medium to overturn a trial court’s factual finding.” ( Id . at p. 624.) “Viewing such comparative evidence in light of the to tality of evidence relevant on the claim, we conclude it does not de monstrate purposeful discrimination.” ( People v. Cruz (2008) 44 Cal.4th 636, 659.) Like E.B. , Juror Nos. 1181469 , 1227832, 1228043, and 1355968 were single and/or had no ch ildren. However, Juro r No. 1181469 was an accountant who was older than E. B., having lived in Kern County for 35 years. The juror had prior jury experience and read books or magazines that helped him with his job. Juror No. 1227832 was considerably older than E.B., having retired in 1989 after 27 years in the Air Force. Du ring that career, he was stati oned all over the United States, Europe, and Asia. He supervised numerous people during his career, and part of his duties involved di sciplinary actions. When he had to deal with someone he perceived had a problem, the commander, not the juror, us ually had the last word concerning what would happen. Most of the time, the comma nder accepted the juror’s recommendation. The juror had a lot of respon sibility in evaluating the soldiers and figuring out the appropriate thing to do, based on talking to them and other witnesses. Juror No. 1228043 was a public health nurse with prior jury experience. She sat on various boards. An inference can be drawn that she was considerab ly older than E.B., since she had nieces in their 30’s and had been a nurse for about 30 years. She trie d to follow the news. Juror No. 1355968 had prior jury experience. Given her leng thy employment history and the fact she had a 36-year-old child, it is appare nt she was significantly older than E.B.126. Juror Nos. 1286800 , 1343211, 1477749, a nd 1336880 all stat ed that a prior conviction would not have an impact on how they viewed th e murder case, though they do not appear to have said so in the same manner as E.B. That there may have been “‘isolated and discrete similarities’” between their views on the subject and that of E.B. does not, however, make them similarly situat ed for purposes of comparative analysis. ( People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1019 , fn. 15.) Defendants fail to point to any other similarity between these ju rors and E.B. in any respect contributing to the prosecutors’ challenge. “The circumstan ce that the ... jurors made a single comment having similarity does not establish that the pros ecutor[s’] reasons were pretextual or that defendant[s] established purposeful discrimination under the facts of the present case.” ( People v. Schmeck (2005) 37 Cal.4th 240, 271, di sapproved on another ground in People
v. McKinnon (2011) 52 Cal.4th 610, 637-638.) “Advocates do not evaluate panelist s based on a single answer. Likewise, reviewing courts should not do so.” ( People v. Lenix, supra, 44 Cal.4th at p. 631, fn. omitted.) The seated jurors identified by defendants simply do not “demonstrate such a striking similarity” to E.B. in any meaningful way that a finding of pretext is warranted. ( People v. Stevens (2007) 41 Cal.4th 182, 196.) Our review of the record as a whole demonstrates that substantial evidence supports the trial court’s conclusion the prosec utors’ peremptory excusal of E.B. was not motivated by discriminatory intent. (See People v. Cruz, supra, 44 Cal.4th at p. 661.) The Batson-Wheeler motion was properly denied. 87

87 Even if we were to find that some part of the prosecutors’ assessment was not well supported by the record, we would not concl ude the trial court erred by not finding the excusal was motivated by E.B.’s race. The primary reason the trial court accepted for E.B.’s excusal — his manner of handling employees in the workplace — was amply supported by the record. (See People v. Taylor (2009) 47 Cal.4th 850, 896.)127. II
T RIAL I SSUES A. Evidentiary Rulings and Related Claims Defendants make numerous claims of error concerning the trial court’s evidentiary rulings and related matters. Because many of the issues involve determinations of relevance and/or probative value versus prejudici al effect, we first state the general legal principles concerning those subjects before tu rning to defendants’ specific contentions. We also state the law applicable to ineffec tive assistance of counsel, since defendants raise such claims in the event we fi nd forfeiture of any substantive issue. “‘Relevant evidence’ m eans evidence, including ev idence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of cons equence to the determination of the action.” (Evid. Code, § 210.) “‘While there is no univer sal test of relevancy, the general rule in criminal cases might be statedas whether or not the eviden ce tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be prove d by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury.’ [Citation.]” ( People v. Freeman (1994) 8 Cal.4th 450, 491.) While all relevant evidence is admissible except as otherwise provided by statute (Evid. Code, § 351), “[n]o evidence is admissible except re levant evidence” ( id ., § 350). We review for abuse of discretion a tr ial court’s rulings on relevance. ( People v. Cole (2004) 33 Cal.4th 1158, 1195.) That court is vested withwide discretion in determining relevance, but has no discretion to admit irrelevant evidence. ( People v. Alexander (2010) 49 Cal.4th 846, 904.) “[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstan ces being considered. [Citations.]” ( People v. Giminez (1975) 14 Cal.3d 68, 72.)128. “Under Evidence Code section 352, the probative value of the proffered evidence must not be substantially ou tweighed by the prob ability that its admission would create substantial danger of undue prejudice, of conf using the issues, or of misleading the jury. [Citations.]” ( People v. Cole, supra, 33 Cal.4th at p. 1195.) “‘The prejudice which exclusion of evidence under Ev idence Code section 352 is designed to avoid is not the prejudice or damage to a defense that natu rally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute us es the word in its etymological sense of “prejudging” a person or cause on th e basis of extraneous factors.’” ( People v. Zapien (1993) 4 Cal.4th 929, 958.) “Evidence is s ubstantially more prejud icial than probative [citation] if, broadly stated, it poses an intole rable ‘risk to the fairness of the proceedings or the reliability of the outcome’ [citation].” ( People v. Waidla (2000) 22 Cal.4th 690, 724.) “[T]he trial court enjoys broad discreti on in assessing whether the probative value of particular evidence is outweighed by co ncerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of th at discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resu lted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” ( People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues ).) Finally, the burden of proving ineffec tive assistance of counsel is on the defendant. ( People v. Pope (1979) 23 Cal.3d 412, 425.) “To secure reversal of a conviction upon the ground of ineffective assistance of coun sel under either the state or federal Constitution, a defendant must establ ish (1) that defense counsel’s performance fell below an objective standard of reasonabl eness, i.e., that counsel’s performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel’s shortcomings. [C itations.] ‘A reasonable probability is a129. probability sufficient to undermine confidence in th e outcome.’ [Citations.]” ( People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.) 1. Dixon’s Prior Bad Acts Dixon contends the trial court committed federal constitutional error by admitting, for any purpose but especially on the issue of identity, evid ence of two shootings in which he allegedly was involved in 2001. Lee joins in the argument. Lee acknowledges the evidence was limitedto Dixon, but says the limiti ng instructions given were not effective. The People respond that the evidence was properly ad mitted for the purposes specified by the trial court, but assuming otherwise, any error was harmless because Dixon’s prior acts were properly befo re the jury on another issue.

a. Background Dixon and the prosecution filed dueling mo tions in limine with respect to Dixon’s prior bad acts. Dixon sought exclusion of any mention of his September 11, 2001, voluntary manslaughter conviction, and to bifurcate trial on the prior conviction enhancement allegations. Johnson and Lee jo ined in the motion. The People sought admission of Dixon’s prior acts — the March 7, 2001, assault by shooting at several individuals; and the April 8, 2001, voluntary manslaughter of Joseph Williams — pursuant to Evidence Code sec tion 1101, subdivision (b). Th e People maintained these prior acts were relevant to prove motive, intent, common design, scheme, plan, and/or identity, and had substantial probative value for purposes of Evidence Code section 352. After argument, an Evidence Code secti on 402 hearing was heldat which Senior Officer Sherman testified. Sherman related that he had reviewed the police and probation reports with respect to the March 7 and April 8, 2001, shootings. On March 7, 2001, two African-American males, wearing dark clothi ng, were walking south on Kincaid Street, which was in Eastside Crip territory. Afte r they passed a specific house, they turned around, walked back toward that address, produced firearms, and shot at several people in130. the front yard and porch area of the residence. They then fled. A witness observed that one was limping; from his mannerisms, she reco gnized him as Dixon, whom she knew to be a Country Boy Crip. Sherman found it significant, in formulating his expert opinions, particularly on motive and intent, that Dixon was a rival ga ng member who attempted to shoot other gang members in another gang’s territory. In addition, it was a walk-up shooting. On April 8, 2001, Joseph “Freeway” Williams, an Eastside Crip affiliate, was attending a birthday party in the 1900 block of Lotus. Dixon was also at the party. Williams went to his car to obtain some CD’s and take some pictures. Dixon, wearing a powder blue sweatshirt with th e hood pulled up and tied around hi s face to hide his facial features, walked up, produced a firearm from underneath the sweatshirt, and shot Williams multiple times at close range, killin g him. Dixon then fled to a nearbyresidence. When he was contacted there later, he was wearing different clothing. Ninemillimeter shell casings found at the scene matched the shell casings found at the earlier scene on Kincaid. Dixon was arrested, en tered into a plea bargain for voluntary manslaughter, was sentenced to 11 years in prison, and served six. 88 Sherman considered it significant to his opinions that it was a walk-up shooting, and that Dixon concealed his faci al features with a sweatshirt, and that he used a firearm. In essence, Sherman found this to be a signature crime. The shooting was motivated by hatred of a rival gang. With respect to motive, intent, and co mmon scheme or plan, Sherman found the 2001 shootings significant with respect to the opinions he woul d be giving relative to the gang information and the present charges. He particularly noted the style in which the

88 The prosecutor represented that charge s concerning the March 7, 2001, incident were dropped as part of the plea agreement.131. offenses were committed and the fact rival gang members were targeted. The locations were also significant in terms of whether disrespect was being shown. Sherman conceded that no one positivel y identified Dixon, and neither Lee nor Johnson was identified as a susp ect, in either shooting. Sher man also testified that walkup shootings now outweighed drive-up shooti ngs in terms of which was the more commonly seen type of gang-related shooti ng. Walk-ups were now the method of choice, with gang members being told to do wa lk-ups so as not to inflame people with innocent bystanders being struck . In Sherman’s experience, shootings involving AfricanAmerican gangs were either walk-ups or drive-bys. Sherman also found it not uncommon, in his evaluation of gang-relate d shootings, to have identity concealed by means of a hoodie or ball cap or do-rag. Counsel for Dixon subsequently argued for exclusion on the grounds that Dixon was 17 years old at the time of the 2001 shootings, he was neve r identified with respect to those shootings although he pl ed, and approximately six year s separated those shootings from the current charges. In addition, c ounsel claimed trial would be prolonged by several weeks because, if the 2001 shootings were admitted, he would have to try those cases as well as the current one . Counsel pointed out that, if the evidence were excluded, Sherman could still testify Dix on was a gang member based on his tattoos, and could also testify Dixon had a felony conviction, without mentioning it was for manslaughter. Counsel for Lee argued that, given Sh erman’s testimony about the number of walk-up shootings outweighing the number of drive-by shootings, and the fact it was common for people involved in shootings to conceal their identities, the evidence should not be admissible on the issue of identity. Counsel further argued the evidence was unduly prejudicial to Lee, es pecially in light of the disp arity in gang-related evidence among defendants, and that an admonition would not be sufficient to prevent a spillover effect. Counsel also argued that allowing the evidence would cr eate an additional132. consumption of time. Counsel for Johnson jo ined in these comment s, and argued that introduction of the evidence would affect J ohnson’s ability to have a fair trial. The People responded by no ting that the court had to separately analyze whether the evidence could come in under Evidence Co de section 1101, subdivision (b), and whether Sherman could testify about the 2001 incidents as they related to his gang opinions. The prosecutor argued the 2001 incidents were material, relevant, more probative than prejudicial, a nd not merely cumulative. After further argument, the court turned to whether the proffe red evidence should be admitted, under Evidence Code section 1101, subdivision (b), as to Dixon. The court found the prior incidents mate rial on the issues of intent , motive, identity, knowledge, common plan, and modus operandi, and relevant to prove motive, intent, common plan, design, or scheme, and identity. Turning to the Evidence C ode section 352 analysis, the court found relevance because the prior walk-up shooti ngs were characteristic for gang purposes, and, the court stated, “also it’s relevant because it show s someone who was willing to commit violent crimes or murder because of a dislike of a person from a different gang, or people that occupy residences in the defendant’s non gang territory, rival’s territory, if you will.” The court found the probative value increased be cause evidence of the prior incidents had a source independent from evidence of the ch arged offenses, and it further found no remoteness. The court reasoned the jury would learn of Di xon’s gang affiliation independent of evidence of the prior shooti ngs, and found the evidence of the uncharged acts no stronger or more inflammatory than th e current charges. Accordingly, it found substantial probative value that outweighed any prejudicial effe ct. The court stated this133. finding was based, in part, on the fact the limiting instructions could guide the jury concerning against whom they were to consider the evidence. 89 During trial, the prosecution called a number of witnesses concerning the 2001 shootings. The first was Otha Ford, who wa s with Joseph Williams when Williams was shot on April 8, 2001. Partway through dire ct examination, counsel for Lee and Johnson both raised relevance objections with respect to their clients. After asking the date of the shooting and being told it occurred in 2001, the trial court overruled the objections. When the prosecutor asked his next question, counsel for Lee again objected on relevance grounds. The court asked the prosecutor to clarify the relevance to the individual defendant, whereupon the pros ecutor reminded the court of the earlier motions, and that this evidence concerned Dixon’s prior offenses. The court then sustained the objection. When Lee’s counsel asked for a limiting instruc tion or explanation to the jury, the court asked the prosecutor, “This is ev idence that you’re saying on ly goes and applies to Mr. Dixon only, correct?” When the prosecutor c onfirmed that was correct, the court told the jury: “That will be the order of the Court. [¶] My understanding, ladies and gentlemen, is this evidence is only offered, as I unde rstand it, by the prosecution in regard to Defendant Mr. Dixon only.” The next witness concerning the 2001 shootings was Byron Allen. At the outset of his testimony, Lee’s attorney asked for, an d received, an admonition that jurors could only consider the testim ony as to Dixon. The following day, a stipulation between the People and Dixon was read to the jury. In it, they agreed th at on August 13, 2001, Dixon pled no contest to the voluntary manslaughter of Joseph Williams. The parties fu rther stipulated that the no contest plea was properly deemed to be a guilty plea under the law, Dixon was sentenced to prison,

89 As a result of the court’s ruling, co unsel for Dixon withdrew his request for bifurcation of the prior conviction allegations.134. his sentence was for six years, and he was di scharged from prison on or about March 4, 2007. The court inform ed the jury that the facts contai ned in the stipulation must be accepted as conclusively proven, and that the stipulation had to do only with Dixon and not the other two defendants. The prosecutor then called Bakersfi eld Police Officer Grove, whose testimony pertained to the Williams shooting. At th e outset of his testimony, counsel for Lee objected on relevance grounds, and the court confirmed with the prosecutor that the evidence was being offered only against Dixon. During a subsequent discussion of wh ether counsel for Dixon could present evidence that Dixon was not invo lved in the prior shootings despite the no contest plea, counsel for Lee reiterated his objection to admission of the other crimes evidence. Counsel noted the court itself was momentaril y confused concerning what shooting was being discussed, and he expressed concern about spillover prej udice once the People established that Lee had been friends with Di xon for some time. Counsel reiterated that there were insufficient similarities between the prior acts and present offenses so as to prove identity in the pr esent case, and that the People di d not need the prior acts evidence to establish motive. Counse l for Johnson joined in th e comments. The prosecutor responded in part that the evidence was going to come in anyway, because it went to the gang issue, which in turn related to the en tire case. After further argument, the court determined that if another cau tionary instruction was given th at limited the evidence to Dixon, then the probative value would outw eigh any prejudicial impact. Accordingly, the court directed the prosecuto r to inform the court, when a witness was called, if the testimony was being offered solely against Dixon, at which point the court would admonish the jury accordingly. The prosecution’s next witness concer ning the events of 2001 was Officer Carruesco. At the outset of his testimony, the prosecutor informed the court that the testimony was being offered only as to Dixon. The court told the jury: “And ladies and135. gentlemen, we gave you an earlier instruc tion that during the trial oftentimes evidence comes in for a limited purpose , and this is one of those occasions, and we ask you to follow that jury instruc tion that we have read to you and we will read again at the end of the case.” The jury was reminded, in conjun ction with the testim ony of the prosecution’s next two witnesses to the 2001 events, th at the evidence was limited to Dixon. The People then called Sergeant Jehle to testify as a gang expert with respect to the 2001 shootings. 90 In part, Jehle described poli ce contacts with, arrests of, and incidents involving Dixon that took place between 1998 and April 9, 2001. Midway through Jehle’s testimony, counsel for Lee objected to a photograph on relevance and Evidence Code section 352 grounds with respec t to Lee. Counsel for Johnson joined. When the court asked the prosecutor whether th e evidence was coming in solely in regard to Dixon, the prosecutor responded, “This phot ograph is, yes, your Honor.” The court then admonished the ju ry accordingly, whereupon counse l for Lee clarified that Jehle’s testimony was also for that purpose. The co urt confirmed that understanding with the prosecutor. Jehle ultimately opined that on April 8, 2001, Williams was anactive member of the Eastside Crips criminal street gang, and that in March and April 2001, Dixon was an active member of the C ountry Boy Crips criminal street gang. By means of hypothetical questions, Jehle further opined that the Marc h and April 2001 shootings were committed for the benefit of, at the direction of, or in association with the Country Boy Crips criminal street gang. At the behest of Lee’s attorney, the court clarified that the hypotheticals related so lely to Dixon.

90 Much of Jehle’s testimony concerning th e history of the East side and Country Boy Crips and gangs in general was repeated by Senior Officer Sh erman when he testified as a gang expert concerning the charged offenses.136. The prosecutor called Supervising Crimin alist Gregory Laskowski to testify with respect both to evidence collectedin conjunction with the curre nt charges, and also with respect to evidence co llected in conjunction with the 2001 shootings. The prosecutor clarified which evidence re lated only to Dixon. Laskowski was the final witness called by the prosecution with respect to the 2001 shootings. The subject was briefly broached by various parties during the examination of Dupree Jackson. As previously describe d, Sherman discussed the shootings in conjunction with his gang testimony, and Dixon took the stand and denied involvement in the shootings. During summation, the pros ecutor argued to the jury that the way the Williams killing was committed was very si milar to the McNew Court s hootings, in that both were gang motivated, both were walk-up shooti ngs, both took place in gang territory, the victims in both were in the front yard, th e shooter in both wa s wearing a hooded sweatshirt, the shooter in both shot the victims several times at point-blank range, the intended victims in both were Stroller Boy East side Crips, the shooter in both ran back the way he had come after the shootings, and there was a clothi ng change as part of the scheme in both. 91 The prosecutor argued the prior ac ts could be used to determine Dixon’s identity, intent, motive, and common plan and scheme with respect to the McNew Court shootings, but warn ed that the evidence could no t be used to show Dixon was a bad person or the type likely to commit crimes. The prosecutor also discussed the relevance of the prior crimes to the gang issues and the prior conviction allegations. Dixon’s attorney countered that the shootings were six year s apart, there are a lot of walk-up shootings and shootings that involv e the wearing of a hoodie, and there were differences between the crimes.

91 Insofar as the Williams shooting is concerne d, this appears to be a reference to the fact that, when contacted shortly afterward, Dixon was not wearing a hooded sweatshirt.137. In pertinent part, the trial court in structed the jury, pursuant to CALCRIM No. 303: “During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. [¶] I instructed you during the trial that certain eviden ce was admitted only against cert ain defendants. You must not consider that evidence against any other de fendant.” Specifically with respect to the evidence admitted pursuant to Evidence Code section 1101, subdivision (b), jurors were told, pursuant to CALCRIM No. 375: “The People presented evidence th at the defendant Mr. Joseph Kevin Dixon allegedly committed the offenses of voluntary mans laughter and/or shooting at an inhabited dwelling house, both of which are alleged to have occurred in 2001 that were not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant, in fact, committed the uncharged offenses. Proof by a preponderance of evidence is a different burden of proof than proof beyond a reasonable doubt. “A fact is proved by a preponderance of evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden, you must disr egard this evidence entirely. “If you decide that the defendan t committed the uncharged offenses you may, but are not required to, consider that evidence for the limited purpose of deciding whether or no t the defendant was the person who committed the offenses alleged in this case or the defendant acted with the intent to kill or the defendant had a motive to commit the offenses alleged in this case or the defendant had a pl an or scheme to commit the offenses alleged in this case. “In evaluating this evidence, cons ider the similarity or lack of similarity between the uncharged offe nses and the charged offenses. Do not consider this evidence for any othe r purpose other than the credibility of defendant Mr. Joseph Dixon. Do not co nclude from this ev idence that the defendant has a bad character or is disposed to commit crime. “If you conclude that said de fendant committed the uncharged offenses, that conclusion is only one fact or to consider along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the crimes charged or that the enhancements or allegations have138. been proved. The People must still prove each charge, enhancement, and allegation beyond a reasonable doubt.” b. Analysis Evidence Code section 1101 provides, in pertinent part: “(a) Except as provided [in statutes not involved here], evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, eviden ce of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion. “(b) Nothing in this section prohi bits the admission of evidence that a person committed a crime, ... when rele vant to prove some fact (such as motive, ... intent, ... plan, ... [or] id entity ...) other than his or her disposition to commit such an act.” “Evidence of uncharged crimes is admissible to pr ove identity, common design or plan, or intent only if the ch arged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or inte nt. [Citation.] On appeal, the trial court’s determination of this i ssue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]” ( People v. Kipp (1998) 18 Cal.4th 349, 369.) “‘The admissibility of other crimes eviden ce depends on (1) th e materiality of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, and (3) the existence of any rule or polic y requiring exclusion of the evidence.’ [Citation.]” ( People v. Lindberg (2008) 45 Cal.4th 1, 22.) “‘Because substantial prejudice is inherent in the case of unchargedoffenses, such evidence is admissible only if it has substantial probative value.’ [Citation.]” ( Id . at p. 23.) “When the prosecution seeks to prove the defendant’s iden tity as the perpetrator of the charged offense with evidence he had committed uncharged offenses, the admissibility of evidence of th e uncharged offenses turns on proof that the charged and uncharged offenses share sufficient distinctiv e common features to raise an inference of identity.” ( People v. Lindberg, supra, 45 Cal.4th at p. 23.) “The greatest degree of139. similarity is required for evidence of unch arged misconduct to be relevant to prove identity. For identity to be established, the unchar ged misconduct and the charged offense must share common features that are su fficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] ‘ The pattern and characteristics of the crimes must be so unusu al and distinctive as to be like a signature .’ [Citation.]” ( People v. Ewoldt (1994) 7 Cal.4th 380, 403, italics added.) The requisite degree of similarity was not established in the present case. The inference of identity “need not depend on one or more unique or nearly unique common features; features of substantial but less er distinctiveness may yield a distinctive combination when co nsidered together. [Citation.]” ( People v. Miller (1990) 50 Cal.3d 954, 987.) Nevertheless, “‘“[t]he marks co mmon to the charged and uncharged offenses, considered singly or in combination, [must] logically operate to set the charged and uncharged offenses apart from other crimes of the same general variety and, in so doing, tend to suggest that the perpet rator of the uncharged offenses was the perpetrator of the charged offenses.” [Citation.]’ [Citation.]” ( Ibid .) A walk-up shooting of a gang member (or someone associated with or believed to be a gang member), perpetrated in gang territo ry by an African-American male wearing a hooded sweatshirt, may be su fficiently distinctive to identify the shooter as a gang member — perhaps even as a Country Boy Crip — but, especially in light of expert testimony that walk-up shootings are now morecommon than drive-by shootings, it is not sufficiently distinctive to identify the shooter as a specificgang member. (See People v. Balcom (1994) 7 Cal.4th 414, 424- 425 [where uncharged act relevant to show identity, “highly unusual and distinctiv e nature” of charged and unch arged offenses “virtually eliminates” possibility anyone but defendant co mmitted charged offens e].) Accordingly, the trial court erred in admitting evidence of the 2001 shootings on the issue of, and instructing jurors they coul d consider the evidence for the purpose of determining, whether Dixon perpetrated char ged offenses. (See, e.g., People v. Rivera (1985) 41140. Cal.3d 388, 392-393 [similarities that both crimes occurred on Friday night at approximately 11:30 p.m., took place at conven ience markets on street corners in Rialto outside of which two or three people were seen standing before the crimes, involved three perpetrators and getaway vehi cles, and for which defendant presented alibi defense, not sufficiently unique or distinc tive so as to indicate defendant perpetrated both crimes], disapproved on another ground in People v. Lessie (2010) 47 Cal.4th 1152, 1168, fn. 10.) A lesser degree of similarity is requi red to prove the existence of a common scheme or plan. ( People v. Lindberg, supra, 45 Cal.4th at p. 23.) “Evidence of a common design or plan ... is not used to prove the defe ndant’s intent or identity but rather to prove that the defe ndant engaged in the conduct a lleged to constitute the charged offense.” ( People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. om itted.) “[I]n establishing a common design or plan, evidence of unch arged misconduct must demonstrate ‘not merely a similarity in the re sults, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.’ [Citation.]” ( Id . at p. 402.) “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.... [E]vidence th at the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defend ant committed the char ged offense pursuant to the same design or plan he or she us ed in committing the un charged acts. Unlike evidence of uncharged acts usedto prove identity, the plan need not be unusual or distinctive; it need only exis t to support the inference that the defendant employed that plan in committing the charged offense. [Citation.]” ( Id . at p. 403.) We have been unable to locate any case in which the inference of a common scheme or plan has been found to be properbased on the presence of so few, and such mundane, common features, especially when those features appear to be common to the141. type of crime at issue. (Contrast, e.g., People v. Foster (2010) 50 Cal.4th 1301, 1329; People v. Carter (2005) 36 Cal.4th 1114, 1148-1149; People v. Balcom, supra, 7 Cal.4th at p. 424; People v. Ewoldt, supra, 7 Cal.4th at pp. 394-398, 40 3 & cases cited therein.) In our view, the common features in the case before us are insufficient to indicate the existence of a scheme or plan rather thana series of similar spontaneous acts. Accordingly, the trial court e rred in admitting evidence of the 2001 shootings on the issue of, and instructing jurors they could consider the evidence for the purpose of determining, whether Dixon had a plan or scheme to commit the charged offenses. “The least degree of similarity is require d to establish relevance on the issue of intent. [Citation.] For this purpose, the unc harged crimes need on ly be ‘sufficiently similar [to the charged offenses ] to support the inference th at the defendant “‘probably harbor[ed] the same intent in each in stance.’ [Citations.]”’ [Citation.]” ( People v. Kipp,

supra, 18 Cal.4th at p. 371.) “‘In proving intent, the act is conceded or assumed; what is sought is the state of mind that accompanied it.’ [Citation.]” ( People v. Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2.) We find ample similarity between the ch arged and uncharged offenses so as to render the 2001 shootings relevant with respect to intent. The same is true with respect to motive. Moreover, “the probativeness of other-crimes evidence on the issue of motive does not necessarily depend on similarities between the charged an d uncharged crimes, so long as the offenses have a direct logical nexus. [Citations.]” ( People v. Demetrulias (2006) 39 Cal.4th 1, 15.) Here, the logical ne xus is hatred of rival gang members; the motive is, in turn, relevant to show intent to kill and to bene fit the perpetrator’s gang, as well as premeditation. (See ibid .) Our inquiry does not end here, however. “Although we have concluded that evidence of [Dixon’s] unc harged criminal conduct is rele vant to establish [intent and motive], in order to be admi ssible such evidence ‘must not contravene other policies limiting admission, such as those contained inEvidence Code section 352. [Citations.]’142. [Citation.] We thus proceed to examine whether the probativ e value of the evidence of [Dixon’s] uncharged offenses is ‘substantially outweighed by the probability that its admission [would] ... create substantial dangerof undue prejudice, of confusing the issues, or of misleading the jury.’ [Citation.]” ( People v. Balcom, supra, 7 Cal.4th at pp. 426-427.) “Evidence of uncharged offenses ‘is so prejudicial that its admission requires extremely careful analysis. [C itations.]’ [Citations.]” ( People v. Ewoldt, supra, 7 Cal.4th at p. 404.) “‘Evidence is prejudic ial within the meani ng of Evidence Code section 352 if it “‘uniquely tends to evoke an emotional bias against a party as an individual’” [citation] or if it would cause th e jury to “‘“prejudg[e]” a person or cause on the basis of extraneous factor s’” [citation].’ [Citation.]” ( People v. Foster, supra, 50 Cal.4th at p. 1331.) “‘As Wigmore notes, admi ssion of this evidence produces an “overstrong tendency to believe the defendant guilty of the charge merely because he is a likely person to do such acts.” [Citation.] Itbreeds a “tendency to condemn, not because he is believed guilty of the present charge , but because he has escaped unpunished from other offences....” [Citation.] Moreover, “the jury might be unable to identify with a defendant of offensive characte r, and hence tend to disbelieve the evidence in his favor.” [Citation.]’ [Citation.] Due to these inherent risks, ‘uncharged offenses are admissible only if they have substantial probative value.’ [Citations.]” ( Ibid .) In light of the risks, “admission of other crimes evidence cannot be justified merely by asserting an admissible purpose. Such evidence may only be admitted if it ‘(a) “tends logically, naturally and by reason able inference” to prove the issue upon which it is offered; (b) is offe red upon an issue which will u ltimately prove to be material to the People’s case; and (c) is not merely cumulative with respect to other evidence which the People may use to prove th e same issue.’ [Citation.]” ( People v. Guerrero (1976) 16 Cal.3d 719, 724.)143. Here, Dixon’s plea of not gu ilty and denial of the specia l allegations put in issue all elements of the charged offens es and alleged enhancements. ( People v. Steele (2002) 27 Cal.4th 1230, 1243.) Although he sought to limit the admissi bility of the other crimes evidence by stipulating to certain issues, the People were not required to accept the proffered stipulations ( People v. Scott (2011) 52 Cal.4th 452, 471), but rather were entitled to prove their case ( Steele , supra , at p. 1243). Nevertheless, motive and intent were not seriously contested with respect to the charged offenses themselves. There was no real question but that whoever shot the victims did so with an intent to kill and premeditation, and was motivated by hatred of rival gang members. (See People v. Ewoldt, supra, 7 Cal.4th at p. 406; People v. Bigelow (1984) 37 Cal.3d 731, 748.) This being the case, the evidence of the 2001 shootings did not have substantial probative value that outweighed its inherent prejudice. (See People v. Lopez (2011) 198 Cal.App.4th 698, 715.) This is especially so in light of the prejudicial impact of the othe r-crimes evidence. That eviden ce consisted not merely of a property crime or even an a ssault, but a homicide and a sh ooting that could easily have resulted in a homicide. Only the homicide resulted in a criminal conviction and prison term; although it appears charges arising fro m the March 2001 shooting were dismissed as part of the plea agreement with respect to the homicide, jurors may well have felt Dixon was not punished for th e nonfatal shooting. Moreov er, despite the fact Dixon’s legal guilt of the homicide had been conclu sively determined by his manslaughter conviction, because he never pled to the March 2001 shootin g and testified he did not actually commit the homicide, the jury’s attention necessarily was diverted to a determination whether Di xon committed the unchargedoffenses. (Compare People v. Balcom, supra, 7 Cal.4th at p. 427.) “Simply put, evidence of uncharged acts ca nnot be used to prove something that other evidence showed was beyond dispute; th e prejudicial effect of the evidence of the uncharged acts outweighs its probative value to prove intent [and motive] as it is144. cumulative regarding [those] issue[s]. [Citations.]” ( People v. Lopez, supra, 198 Cal.App.4th at p. 715.) Accord ingly, we hold that the trial court abused its discretion by admitting evidence of the 2001 shootings, and allowing the jury to consider it, for any purpose with respect to the substantive offenses of the charged murders and attempted murders. The People say any error was harmless because even if Dixon’s prior offenses were inadmissible under Evidence Code sect ion 1101, they nevertheless were admissible with respect to, in part, the gang charge and enhancements. We agree the prior offenses were admissible for those purposes. (See People v. Tran (2011) 51 Cal.4th 1040, 1046- 1047, 1048; People v. Williams (2009) 170 Cal.App.4th 587, 612-613.) We disagree, however, that admissibility with respect to one purpose rende rs harmless an error in allowing evidence to be cons idered for another, improper purpose. We presume jurors follow limiting instructions ( People v. Guerra (2006) 37 Cal.4th 1067, 1115, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151; but see People v. Gibson (1976) 56 Cal.App.3d 119, 130), and so would not have considered the uncharged offenses in determining, for example, Dixon’s identity as one of the perpetrators of the McNew Court shootings had a proper limiting instruction been given. We caution prosecutors against over provi ng their cases and urge trial courts carefully to assess especially inflammatory evidence to dete rmine whether it is unnecessarily cumu lative. (See People v. Tran, supra, 51 Cal.4th at p. 1049; People v. Williams, supra, 170 Cal.App.4th at pp. 610-611.) Neverthele ss, we do not believe admission of the other-crimes evidence, standing alone, gave rise to a deprivation of Dixon’s right to a fair trial such that th e error must be assessed under the harmlessbeyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 ( Chapman ). (Compare People v. Foster, supra, 50 Cal.4th at p. 1335 & People v. Williams, supra, 170 Cal.App.4th at pp. 612-613 with People v. Albarran (2007) 149 Cal.App.4th 214, 227-232.) Assessing su ch errors under the standard of People v.145. Watson (1956) 46 Cal. 2d 818, 836 ( Watson ), as is appropriate ( People v. Malone (1988) 47 Cal.3d 1, 22), we find no cau se for reversal: It is not reasonably probable a result more favorable to Dixon would ha ve resulted absent the errors. In reaching this conclusion, we reject the notion that CALCRIM No. 375, as given by the trial court, was constitutionally defe ctive because it permitte d jurors to draw irrational inferences from the other-crimes evidence. (See Yates v. Evatt (1991) 500 U.S. 391, 402, fn. 7, disapproved on another ground in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4; Francis v. Franklin (1985) 471 U.S. 307, 314-315; People v. Castro (1985) 38 Cal.3d 301, 313.) The court instructed the jury in accordance with its evidentiary rulings. That its rulings were erroneous under state law does not somehow transform the resulting instructional error into error under the federa l Constitution. Although the jury should not have been permitted to consid er the other-crimes evidence for nongang-related purposes, the inferences permitted by the instructi on were not irrational. Accordingly, the instruction was not constitutionally deficient. (See People v. Moore (2011) 51 Cal.4th 1104, 1130-1133.) We further conclude the trial court’s instructions and the prosecutor’s statements made it clear to jurors that they could not use the evidence of the 2001 shootings against anyone but Dixon with respect to the substantive charges. Lee has no cause to complain about Sherman’s consideration of the prior cr imes in forming his opinions concerning the charged offenses. 2. McNew Court Video Johnson contends the trial court erre d by admitting a video recording of the McNew Court area made one year after th e shootings. Johnson says there was no foundation laid that the video accurately reflected the amount of light actually available at the time of the shootings or that the video camera was able to replicate those conditions had they existed. He further says the limiti ng instruction given by the court eliminated any relevance the video might have had, l eaving only the prejud icial effect of the146. inaccurate tape. Dixon and Lee join. The People say Lee forfeited the issue by withdrawing his objection to the evidence at trial, no abuse of discretion occurred, and any error was harmless.

a. Background The People’s theory was that the McNew Court homicides constituted first degree murder because they were premeditated and perpetrated by means of lying in wait. To help prove this theory, w itnesses were questioned abou t lighting conditions and the falling of darkness in conjunction with when th e shootings occurred. For instance, Albert Darrett testified that when he was talking to Anthony Lyons through his vehicle window, “[i]t was light, but it was getting dark.” He saw two people walking on the opposite side of the street, maybe halfway down the block we st of his location. When he saw these two — the shooters — approach , “[i]t was a little light, but it was getting dark.” He believed his vehicle’s headlights, which came on automatically, were on. Othelon Lyons told Senior Deputy L ittle that he saw one of the shoo ters run southbound and disappear into the dark. Othelon gave a description of what one of the perpetrators was wearing, but said he could not see anythi ng in the way of facial hair. Asked if it was fair to say it was “kind of dark out there,” Othelon answeredthat it was. When Little noted there were some lights for the driveway, Othelon responded, “Ah, you can’t see, I mean — I mean it was — it was still kind of like daylight, but you know, the dark cl othes and how black ... how dark they was, I couldn’t even see no facial hairs or nothing.” (E llipsis in original.) Mark Riehle, an evidence technician with the Kern County Sheriff’s Office, was asked to research the time of sunset on April 19, 2007. To this en d, he searched the Internet and found a website that allowed th e user to research the times of sunrises, sunsets, and twilights of any date desired. He learned that sunset is when the sun goes below the horizon. Civil twilight occurs when the sun is six degrees below the horizon. It is the limit at which twilight illumination is sufficient, under good weather conditions, for terrestrial objects to be clearly distinguishe d. The horizon is cl early defined, and the147. brightest stars are visible under good atmosp heric conditions, in the absence of moonlight or other illumination. After the end of civil twilight, artif icial illumination is normally required to carry out ordinary outdoor activitie s. A person can still see during the period of time between sunset and civil twilight. On April 19, 2007, sunset was at 7:31 p.m., while twilight was at 7:57 p.m. On April 18, 2008, sunset was at 7:30 p.m., and twilight was at 7:57 p.m. Riehle was asked to shoot a video of McNew Court and Feliz Drive on April 18, 2008, in the daytime. He was also directed to shoot video just before 8:00 p.m. at the residence on McNew Court at which the shoo tings occurred. He began recording the nighttime portion of the video at 7:45 p.m., and c ontinued recording until 7:55 p.m., at which point it was too dark to really see anything. Riehle recordedusing a mini-digital videotape, then transferred it to a DVD to make it easier to use. People’s exhibit 98 was the DVD created from the mi ni-digital videotape. When Riehle recorded the nighttime portion of the video, he “b umped up the gain,” enabling the camera to see low light le vels better by bringing more light into the camera than normal. After he bumped up the gain, Riehle lo oked through the viewfinder to see how bright it was, and then used his eyes to look down the street. To him, it looked as close as it could be on the view finder to what his eyes were seeing. Counsel for Dixon objected to the video being played for the jury. Counsel for Lee joined. The trial court overruled the objections, saying defense counsel could crossexamine. The prosecutor then proceeded to play the daytime portion of the video, which showed the environs of the shooting locati on on McNew Court, as well as portions of Feliz Drive. The video then switched to the nighttim e portion, which began at 7:45 p.m. in front of the residence on McNe w Court at which the clothing and cell phone were found, looking east toward the location of the shootings. There was a moon in the video; Riehle was unable to say whether the moon was of th e same illumination the year before.148. Counsel for Johnson and Dixon objected to this portion of the video on relevance grounds and based on variances between how an artificial lens interprets light compared to the human eye. When the court asked Ri ehle if the image shown on the DVD was the image he saw with his naked ey e, Riehle responded that the video image was darker than what the naked eye sees. When counsel fo r Dixon and Lee then objected on lack of foundation/accuracy grounds, the trial court t ook up the issue outside the presence of the jury. Prior to the hearing, counsel for Lee f iled a brief in support of his motion to exclude the videotape pursuant to Evidence Code sections 210 and 352. He argued that if the People’s position was that the tape wa s relevant to demonstrate the scene at nighttime, then the lighting conditions had to replicate what was present on the night of the shooting. Counsel pointed out that on April 19, 2007, there was a waxing crescent moon with only 8 percent of th e moon visible, plus reportable haze reducing visibility that night. On April 18, 20 08, in contrast, 97 percent of the moon was shining and the sky was clear. Counsel requested that if the court permitted th e jury to view the nighttime video, it admonish jurors that the video was not taken u nder substantially the same or similar lighting conditions as the night of the crimes, jurors could not consider the lighting conditions in the video when evaluating a ny eyewitness’s testimony related to his or her ability to see or describe the pe rpetrators, and jurors could only use the video to orient themselves to th e crime scene and surrounding buildings, streets, and other

structures. At the hearing, the trial court entertai ned argument, then ruled the daytime portion of the video was admissible. 92 Turning to the nighttime portion of the video, Riehle testified that he taped in front of the re sidence where the clothes and cell phone were

92 As defendants do not challenge this portion of the trial court’s ruling, we do not address it further.149. found for less than 30 seconds starting at 7:45 p.m., then turned off the videotape and began filming again at 7:55 p.m. at the addr ess at which the shooti ngs occurred. Between 7:45 and 7:55 p.m., he could see with his naked eye that it grew noticeably darker. Riehle explained that a video camera inte rprets light differently than the human eye. A video cannot see low light as well as the human eye, but, in his opinion, the camera “was doing the best it could” and “w as giving a fairly accurate representation with what it could see.” Riehle believed there was cloud cover on April 19, 2007, but no fog. There was no cloud cover or fog on the night he shot the video. The parties agreed the video showed a full moon, while th e moon was not full on the da te of the shootings. Asked by the court whether the purpos e of the video was to demonstrate the lighting conditions under which witnesses viewed events, the prosecutor stated there was no attempt at reenactment, because conditions could not be duplicated. She argued, however, that the video was relevant to de monstrate that darkness came quickly, which tended to show premeditation and deliberation inthat the shooters wa ited for the cover of darkness in order to be able to make their es cape. She asserted it was reasonable to argue they were waiting and watching because of th e presence of the clothes in the direction from which they came. The pr osecutor conceded the People could not say whether the video depicted the degree of darkness that exis ted at the time of the shootings, but argued the video corroborated the research that show ed twilight fell at that moment, and things got much darker. Whatever the amount of mo onlight, it still would have been the darkest moment, with things changing significantly in the minutes before 7:57 p.m., the time of the shooting. Counsel for Lee stated that as long as the jury was admonished not to use the video for evaluating lighting conditions on the night of the shooting, he was “fine with” the video. Counsel for Johnso n objected to introduction of the video, however, primarily because of the evid ence already presented by eyew itnesses concerning the lighting150. conditions, and because since th e video recording was darker than actual conditions, it would create reasons for specu lation and presumption. The trial court ruled the video was ad missible to show the jury a reasonable representation of the change in darkness between 7:45 and 7:55 p.m. As long as jurors were appropriately admonished that it was not being used to show lighting conditions, the probative value was not outweighed by an y prejudicial impact. Defense counsel subsequently all agreed the court could read the admonition presented to it by the People. Accordingly, the court informedthe jury: “Ladies and gentle men, you’re about to review a DVD taken in the evening of April 18th, 20 08. This video was not taken under the identical lighting conditions as of the night of the crime of April 19 th, 2007. The purpose of the film is not to demons trate the exact lighting conditi ons under which the witnesses were able to view the events of the crime a nd may not be viewed as such. The film is being admitted for the limited purpose of s howing the level and degree when darkness fell between the times of 7:45 P.M. and 7:55 P.M. You are not to consider it for any other purpose.” Riehle then testified that he started th e video at 7:45 p.m. and videotaped for a short time to show the conditio ns from the location where the clothes and cell phone were found, looking east toward Cottonwood Road and the location of the shootings. He then walked east toward the location of the sh ootings, waited until appr oximately 7:55 p.m., and then took several shots from different angles between 7:55 and approximately 7:57 p.m. in front of and in the driveway of that residence. Riehle noticed that it was visibly getting darker between 7:45 and 7:55 p.m., but then it seemed to get even darker rather quickly between 7:55 and 7:57 p.m. Riehle related that he was not asked to replicate the conditions that existed on April 19, 2007, and was not asked to cons ider moon conditions or cloud cover. At 7:45 p.m., what he saw through the viewfinderwas very similar to what he saw with his eye. At 7:55 p.m. and shortly thereafter, his ey e was able to see better than what could be151. seen in the video. The vide o was a little bit darker than what the eye could see, and by 7:57 p.m., it was substantially different. Ri ehle explained that video does not interpret light the same as the human eye. The video was played for the jury with Riehle narrating. Riehle testified that he did not show the video to any witnesses of the McNew Court shooting to ask if the lighting conditions we re similar. During her argument to the jury, the pros ecutor differentiated between sunset and twilight, with the latter being “when it really gets dark ....” Twilight on April 19, 2007, fell at 7:57 p.m. She then stated: “Now, the video is not trying to show you the specific level of darkness because we could not do an actual experiment because the moon’s different and the lighting and everything, but what it does de monstrate is when the onset of darkness fell, and it came very, very quickly, right at 7:57, and that is indicative of showing lying in wait, for things to get very dark so the victims wouldn’t recognize them, premeditation, and deliberation. The sh ooters were watching and waiting.” b. Analysis Lee forfeited his claims of error by with drawing his objection to the video in the trial court. (See People v. Riel (2000) 22 Cal.4th 1153, 1194 .) All defendants forfeited any challenges to the wording of the limiting instruction, since the admonishment was a joint creation and all counsel agreed the court could read it to the jury. In any event, defendant s’ claims lack merit. 93 “In ruling upon the admissibility of a videotape, a trial court must determine wh ether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case or serve to mislead them. [Citation.] Within th ese limits, ‘“the physical conditio ns which existed at the time

93 In light of this, we need not determ ine whether any forfeiture was the result of deficient performance by counsel.152. the event in question occurred need not be dup licated with precision nor is it required that no change has occurred between the happening of the event and the time the [videotape] is taken. [Citation.]”’ [Citation.]” (Rodrigues, supra, 8 Cal.4th at p. 1114.) “When, as here, the relevance of ev idence depends on the existence of a preliminary fact, the proffered evidence is in admissible unless the trial court finds there is sufficient evidence to sustain a finding of the existen ce of the preliminary fact. [Citation.] That is, the trial court must dete rmine whether the eviden ce is sufficient for a trier of fact to reasonably find the existence of the preliminary fact by a preponderance of the evidence. [Citation.] ‘The court should exclude the pro ffered evidence only if the “showing of preliminary facts is too weak to support a favorable determination by the jury.”’ [Citation.] A trial court’s decision as to whether the fo undational evidence is sufficient is reviewed for abuse of discretion. [Citation.]” ( People v. Guerra, supra, 37 Cal.4th at p. 1120.) Rodrigues is instructive. In that case, the police made a videotape the day after a murder with the help of the victims’ neighbor. The video showed the outside of the neighbor’s apartment, a near by stairway, and a view from her bedroom. It included a scene in which a White man in a white shirt came down the stairs in daylight, stopped and looked directly toward the neighbor’s apartment, and then ran off in the direction the assailants had run. The videot ape was admitted at trial. (Rodrigues , supra , 8 Cal.4th at pp. 1112-1113.) On appeal, the defendant claimed the vi deo should have been excluded, because the prosecution failed to lay a foundation showin g the accuracy of particular scenes as reenactments of what the neighbor saw on the night of the murder. The defendant claimed (1) the scenes were s hot in broad daylight, while the actual events took place in the middle of the night and we re illuminated only by an artificial light above the stairs; (2) the scene showed one Wh ite male wearing a white sh irt, whereas the neighbor testified she saw two males, one Hispanic and one Black or “‘dark,’” wearing dark153. clothing; and (3) while one scene correctly showed the neighbor’s vantage point from inside her apartment looking out the bedroom window, another scene was inaccurate in that respect. The defendant claimed the inaccuracies prejudiced him by creating a misleading impression of what the neighbor saw, and by transforming her purportedly “‘shaky’” identification of him into a persuasive image. ( Rodrigues , supra , 8 Cal.4th at pp. 1113-1114.) The California Supreme Court found no abuse of discretion in the video’s admission. It observed that the video was o ffered as demonstrative evidence to show jurors the relative locations of various stru ctures and appurtenances, as well as the neighbor’s vantage point when she saw the assailants flee the scene. Once the neighbor confirmed in her testimony that the video accu rately showed her location, the trial court could correctly conclude the video was a re asonable representation of the premises and the neighbor’s vantage point, and that it woul d aid jurors in their determination of the facts of the case despite the inaccuracies. (Rodrigues , supra , 8 Cal.4th at pp. 1114-1115.) The high court noted that the video was not offered for the purpose of showing lighting conditions on the night in question; hence, the difference in lighting conditions was not significant. ( Id . at p. 1115.) Moreover, the inaccuracies did not make the video misleading “as to the purposes for which it was offered,” and were either obvious to the jurors or were specifically br ought to their attention. ( Ibid .) The court concluded: “Under circumstances such as these, we must assume that the jurors were intelligent people and that they understood and took into account the diffe rences identified by defendant on appeal. [Citati on.] Admission of the videotap e did not constitute error, prejudicial or otherwise.” ( Id . at pp. 1115-1116.) Defendants say Rodrigues does not support admission of the McNew Court video, because the McNew Court video was not offered to show perm anent fixtures, but rather a change in the light. Because no reasonable di stinction can be draw n between the “‘level and degree of darkness,’” for which purpose defendants say the instruction permitted the154. jury to consider the video, and lighting c onditions at the scene, defendants argue the video should have been excluded under the authority of People v. Boyd (1990) 222 Cal.App.3d 541 ( Boyd) and People v. Gonzalez (2006) 38 Cal.4th 932 ( Gonzalez ).
In Boyd , the defendants sought to introduce a film that purported to reproduce lighting conditions at the crime scene, in an attempt to show that a prosecution witness could not have seen events clearly enou gh to identify the perpetrators. The cinematographer who made the film testified that he went to the site several times to take light meter readings, waited until the moon wa s full to film, and consulted technicians with the company that manufactured the film and followed their recommendations concerning film speed and type of film. Evenso, he conceded that the angle of the moon was not the same when he filmed as on the night of the murder, he did not position a truck with its headlights on or reproduce the reflection of light from another vehicle, and was unsure whether the foliage on a tree at th e site and resulting pattern of shadows were the same. ( Boyd , supra , 222 Cal.App.3d at pp. 565, 566.) After viewing the film, the trial court excluded it. The court found the foundational requirements for admission were not met, as it believed the human eye could see more than the film showed, and no witness testified the film accurately represented the lighting conditions on the night of the crime. ( Boyd , supra , 222 Cal.App.3d at p. 565.) The Court of Appeal found no abuse of discretion. Since the purpose of the film was to demonstrate to the jury the lighting co nditions under which witnesses viewed the crime, that court observed, the diff erences in conditions between the time of the events and time the film was made “assumed great significance.” ( Id . at p. 566.) Accordingly, the trial court reas onably concluded the li ghting conditions shown on the film were not sufficien tly similar to the lighting co nditions on the night of the crime. ( Ibid .)
In Gonzalez , the defendant offered a videotape solely to show lighting conditions at the time of a shooting. A defense expert testified to the minimum amount of light155. necessary for a video camera to record, and that the human eye can see w ith even less light. The witness also testified that the huma n eye can see things be tter in the dark than a video camera, regardless of the level of ill umination. In light of this testimony and other differences between the videotape and th e actual lighting conditions at the time of the crime, the trial court excluded the evidence. ( Gonzalez , supra , 38 Cal.4th at p. 952.) The California Supreme Court found no e rror. It observed that, in order to be admissible, a video recording must be authen ticated by testimony or other evidence that it accurately depicts what it purports to show. ( Gonzalez , supra , 38 Cal.4th at p. 952.) Because the video did not portray that for which it was offere d, namely the actual lighting conditions at the time of the crime, the trial court acted with in its discretion in excluding the video. ( Id . at p. 953.) In both Boyd and Gonzalez , the video recording was offered to show actual lighting conditions. Such was not the situation in the pres ent case, and we reject the notion that there is no reasonable distinc tion between “the level and degree when darkness fell,” for which purpos e the jury was permitted to c onsider the evidence, and the “exact lighting conditions under wh ich the witnesses were able to view the events of the crime,” for which the jury was not. While we ackn owledge that, unlike in Rodrigues , here none of the eyewitnesse s to the events at McNew Court confirmed the accuracy of what was depicted in the video, we conclude that omission was not fatal to admission of the evidence given the purpose for which it was offered, Riehle’s testimony, and the limiting instruction. Although more recent th an most of the briefing in this case and so not cited by any party, we find People v. Jones (2011) 51 Cal.4th 346 helpful. In that case, the defendant sought admission of two videotapes of the crime scene taken one and two years after events, in order to impeach a witness’s testimony. When the prosecutor cited Boyd in support of his objection that a camera does not show what the eye can see, the defendant countered that he was not offe ring the tapes to show the li ghting conditions at the time of156. the crime, but to show the amount of natural light available then and thereby impeach the witness’s testimony that he could see due to natural light. Because the witness had testified that a light was on next door to th e crime scene, the trial court questioned how someone could determine the source of the light that allowed him or her to see. The court opined that the relevance of the videos would be to illustrate what the witness could or could not see and, after watching the tape s, the court stated its belief that the videographers could see things the cameras di d not show. Accordingly, it concluded the videos would deceive the jury, and so excludedthem. It made clear, however, that the witnesses could testify about what they could see. ( Jones , at pp. 373-375.) Relying on Gonzalez , Rodrigues , and Boyd , the California Supreme Court upheld the trial court’s ruling. ( People v. Jones, supra, 51 Cal.4th at p. 375.) It stated: “As the trial court observed, a witness will know whether and what he could see, based on whatever source of light exists, but would no t ordinarily distinguish how much of the actual lighting was due to natural light and how much to artificial light. Because the record shows that artificial light existed at th e time of the crime, the trial court could, in its discretion, reasonably concl ude that trying to isolate one portion of the available light could serve only to confuse, not assist, the jury.” (Id . at p. 376.) The high court further rejected the defendant’s sugges tion, based on a number of case s, that there is a double standard in favor of the prosecution such that videotapes are excluded only when defendants offer them. The court stated: “[N]othing in [the cited cases] supports admission of the videotape here. Rather, vi deotapes are admissibl e within the court’s discretion when they assist th e jury, and they are excludable within the court’s discretion when they do not assist the ju ry. Here, the trial court reasonably exercised its discretion to exclude the tapes. In other cases, ... the court reasonably exercised its discretion to admit tapes.” ( Ibid .) In our view, the trial court here reasonably could have exercised its discretion to admit or to exclude the video. Because the court’s decision to adm it the video did not fall157. outside the bounds of reason under the circumstances (see People v. Giminez, supra, 14 Cal.3d at p. 72), there was no error. The vide o had at least some probative value despite differences between the night of the shooti ngs and the night the film was made, and between what the human eye an d the camera could s ee. Since those differences were made clear to the jury through testimony, and the limited purpose for which the video considered was made clear through the tria l court’s admonition and the prosecutor’s argument to the jury, it had little, if any, prej udicial effect. The limiting instruction did not, as defendants claim, eliminate the vide o’s relevance; moreover, the inferences the prosecutor sought to draw from the evidence were not speculative. (See People v. Babbitt (1988) 45 Cal.3d 660, 682 [evidence producing only sp eculative inferences is irrelevant].) That she could have argue d premeditation and lying in wait based on witness testimony and the physic al evidence found at the sc ene, does not mean the video was merely cumulative. (See People v. Harrison (2005) 35 Cal.4th 208, 234.) 3. Sara Agustin’s Testimony Lee and Dixon raise claims of error with respect to admission of certain portions of Sara Agustin’s testimony. Dixon, joined by Lee, says the trial court’s erroneous admission of Agustin’s testimony concerning Johnson’s statemen ts inculpating his codefendants, violated their rights to due pr ocess and a fundamentally fair trial. The People say the testimony was properly ad mitted against all three defendants and, assuming some error under state law, there was no due process violation. Lee, joined by Dixon, faults the trial court for permitting Agustin to testify that she had discussed Lee’s gang role and activities with Lee’s girlfriend. The People say this evidence was properly admitted solely against Johnson. We address each claim in turn.

a. Johnson’s statements inculpating codefendants 1. Background The People moved, in limin e, to admit statements of Johnson and Dixon against all three defendants as declarations agains t penal interest pursu ant to Evidence Code158. section 1230. In pertinent part, the People pointed to statements made by Johnson to Agustin concerning the incidents in which Le e’s car and Lee were shot, and the charged shootings. Dixon and Lee moved to exclud e anything Johnson allegedly told Agustin relating to either of them, asserting declarations against penal inte rest could be admitted only against the declarant, and that the pro ffered evidence was in admissible under the federal Constitution. The prosecutor excerpted, from Agus tin’s grand jury testimony and law enforcement interviews, each statement proposed for use attrial. Following a lengthy argument, the court made rulings concerning the various categories of statements. Agustin’s testimony is set out in the statement of facts, ante . We recount here the main statements to which Dixon and Lee now obj ect, and the trial court’s related rulings. 94

 Johnson told Agustin that Dixon and Lee were Country Boy Crips. (This was admitted against Johnso n as an admission, and against Dixon and Lee under the coconspirator exception to the hearsay rule.)

 Lee discussed with Johnson, in Agustin ’s presence, Lee’s car getting shot. Lee said he and Johnson went to a location on Pacheco Road to buy some marijuana, and they were shot at by some individuals. Le e’s black vehicle was shot many times. He and Johnson were both angry, and Johnson said they needed to go b ack and retaliate. Johnson and Lee discussed how they needed to retaliate. Lee said he submitted a damage claim to his insuran ce company, but regretted doing so because the insurance company

94 Because the People appropriately do not claim forfeiture based on lack of or insufficient objection, for the most part we do not include any objections and rulings made when Agustin actually testified to th e statements. Counse l for Lee and Dixon unsuccessfully renewed their objections and motions to exclude midway through Agustin’s direct examination. They were gran ted a continuing objection to the evidence. Our analysis with respect to any othe r statements made by Johnson to Agustin implicating Lee and/or Dixon is the same as with respect to the st atements we identify here.159. required a police report, and that was how the police department found out about the shooting. (These statements were admitte d, during in limine mo tions, against Johnson and Lee as declarations against interest. At the time Agustin testified, they were also admitted against Dixon with re spect to counts nine (con spiracy) and eleven (active participation in a criminal street gang).)

 Lee came to Agustin’s house with his arm bandaged. Speaking to Agustin and Johnson, he said he and Johnson went back to retaliate for the initial shooting, and parked off Pacheco Road so their vehicle would not be spotted. Johnson said they then started walking toward the location where they thought the individuals lived. Lee said as they were walking, they spotte d a vehicle driving toward them . In it were the individuals who had shot Lee’s vehicle. These people no w began to shoot toward Lee and Johnson. Johnson said that he pulled out his gun and went to fire, but it jammed. He and Lee then ran in different directions. Lee said he jumped over a fence and it broke. Agustin already knew Lee had been shot, because Johns on had told her the same story about what had happened when he said he wanted to go with Agustin to visit Lee at the hospital. (These statements were adm itted, during in limine motions, against Johnson and Lee as declarations against interest. At the time Agustin testified, they were also admitted against Dixon with respect to counts nine and eleven.)

 Johnson gave Agustin some clothes to destroy. He said that a couple of days earlier, he and Lee had driven to a location off of Monterey Street, by the canal. Lee was driving and parked in an alley. J ohnson got out of the vehicle, put on a mask, walked to the front of a resi dence where a couple of individu als were sitting, walked up to one of them, and began shooting. Johnson sa id that Lee wanted to go and retaliate for the shooting on Pacheco Road, but he could not shoot the gun himself because of his injuries, so Johnson had to s hoot on his behalf. (These st atements were admitted against Johnson and Lee as declarations against interest.)160.  Johnson and Agustin were lying in bed. Johnson told her that he, Dixon, and Lee had driven to a certa in location. They had parked the car where they could watch a particular vehicle. Dixon and Lee stayed in th e car, while Johnson got out, approached, and started shooting inside the vehi cle. He could not see inside, but thought someone was there. (These statements we re admitted against all three defendants as declarations against interest.)

 Agustin overheard a phone call Johnso n got from Dixon. Johnson said Dixon was very upset at him b ecause he had left the clothing that he was wearing at the shooting, and inside the coat pocket was Dixon’s cell phone. The police had found the items and were harassing Dix on. (These statements were admitted against all three defendants as declarati ons against interest.)

 Agustin saw Johnson, Dixon, Lee, a nd Goo sitting on the fl oor at Dreenie’s house, with a bunch of money and some marijuana. All four were talking about how they had robbed Reese; they were splitting the money among themse lves. (These statements were variously admitted against all three de fendants as admissions, declarations against interest, adoptive admissions, and coconspirator statements.)

 Johnson told Agustin that he and Dix on found out where the father of the person who shot Johnson’s friend lived. Johns on and Dixon drove to the location, which was up in the bluffs, got out of the car, and started walking toward the house. When a vehicle approached and the individuals inside made eye contact with them, Johnson and Dixon got scared and pretended they were tying their shoes. (These statements were admitted against all three defendants as declarations against interest.) 95

95 Although Agustin testified at trial that she did not recall Johnson saying Lee was with Dixon and him, the assumption during the in limine hearing was that she would include Lee, based on her grand jury testimony.161.  Johnson drove Agustin to an intersec tion on Real Road and showed her a camera on the signal light. He said he had do ne a drive-by shooting at that intersection the previous Saturday. He said Lee was driving, Dixon was in the passenger seat, and Johnson was in the back seat. Johnson sa id he saw an individual walking on the sidewalk, and he stuck his head out of the car and fired. He was concerned that the camera may have recorded the incident. (T hese statements were admitted against all three defendants as declarations against interest.)

 Johnson took Lee and Dixon to see the camera on the light post. Agustin was with them. Johnson said that if the cam era was actually recording, it would be bad because it would show that Lee was driving, the vehicle and the license plate, and that Dixon was in the front seat. Dixon respondedthat if it was going to show that, it was also going to show when Johnson put his headout of the window and started firing. (These statements were vari ously admitted against all thre e defendants as declarations against interest, admissions, and adoptive admissions.) Agustin testified under a grant of i mmunity. During her 11-month relationship with Johnson, she smoked marijuana just abou t every day, but to her knowledge suffered no memory loss as a result. Senior Officer Sherman testified that it is not uncommon, within the gang culture, for a shooter to brag about shooting, though he likely would not brag about shooting an innocent victim. A shooter would not brag about doing a shooting he did not actually do; to take credit for something someone else did would be perceived as disrespect. The trial court instructedthe jury that Agustin wa s a potential accomplice to conspiracy to violate section 186.22, subd ivision (a), as charged in count nine, and section 186.22, subdivision (a)(1), as charged in co unt eleven. 2. Analysis At trial, Lee and Dixon asserted in part that admission of the challenged evidence violated their confrontation rights under the Sixth Amendment to the United States162. Constitution, because they were unable to cross-examine the declarant, Johnson. They now acknowledge that the statements at issue were not testimonial. ( Davis v. Washington (2006) 547 U.S. 813 , 822, 826-827 ( Davis ); Crawford v. Washington (2004) 541 U.S. 36, 51-54 ( Crawford).) “Only [testimonial statements] ca use the declarant to be a ‘witness’ within the meaning of the Confrontation Cl ause. [Citation.] It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsa y evidence, is not subject to the Confrontation Clause.” ( Davis , at p. 821.) “Accordingly, after Davis , the determination of whether the admission of a hearsay statement violates a defendant’ s rights under the confrontation clause turns on whether the statement is testimonial. If the statement is tes timonial, it must be excluded unless the declarant is unavailable as a witness a nd the defendant had a prior opportunity to cross-exam ine the declarant. If the statem ent is not testimonial, it does not implicate the confrontation clause, and the issue is simply whether the statement is admissible under state law as an ex ception to the hearsay rule.” ( People v. Garcia (2008) 168 Cal.App.4th 261, 291; see People v. Cage (2007) 40 Cal.4th 965, 981 & fn. 10, 984.) In light of the foregoing, on appe al Lee and Dixon abandon their Sixth Amendment argument. Instead, they focus on their claims the evidence was (1) not admissible under the Evidence Code, and (2) so grossly unreliable that its admission denied them their rights to due process and a fair trial. The statements Johnson made to Agustin outside the presence of Lee and/or Dixon primarily were admitted as declarations agai nst interest. Pursuant to Evidence Code section 1230, “Evidence of a statement by a de clarant having suffici ent knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, ... so far subjected him to the risk of ... criminal liability, ... that a reasonable man in his pos ition would not have made the statement unless he believed it to be true.”163. The first requirement — unavailability of the declarant — was clearly satisfied. Having chosen to exercise his Fifth Amendm ent privilege not to testify, Johnson was unavailable. ( People v. Cudjo (1993) 6 Cal.4th 585, 607; People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962.) The second and third requirements — that the statement must have been against the declarant’s penal interest and must ha ve been sufficiently reliable to warrant admission despite its hearsay character (People v. Cudjo , supra , 6 Cal.4th at p. 607) — are interrelated. If a statement “‘is truly ag ainst interest within the meaning of Evidence Code section 1230,’” it “‘is sufficiently trustworthy to be admissible ....’” ( People v.
Geier (2007) 41 Cal.4th 555, 584; see People v. Fuentes , supra , 61 Cal.App.4th at pp. 966-967.) Because declara tions against penal interest sometimes contain self-serving and unreliable information ( People v. Duarte (2000) 24 Cal.4th 6 03, 611), Evidence Code section 1230 does not appl y “to evidence of any statem ent or portion of a statement not itself specifically disserving to th e interests of the declarant.” ( People v. Leach (1975) 15 Cal.3d 419, 441, fn . omitted.) Thus, the statute does not apply to “‘collateral assertions’” within a declaration against penal interest ( Duarte , supra , at p. 612); moreover, “a hearsay statement ‘which is in part inculpatory and in part exculpatory (e.g., one which admits some complic ity but places the major res ponsibility on others) does not meet the test of trustworthiness and is thus inadmissible.’ [Citations.]” (Ibid .) To determine whether a particular statem ent is trustworthy, “a trial court ‘may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant.’ [Citation.]” ( People v. Cudjo , supra , 6 Cal.4th at p. 607.) This is because “even when a hearsay statement runs generally against the d eclarant’s penal interest and redaction has excised exculpatory portions, the statement may, in light of circumstances, lack sufficient indicia of trustworthiness to qualify for admission. [Citations.]” ( People
v. Duarte , supra , 24 Cal.4th at p. 614.) Accordingly, “assessing trustworthiness164. ‘“requires the court to apply to the peculiar f acts of the individual ca se a broad and deep acquaintance with the ways human beings actually conduct themselves in the circumstances material under the exception.”’ [Citation.]” (Ibid .) The test of whether a stat ement is one against penal in terest “is an objective one — would the statement subject its declarant to criminal liability su ch that a reasonable person would not have made the statement without believing it true. [Citations.]” ( People v. Jackson (1991) 235 Cal.App.3d 1670, 1678, fn. omitted.) We review a trial court’s determinations whether a statement wa s against the declarant’s penal interest and whether it was trustworthy for abuse of discretion. ( People v. Lawley (2002) 27 Cal.4th 102, 153; People v. Gordon (1990) 50 Cal.3d 1223, 1250- 1253, overruled on another ground in People v. Edwards, supra, 54 Cal.3d at p. 835; People v. Greenberger (1997) 58 Cal.App.4th 298, 335 ( Greenberger).) 96

96 There is some disagreement concerning the appropriate standard of review of a trial court’s ruling on the trus tworthiness issue. Citing Lilly v. Virginia (1999) 527 U.S. 116 (plur. opn. of Stevens, J.) ( Lilly ), some courts have conductedde novo review. (See, e.g., People v. Cervantes (2004) 118 Cal.App.4th 162, 174- 175 & cases cited therein.) However, the Lilly court expressly stated it accepted the state court’s determination that the declarant’s statements were reliable for purposes of state hearsay law . ( Lilly , supra , at p. 136 (plur. opn. of Stevens, J.).) It applied the standard of in dependent review with respect to whether the governme nt’s proffered guarantees of trustworthiness satisfied the demands of the confrontation clause. ( Id . at p. 137.) In so doing, Lilly undertook the preCrawford confrontation clause analysis required by Ohio v. Roberts (1980) 448 U.S. 56, 66 (Roberts ), viz., “that the veracity of hearsay st atements is sufficiently dependable to allow the untested [by cross- examination] admission of su ch statements against an accused when (1) ‘the ev idence falls within a firmly root ed hearsay exception’ or (2) it contains ‘particularized guarantees of trustworthiness’ such that ad versarial testing would be expected to add little, if anything, to the statements’ reliab ility. [Citation.]” (Lilly , supra , at pp. 124-125 (plur. opn. of Stevens, J.).) With Crawford and Davis , however, Roberts has been overruled for all purposes. ( People v. Cage, supra, 40 Cal.4th at p. 981, fn. 10.) We thus adhere to the abuse-o f-discretion standard, although our conclusion regarding admissibility would be the same inthe present case under de novo review.165. Johnson’s statements implic ated him in murder and atte mpted murder. Clearly, on their face they were against his penal interest. ( People v. Cudjo , supra , 6 Cal.4th at p. 607.) This is true even of those portions that inculpat ed Dixon and Lee. Under the circumstances related by the statements, inclus ion of their participation was specifically disserving to Johnson’s interest by implicati ng him in a conspiracy, and in retaliatory shootings that were premed itated and inferentially gang related; and it was not exculpatory, self-serving, or collateral. (Compare People v. Samuels (2005) 36 Cal.4th 96, 120-121 with People v. Lawley , supra , 27 Cal.4th at pp. 152-154.) The statements also met the trustworth iness requirement. “In addition to the ‘reasonable assurance’ of the veracity that or dinarily flows from a person’s interest in not being criminally implicated [citation], the circumstances surrounding [Johnson’s] statements confirm their reliability.” ( People v. Arceo (2011) 195 Cal.App.4th 556, 577.) “[T]he least reliable circumstance is one in which the declarant has been arrested and attempts to improve his situ ation with the police by deflecting criminal responsibility onto others.... However, the most reliable ci rcumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.]” ( Greenberger , supra , 58 Cal.App.4th at p. 335.) Here, the statements were made by Johnson to his l over, on one occasion while the two lay in bed. It is true that Agustin’s recitation of what she recalled Johnson telling her was, in certain respects, at odds with other evidence presented at tr ial. This was not fatal to admission of the challenged evidence, howe ver. When evidence is offered under a hearsay exception, the trial court must determin e, as a preliminary fact, that the declarant made the statement as represented. ( People v. Cudjo , supra , 6 Cal.4th at p. 608.) This determination “is governed by the substantia l evidence rule. The trial court is to determine only whether there is evidence sufficient to sustai n a finding that the statement was made. [Citation.] As with other facts, the direct testimony of a single witness is sufficient to support a finding unless the testimony is physically impossible or its falsity166. is apparent ‘without resorting to in ferences or deductions.’ [Citations.] [ 97 ] Except in these rare instances of demonstrable falsity , doubts about the credibility of the in-court witness should be left for th e jury’s resolution; such doubts do not afford a ground for refusing to admit evid ence under the hearsay exception for statements against penal interest. [Citations.]” (Id . at pp. 608-609.) The discrepancies here are such only when Johnson’s reported statements are compared with other ev idence presented at trial. Even under pre- Crawford analysis, however, the question is whether hearsay evid ence “‘possess[es] indi cia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial .’ [Citation.]” ( Lilly , supra , 527 U.S. at p. 138 (plur. opn. of Stevens, J.), italics added.) Here, the discrepancies did not negate all possibility that, if Johnson claimed to be involved in the various shootings, he was telling the truth. (See People v. Cudjo , supra , 6 Cal.4th at pp. 607-608.) Rath er, the trial court (and, ultim ately, the jury ) reasonably could have concluded John son did indeed tell Agustin what happened, but she misunderstood or misrecollected some of the details. (See id . at p. 607.) Because Johnson’s statements qualified as declarations against interest and satisfied the trustworthiness requirement, th ey were properly adm itted against Dixon and Lee. This is so regardless of whether Dixon and Lee were present when the statements were made. (See, e.g., People v. Samuels , supra , 36 Cal.4th at pp. 120-121; People v.
Arceo , supra , 195 Cal.App.4th at pp. 563, 576-578; People v. Cervantes , supra , 118 Cal.App.4th at pp. 166-167, 174-177; Greenberger , supra , 58 Cal.App.4th at pp. 326, 336-337.) The trial court did not err in admitti ng the evidence.

97 The trial court ruled Agustin was a pot ential accomplice only w ith respect to the counts that charged active participation in, or conspiracy to actively participate in, a gang. Defendants do not now challenge this ruli ng. As a result, her testimony did not potentially require corroboration with respec t to the counts thatcharged the various shootings.167. The trial court similarly did not err in c oncluding that certain of the statements made by Johnson to Lee and/or Dixon in Agustin’s presence were admissible as adoptive admissions. 98 Pursuant to Evidence Code section 1221, “Evidence of a statement offered against a party is not made inadmissible by th e hearsay rule if the statement is one of which the party, with knowle dge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” “There are only two requirements for the introduction of adoptive admissions: ‘(1) the party must have knowledge of the co ntent of another’s hearsay statement, and (2) having such knowledge, th e party must have used word s or conduct indicating his adoption of, or his belief in, the truth of such hearsay statement.’ [Citation.] ‘[A] typical example ... is the accusatory statement to a criminal defendant ma de by a person other than a police officer, and defend ant’s conduct of silence, or his words or equivocal and evasive replies in response. With knowledge of the accusation, the defendant’s conduct of silence or his words in the nature of evasive or equivocal replies lead reasonably to the inference that he believes th e accusatory statement to be true.’ [Citation.]” ( People v. Silva (1988) 45 Cal.3d 604, 623-624, italics omitted.) “For the adoptive admission exception to the hearsay rule to apply, no ‘direct accusation in so many words’ is necessary. [Citation.] Rather, it is enough that the evidence showed that the defendant participated in a private conversation in which the crime was discussed and the circumstances offered him the opportunity to deny responsibility or otherwise dissociate

98 Dixon suggests he did not receive constitutionally required notice to litigate adoptive admissions as a theory of admissibility, but we di sagree. The record clearly shows this theory of admissibility was addressed by the court and counsel at trial. We do not hold evidence was admissible as an adoptive admission if the trial court did not so find (see, e.g., People v. Lucas (1995) 12 Cal.4th 415, 462; People v. Alcala (1992) 4 Cal.4th 742, 795-796; but see People v. Brown (2004) 33 Cal.4th 892, 901), but rather conclude the trial court properly determinedthat some of the challenged evidence was admissible under this excep tion to the hearsay rule.168. himself from the crime, but that he did not do so. [Citation.]” ( People v. Davis (2005) 36 Cal.4th 510, 539.) There can be little doubt that Johnson’s conv ersations with Lee, Dixon, or both, as recounted by Agustin, resulted in adoptive admissions on th e part of the nondeclarant defendant(s). (See People v. Fauber , supra , 2 Cal.4th at pp. 851-853.) 99 To the extent indicia of reliability were required even thou gh the statements were not testimonial (see People v. Sully (1991) 53 Cal.3d 1195, 1232-1233 [pre- Davis confrontation clause analysis]), they were sufficien t for the reasons discussed with respect to the declarations against penal interest, ante

. Admission of the various statements as de clarations against penal interest and/or adoptive admissions was not an abuse of disc retion under state law, whether as hearsay exceptions or under Evidence Code section 352. (See People v. Geier , supra , 41 Cal.4th at p. 585.) As the statements were nont estimonial, their admission did not violate the confrontation clause. Moreover, their admiss ion did not violate due process or render the trial fundamentally unfair. Any unreliability in Agustin’s recollection and recitation of the statements was amply brought to the jury’s attention thr ough cross-examination. (See People v. Gutierrez(2009) 45 Cal.4th 789, 813.) In light of the foregoing, we need not determine whether any of the statements were also properly admitted under the exceptio n to the hearsay rule for coconspirator statements. (Evid. Code, § 1223.) Assuming ev idence was erroneously admitted under that exception (for instance, in the case of statements concerning the Reese robbery, because the conspiracy had ended), the e rror was harmless under any standard. There was ample evidence, aside fro m Johnson’s identification of Lee and Dixon as Country

99 Defendants implicitly conced e their own statements, if fo und by the ju ry to have been made as testified to by Agustin, constituted admissions un der Evidence Code section 1220.169. Boy Crips, that the pair were gang memb ers; the Pacheco Road shootings were not charged against any defendant, and Dixon was not charged with the shooting at Monterey and Inyo; and evidence of what was said concerning the Reese robbery was properly admitted under other h earsay exceptions. b. Discussions with Lee’s girlfriend 1. Background Agustin testified about Johnson’s gang activities and what he told her about his position in the Country Boy Crips. She test ified that Lee was his best friend, and described where Lee lived and meeting his family at Lee’s home. Asked if she had ever met any of Lee’s girlfriends, Agustin said she had met one. This ensued: “Q. [by the prosecutor] And did [Lee] refer to her in any certain way?
“A. He never called -- said -- he said it wasn’t his girlfriend. He hadn’t given her that title yet. “Q. So you saw him with a woma n that he was involved in like a dating relationship with. Is that correct?
“A. Correct. “Q. But he told you that he hadn ’t given her the title of girlfriend. “A. That is correct. [¶] And his girlfriend -- and that girl also told me the same thing, that she had no t earned that title yet. [¶] ... [¶] “Q. She was pregnant with his child, correct? “A. Yes, that is correct. “[COUNSEL FOR LEE]: Objection; relevance. “THE COURT: Response? “[PROSECUTOR]: This woman ha s significant relevance in this case. I’ll make an offe r of proof that it’s -- “THE COURT: I’m going to overrule the objection.”170. Agustin then testified she did not remember this woman’ s name. She also testified Lee had a son whose mother she had never met. Agustin subsequently testified that Lee was not as open with her about his gang activities as Johnson was; however, Lee would talk about his gang activities with Johnson in the house on Encina Street within earshot of Agustin. Asked if she ever discussed Lee’s gang activities with the girl to whom Lee had not given the title of girlfriend, Agustin replied affirmatively. When the prosecutor asked when, counsel for Johnson objected “as to hearsay as to a conversation w ith some third party that’s not identified for any relevant purposes.” Counsel for Dixon and Lee both joined. The prosecutor asserted it was relevant because it went “to the fact thatshe was told that she better not talk to his girlfriend by Corey Johnson about gang ac tivities.” The trial court overruled the objection. Lee’s attorney immediately objected on grounds of unreliabl e and untrustworthy hearsay, improper declaration against penal interest, improper use of a coconspirator’s statement, no proper and lawfulexception to the hearsay rule, and as denying Lee’s rights under the Sixth and Fourteenth Amendments. Dixon joined. The prosecutor represented that she was not offering this particular stat ement for the truth of the matter, just that there was a discussion about gang activities a nd for what happenedafter. The court overruled the objection and admitted the evid ence “for the limited purpose to explain what may have transpired after this discussion.” Agustin then testified that she had the discussion with the person she considered Lee’s girlfriend, although he never claimed her to be a girlfriend. The court clarified that the woman was carrying Lee’s child. The prosecuto r then elicited that Agustin had a discussion with this woman about Lee’s role and activities in the gang, and that shortly after that discussion, Agustin heard from John son about it. Johnson told Agustin that she talked too much.171. Counsel for Lee renewed his objection, this time with re spect to Johnson’s statements. Counsel for Dixon joined. The prosecutor represented th at the evidence was coming in for a limited purpose. She further a sserted it was not offered for the truth of the matter and was an admission by Johnson. The court admitte d it for that purpose, but limited it to Johnson. Agustin then testified that Johnson told her she ta lked too much and that Lee did not let his gi rlfriend know anything, so Agus tin should not say anything. During her argument to the jury, the prosecutor discussed the evidence showing Lee to be a member of the Country Boy Crips. Included were four individuals the prosecutor termed Lee’s women, whom, she said, played an important role in this case in one way or the other. In pertinent part, th e prosecutor stated: “Saleta Roseburr was the one that hadn’t earned the title of girlfriend yet even though she was pregnant with his child . She was also -- that’s Saleta Rose burr, the hostess at Denny’s, and Adrian Bonner’s friend.” (Italics added.) 2. Analysis Saleta Roseburr’s relationship with Lee was relevant because of her connection, however inadvertent, to what happened to Ad rian Bonner. It thus was proper for the prosecutor to seek to sh ow the nature of that relationshi p. Since Lee told Agustin that Roseburr was not his girlfriend, the fact Ro seburr was pregnant with Lee’s child was relevant to explain Agustin’s belief Roseburr was his girlfriend. 100
There is also some relevance to Johns on’s reaction to Agustin’s discussion of Lee’s gang activities with Roseburr. Johnson’s active participation in a criminal street gang was clearly an issue in dispute. Johnson’s actions prohibiting Agustin from discussing Lee’s gang activities with Le e’s girlfriend demons trates Johnson’s

100 Lee asserts his trial attorney objectedto Agustin’s testimony about Roseburr not having earned the title of girlfriend. He is in correct. Counsel objected to the additional testimony about her being preg nant with Lee’s child.172. participation and active involvement in the gang in that it shows him trying to maintain the clandestine nature of the gang’s activities. Lee and Dixon do not claim the evidence wa s prejudicial of itself, and we concur. Lee’s treatment of Roseburr paled in comparis on to other evidence that was admitted, and the testimony about Agustin’s conversatio n with Roseburr was, at most, merely cumulative of the gang evidence. (See People v. Mayfield (1997) 14 Cal.4th 668, 751.) 4. Lee’s Statement to Johnson Lee claims the trial court erred by admitting a statement Lee made to Johnson during a break in Agustin’s testimony. Lee fu rther requests that we review the sealed transcripts of the in camera Pitchess 101 hearing held in connection with this issue. Dixon joins in the claim and the request. The People contend the statement was properly admitted, and have no objec tion to our reviewing the Pitchess material.

a. Background On January 23, 2009, partway through Agustin’s testimony, counsel for Lee informed the court that, according to a report dated 4:25 p.m. the preceding day, one of the transporting deputies overheard Lee tell John son with respect to Agustin, “you should have called me and we both should have beatenher ass together.” As the People sought to use this eviden ce, Lee brought a Pitchess motion with respect to the two deputies involved, and requested personnel records in the form of co mplaints, investigations, or reports related to falsehoods and truthfulness of the deputies. After an in camera hearing during which the court reviewed the deputie s’ confidential files, the court found no documents meeting the request. Counsel for Lee then object ed to admission of the evid ence. While the issue of admissibility was pending, counsel for Lee cr oss-examined Agustin on whether she ever told Lee how Johnson was treating her. She responded that she mentioned to Lee that

101 Pitchess v. Superior Court (1974) 11 Cal.3d 531.173. Johnson was hitting her, and asked him, since he was Johnson’s best friend, to talk to Johnson so Johnson would no t continue abusing her. At the hearing on admissibility of Lee’ s statement to John son, the prosecutor asserted the statement was an admission be cause it admitted a substantial friendship existed between Lee and Johnson, and arguedthe cross-examination of Agustin added further relevance. The prosecu tor agreed with the court th at it showed Lee and Johnson were confederates who would act toge ther to help each other out. Counsel for Johnson argue d the evidence was prejud icial and did not show a mutual conversation, but ra ther simply a smart-aleck comment. Counsel for Dixon asserted Dixon had nothing to do with it, that it could not have been made in furtherance of a conspiracy because any conspiracy had ended, and that it was prejudicial to Dixon and should be excludedunder Evidence Code section 352. Counsel for Le e joined in the comments of counsel for Johnson. The pros ecutor responded that the statement was a relevant postconspiratorial action and that it indicated the actual re lationship that existed during the course of the conspiracy. The prosecutor did not de ny there was already testimony that Johnson and Lee were best friends, but argued the statement showed the two were best friends who wo uld be willing to beat someonetogether to prevent that person from exercising a right. In a writte n brief, the People asserted the statement should be admitted against Lee only, as an admission. They claimed it was relevant to show the true nature of the relations hip between Lee and Johnson, from Lee’s perspective, at the time of the events described by Agustin, and to show that Lee’s behavior was consistent with membership in a criminal street gang. After further argument, the court rule d the statement could come in as an admission by Lee relative to the nature of th e relationship he had with Johnson, and relative to the nature of behavi or consistent with membership in a criminal street gang. The court directed that an appropriat e limiting instruction be prepared.174. The prosecution subsequently called Depu ty Maxwell as a witness. The court confirmed, in the jury’s presence, that th e testimony was coming in only with regard to Lee. Maxwell proceeded to testify that on January 22, 2009, he was assigned to transport Johnson and Lee to court and then back to their housing units. Agustin was on the witness stand that afternoon. As Maxwell and Deputy Curi el took Johnson and Lee out of the courtroom and into the back hallw ay, Maxwell heard Lee tell Johnson, “You should have called me and weboth should have beaten her ass together.” Johnson did not respond. During argument to the jury, the prosecutor stated: “Also during the trial we had a bailiff that overheard some information whenDefendant Lee was being taken out after court one day and it was after one of those days that Sara Agustin testified about the domestic violence that was very upsetting to he r about what [Johnson] did to her, and Lee said to Johnson after one of those days you should have called me. We should have beaten her ass together. Wh ich shows the nature of the relationship between Corey Johnson and David Lee and a propensity for them to be together and do crimes together.” In his argument, counsel for Lee pointed out that Lee had sat in court for days, listening to evidence go before a jury of violent conduct by two c odefendants that had nothing to do with him, and that he made an offhand re mark out of frustration. Counsel questioned the remark’s relevance to the charges. The prosecutor resp onded that the statement was important because at this late date, Lee was still seeking Johnson’s approval and to show he was with Johnson, and that this showed consciousness of guilt. b. Analysis 1. Pitchess Motion As noted above, the trial court gr anted an in camera hearing on Lee’s Pitchess motion, and found no documen ts to be disclosed. Lee, joined by Dixon, asks this court to review the sealed transcripts and document fr om the in camera proceedings to determine if the trial court made an ad equate record for review and whether any information should175. have been disclosed. (See People v. Prince, supra, 40 Cal.4th at pp. 1285-1286; People
v. Mooc (2001) 26 Cal.4th 1216, 1228-1230; People v. Guevara (2007) 148 Cal.App.4th 62, 67-69.) We have reviewed the sealed mate rials, and conclude th e trial court followed proper procedures. We find no error in its ruling. 2. Admission of Lee’s Statement Lee and Dixon implicitly concede Lee’s statement to Johnso n about Agustin was admissible against Lee under Eviden ce Code section 1220. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) Th e question is whether the statement was relevant, since only relevant evidence is admiss ible. (Evid. Code, § 350.) “[The] definition of relevant evidence is manifestly broad. Evidence is relevant when no matter how weak it is it tends to prove a disputed issue. [Citation.] Evidence may be relevant even though it is cumulative; thus, the only ban on cumulative evidence is found in Evidence Code section 352. [Citation.]” ( In re Romeo C. (1995) 33 Cal.App.4th 1838, 1843; accord, People v. Scheid (1997) 16 Cal.4th 1, 16; People v. Freeman, supra, 8 Cal.4th at p. 491.) The prosecution’s theory of the case was that the charged offenses involved concerted action and, in some instances, c onspiracy. The nature of Lee’s relationship with Johnson was relevant to this theory. Lee’s statemen t in turn was relevant to establish the true nature of the relationship at the time of the crimes. It reasonably tended to show he and Johnson were mo re than mere associates or friends, but rather had such a close relationship that Johnson could have called on Lee for a ssistance in dealing with a girlfriend who was causing problems. 102 In addition, and in li ght of the gang expert’s testimony, the trial court also acted within its broad discretion in concluding the

102 We reject the notion these inferences are merely speculative and so cannot be deemed relevant. (Contrast People v. Allen (1976) 65 Cal.App.3d 426, 434, disapproved on another ground in People v. Green (1980) 27 Cal.3d 1, 39, fn. 25.)176. statement was relevant to show behavior co nsistent with gang membership. Because the statement was directed to a prior time, any th reat it implicitly contained did not need to have been conveyed to Agustin fo r the statement to be probative. Lee and Dixon say the only uses of the st atement were to suggest Lee was the type of person who might beat someone up, an d that he and Johnson had the type of relationship in which they wo uld engage in violence, both of which purposes violated subdivision (a) of Evid ence Code section 1101. 103 Assuming an objection under this section was adequately stated (see People v. Holloway (2004) 33 Cal.4th 96, 128), we disagree that the only uses to be made of the evidence were impermissible ones. Although the evid ence might have been used by jurors to draw a forbidden inference, this is not a sufficient basis upon which to conclu de the trial court abused its discretion in admitting the statement. (See People v. Alvarez, supra, 14 Cal.4th at pp. 215-216.) 104 Lee and Dixon argue Lee was simply ven ting his frustration when he uttered the statement, and that it showed hi s mental state at that time, not at the time of the crimes. Although the statement could be so interpreted, as counsel for Lee argued, this was not the only reasonable interpretati on, nor, under the totality of the circumstances, was it necessarily the most reasonable one. In any event, the appr opriate interpretation was for the jury.

103 Evidence Code section 1101, subdivision (a ) states the general rule that “evidence of a person’s character or a trait of his orher character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
104 We recognize the prosecutor included a propensity purpose fo r the evidence in argument to the jury. As pr eviously noted, however, the propriety of the admission of evidence does not depend on counsel’ s later argument to the jury. ( People v. Harrison, supra, 35 Cal.4th at p. 230.) Moreover, the jurors here were never in structed that they could use the evidence improperly, but rather were told statements of the attorneys were not evidence.177. Finally, Lee and Dixon say the evidenceshould have been excluded because any minimal probative value was greatly out weighed by the prejudicial effect. 105 Again, we disagree. Jackson testified that Lee hung out withJohnson, while Agustin testified the two were best friends. Because the defense ve hemently attacked Jackson’s and Agustin’s credibility and the statement went further toward illustrating the true nature of Lee and Johnson’s relationship, Lee’s statement was not merely cumulative of other evidence. Similarly, the statement was not merely cumulative of other gang evidence. Lee and Dixon say the evidence was prejudi cial, especially when coupled with the evidence of Johnson’s abuse of Agustin. Al though admission of the statement did pose some risk of undue prejudice to Lee (see People v. Garceau (1993) 6 Cal.4th 140, 178, overruled on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118), we conclude the evidence’s probative value was sufficiently great to outweigh any prejudicial effect. We reiterate: “‘“The‘prejudice’ referred to in Evidence Code section 352 applies to evidence which uniquely tends to evok e an emotional bias against the defendant as an individual and which has very little effect on the issues . In applying [Evidence Code] section 352, ‘prejudicial’ is not syno nymous with ‘damaging.’”’ [Citation.] Evidence need not be excluded under this provision unless it ‘poses an intolerable “‘ risk to the fairness of the proceedi ngs or the reliability of the outcome. ’”’ [Citation.]” ( People v. Alexander , supra , 49 Cal.4th at p. 905, italics added.) Here, there was no evidence Lee was everactually physically abusive toward Agustin. In fact, she testified Lee was not present on any of the occasions Johnson abused her, and that Lee never threatened he r and she was not afraid of him. This

105 We reject the People’s claim that no Evidence Code sect ion 352 objection was made at trial. Although counsel for Lee did not specifically mention that statute, the trial court and prosecution were sufficiently al erted to the issue by the objections and arguments actually made. (See People v. Clark (1992) 3 Cal.4th 41, 124.)178. testimony — concerning, as it did, what in fa ct took place, as oppos ed to the challenged evidence, which did not — had a strong tenden cy to alleviate any prejudicial linking of Lee to the physical abuse perpetrated by John son. Moreover, insofar as Lee’s statement was probative of behavior cons istent with gang membership, jurors were cautioned that they could not use evidence of gang activity to conclude a defendant was a person of bad character or had a disposition to commit crime. In light of the foregoing, this case stands in sharp contrast to People v. Leon (2001) 91 Cal.App.4th 812, whic h is cited by Lee. There, the prosecutor was permitted to present the testimony of a court interprete r that, while the child who was the alleged victim of a sexual assault by the defendant wa s testifying, the defendant was opening and closing his fingers over the crotch area of hi s pants. The interprete r did not know if the defendant was touching his peni s and did not see an erection, and the defendant never opened his pants. Nevertheless, the prosecutor was permitted to argue to the jury that the defendant was masturbating while the victim was testifying. ( Id . at pp. 815-816.) The Court of Appeal reversed, finding the ambigu ous evidence and inflammatory argument to have confused the issues and inflamed the jury. ( Id . at pp. 816-817.) The circumstances — and the potential fo r prejudice — are demonstrably different in the present case. The trial court did not abuse its discretion by admitting Lee’s statement solely against him. 5. Dupree Jackson’s Testimony Defendants claim the trial court committed prejudicial error with respect to the admission of Dupree Jackson’s testimony. Firs t, Dixon says the court erred by denying him a hearing on the issue of intentional charging delay in conjunction with his motion to exclude Jackson’s testimony on the ground he was acting as a police agent. Johnson and Lee join. The People say the trial court properly rejectedthe substantive claim as a matter of law; hence, no additional heari ng was constitutionally required. Second, Lee says the trial court erred by permitting Jacks on to testify, without sufficient foundation,179. regarding cell phone practices of gang me mbers in walk-up shootings. Johnson and Dixon join. The People say ample foundation was laid, but, if error occurred, it was harmless in light of the gang expe rt’s duplicative opinion testimony. Jackson’s testimony is set out at length in the statement of facts, ante . We address defendants’ claims in turn.

a. Massiah 106 1. Background Prior to trial, Dixon moved to excludetestimony by Jackso n about what Dixon told him while they were in jail together, on the ground Jackson was an agent of the government at the time. In their response, the People represented that Dixon and Lee were celled together from August 25 to Au gust 29, 2007, but that no one intentionally placed them together in connec tion with this case, and Jacks on was under no directive to speak to Dixon about this case. Because Dix on was not in custody on this case, as he was not arrested in connection w ith it until October 1, 2007, th e People argued, there was no Sixth Amendment violation. At the hearing on the motion, the pros ecutor presented a certified copy of the felony complaint in th is case, showing it was not filed un til October 2, 2007. She related that on August 24, 2007, Dixon and Lee were arrested on ch arges of vehicle pursuit and possession of an assault rifle. The next day, Jackson was arrested on a parole violation. Before he was taken to the jail, he had an interview with the Bakersfield Police Department in which he implicated Johnson in the McNew Court, and Real Road and Planz, shootings. Detective Darbee told J ackson to think about whether he would be willing to testify in this case and, when Ja ckson expressed some concerns, Darbee told Jackson he would talk to hi m about it in a few days. Four days later, on August 29, Darbee brought Jackson to the police department again. In the meantime, however,

106 Massiah v. United States (1964) 377 U.S. 201.180. unbeknown to the police department or th e detectives involved from the sheriff’s department, Dixon and Jackson were placed in the same cell, and Dixon spoke to Jackson about this case. On August 29, Jackson was again interviewed by the police department and asked if he would be willing to testify. During th is interview, he revealed what Dixon had told him while they were celled together. That same day, Dixon was moved out of the cell. The prosecutor asserted that no one in volved with this case asked for Dixon and Jackson to be celled together, and she offe red to present testimony on that point. Moreover, she argued, even if th ey were intentionally housed together, that fact would be irrelevant under the law, because Dixon wa s not in custody on this case. Counsel for Dixon represented that Jacks on would be brought out to see his parole officer and talk to a police officer, then would be sent back in to get more information, and brought out again. Counsel argued he was an informant, and an agent of the police department. Counsel acknowledged that Di xon was in custody on another charge, but pointed out he was a suspect in this ca se because law enforcement had already interviewed him in April about the McNew Court shootings, plus officers had already interviewed Agustin. Counsel asked the court to assume a scenario in which a suspect was charged with something else, and then th e authorities decided to hold off filing the indictment or complaint in order to send in ag ents to elicit informati on. Counsel asserted that just because the authoritie s were holding off fili ng should not deprive his client of his Fifth or Sixth Amendment rights. The court found no Sixth Amendment vi olation. Accordingly, it ruled the statements were admissible. 107 Jackson subsequently testified concerning the

107 Lee challenged admission of Jackson’s testimony on statutory grounds, because of money and assistance Jackson had been given. That issue is not raised on appeal.181. circumstances under which he and Dixon were celled together, and statements Dixon made to him about some of the o ffenses charged in this case. 2. Analysis The California Supreme Court has stated:
“The Sixth Amendmen t [to the United States Constitution] provides that ‘in all criminal prosecutions, th e accused shall enjo y the right ... to have the assistance of counsel for his defense.’

“In Massiah [, supra ,] 377 U.S. 201, and its progeny, the United States Supreme Court held that ‘the government’ — whether federal or state — ‘may not use an undercover agent to circumvent the Sixth Amendment right to counsel once’ that right has attached. [Citation.] After attachment, ‘the Sixth Amendmen t prevents the government from interfering with the accused’s right to counsel.’ [Citation.] Before attachment, by contrast, the constitutio nal provision is not implicated. [Citation.]
“The Sixth Amendmen t right to counsel ‘does not attach until a prosecution is commenced, that is, “‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’”’ [Citations.] It is not enough, for example, that the defendant has become the focus of the underlying crimin al investigation. [Citations.] “The Sixth Amendment right to counsel, the United States Supreme Court has ... declared, is ‘offense specifi c.’ [Citation.] That is to say, it attaches to offenses as to which ad versary judicial criminal proceedings have been initiated — and to such offenses alone. [Citation.]” ( People v. Clair (1992) 2 Cal.4th 629, 657; see also McNeil v. Wisconsin (1991) 501 U.S. 171, 175; Illinois v. Perkins (1990) 496 U.S. 292, 299-300; United States v. Gouveia (1984) 467 U.S. 180, 187-188; United States v. Henry (1980) 447 U.S. 264, 270.) The trial court here implicitly found Di xon’s Sixth Amendment right to counsel had not attached as to the offenses charged in this case. We ex amine this conclusion independently, while scrutinizing underlyi ng findings for substa ntial evidence. ( People v. Clair, supra, 2 Cal.4th at p. 657.) So reviewed, the trial court’s determination is correct. Indeed, no other conclu sion can be drawn from the record.182. Dixon says, however, that the trial court erred in accepting the prosecutor’s view that no hearing on intentional ch arging delay was required. In reality, the record shows the prosecutor never expressed such a view . Rather, her argument was that because Dixon’s Sixth Amendment right to counsel had not attached, whether Jackson was merely listening to Dixon or actively eliciting information from him was irrelevant, and so no hearing needed to be held to make that determination. (See United States v. Henry,

supra, 447 U.S. at pp. 271- 272 & fn. 9 [distinguishing, in case involving postindictment communications, between informant who is passive listener and one who deliberately elicits information].) We assume, for purposes of our analysis, that intentional and unnecessary delay by the government in bringing charges can imp licate a defendant’s Sixth Amendment right to counsel. (See Flittie v. Solem (8th Cir. 1985) 775 F.2d 933, 943; State v. McNeil (Wis. 1990) 454 N.W.2d 742, 749-750; but see People v. Webb, supra, 6 Cal.4th at pp. 527- 528.) In the present case, however, counsel fo r Dixon merely asked the court to assume a scenario in which there was such delay. Defe nse counsel neither asse rted that intentional delay occurred (or even may have occurred) in the present case, nor asked for a hearing on that issue. On the record before us, the court was under no duty to hold such a hearing absent a request. Accordingly, although defendants clearly raised a substantive Massiah claim, they cannot predicate error on the trial court’s de nial of the motion without holding a hearing. (See People v. Wilson (2005) 36 Cal.4th 309, 347-348; cf. People v. Hoyos (2007) 41 Cal.4th 872, 897-898, overruled on another ground in People v. McKinnon, supra, 52 Cal.4th at pp. 637-643; People v. Hughes (2002) 27 Cal.4th 287, 325-326.) The court did not err by find ing no Sixth Amendment violation, and defendants are entitled to neither revers al nor remand for a hearing on delay. 108

108 Because the record is in sufficient to allow us to de termine whether unnecessary and intentional delay could have been established such that Jackson’s testimony should have been excluded, we cannot assess whether defense counsel were ineffective in failing183. b. Testimony Concerning Cell Phone Practices 1. Background During the course of his testimony, Jackson explained th at during walk-up shootings, sometimes people rema in in the car. Such a pers on would be the driver, whose role would be to take the shoo ters to the rival gang territory and, after the shooting, get them quickly back to their own “hood.” As ked if there was ever communication between the driver and those who get out of the car to do the shooting, Jackson replied affirmatively. When counsel for Lee objected that the te stimony lacked foundation, the court confirmed with Jackson that the answer was based on Jackson’s personal experience. Counsel for Lee then took Jackson on voir dire. Jackson testified that he had never done a shooting, but he ha d been the driver in a gang shooting and, when he was the driver, had communicated with the people who were out to do the shooting. Jackson did not know the name of the victim in the incident in wh ich he participated and could not recall when it happened. Th e court found that Jackson’s l ack of recollection went to weight rather than admissibility, and allowed the testimony. The prosecutor then elicite d, without objection, that Ja ckson had also talked to other people who had participated in such shootings, and that they had told him about what they did. Based on what he had been told and what he had seen, Jackson testified that the driver would communicate with the shooter on a cell phone. The kind of information exchanged would be where someone was and what he wa s doing, to have the car started by the time the shooter got back, and the like. The trial court granted the defense continuing objections on foundation and speculation grounds, but overruled those objections.

to request a hearing or whether defendants we re prejudiced thereby. Accordingly, we reject defendants’ alternative claims of ineffective assistance of counsel.184. On cross-examination by coun sel for Lee, Jackson testif ied that on the occasion he was the driver, the two who did the shooting ran back to the car and did not call him on the cell phone. On another occasion, however, he was called to come to the scene to pick up someone who had done a shooting. Senior Officer Sherman subsequently te stified that during walk-up shootings, communication with other members of the gang is usually done by phone. There must be communication; if things go wrong and one of the perpetrators has to take off or is caught, he has to be able to communicate w ith the other parties involved. The person with the vehicle is not just going to sit there a nd wait. He has to be told to go to another location or leave, because otherwise he is si tting in rival gang territory and is a potential target both for rival gang members and for th e police. Sherman related that if law enforcement comes into an area because of a shooting, they do not immediately go to the crime scene, but scope out the area, looking for ve hicles and people who are out of place. 2. Analysis “Subject to [Evidence Code] Section 8 01 [concerning opinion testimony of expert witnesses], the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matte r. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.” (Evid. Code, § 702, subd. (a).) Any admissible evid ence, including the witness’s own testimony, may be used to show the requisite personal knowledge. ( Id ., subd. (b).) Although the testim ony must be excluded unless th ere is evidence sufficient to sustain a finding that the witness has su ch knowledge, a court may exclude testimony for lack of personal knowledge only if no jury reasonably could find the witness has such knowledge. ( People v. Anderson (2001) 25 Cal.4th 543, 573.) “A lay witness may testify to an opini on if it is rationally based on the witness’s perception and if it is helpful to a clear understanding of his test imony. (Evid. Code, § 800.)” ( People v. Farnam (2002) 28 Cal.4th 107, 153.) “‘[P]erception’” is “the185. process of acquiring knowledge ‘through one’s senses’ [citation], i.e., by personal observation.” ( People v. McAlpin (1991) 53 Cal.3d 1289, 13 06, fn. omitted.) Thus, “[f]or a nonexpert to be competent to give an opinion ... he must be testifying about facts that he has personally observed ....” (Manney v. Housing Authority (1947) 79 Cal.App.2d 453, 459.) In contrast, “California law permits a person with ‘special knowledge, skill, experience, training, or education’ in a par ticular field to qualify as an expert witness (Evid. Code, § 720) and to give te stimony in the form of an opinion ( id ., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is ‘sufficiently beyondcommon experience that the opinion of an expert would assist the trier of fact.’ (Id ., subd. (a).)” ( People v. Gardeley (1996) 14 Cal.4th 605, 617 ( Gardeley ).) “Evidence Code secti on 801 limits expert opinion testimony to an opinion that is ‘[b]ased on matter ... perceived by or personally known to the witness or made known to [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subjec t to which [the expert] testimony relates ....’ ( Id ., subd. (b).)” ( Ibid. ) “Expert testimony may ... be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming th eir opinions. [Citations.]” ( Gardeley, supra, 14 Cal.4th at p. 618.) Although material that forms the ba sis of an expert’s opinion testimony must be reliable, once that threshold re quirement is satisfied, matter th at is ordinarily inadmissible — including hearsay — can form the proper basis for an expert witness’s opinion testimony. ( Id . at pp. 618-619.) A trial court’s decision whether to admit lay opinion or the testimony of an expert, as well as its ruling on the ques tion of an expert’s qualifications, are reviewed for abuse of discretion. ( People v. Lindberg, supra, 45 Cal.4th at p. 45; People v. Wallace (2008)186. 44 Cal.4th 1032, 1062-1063; People v. Mixon (1982) 129 Cal.App. 3d 118, 127; see People v. Medina (1990) 51 Cal.3d 8 70, 887, affd. sub nom. Medina v. California (1992) 505 U.S. 437.) The parties proceed from th e premise that Jackson was testifying as a lay witness. To the contrary, we believe his testimony c oncerning gangs and the Country Boy Crips in general was that of an expert. His uncontradicted testimony sh owed he had been a member of the Country Boy Crips for years, and had been around and observed gang activity since his childhood. This certainly gave him “special knowledge” and “experience” on the subject to which his tes timony related, as is required by Evidence Code section 720, subdivision (a) in order to qualify someone as an expert, and the fact such knowledge and experience were shown by his own testimony is of no import (see id ., subd. (b)). That he was being proffered as an expert on the subject was made clear when, in response to a releva nce objection raised to questi ons about what he saw as a child, the prosecutor responded, “He became a gang member and he’s going to testify about expertise in gangs.” Although some what awkwardly phrased, the trial court overruled the objection. The defense’s recogn ition that he was testifying as an expert at least on some subjects is shown by the fact no hearsay objection was interposed when he testified he had talked to pe ople who were involved in shoot ings and they told him about what they did. Such an objection would not have been futile had Jackson not been testifying as an expert, and the subseque nt objection on foundation grounds simply indicates defense counsel felt the foundation was insufficient even where an expert was concerned. 109

109 Although the better practice would have be en for the prosecutor to offer him, and the trial court to rule he was qualified to te stify, as an expert witness in the jury’s presence, it does not appear this occurred with an y of the parties’ experts. Thus, the fact there was no formal or express acknowledgement that Jackson was testifying as an expert does not suggest he was not so testifying.187. Since Jackson was testifying as an e xpert witness pursuant to Evidence Code section 801, Evidence Code section 702’s requirement of personal knowledge, and Evidence Code section 800’s limitations on lay opinion testimony, did not apply. (See People v. Smith (2005) 35 Cal.4th 334, 363.) The su bject of his testimony was a proper one for expert testimony (see Gardeley, supra, 14 Cal.4th at p. 617), and we conclude the foundation with respect to ce ll phone practices was adequate to allow admission of the testimony (see id . at p. 620). Were we to find error, however, we would conclude it is not reasonably probable a result more favorable to defe ndants would have been reached in its absence (see People
v. Prieto (2003) 30 Cal.4th 226, 247 [applying Watson standard to erroneous admission of expert testimony]; People v. Brown (1985) 40 Cal.3d 512, 535 [same re: inadequate foundation], revd. on another ground by California v. Brown (1987) 479 U.S. 538), and that admission of the evidence did not render the tria l so fundamentally unfair as to violate due process (Randolph v. People of the State of Cal. (9th Cir. 2004) 380 F.3d 1133, 1147 [violation of state evidence rules is insufficien t to constitute due process violation]). The challenged testimony was base d at least to some extent on what Jackson personally had perceived, Sherman testified concerning cell phone use in walk-up gang shootings, and the People pres ented evidence concerning th e activity of specific cell phones around the time and in the vici nity of the McNew Court shootings. 6. Shannon Fowler’s Car Lee contends the trial court erred by admitting evidence th at Shannon Fowler owned a burgundy 2006 Toyota Corolla arou nd the time of the Real Road and Planz shooting. Lee says the eviden ce was irrelevant because, asid e from its color, this car did not match the descriptions given by eyewitnesse s to the shooting of th e car used therein. Lee says admission of the evidence violated hi s right to a fair tria l, because the evidence served to confuse the jury a nd create the illusion Fowler’s car was used in the shooting, which in turn explained away the absence of evidence linking defendants to the suspect188. car. Johnson and Dixon join. The People say Lee’s claim is based on a “selective view of the prosecution’s case,” and that th e evidence was properly admitted.

a. Background On March 21, 2007, Officer Shaff went to Lee’s house to investigate the shooting of Lee’s vehicle. Shaff did not recall seei ng a burgundy or red car in the garage or immediate area. During the course of his inve stigation in this case , Senior Deputy Little did not come across any red or burgundy vehi cles that were registered to Lee. Adrian Bonner testified that on the afternoon he was shot, he saw Lee in a burgundy car as he was leaving the parking lo t of the Taco Bell where he had eaten. The car Lee was driving was a small, four-door bur gundy Suzuki or Hyundai Elantra. Bonner clarified that he was not saying for sure it was that kind of car; he wa s just trying to give an example of what the car looked like. It had rounded edges and a boxy roof. It was reddish burgundy. It was not brand new, but was a newer m odel, which to Bonner meant 2001 and more recent. It possibly could have been a 2005 automobile. It had newer license plates. Bonner was able to s ee into the car; only Lee was inside. Approximately 15 to 20 minutes later, wh en Bonner was stopped for a red light at Real Road and Planz, he was shot. Out of the corner of his eye, he saw a burgundy vehicle passing on the passenger side of his ve hicle. He could not see anyone inside, because the vehicle was driving away. He did not know if it was the same car he had seen Lee driving earlier, although he got a go od look at the color and believed it was the same as the car Lee had been driving. Bonner recalled telling the grand jury that it was a burgundy car and he could not see how many people were inside because the windows were tinted. At trial, however, he testified that he may have thought the windo ws were tinted because of how dark it was189. getting, how far away the car was, and the di rection it was going. He thought there may have been a shadow maki ng the window look tinted. 110 Christopher Calloway witne ssed the Bonner shooting. He described the car from which the shots were fired as a burgundy co lor, maybe a newer model Ford Taurus. To him, newer model meant the later 1990’s or early 2000’s. He believed the car was “[s]omething of [the] nature” of a Ford Taurus. The car look ed more rounded, not more boxy and edgy. The paint was not new or old, but instead was in “[ w]ell-kept shape.” Ruben Gonzaga also witne ssed the shooting. He cons idered the car “mostly a cherry red,” possibly a Chevrolet. Talia Zarate was another witness to the shooting. She testified the car from which the shots were fired was a small four-door vehi cle, and like a maroon or cranberry color. She did not remember the type, and did not r ecall telling officers that it looked to be a late 1990’s Ford Taurus. Bryan Kunzmann also saw the shooting. He described the car at trial as either a dark red or burgundy color, late model, and like a Ford Taurus or with that kind of rounded body style. It had four doors. During the time Agustin was with Johnson, she saw Lee in various automobiles. His own vehicle was black. He told her that he rented vehicles. The one she saw him in the most was a powder blue Magnum. She never saw Lee drive a red vehicle. On August 23, 2007, Senior Officer Findl ey responded to an apartment complex in the 200 block of Eye Street upon learning that the Nissan involved in a pursuit had been reported stolen from that address. Parked in the lot at the back of the apartment complex about 8:30 that night was a red car. Findley took photographs of the area that included

110 Bonner admitted that the first time he said the window’s darkness may have been caused by a change of light and not tinting was at trial.190. the car. He was not aware of a photograph of the car ever being shown to Bonner or any of the witnesses to Bonner’s shooting. Jackson testified that he had only seenLee in two different cars. One was a brownish or goldish Lexus with tinted window s. The other was a red car. Jackson saw Lee in the red car around June, in the three-m onth period Jackson was out of custody. It was a newer — possibly 2003 to 2005 — red compact car, like a Toyota or something similar. He did not know the model. It was a shiny red, although not a bright red. Lee told Jackson he had rented the car. On Au gust 23, 2007, Jackson saw Dixon and Bus Loc in a red car that look ed like a Toyota. He thought it wa s the same car he had previously seen parked behind some apartments on Eye Street. It looked like the same car he had seen Lee driving two or three times. Shannon Fowler testified th at in August 2007, she liv ed in an apartment on Eye Street. She had a burgundy Toyota Corolla. Over defense objection that the car was irrelevant because it had never been iden tified by anyone as being involved in any shootings, Fowler testified that the car was a four-door 2006 model, and that she believed it was the only red car that belonged to the oc cupants of the apartments at the time. She had control of the only set of keys, but le t her brothers drive the car whenever they wanted. Fowler got the car at the end of 20 06, and had it for almost a year. It did not have tinted windows. At some point af ter August 2007, it was repossessed. Over defense objection, Fowler identifie d photographs as bei ng of her car, which she co-owned with her boyfriend, who was incarcerated at the time. 111 The photographs

111 Counsel for Johnson asked for an offer of proof as to what witness would identify the car as being one involved in any shooting. Asked to respond, th e prosecutor stated: “Your Honor, Dupree Jackson -- I don’t really want to go into this in front of this witness. I think this is unfair and I think the evidence is obviou s.” The court then overruled the defense objections. We cannot help but note that th e prosecutor tended to respond to relevance objections by stating her belief that the evidence in question was relevant. Since it was the court’s duty to make the necessary rulings , it would have been191. depicted the vehicle as it looked in August 2007. The photographs were admitted over defense objection. Fowler identified them as having been taken at the Orange County Police Department in connection withher prior boyfriend’s case. Fowler acknowledged bein g acquainted with Lee, but denied ever having a romantic relationship with him. He never telephoned her from jail, and she never gave him a ride in her red car. His clothes were never in her car. To impeach Fowler, the prosecutor played a reco rded telephone call ma de from Lee, who was in jail, to a person whose voice Sherman recognized as being th at of Fowler. In the course of the conversation (which made it apparent Fowl er and Lee had an intimate relationship), Fowler mentioned Lee’s brother getti ng Lee’s clothes from her car. Detective Heredia was involved in attempting to locate the red car that was used in the shooting of Adrian Bonner. On January 14 , 2009, he received information regarding Fowler, and then interviewed her. As a result , he contacted the Orange County Sheriff’s Department, got the license number of a vehi cle that belonged to her, and eventually obtained photographs of the vehicle that were taken in 2007. Heredia ran a DMV registration check on the license number, and learned Fowler was one of the registered owners of the car from February 8, 2007, to February 8, 2008. Heredia learned the car had been assigned a new license plate on April 24, 2008, and he learned the name of the new owner. Heredia located the car on January 16, 2009, at an address in Bakersfield. The car had tinted windows and a fin in the back, which it did not have in the Orange County photographs. Over rele vancy objections, photographs of the car as it appeared when Heredia found it were admi tted into evidence. Heredi a was unable to say how the car appeared on April 11, 2 007. He neither showed phot ographs of the car to the witnesses to the Bonner shooting nor directed anyone to do so.

preferable for it to do so on a basis othe r than the prosecutor’s determination of relevance.192. Adrian Bonner was recalled to the stand, and testified that he was fairly familiar with makes and models of cars, and thought Lee was in a burgundy Suzuki Forenza when Bonner saw him about 20 minutes before the shooting. At the prosecutor’s request, Bonner had looked on th e Internet for photographs of Su zuki Forenzas. He found some, and confirmed they were consistent with the car he saw. On cross-examination, Bonner testified that he could “pretty much” tell th e difference between a Suzuki Forenza and a Toyota. Shown photographs of the car that Heredi a had taken on January 16, 2009, defense witness Kevin Griffith testified it was not th e car he saw involved in the shooting on August 11, 2007, nor was it the one he saw later that night. Griffith’s best recollection of the car involved in the shootin g was that it was like a red Nissan Sentra. The paint on the hood of the trunk was kind of bleached out oroxidized by the sun. The car looked “fairly newer” to him, but he could not tell the age by looking at it. In her argument to the jury, the prosecut or showed side-by-side photographs of Fowler’s car before it was sold and a Suzuki Forenza. The prosecutor argued that at a glance, the two cars were almost identical, and she pointed out that Kunzmann said the car involved was a Toyota Corolla. 112 She further told jurors that Heredia found the car during the course of trial, which was why phot ographs of it were not shown to the various witnesses. Without objection, she asserted: “[A]nd Martin Heredia tracked down that car and found out that that is the red car that they used to shoot Adrian Bonner in .” (Italics added.) Defense counsel countered by arguing it was not the same car and there was no evidence linking Fowler’s car to the one used in the shooting. b. Analysis As previously stated, “‘Ev idence is relevant when no matter how weak it may be, it tends to prove the issue befo re the jury.’ [Citation.]” ( People v. Freeman , supra , 8

112 This was a reference to the description Kunzmann gave in his 911 call.193. Cal.4th at p. 491.) Defendants cite People v. Cox (2003) 30 Cal.4th 916 ( Cox ), disapproved on another ground in People v. Doolin , supra , 45 Cal.4th at page 421, footnote 22, as support for their claim evidence that Fowler’s car was irrelevant. We find
Cox dispositive and supportive of the trial court’s ruling.
In Cox , a witness testified that she and the defendant often went camping, and that the defendant had handcuffs, guns, and a knife in his car. When th e prosecutor sought to ask her how many guns, the defense objected on relevance grounds arguing that, because the witness would testify that the defendant stabbed the victims, there was no evidence guns were used. The trial court sustaine d the objection on Eviden ce Code section 352 grounds. It later reversed its ruling, howeve r, reasoning that because the cause of death was not known, the prosecution should be allowed to show the defendant had instruments that would allow him to overpo wer and kill his victims. ( Cox , supra , 30 Cal.4th at p. 955.) On appeal, the defendant contended th e introduction of the three guns found during the search of his car was prejudicial error, because the guns were never shown to have any connection with the commission of the charged offenses. ( Cox , supra , 30 Cal.4th at p. 955.) The California Suprem e Court rejected the argument, stating:

“In People v. Riser (1956) 47 Cal.2d 566 [(Riser), disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631, 639, fn. 5, 652 & fn. 17 & People v. Chapman (1959) 52 Cal.2d 95 , 98], the defendant murdered two people during a robbery . The killing was committed with a Smith and Wesson .38-caliber Spec ial revolver. The gun was never recovered. [ Riser , at p. 573.] Riser was found with three holsters, one of which could hold a .38-caliber Smithand Wesson Special revolver. Riser also possessed a Colt .38-caliber revol ver, which could not have been the murder weapon. ( Id . at p. 577.) We stated the rule of admissibility as follows: ‘When the specific type of weapon used to commit a homicide is not known, it may be permissible to ad mit into evidence weapons found in the defendant’s possession some time afte r the crime that could have been the weapons employed. There need be no conclusive demonstration that the weapon in defendant’s possession wa s the murder weapon. [Citations.] When the prosecution relies, however, on a specific type of weapon, it is194. error to admit evidence that other we apons were found in his possession, for such evidence tends to show, not that he comm itted the crime, but only that he is the sort of pe rson who carries deadly weapons . [Citations.]’ [Citation.] Because the murder weap on was known, we ruled that the admission of the Colt .38-caliber revolve r was error, but such error was not prejudicial. [Citation.] “Here, it is not known how the th ree victims were killed. Although the prosecutor argued that the evid ence pointed to a stabbing, such argument did not preclude the reasonable possibility that one or all three of the victims had been shot. [Citation.] “Moreover, given [other evidence], it is also reasonable to infer that defendant, who had unfettered access to three weapons, may have used the same to get [victims] into his car and keep them in his car during the drive to the location of thei r murder. [¶] ... [¶] “Here, the guns were relevant either as possible murder weapons, or as weapons that could have been used to coerce the victims into defendant’s car or otherwise subdue them, ‘in furtherance of the criminal plan’ to kill them. There was no error in adm itting the guns in evidence.” ( Cox , supra , 30 Cal.4th at pp. 955-957, italics added.) Defendants highlight th e italicized portion of Riser . In Riser , however, the prosecution’s own witness established that the bullets found atthe scene of the crime were fired from a Smith and Wesson .38 Sp ecial revolver, and not from either the Colt .38 or the P38 that the trial court admitted into evidence. (Riser , supra , 47 Cal.2d at p. 577.) The high court’s statement about th e prosecution relying on a specific type of weapon must be read in light of those facts. Where the evidence is not conclusive, as in
Cox , the prosecutor’s argument of a specif ic theory does not fall within the Riser holding, because “[t]he trier of fact is not limited by any hierarchy of theo ries selected by the prosecution.” ( People v. Manson (1976) 61 Cal.App.3d 102, 207 , cited with approval in
Cox , supra , 30 Cal.4th at p. 956.) People v. Farnam , supra , 28 Cal.4th 107, illustrates our reasoning in this regard. In that case, the defendant was arrested, a nd a knife found in his possession, about two months after the homicide. When the prosec ution sought admission of the knife to show195. it could have been the tool usedto cut telephone cords at and gain entry into the victim’s house, the defendant objected on relevance, due process, and Evidence Code section 352 grounds, arguing no connection between the knif e and the crimes could be established. The trial court overruled the objection, and a criminalist then testif ied that, although the knife could not be conclusively identified as having been used, it could have been used. ( People v. Farnam, supra, 28 Cal.4th at p. 156.) On appeal, the defendant claimed the tria l court abused its di scretion and denied him due process by admitting the knife and related testimony, since the knife was irrelevant and its improper introduction led ju rors to infer he was the murderer simply because he possessed a similar knife two months after the homicide. ( People v. Farnam,

supra, 28 Cal.4th at p. 156.) The California Su preme Court rejected the claim, finding that evidence the defendant possessed a knife two months after the crimes, coupled with evidence the perpetrator used a sharp instrument consistent with the knife, tended to establish the defendant was the perpetrator. Th e court observed that the fact many people may also have possessed such a knife might di minish the strength of the evidence, but did not make it irrelevant. ( Id . at pp. 156-157; see also People v. Freeman, supra, 8 Cal.4th at p. 491 113 .) That the prosecution could not conclu sively connect the knife to the crime scene did not matter, because the knife could have been the one used. ( Farnam , at p. 157.) Furthermore, admission of the knife was not error under Evidence Code section 352, because, in light of the crimin alist’s testimony, the trial court reasonably could have concluded the jury woul d not be confused or misled. ( Farnam, at p. 157

. ) Thus, the court concluded, “although the proba tive value of the knife was not that strong, the danger of confusion, spec ulation, or prejudice was mini mal. We find no abuse of

113 In People v. Freeman , supra , 8 Cal.4th at pages 490-492, the state high court rejected the argument that evid ence of a garbage bag found in the defendant’s car shortly after a robbery was irrelevant because no one identified it as having been used in the robbery, and numerous people must po ssess such common items in their cars.196. discretion and no deprivation of de fendant’s due process rights.” ( Ibid. ) This was so even though the criminalist te stified that, in his opinion, a ny other sharp, single-bladed object, including a scalpel, kitchen knife, or sc issors blade, could have cut the objects at the crime scene. ( Id . at p. 157, fn. 26.) In the present case, Bonner and the eyewitn esses to his shooting gave a variety of descriptions of the car involv ed. Although none of the desc riptions or other evidence established that Fowler’s car was used, neith er did they eliminat e that possibility. Because the evidence did not establish the specific type of car used, Riser is not controlling. The evidence showed more than that Lee merely wa s acquainted with someone who had a burgundy car. Rather, a reasonable inference could be dr awn that he had an intimate relationship, during the relevant tim eframe, with the owner of such a car, and that she let other people use her vehicle. Under the circumstances, evidence concerning Fowler’s car was relevant, as it had some te ndency in reason to show Lee had access to a car that may have been the one used in the shooting, and thus that he was in volved in the crime. Although the probative value of the evidence was not great since no one could identify Fowler’s car as the car used in th e shooting, there was no danger the evidence would be used as improper ch aracter or disposition evidence , as is a possibility where possession of weapons is involved. (See People v. Barnwell (2007) 41 Cal.4th 1038, 1055-1056; People v. Archer (2000) 82 Cal.App. 4th 1380, 1392-1393.) Moreover, in light of the various descriptions of the car i nvolved and the fact Griffith said Fowler’s car

was not the one used, there was, contrary to defendants’ argument, little danger of confusion, speculation, or prejudice. It is true the prosecutor went too far in arguing Heredia found out Fowler’s car was the one used in the shooting. Heredia’ s testimony suggested nothing of the sort. This did not affect the eviden ce’s admissibility, however. ( People v. Harrison, supra, 35 Cal.4th at p. 230.) Defendants did not object to the prosecutor’s assertion, but reasonably197. countered her argument with argument emphasizing the lack of evidence linking Fowler’s car to the shooting. Admission of the evidence neither constituted error under state law nor a deprivation of defendants’ rights to due process and a fair trial. 7. Gang Experts’ Testimonies The testimonies of the gang experts ar e set out in the statement of facts, ante. Defendants now challenge portions of the testim onies’ content, as well as the sufficiency.

a. Lee’s Tattoo Lee challenges the admissi on of evidence concerning his tattoo. He says the prosecution’s gang experts shoul d not have been permitted to testify he had a tattoo, or that it was a gang tattoo and indicated Lee’ s involvement in shoo tings or criminal activity. Lee further contends introductio n of his purported admissions regarding the tattoo violated Miranda v. Arizona (1966) 384 U.S. 436 (Miranda ) and his constitutional right against self-incrimination. Dixon join s both arguments. The People say the trial court did not err in admitting the evidence, and, assuming Miranda was implicated, any error was harmless beyond a reasonable doubt. 1. Background Lee moved, in limine, to preclude any mention of his tattoo without an Evidence Code section 402 hearing to determine its re levance and admissibility. At the hearing, Senior Deputy Sherman testified, in pertinent part, to his qua lifications as an expert on gangs in general and the Country Boy Crips in particular. He testified that tattoos show a gang member’s allegiance to the person’s gang and specific set within the gang. Common tattoos for Country Boy Crips are “CBC” for “Country Boy Crips,” “NC” for “Notorious Country,” “W” and “L” for “Watts and Lotus,” and “Madd Blocc.” Country Boy Crip members may also have tattoos su ch as “ESK” for “Eas t Side Killer,” “WSK” for “West Side Killer,” or “BK” for “Blo od Killer.” Johns on and Dixo n both had multiple tattoos along those lines.198. Lee had one tattoo on his forearm. It depi cted a firearm with four apparent bullet holes and some cartridges. The tattoo was significant to Sherman in a gang context because Lee’s moniker was Gunner. Although Sherman often saw tattoos of guns on gang members, such a tattoo was not common among Country Boy Crips. Sherman had never seen a semiautomatic handgun tattooed onanother Country Boy Crip. As for the number of cartridges (four or five, in Lee’s case), Sherman had noticed on other people with such tattoos that they could be signifi cant in regard to how many shootings the person had done and how many tim es the person had been shot. 114 Sherman had read reports concerning Lee’s activities and was unable to find such a nexus here. He agreed that Lee had none of the common Country Boy Crip tattoos such as were seen on Johnson and Dixon. Counsel for Lee asked that Sherman’s opi nion with respect to Lee’s tattoo be precluded on foundation and relevance grounds, and as prejudicial under Evidence Code section 352. The prosecutor then elicite d testimony from Sherman concerning Lee’s MySpace page. Sherman opined that the fa ct Lee had a MySpace page with “Gunner” written on it showed a correlation between Le e’s moniker and the tattoo. Having a gun tattooed on an arm was consis tent with being a gang member, especially when the person’s moniker was Gunner. The court overruled the objections. Later, Bakersfield Police Officer Williams on testified about his contact with Lee after Lee’s car was shot. Outs ide the jury’s presence, the prosecutor informed the court that Williamson had arrested Lee on outstanding warrants, and had seen Lee’s tattoo during booking and had spoken to him about it. The prosecutor represented that the incident was something Sherman was going to us e as part of his evaluation of Lee from a gang standpoint, and that Williamson could es tablish Lee had the tattoo in March 2007.

114 Sherman could not recall who told hi m about the possible significance of the number of bullets, or when or where he had talked to that person.199. When counsel for Lee asked if Lee had been readhis rights first, the trial court decided to hold an additional Evidence Co de section 402 hearing. Williamson testified at the hearing that on March 21, 2007, his first contact with Lee was at the Myrtle Street residence, wh ere he was responding to a call of Lee’s vehicle being shot. He did not see Lee’s tattoo at that time. Lee had an active misdemeanor warrant or warrants, and Williams on participated in transporting him to jail and booking him. Williamson saw the tatto o while Lee was being booked. Williamson told Lee he liked it. Lee looked kind of perp lexed, as if he did not know exactly what Williamson meant. Williamson asked if Lee fancied himself as a shooter. Lee looked over at Williamson and smiled a bit. Willia mson said it was all right; Williamson was, too. Williamson then counted th e bullet strikes, said that wa s a lot, and asked if it was shootings or kills. At that point, Lee looked straight ahead and did not say anything. Williamson explained that, in order to iden tify the person, identification of tattoos typically is part of the general booking process. He did not advise Lee of his rights at any point. He did not feel it was necessary in order to talk to Lee about his tattoo. Williamson was not investigating anything concerning the warra nt pursuant to which Lee was being booked, and did not ask questions about that matter. At the time, Williamson was in the gang unit. Although he was not aware then of the address on Deanna Way and its significance, he had received training that tattoos of firearms were significant and that, while common on Hispanic gang members a nd seen on Caucasian gang members, they were not often seen on African-American ga ng members. While a firearm alone may not have drawn his interest, there is a significance when bullet strikes, ha sh marks, or rounds of ammunition stacked up on each other are c onsidered in relation to the firearm. Williamson did not have any knowledge of Lee at the time. By observing and asking about the tattoo, however, he was “absol utely” gathering intelligence for the gang unit, and he felt it might be pertinent in th e future. Accordingly, Williamson immediately told his partner, who was writing a report, whathe had seen so it c ould be docum ented.200. Williamson acknowledged hedid not have to ask Lee ques tions about the tattoo in order to have Lee booked into the jail. The prosecutor argued Williamson was just gathering basic information, and that, since the warrant was for charges of reckless driving, resisting arrest, and not having insurance, Lee was not in custody for purposes of Miranda because the questions asked of him were not related to the charges on which he was in custody. Moreover, the questions were not de signed to elicit any information c oncerning those charges. The court ruled Miranda had not attached because Lee was not questioned regarding the matters for which he was being booked. Accordingly, and in light of the gang-related charge and enhancements and the fact Williamson had some gang expertise, it permitted the prosecution to question Williamson on the subject in fro nt of the jury. In the jury’s presence, W illiamson testified that on Marc h 21, 2007, after Lee’s car was shot, Williamson took Lee into custody on a misdemeanor warrant and transported him to the downtown jail. While Lee was be ing booked, Williamson observed a tattoo of a pistol with four bullet strikes on Lee’s fore arm. There was also a tattoo of a stack of five bullets on the outside of the forearm. Wi lliamson said to Lee, “that’s bitchin’.” Lee looked over at Williamson and gave him a perplexed, confus ed look. Williamson clarified he meant the pistol, asked if Lee fancied himself as a shooter, and said he did, too. Lee kind of smiled at hi m. Williamson then counted the bullet strikes, said “Wow,” and asked if they stood for shootings or kills. At that point, Lee turned and faced straight ahead with a solemn, unemotio nal look on his face, and nothing further was said. 115 Williamson testified that through his traini ng and experience, hehad learned that tattoos of firearms on individuals indicated th ey fancied themselves as shooters. Seeing the firearm with the bullet strikes piqued his interest. Firearm tattoos are common on Caucasian and Hispanic gang members, but are uncommon on African-American gang

115 Lee’s objections on hearsay and Miranda grounds were overruled.201. members. A firearm by itself is not as signi ficant as a firearm with marks or bullets or bullet strikes next to it, as the additional marks usually signify events. Williamson was unable to name any other indi vidual he had seen with a firearm tattoo. Williamson personally had no evidence that evening th at Lee was an African-American gang member. He did not read Lee his rights befo re talking to him because Lee was not under arrest for a related offense. Engaging in co nversation about tattoos is not required in order to book someone at the jail, although th e observation of tattoos during the booking process is important for iden tification purposes. Before Williamson saw the tattoo, he had been told someone thought Lee was a gang member, which made the tattoo very interesting. Williamson explained that a gang o fficer’s primary method for gathering intelligence is to contact people on the streetand talk to them. Williamson personally always tried to look at tattoos while doi ng this, because they typically represent affiliations, significant events in the person’s life, and the like. Seeing how the tattoos change or are improved over time can be an indication that the person continues to participate in the gang lifestyle. Often, Williamson asks the person what the tattoos mean. This is a standard operational t echnique used by all o fficers for gathering intelligence that might be used la ter, even years dow n the road. The subject of tattoos arose again wh en Sherman testified. In discussing photographs of various gang tattoos, Sherma n talked about one depicting someone’s hand holding a revolver. Sherman explained that it was unusual to see tattoos of firearms on Black males, although many Hispanics had th em. Nevertheless, the photograph was of an African-American male who was not one of the defendants. With respect specifically to Lee’s tattoo, Sherman testified it was the only tattoo Lee had that was of interest as far as gang indicia were concerned. The gun itself might or might not be significant. Correlated w ith the bullet strikes around it, however, it appeared to Sherman to be a gang-related tattoo, with the bullet strikes referencing202. something. Sherman had seen them before on other individuals, who had told him they signified being shot at or be ing shot, and were a mark of honor, in essence, for doing something criminal. Lee’s moniker of Gunnerwas significant in terms of its correlation with the firearm and bullet strikes. In a ddition, in Sherman’s experience, a lot of monikers have something to do with a trait of the person. For instance, if a gang member does crazy things all the time, his moniker mi ght be “Psycho.” As a result, the moniker Gunner tended to suggest to Sherman that th e person was an active gunman or that that was the trait he had been given. Sherman took Lee’s tattoo into consid eration in opining Lee was an active member of the Country Boy Crips between Ma rch 1 and August 22, 2007. Sherman also based his opinion on Lee’s polic e contacts, MySpace page, and letters and rap lyrics in Lee’s possession. In argument to the jury, th e prosecutor discussed the in cident in which Lee’s car was shot. She mentioned that this was when the exchange took place about Lee’s tattoo, and that Williamson and Sherman both said it was one thing to have a gun tattoo, but the bullet strikes made this tattoo more significant in a gang context. In arguing defendants were all gang members, the prosecutor noted Lee had the moniker Gunner, a gang tattoo, gang contacts and arrests by law enforcemen t, photographs of him flashing gang signs and with other documented Country Boy Crips, telephone contacts with documented Country Boy Crips, letters from his brother ac knowledging the gang lifestyle, rap lyrics with gang references, the gang references on his MySpace page, his admission to Agustin that he was a Country Boy Crip, and Jack son’s testimony that he was a Country Boy Crip. 2. Analysis

a. Significance and Mean ing of the Tattoo Lee and Dixon say Lee’s tatt oo was irrelevant, because it could not be tied to the assertion bullet strikes were related to criminalactivity, or to anything having to do with203. Country Boy Crips or Lee’s activities. Th ey also say there was insufficient foundation for testimony the tattoo supported expert op inion Lee was a Country Boy Crip and the bullet strikes correlated with in volvement in shootings or crim inal activity. Finally, they argue that even if relevant, evidence con cerning the tattoo was more prejudicial than probative under Evidence Code section 352. “Evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant. [Citations.]” ( People v. Morrison (2004) 34 Cal.4th 698, 711, italics added.) Evidence leading only to specul ative inferences is, however, irrelevant. ( Ibid .) That Lee’s tattoo was of a type commonl y seen on gang members, albeit Hispanic and Caucasian ones, had at l east some tendency in reason to prove the tattoo was gang related, which in turn had some tendency inreason to prove Lee was a gang member. It did not have to be dispositiv e of the disputed fact in order to be admissible. ( People v. Richardson (2008) 43 Cal.4th 959, 1002.) As demonstrated by the photograph Sherman displayed to the jury, firearm tattoos were not unknown in African-American gangs; moreover, even if not in itself indicative of Lee’s membership in the Country Boy Crips, the tattoo corresponded to Lee’ s moniker Gunner. Consider ed in light of the other evidence of Lee’s memb ership in the Country Boy Crips, including his police contacts, references on his MySpace page, and references in the letters from his br other and rap lyrics, evidence of the tattoo was not rendered irrelevant simply because it did not link him directly with, or was not a tattoo co mmonly seen on members of, the Country Boy Crips. Nor was there insufficient foundation for th e expert testimony related to the tattoo. “‘We are required to uphold the trial judge ’s ruling on the ques tion of an expert’s qualifications absent an abuse of discretion. [Citation.] Such abuse of discretion will be found only where “‘the evidence show s that a witness clearly lacks qualification as an expert....’” [Citation.]’ [Citation.]” ( People v. Wallace , supra , 44 Cal.4th at pp. 1062-204. 1063.) Here, the trial court did not abuse its discretion by finding that Sherman and, to a lesser degree, Williamson, had expertise in gangs. “‘A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact. [Citation.] Even so, the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factor s that are speculative or conjectural, for then the opinion has no ev identiary value and does not assist the trier of fact. [Citation.]’ [Citation.] [¶] ‘“[A]n expert’s opinion re ndered without a reasoned explanation of why the underlying facts lead to the ultimate c onclusion has no evidentiary value because an expert opinion is worth no more than th e reasons and facts on which it is based. [Citations.]” [Citation.]’ [Citation.]” ( Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 529-530; accord, People v. Richardson , supra , 43 Cal.4th at p. 1008.) In forming an opinion, “a gang expert may rely upon conversations with gang members, on his or her personal investig ations of gang-related crimes, and on information obtained from colleagues and other law enforcement agenci es. [Citations.]” ( People v. Hill (2011) 191 Cal.App.4th 1104, 1121-1122.) Sherma n testified at length to his qualifications and the sources of his info rmation. The testimony provided a basis from which the jury reasonably could concludethe tattoo at least was related to Lee’s moniker, which in turn was indicative of his gang membership. (See Gardeley , supra , 14 Cal.4th at p. 620.) Lack of specificity in terms of the source(s) of the information affected the testimony’s weight rather th an its admissibility, and was amply probed during cross-examination. (See People ex rel. Dept. of Transportation v. Clauser/Wells Partnership (2002) 95 Cal.App.4t h 1066, 1085-1086.) In re Alexander L . (2007) 149 Cal.App. 4th 605, 611-612, on which Lee and Dixon rely, is distinguishable. There, when aske d about the primary activities of the gang, the witness responded that he kn ew the gang had been involv ed in certain crimes. His testimony was found to lack an adequate fo undation, because information concerning the205. basis of his knowledge, and thus the reliabilit y of his testimony, was never elicited from him at trial. In the pres ent case, Sherman testified that he had talked about the significance of tattoos of firearms with bulle t strikes to individuals who themselves had such tattoos. In light of his other testimony concerning his training and experience with gangs, he did not need to name the sources of his information in order for the trier of fact to assess the weight and persuasi veness of his testimony. (See People v. Lawley , supra , 27 Cal.4th at p. 132.) Here, the expert witnesses explained to the jury why they found the tattoo of particular interest and its potential significance. It was also made clear to the jury that such a tattoo was an unusual one for African -American gang member s, so there was little danger the jury would automatically conclude the bullet strikes or cartridges in Lee’s tattoo corresponded to criminal activity. This is especially true since Lee had the tattoo in March 2007, and there was no evidence he was involved in any shootings before that time. Finally, because of the correlation be tween the tattoo and Le e’s moniker, and the ample other information that formed the ba sis of Sherman’s opinion Lee was a Country Boy Crip, evidence of the tattoo was not “so un iquely inflammatory that its potential for unfair prejudice clearly outweighed its probativ e value” such that it should have been excluded under Evidence Co de section 352. ( People v. Zambrano , supra , 41 Cal.4th at p. 1142; see also People v. Medina (1995) 11 Cal.4th 694, 749.) Sherman and Williamson were properly allowed to testify concerning the tattoo and its significance. (See People v. Ochoa (2001) 26 Cal.4th 398, 437-438, di sapproved on another ground in People v. Prieto , supra , 30 Cal.4th at p. 263, fn. 14.) b. Miranda Lee and Dixon contend that , in questioning Lee about the tattoo during booking, Williamson subjected Lee to custodial interrogation without the benefit of Miranda warnings. As a result, they say, Lee’s re sponses to the questions should have been206. excluded, and their admiss ion was federal constitutional error. The People say Miranda was not triggered by mere booking questions.
In Miranda , supra , 384 U.S. at page 444, the Un ited States Supreme Court held that “the prosecution may not use statemen ts, whether exculpatory or inculpatory, stemming from custodial interrogation of the de fendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.... Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as ev idence against him, and that he has a right to the presence of an attorney, either reta ined or appointed.” “‘Absent “custodial interrogation,” Miranda simply does not come into play.’ [Citation.]” ( People v. Ochoa (1998) 19 Cal.4th 353, 401.) “[C]ustodial interrogation” means “questioning initiated by law enforcem ent officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Miranda , supra , 384 U.S. at p. 444, fn. omitted.) “W hether a person is in custody is an objective test; the pertinent inquiry is whether there was ‘“‘a “formal arrest or restraint on freedom of movement” of the degree associat ed with a formal arre st.’”’ [Citation.]” ( People v. Leonard (2007) 40 Cal.4th 1370, 1400.) Interrogation, for purposes of invoking the Miranda protections, “refers not only to ex press questioning, but also to any words or actions on the part of the police ( other than those normally attendant to arrest and custody ) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather th an the intent of the police.” (Rhode Island v. Innis (1980) 446 U.S. 291, 301, fn. omitted, italics added.) In reviewing a trial court’s ruling on a Miranda issue, we accept its determination of disputed facts if supporte d by substantial evidence. However, we independently review uncontradicted eviden ce, and also independently de cide whether the challenged statements were obtai ned in violation of Miranda . ( People v. Davis , supra , 46 Cal.4th at207. p. 586; People v. Sims (1993) 5 Cal.4th 405, 440, di sapproved on another ground in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032; People v. Aguilera (1996) 51 Cal.App.4th 1151, 1161-1162.) Here, there is no question that Lee wa s in custody when Williamson asked about his tattoo. Contrary to the prosecutor and trial court’s apparent belief, the United States Supreme Court has squarely rejected the notion Miranda attaches only with respect to the matter for which the person is in custody. In Mathis v. United States (1968) 391 U.S. 1, 4-5, that court stated: “The Governme nt ... seeks to narrow the scope of the Miranda holding by making it applicable only to questioning one who is ‘in custody’ in connection with the very case under investigation. There is no substance to such a distinction, and in effect it goes against the whole purpose of the Miranda decision which was designed to give meaningful protection to Fifth Amen dment rights. We find nothing in the Miranda opinion which calls for a curtailment of the warnings to be given persons under interrogation by officers based on the reason why the person is incustody. In speaking of ‘custody’ the language of the Miranda opinion is clear and unequivocal: [¶] ‘To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any signifi cant way and is subj ected to questioning, the privilege against self-incrimination is je opardized.’ [Citation.]” California courts have long recognized this principle. (See, e.g., People v. Underwood (1986) 181 Cal.App.3d 1223, 1231; In re James M. (1977) 72 Cal.App.3d 133, 136-137.) 116

116 The issue is somewhat more complicated where the individual being interrogated is already in jail or prison when the questioning takes place. In such instances, something beyond the mere fact of incarceration is re quired in order for an interrogation to be custodial for Miranda purposes. ( Howes v. Fields (2012) 565 U.S.__ [132 S.Ct. 1181, 1189-1191, 1192-1193]; People v. Macklem (2007) 149 Cal.App.4th 674, 686-696 & cases discussed therein; see also Maryland v. Shatzer (2010) 559 U.S. 98, 112-113 & fn. 8.) We know of no authority extending such a requirement to the booking stage.208. We also find it beyond reasonable dispute that Lee was subjected to interrogation within the meaning of Miranda . Williamson candidly admitted he was attempting to elicit gang intelligence that might prove useful down the line. He knew tattoos of firearms were significant in the gang context, especially when coupled with bullet strikes, hash marks, or rounds of ammunition. Althou gh he did not know a nything about Lee, he specifically asked if the bullet strikes in th e tattoo represented shootings or kills — in short, Lee’s involvement in criminal activity, whether by active participation in a criminal street gang or by participati on in shootings or homicides. (See People v. Roquemore (2005) 131 Cal.App.4th 11, 25-26.) Not only were Williamson’s questions reasonably likely to elicit an incriminating resp onse, that type of response was precisely what Williamson was hoping to get. It is true that small talk between poli ce and a suspect in custody is permitted. ( People v. Gamache (2010) 48 Cal.4th 347, 388.) This was not mere small talk, however; Williamson’s inquiries were ne ither innocuous nor neutral. (See ibid .) It is also true that the asking of routine booking questions does not trigger the need for Miranda warnings. ( Pennsylvania v. Muniz(1990) 496 U.S. 582, 601-602 (plur. opn. of Brennan, J.); People v. Gomez(2011) 192 Cal.Ap p.4th 609, 628-629. ) This type of routine gathering of backgro und biographical information has been held to include questions about gang affiliation where su ch questions are asked for a legitimate administrative purpose, such as to ensure members of rival gangs are not placed together in jail cells. ( Gomez , supra , at pp. 630-635; U.S. v. Washington (9th Cir. 2006) 462 F.3d 1124, 1132-1133.) The questions here were neither routine nor as ked for administrative or safety purposes. Rather, they were designed to elicit incriminating admissions. ( Pennsylvania v. Muniz , supra , 496 U.S. at p. 602, fn. 14 (plur. opn. of Brennan, J.); Gomez , supra , at p. 629.) The People point to People v. Morris (1987) 192 Ca l.App.3d 380 (Morris ), in which we stated: “A police officer’s concer ns for jail security, en compassing the safety209. of the suspect, can be triggered by a variety of factors, some of which would have nothing to do with the offense underlying the suspect’s incarc eration and, as importantly, could only be explored by i nquiring of the defendant hims elf. Thus a suspect who is booked into jail wearing tattoos or other indicia of gang affiliation might alert the booking officer to the possi bility of gang-related violen ce; the quickest way for the officer to resolve such conc ern is to ask the suspect whether jail personnel should anticipate any trouble in this regard once the suspect becomes housed in the jail. So long as the offense for which the su spect is in custody is not its elf gang-related, there is no reason the officer shouldforesee the question will elicit an incriminating response. In such a circumstance, an incriminating respon se is not the product of affirmative police conduct and would be admi ssible in the absence of Miranda warnings.” ( Id . at p. 390.)
Morris has been disapproved on th is issue to some extent by People v. Williams (2013) 56 Cal.4th 165, 186-188 and footnote 15. Neither Morris nor Williams assists the People here. Williamson’s testimony makes cl ear that he was not asking about Lee’s tattoo in an attempt to resolve any sort of security concern, and that his questions were not ones that were required for th e booking process. (Compare People v. Williams,

supra, at pp. 187-188 & fn. 14.) There is language in People v. Wader (1993) 5 Cal.4th 610 that offers some support for the People’s position. There, the defendant was arrested on an outstanding warrant that was unrelated to the murder w ith which he ultimately was charged. Frank Hillhouse, who was known to police to be acquainted with the defendant, also was wanted on an outstanding warrant. ( Id . at pp. 632-633, 634.) Following the defendant’s arrest, Sheriff’s Sergeant Ho ops asked him where Hillhouse was. The defendant replied that he had heard Hillhouse was in a certai n area and had been i nvolved in shooting someone. The next day, Hoops again ques tioned the defe ndant, who provi ded additional information about Hillh ouse and the shooting. It was only after this time that Hoops learned details of the murder with which th e defendant ultimately was charged. Hoops210. further determined, without asking additional questions, that the de fendant was wearing boots matching the description of a pair bought with the vic tim’s credit card. ( Id . at pp. 634-635.) The California Supreme Court held that Hoops’s inquiries about Hillhouse were not interrogation within the meaning of Miranda . The court stated: “Not every question directed by an officer to a person in custody amounts to an ‘interrogation’ requiring Miranda warnings. The standard is whether ‘und er all the circumstan ces involved in a given case, the questions are “reasonably likely to elicit an incriminating response from the suspect.”’ [Citation.] This is an objective standard. ‘The subjective intent of the [officer] is relevant but not conclusive. [Citation.] The relationship of the question asked to the crime suspected is highly relevant. [C itation.]’ [Citations.] As Sergeant Hoops’s testimony indicates, his inquiry regarding the whereabouts of Hillhouse was designed to elicit information about Hillhouse, not defendan t. There is no indication in the record before us that the inquiry was at all relevant to any charge for which defendant was then in custody or any crime of which he was th en suspected. Accordingly, Sergeant Hoops was not required to advise defendant of his rights under Miranda ....” ( People v. Wader , supra , 5 Cal.4th at p. 637.) In the present case, in contrast, Willia mson’s questions — while not relevant to any charge for which Lee wa s then in custody — were both designed and reasonably likely to elicit information about Lee and, potentially, his involv ement in criminal activity. Accordingly, th ey constituted interrogation within the meaning of Miranda

. Lee’s responses, although not ve rbal, constituted “statements” obtained in violation of Miranda (see Evid. Code, § 225; People v. Whitfield (1996) 46 Cal.App.4th 947, 958,211. fn. 6) and should have b een suppressed. The trial court erred by admitting the evidence. 117
Miranda error is assessed under Chapman ’s “‘harmless beyond a reasonable doubt’” standard. ( People v. Aguilera , supra , 51 Cal.App.4th at p. 1166; see People v.
Davis , supra , 46 Cal.4th at p. 588.) We find the e rror nonprejudicial under this standard. Lee’s responses were ambiguous. Even assumi ng jurors interpreted his smile to mean he did indeed fancy himself as a shooter, because he had the tatt oo before any of the charged offenses occurred, jurors would not have co ncluded it was a tacit ad mission of complicity in the charged offenses. Since Sherman te stified concerning othe r shootings in which Johnson and Dixon were involved, jurors lik ely would have further concluded Sherman would also have done so with respect to Lee, had any other su ch shootings existed. Thus, jurors would not have speculated the tatt oo referred to shootings in which Lee was involved and about which jurors were not told. b. Gang Members Enjoy Killing Lee says the trial court erred by allowing Sherman to testify that sometimes gang members enjoy killing, that en joying killing is part of bei ng a gang member, and that sometimes gang members participate in gang activities because they find it exciting. Lee says the evidence was irrelevant, base d on speculation and without reasonable foundation, and more prejudic ial than probative under Evidence Code section 352. Johnson and Dixon join. The People sugges t defendants have misread the testimony in question, and say it was properl y admitted in any event.

117 At trial, the prosecutor warn ed that if the court found a Miranda issue here, it would potentially affect all fu ture contacts between law en forcement and suspected gang members, and all field identific ation contacts. Aside from the fact that application of the Constitution’s requirements should not turn on how far-reaching the effects may be, such contacts usually involve either consensual enco unters or temporary detentions. Generally speaking, they do not c onstitute “custody” for Miranda purposes. ( Maryland v. Shatzer , supra , 130 S.Ct. at p. 1224; People v. Clair , supra , 2 Cal.4th at p. 679.)212. 1. Background Prior to being shot, Lee worked as a resp iratory therapist in Los Angeles. During direct examination, the prosecutor asked Sh erman, without reference to any particular individual and without objection, what motiv ated a person to join a gang. Sherman replied that there could be several different re asons: “[I]t could be somebody that’s being picked on and they want to feel a part of something. It could be that they grew up out in the neighborhood and they feel that their family’s from ther e and that’s where they need to go. It could be motivated by greed. Th ey see fellow gang members having nice cars, lots of money, and so they want to participat e and gain that. It could be that they see these guys, gang members, going around with guns and everybody lo oks up to them and they’re scared and intimidated by them and that’s something they may want to be a part of.” Later, on direct examination, and again during questioning about gang members in general, the prosecutor asked whether all gang members dressed a certain way. Sherman answered no, and explained that years before , most showed their colors and dressed like gang members. Upon becoming aware of th e Penal Code sections and how dressing like a gang member could be used against themin court, however, many steered away from that and dressed more normally. The same was true with respect to tattoos. The prosecutor noted that Sherman had testified ab out selling drugs to finance the gang. She then asked if some gang members had legitim ate jobs. Sherman replied affirmatively, and explained that some gang members had a regular job and wanted to work, because they had a family to support and were not making enough money with the gang. In addition, some wanted to try to distance th emselves from the gang and “pull themselves away” by doing something legitimate. Again, there was no objection. During cross-examination, counsel for Lee asked Sherman if, in preparing to form his opinion about Lee, Sherman had includ ed Lee’s educational background, work history, or professional licensing. Sherman answ ered no to each. Sh erman agreed that if213. a Black male in a Country Boy Crip neighborhood wore powd er blue clothing, got caught selling drugs, threw gang signs, and had gang tattoos, Sherman likely would classify him as a gang member. Asked if, conversely, a Black male who was from or frequented the Country Boy Crip neighborhood , did not have tattoos or we ar blue, but had a lot of friends in the gang and hung out with gang members, might be considered undercover, Sherman responded that it woul d depend on more informati on than counsel provided. Sherman agreed that some Black gang memb ers lived within the gang boundaries while others did not, some wore gang colors while others did not, some sold drugs while others did not, and some rented cars for each other while some rented car s for themselves. Sherman further agreed that some African-Am ericans went to college while others did not, some were respiratory therapists while others were not, and some were certified in Advanced Cardiac Life Supp ort while others were not. Counsel for Lee ended his examination, “Doesn’t it kind of sound like if you’re young and Black and happen to be in the Country you really can’t win eith er way?” The trial court sustained the prosecutor’s objection that the question was argumentative. The prosecutor immediately elicited Sh erman’s testimony that he was not basing his opinion that Lee was a Country Boy Crip on the fact Lee was African-American and had been seen within th e territorial boundaries of the Co untry Boy Crips. Rather, he was basing his opinion on the inve stigation as a whole, incl uding a particular photograph, letters from Lee’s brother, the MySpace page , Lee’s contacts with other Country Boy Crip members, his arrest for primary criminal activities of the gang, and Sherman’s experience. The prosecutor asked some ques tions about the letters from Lee’s brother, then this took place: “Q. Do people with educations belong to gangs? “A. They do. “Q. Why would someone with an education and a job belong in a gang?214. “A. Again, the stigma of the gang . They want to be a part of the gang, whether they enjoy what the gang does, what the benefits are, or whether their family’s de eply enthralled in the gang. There’s nothing the gang says that prevents you fro m getting an education or a job. “Q. Officer Sherman, sometimes do pe ople just enjoy killing other people? “[COUNSEL FOR JOHN SON]: Objection. “[COUNSEL FOR LEE]: Join. “[COUNSEL FOR JOHNSON]: ‘Sometimes’ is vague and it’s conclusory and it’s prejudicial. “THE COURT: Can you be a little more specific? “[COUNSEL FOR JOHN SON]: Irrelevant. “[PROSECUTOR]: “Q. Sometimes do gang members enjoy killing other people? “A. Again, I can’t speculate to wh at a gang member specifically is thinking, whether he enjoys it or not. I just know it’s an aspect of what comes with a gang member

. “Q. Sometimes do gang members get involved in activities of the gang because it’s exciting to them?
“A. Yes. “Q. How do you kn ow that? [¶] ... [¶] “[COUNSEL FOR JOHNSON]: It’s vague; calls for speculation. “THE COURT: The vague objection is overruled. [¶] You may answer in the context of your qualifications, sir, and experience. “A. I’ve spoken with gang members that they do it for the excitement, whether it be the narcotic s selling, the money, having all the property, having the cool things, bein g able to go fight other rival gang members whenever you want, so they find that exciti ng.” (Italics added.)215. 2. Analysis Defendants’ relevancy objection should have been sustained. 118 The prosecutor was entitled to rebut the defense’s suggestion that, because Lee had an education and a legitimate job, he was not a gang member. Sh e achieved that purpose by asking an expert in gangs why someone with a job and an educ ation would belong to a gang. The question and answer about whether it was exciting arguab ly fell within the trial court’s discretion to admit: Sherman had spok en to gang members on the subject, giving his answer a reliable, nonspeculative foundation; because he did not suggest gang members found killing people exciting, his answer was not unduly prejudicial under Evidence Code section 352. Whether people in general or gang members in particular sometimes enjoy killing other people, ho wever, had no tendency in reas on to prove or disprove any disputed fact at trial. 119 The erroneous admission of expert testimony is reviewed under the Watson standard. ( People v. Prieto , supra , 30 Cal.4th at p. 247; see also People v. Avitia (2005) 127 Cal.App.4th 185, 194.) There is no reas onable probability any de fendant would have

118 Dixon did not join the obj ections, but in light of the trial court’s rulings, it would have been futile for him to do so.
119 Although no objection was raised on this ground, we al so find the subject not a proper one for expert testimony. “Opinion testimony may be admitted in circumstances where it will assist the jury to understand the evidence or a concept beyond common experience. Thus, expert opinion is admissible if it is ‘[r] elated to a subject that is sufficiently beyond common experience [and] woul d assist the trier of fact.’ [Citation.] Expert opinion is not admissible if it consists of inferences and co nclusions which can be drawn as easily and intelligently by the trier of fact as by the witness. [Citation.]” ( People v. Torres (1995) 33 Cal.App.4th 37, 45.) Juro rs do not need an expert to tell them that some people like to kill. (Cf. People v. Johnson (1993) 19 Cal.App.4th 778, 785 [proposition that prison inmates sometime s lie not outside common understanding of jurors].) Moreover, Sherman’s testimony that he knew it was an aspect of what came with being a gang member was w ithout adequate foundation. ( In re Alexander L ., supra , 149 Cal.App.4th at pp. 611-612; see People v. McWhorter (2009) 47 Cal.4th 318, 362.)216. obtained a more favorable result had the challenged evidence been excluded. Nor was defendants’ trial rendered fundament ally unfair by its admission.

c. Mental States and Ultimate Issues of Fact Johnson contends the trial court erre d in permitting Sherman to testify to defendants’ intent and motive, which were ultim ate issues to be decided by the jury. He says the court initially ruled evidence of defe ndants’ gang involvement was admissible to prove identity, motive, and inte nt as to all counts, but later ruled the officer was not testifying to intent or motive even though the officer did so testify. Johnson says this allowed the prosecution to present specul ative and unfounded expert testimony on ultimate issues of law and fact. Because the expert’s opinions were improper, he concludes, they did not constitute sufficien t evidence to support the gang benefit enhancements, gang special circumstance s, and active gang participation charge. 120 Moreover, the argument runs, because the evid ence spilled over into the mental state requirements for murder and conspiracy, revers al is required on all counts. Dixon and Lee join. Dixon adds that the trial court erred by admitting Sherman’s testimony that Dixon was an active gang member in 2007, the Country Boy Crips’ pattern of criminal activity is common knowledge for other gang members, “mirroring” hypothetical shootings were done with the intent to aid the gang, an d it is not common for gang members bragging about crimes to go into much detail. He says the hypotheticals usurped the jury’s factfinding responsibilities on ultimate issues; unde r section 29, an expert cannot give an opinion as to the ultimate question of a person’s intent, knowledge, or mental state, or the reasonableness of a person’s actions; Sher man’s testimony that gang members do not

120 In contravention of California Rules of Court, rule 8.204(a)(1)(B), Johnson has not placed his sufficiency of the evidence argument under a separa te heading or subheading.217. divulge details when admitting crimes lacked foundation in the qualifications of the officer to offer the opinions; the testimony wa s not helpful or necessary to the jury to understand questions of intent , motive, and conduct; and the testimony invaded the factfinding province of the jury . Johnson and Lee join. The People say Sherman’s testimony was proper, and that he did not express any opinion concerning the actual, subjective motiv ation of defendants. They further say the trial court properly relegated to cross-examin ation challenges to Sherman’s qualifications to offer opinions on subjec ts such as whether gang members divulge details when admitting crimes. The People conclude th at Sherman’s testim ony, combined with additional evidence, provided sufficient ev idence to uphold the various charges, enhancements, and spec ial circumstances. 1. Background At the outset of the Evidence Code sec tion 402 hearing, Sherman testified that he had been employed as a senior police officer for over 12 years, before which he was a Kern County detentions officer for 10 years. 121 At the time of trial, he had been assigned to the Kern County Violent Crimes Gang Task Force for about two months, before which he was a field training officer on patrol for about a year. Before that, he was a gang officer for the SEU for two years. The SEU monitors gang activity, conducts gang investigations and arrests, has daily co ntacts with gang members, and gathers intelligence. During his time with the unit, Sherman went out on a daily basis and patrolled high-activity gang areas, contacte d gang members and arrested them if appropriate, conducted investig ations of gang members, assi sted in investigations in

121 Much of the procedural history conc erning, and content of, Sherman’s testimony has already been stated. We do not repeat everything here.218. which gang members were suspects, and te stified in court on those cases as a gang expert. Sherman had over 200 hours of formaliz ed training with respect to gangs. Subjects addressed in his classes included why people become gang members, why they stay in the gang life, the primary activities of the gang, why they possess weapons, why they sell drugs, and why they commit assaults . Through local training, he learned the gang territories, the primary activities of th e local gangs, and who the local gangs are, their associates, and their ri vals. Sherman also had expertise gained from conducting gang investigations and personally contac ting gang members. Hehad investigated numerous gang cases within Bakersfield, in volving Black gangs, Hispanic gangs, and White gangs; and had contacted gang members of pretty much each set and gang within Bakersfield. He previously testified in court as a gang expert, including about the Westside Crips, Eastside Crips, and Country Boy Crips. He stay ed current on gang trends by reading reports of the police department and sheriff’s office; speaking with officers, including probation and paro le; and talking to gang members. Sherman also had experience with gang members as a detenti ons officer for the sheriff’s department. He was in contact w ith inmates on a daily basis, and conducted disciplinary hearings and hous ing changes, and had general conversations with, gang members. Not all of Sherman’s contacts with gang members were adversarial. Some gang members will show respect if shown respect; onc e that respect is established, they are willing to have candid conversa tions about their lifestyles and traditions. Sherman had also sat in on the interviews of arrested gang members. Sometimes gang members talked to him about gang customs. In addition, he shared inte lligence regardin g gang crimes with other officers. Specifically with respect to the Coun try Boy Crips, Sherman had training and experience in contacting members of that gang and talking to them about it. He had also219. talked to other officers who ha d talked to Country Boy Crips, and had read police reports about Country Boy Crips and th e crimes they commit. He had previously testified in court as an expert on that gang. At the conclusion of the Evidence Code section 402 hearing, the trial court found Sherman to be qualified to testify as an e xpert in gang recognition and detection. It proposed to give a limiting instruction telling jurors they coul d consider evidence of gang activity only for the purpose of deciding whether a defend ant acted with the intent, purpose, and knowledge required to prove gang-related crimes, enhancements, and special-circumstance allegations, or that a defendant had a motive to commit the crimes charged, as well as in evaluating the credib ility of a witness when considering the facts and information relied on by an expert witness. The court also proposed to admonish jurors that hearsay matters relied on by Sherman could only be considered in evaluating the basis for his opinion, and not for their truth. The court invited counsel to prepare a proposed limiting instruction covering those areas of concern. During the course of Sherman’s testimony before the jury, the prosecutor elicited that in 2007, the Country Boy Crip criminal street gang engaged in a pattern of criminal activity. She then asked if that pattern of criminal activity was a matter of common knowledge among other gang members. When Sherman answered yes, the prosecutor asked why he said that. Sherman answer ed, “Gang members know what other gang members do.” Counsel for Lee objected to the testimony as speculation. The other defense attorneys joined. The trial court sustained the objection, but told the prosecutor she could lay a foundation. The prosecut or then elicited from Sherman that gang members will talk about who got convicted of what, who was testifying, who was the witness, and the facts of the case, and that they will discuss it among themselves and with their friends and relatives. When she asked whether gang members discuss crimes among themselves that are occurring out in th e neighborhoods, counsel for Lee objected that the question called for speculation and lacked foundation. Counsel for Johnson220. joined. The court permitted Sh erman to answer based on hi s education, training, and experience. Sherman answered that gang members did discuss it among themselves, and also discussed it with officer s. When the prosecutor as ked how he knew this, defense counsel asked for and were granted a continui ng objection. Sherman then answered that he had talked to gang members who told him about crimes in which they were not involved, and said they obtained the information from other gang members. They also talked to him about crimes of which they kn ew. Sherman further testified this was true for the Country Boy Crips. The prosecutor asked again whether, in Sh erman’s opinion, the pattern of criminal activity was a matter of comm on knowledge for gang member s within the Country Boy Crips. Counsel for Lee objected that it went to the ultimate issue fo r the jury. Counsel for Johnson joined. Th e matter was then taken up outsid e the jury’s presence. Counsel for Lee argued that testimony a gang member knew about what other gang members were doing was speculative, without f oundation, and removed the issue from of the province of the jury. Ultimately, he objected under Evidence Code section 352, on relevance grounds, and that it went to the ultimate issu e. Counsel for Johnso n and Dixon joined. After further argument that expanded to in clude the prosecutor’s proffer of expert testimony to show motivation for particular crimes, and whether and how a crime was committed to benefit or promote a gang, the court ruled that as long as the questions were based on the gang in genera l and not any of these partic ular defendants unless Sherman had specific knowledge otherwise, and we re founded on Sherman’s observations, interviews, and intelligence received from activ e gang members, conf idential informants, and other officers, the probative value outweighed any prejudicial impact and the evidence was ad missible. Counsel for Lee then asked for a c ontinuing objection on the ground that Sherman’s opinions were based on unreliabl e hearsay, and on protected speech and freedom of association. Counsel for John son and Dixon joined. The court granted221. defendants continuing objections but overruled them, and rejected the claim Sherman’s opinions would deny defendants the right to confront and cross-examine the witnesses who formed the basis of those opinions. In the jury’s presence, the prosecutor asked Sherman, separately as to each defendant, if he had formed an opinion as to whether that defendant was an active member of the Country Boy Crips between Ma rch 1 and August 22, 2007, and what that opinion was. 122 The prosecutor subsequently aske d Sherman a series of hypothetical questions that mirrored the prosecution’s evid ence of how the various charged offenses occurred, but did not specifi cally refer to any defendant . Defendants were granted continuing objections based on their previous arguments, but, in light of its previous rulings, the trial court overruled the objections . Sherman then testified to his opinions that the offenses were committe d for the benefit of the Coun try Boy Crips, and with the intent to promote, further, or assist criminal conduct by the Country Boy Crips. He also explained the basis of those opinions.

122 Counsel for Johnson object ed that the question went to the ultimate conclusion of law and fact, and was a matter for the jury to decide. The court responded, “Talking about membership, not intent or motive, so I’m going to overrule the objection.” This is the basis for Johnson’s claim the trial court ruled Sherman was not testifying to intent or motive ev en though Sherman did so testif y. When read in context, the ruling is not the contradicti on Johnson would lead us to be lieve. Rather, it is apparent the court was harkening back to its lengthy discussion with counsel, outside the jury’s presence, concerning this court’s opinion in People v. Killebrew (2002) 103 Cal.App.4th 644 ( Killebrew ), and what questions, under that opini on, could properly be asked with respect to these specific defendants as opp osed to unspecified individuals or gang members in general. The California Supreme Court recently disapproved any interpretation of Killebrew barring or limiting the use of hypothetical questions. ( People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3 ( Vang ).)222. 2. Analysis Section 186.22, subdivision (a) defines a s ubstantive offense with three elements. “Active participation in a criminal street gang, in the sense of participation that is more than nominal or passive, is th e first element .... The second element is ‘knowledge that [the gang’s] members engage in or have engaged in a pattern of criminal gang activity,’ and the third element is that the person ‘willf ully promotes, furthers , or assists in any felonious criminal conduct by members of that gang.’ [Citation.]” ( People v. Lamas (2007) 42 Cal.4th 516, 523.) There is no requi rement that the felonious criminal conduct that is promoted, furthered, or assisted be gang related. ( People v. Albillar (2010) 51 Cal.4th 47, 51, 59 ( Albillar).) To establish the enhancement defined by subdivision (b) of section 186.22, “the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction o f, or in association with any criminal street gang, [and that it was committed] with the specific intent to pr omote, further, or assist in any criminal conduct by gang members.’ [Citations.]” ( Gardeley , supra , 14 Cal.4th at pp. 616-617.) There need not be an intent to promote, fu rther, or assist either gangrelated conduct apart from the ch arged offenses, or a gang. ( Albillar , supra , 51 Cal.4th at pp. 51, 66-67.) 123 The special circumstance defined in sec tion 190.2, subdivision (a)(22) mandates a sentence of death or life in prison without the possib ility of parole where “[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, ... and the murder was carried out to further the activities of the criminal

123 After Albillar , cases such as Garcia v. Carey (9th Cir. 2005) 39 5 F.3d 1099, 1102- 1104 and Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069, 1078-1083 are no longer the law to the extent they interpret section 186 .22, subdivision (b) as requiring proof the defendant had the specific intent to facilitate gang members’ criminal activities other than the charged crime(s). ( Emery v. Clark (9th Cir. 2011) 643 F.3d 1210, 1215.)223. street gang.” Before a defendant can be pena lized under this statute for being an active participant in a criminal organization, he or she must be shown to have had knowledge of the gang’s criminal purposes. ( People v. Carr (2010) 190 Cal.App.4th 475, 487.) The requirement that the People prove “‘the murderwas carried out to further the activities of the criminal street gang’” “substantially parallels the language of section 186.22, subdivision (b)(1), which authorizes a sentencing enhancemen t for felonies ‘committed for the benefit of, at the direction of, or in a ssociation with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members....’” ( Id. at p. 488.) 124 Evidence of gang affiliation and activity, though potentially prejudicial, is relevant and admissible when the reason for the underlying crime is gang related. ( People v. Samaniego (2009) 172 Cal.Ap p.4th 1148, 1167; People v. Gonzalez(2005) 126 Cal.App.4th 1539, 1550.) “‘[B ]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting ev idence of its existence.’ [Citations.]” ( Gonzalez , at p. 1550.) “California law permits a person with ‘special knowledge, skill, experience, training, or education’ in a particular field to qualify as an expert witness [citation] and to

124 The statutes all require proof of the existence of a criminal street gang. Accordingly, the prosecution is required to prove “that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activ ities the commission of one or more of the criminal acts enumerated in the statute; a nd (3) includes members who either individually or collectively have engaged in a ‘patternof criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period. [Citations.]” ( Gardeley , supra , 14 Cal.4th at p. 617, ita lics omitted.) As defendants implicitly concede the evidence concerning the Co untry Boy Crips was suffici ent to establish these requirements, we do not discuss them further.224. give testimony in the form of an opinion [c itation]. Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimony is ‘sufficiently beyond common experience that the opinion of an expe rt would assist the trier of fact.’ [Citation.] The subject matter of the culture and habits of criminal street gangs ... meets this criterion. [Citations.]” ( Gardeley , supra , 14 Cal.4th at p. 617.) Included within “‘culture a nd habits’” is “tes timony about the si ze, composition or existence of a gang [citations], gang turf or territory [citations], an individual defendant’s membership in, or association with, a gang [c itations], the primary activities of a specific gang [citations], motivation for a particular crime, generally reta liation or intimidation [citations], whether and how a crime was co mmitted to benefit or promote a gang [citations], rivalries between gangs [citation], gang-related tatt oos, gang graffiti and hand signs [citations], and gang colors or attire [citations].” ( Killebrew , supra , 103 Cal.App.4th at pp. 6 56-657, fns. omitted.) “[T]he decision of a trial court to adm it expert testimony ‘will not be disturbed on appeal unless a manifest abuse of di scretion is shown.’ [Citation.]” ( People v. McAlpin , supra , 53 Cal.3d at p. 1299.) “ ‘[T]he admissibility of expert opinion is a question of degree. The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the te st, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would “assist” the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information ....’ [Citation.]” ( Id . at pp. 1299-1300.) “Generally, an expert may render opiniontestimony on the basis of facts given ‘in a hypothetical question that asks the expert to assume their truth.’ [Citation.] Such a hypothetical question must be rooted in facts shown by the evidence, however. [Citations.]” ( Gardeley , supra , 14 Cal.4th at p. 618.) Although a trial court “should prevent the use of misleading or un fair hypothetical questions.” ( People v. Wilson (1944)225. 25 Cal.2d 341, 348), the questioner is not require d to disguise the fact that the questions are based on the eviden ce adduced at trial ( Vang , supra , 52 Cal.4th at p. 1041). Because a hypothetical question not based on the eviden ce is irrelevant, an d expert testimony not based on the evidence will not assist the trie r of fact, “the pros ecutor’s hypothetical questions [must] be based on what the evidence showed these defendants did, not what someone else might have done.” ( Id . at p. 1046.) “Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate i ssue to be decided by the trier of fact.” (Evid. Code, § 805.) Nevertheless, an expert ’s opinion “is not admissible if it invades the province of the jury to decide a case. ‘Undoubtedly th ere is a kind of statement by the witness which amounts to no more than an expr ession of his general belief as to how the case should be decided ....’ [Citation.] Notwith standing Evidence Code section 805, an ‘expert must not usurp the function of the ju ry ....’ [Citations.] [¶] Expert opinions which invade the province of the jury are no t excluded because they embrace an ultimate issue, but because they are not helpful (or perhaps too helpful). ‘[T]he rationale for admitting opinion testimony is that it will assist the jury in reaching a conclusion called for by the case. “Where the ju ry is just as competent as th e expert to consider and weigh the evidence and draw the necessary conclu sions, then the need for expert testimony evaporates.” [Citation.]’ [Citations.] In other words, when an expert’s opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them.” ( Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183.) There is no hard-and-fast rule concerni ng when an expert’s opinion goes beyond embracing the ultimate issue and improperly invades the provin ce of the jury. As the California Supreme Court has said , “‘We think the true rule is that admissibility depends on the nature of the issue and the circumstan ces of the case, there being a large element of judicial discretion involved.... Oftentimes an opinion may be r eceived on a simple226. ultimate issue, even when it is the sole one, as for exampl e where the issue is the value of an article, or the sanity of a person; becaus e it cannot be further simplified and cannot be fully tried without hearing opi nions from those in better positio n to form them than the jury can be placed in.’ [Citations.]” ( People v. Wilson , supra , 25 Cal.2d at p. 349.) In keeping with the foregoing, a witne ss may not express an opinion as to a defendant’s guilt or innocence, or with respect to whether a crime has been committed. ( People v. Torres , supra , 33 Cal.App.4th at pp. 46-47.) No netheless, “[t]here are some crimes a jury could not determine had occurre d without the assistance of expert opinion

as to an element of the crime.” ( Id . at p. 47, fn. omitted.) Thus , for example, it has been held proper for a trial c ourt to permit an expert in the illegal distribution of pharmaceutical drugs to opine that, under the fa cts of the hypothetical question posed to him, the drugs were possessed for the purpose of illegal street sales. ( People v. Doss (1992) 4 Cal.App.4th 1585, 1596.) “Rarely, if ever, does an expression of opinion by a so-called expert not amount to that which eith er the court or jury might adopt as a basis for the ultimate decision in th e case. However, that does not mean that the witness is deciding the case or that in so testifying he is usurping the functions of the jury. He is merely giving an opinion, based upon his te chnical training, which the court may or may not accept as testimony that is proper and necessary to an en lightened consideration and a correct disposition of the ultimat e issue. [Citation.]” ( Wells Truckways, Ltd. v. Cebrian (1954) 122 Cal.App.2d 666, 674.) Considering Sherman’s testimony and the trial court’s rulings in light of the foregoing principles, we find no abuse of di scretion. Sherman properly was allowed to state his opinions that defendants were activ e members of the Country Boy Crip criminal street gang at the time of the charged offenses, and that th e offenses were committed for the benefit of a criminal street gang. ( People v. Garcia (2007) 153 Cal.App.4th 1499, 1512-1514; see People v. Lindberg , supra , 45 Cal.4th at pp. 48-50; People v. Gonzalez , supra , 126 Cal.App.4th at pp. 1550-1551; People v. Valdez(1997) 58 Cal.App.4th 494,227. 507-509.) He was also prope rly permitted to express an op inion concerning intent. Significantly, he did not give an opinion co ncerning the subjective intent of defendants on trial, but rather answered hypothetical ques tions that paralleled the evidence presented by the prosecution. (Compare Gonzalez , supra , 38 Cal.4th at p. 946 with In re Frank S. (2006) 141 Cal.App.4th 1192, 1195-1196, 11 97-1198; see People v. Ferraez(2003) 112 Cal.App.4th 925, 928, 930-931 [gang expert properly allowed to opine, based on hypothetical facts paralleling evidence, that drugs in defendant’s possession were intended to be sold for benefit of or in asso ciation with gang, and th at proceeds would be used to benefit gang].) Vang , supra , 52 Cal.4th 1038 is instructive. There, the challenged hypothetical questions were designed to elicit the e xpert’s opinions on whether the crime was committed for the benefit of and in association with or at th e direction of a particular gang, and whether the charged assault was gang motivated. ( Id . at p. 1043.) The court stated, in part:
“To the extent Killebrew , supra , 103 Cal.App.4th 644, purported to condemn the use of hypothetical que stions, it overlooked the critical difference between an expert’s expr essing an opinion in response to a hypothetical question and the expert ’s expressing an opinion about the defendants themselves. Killebrew stated that the expert in that case ‘simply informed the jury of his belief of th e suspects’ knowledge and intent on the night in question, issues properly reservedto the trier of fact.’ [Citation.] But, to the extent the testimony respo nds to hypothetical questions, as in this case ..., such testimony does no suchthing. Here, the expert gave the opinion that an assault committed in the manner described in the hypothetical question would be gang related. The expert did not give an opinion on whether defendants did commit an assault in that way, and thus did not give an opinion on how the jury should de cide the case. “The trial court understood precise ly the distinction between (1) not permitting the expert to opine that the particular defendants committed a crime for a gang purpose, and (2) permitting the expert to express his opinion in response to hypothetical questions....228. “[There may be concern] th at permitting these hypothetical questions invades the province of th e jury. However, as noted, expert testimony is permitted even if it embraces the ultimate issue to be decided. [Citation.] The jury still play s a critical role in two respects. First, it must decide whether to credit the expert’s opinion at all. Second, it must determine whether the facts stated in the hypothetical questions are the actual facts, and the significance of an y difference between the actual facts and the facts stated in th e questions. The trial court instructed the jury on both of these roles.... [ 125 ] ” ( Vang, supra, 52 Cal.4th at pp. 1049-1050, fn. omitted.) The court further stated: “Whether to accept the expert’s opinion and, if so, how to apply it to the actual case was for the jury to determine. But the trial court properly permitted the questions and answers.” ( Vang , supra , 52 Cal.4th at p. 1050, fn. 5.) Defendants say, however, that the testimony ran afoul of section 29. That statute provides: “In the guilt phase of a crimin al action, any expert testifying about a defendant’s mental illness, mental disorder, or me ntal defect shall not testify as to whether the defendant had or di d not have the required mental states, which include, but are not limited to, purpose, intent, knowledg e, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be deci ded by the trier of fact.” Assuming the issue was preserved despite the lack of specific objection based on the statute (see People v. Zepeda (2001) 87 Cal.App.4th 1183 , 1208), we do not believe section 29 is applicable. There was no te stimony concerning any defendant’s mental illness, mental disorder, or mental defect. (See People v. Adan (2000) 77 Cal.App.4th 390, 393, fn. 3.) In our opinion, the last sentence of the statute cannot be divorced from the first sentence, and, insofar as we can te ll, the statute is most usually invoked with respect to expert psychiatric or ps ychological testimony. (See, e.g., People v. Coddington (2000) 23 Cal.4th 529, 582-583, ove rruled on another ground in Price v. Superior Court

125 The trial court in the present case so instructed the jury, as well.229. (2001) 25 Cal.4th 1 046, 1069, fn. 13; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1315, 1326-1328; People v. Nunn (1996) 50 Cal.Ap p.4th 1357, 1363-1365 & cases cited therein.) We also conclude the trial court did no t abuse its discretion by permitting Sherman to testify concerning such matters as wh ether the pattern of criminal activity was common knowledge and whether it was unco mmon for gang members to go into detail when bragging about their crimes. We recogn ize that a person may be qualified as an expert on one subject, yet not be qualified as an expert on matters beyond the scope of that subject. ( People v. Hill , supra , 191 Cal.App.4th at p. 1120.) Given Sherman’s extensive training and experien ce, however, the trial court did not err by concluding he was adequately qualified to testify on the t opics. Moreover, in light of his frequent conversations with gang me mbers, an adequate foundation was laid. (See, e.g., Gardeley , supra , 14 Cal.4th at p. 620; People v. Hill , supra , 191 Cal.App.4th at pp. 1124-1125.) Lastly, the test of sufficiency of the evidence is whether, reviewing the whole record in the light most favorable to th e judgment below, substantial evidence is disclosed such that a reasonable trier of fa ct could find the essential elements of the crimes, enhancements, and special circ umstances beyond a reasonable doubt. ( People v. Alvarez , supra , 14 Cal.4th at p. 225; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Augborne (2002) 104 Cal.App.4th 362, 371; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid value.” ( People v. Johnson , supra , 26 Cal.3d at p. 578.) An appellate court must “presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ( People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence ( People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the cr edibility of the witnesse s, or resolve factual conflicts, as these are functions reserved for the trier of fact ( In re Frederick G. (1979) 96 Cal.App.3d 353, 367). This standard of review applies regardless of whether the prosecution relies230. primarily on direct or on circumstantial evidence. ( People v. Lenart (2004) 32 Cal.4th 1107, 1125.) Having concluded Sherman’s opinions we re properly admitted, we further conclude his testimony, coupled with the other ev idence presented at trial, is sufficient to uphold the jury’s ve rdicts and special findings on th e charges and allegations under section 186.22, subdivisions (a) and (b) an d section 190.2, subdivision (a)(22). (See People v. Ferraez , supra , 112 Cal.App.4th at p. 931.) 126 8. Impeachment of Defense Witnesses The testimony of defense witnesses Th eodore Richard and Kevin Griffith is summarized in the statement of facts, ante . Although presented by Johnson, their testimony affected all defendants, who now say the trial court erred by allowing them to be improperly impeached. 127

a. Theodore Richard Richard was called to impeach Dupree Jackson. In turn, the prosecution impeached Richard’s cred ibility with his prior co nvictions. Lee says the trial court erred by permitting the prosecutor to de lve into the details of the crimes underlying those convictions. Johnson and Dixon join. The People say the details were relevant and properly admitted to contradict an aspect of Richard’s testimony.

126 We would reach this conclusion even if Sherman should no t have been permitted to offer his opinions on intent. The erroneou s admission of expert testimony is assessed under the Watson standard ( People v. Prieto , supra , 30 Cal.4th at p. 247), and the evidence on the po int was overwhelming even without those pieces of opinion testimony.
127 To the extent any particular defendant may not have objectedto, or joined in another defendant’s objection to, a particular question or answer, we find no forfeiture because it is readily apparent further obj ections would have been futile. (See People v. Alfaro , supra , 41 Cal.4th at p. 1325.)231. 1. Background During cross-examination, Jackson testif ied that Richard was his cousin. While Jackson was in the Witness Relocation Progr am, Richard visited him at a motel in Bakersfield at Jackson’s invitation. Althou gh they talked, Jacks on did not tell Richard that he (Jackson) needed to lie in court to avoid being prosecutedfor killing Raybo. Richard said he had talked to Johnson, who as ked Richard to tell Jack son not to testify. Richard wanted Jackson to sabotage his testim ony. Jackson lied to Richard and agreed to do so. Jackson never reported th is conversation to anyone. According to Jackson, Ri chard was a gang member. Jackson knew Richard had been in federal prison for abou t 10 years on a drug charge. He conceded Johnson would have been about 10 years ol d when Richard went into custody, and it was unlikely the two hung out together then. When Richard was released, Johnson was in custody. On redirect examination, the prosecutor asked if Richard, who was taken into custody in 1998 or 1999, had a reputation in the hood back then. Jackson responded that Richard and his father had reputations as bein g big-time drug dealers. When Richard and Jackson met in Jackson’s motel room, Richar d said he had heard from other family members that Jackson was a w itness in a case invo lving some of the homies. Richard said he was going to try to help Jackson get out of it. He said he had plans for Jackson. He wanted Jackson and Jackson’s brother to be in Richard’s organization, selling quantities of drugs, not just small amounts. Ri chard said that if Jackson did not testify, Richard could clear his name in the hood so the homies would leave him alone. Richard said Jackson should not take th e stand, but if he had to, Johnson told Richard to tell Jackson to say he was having a relationship with Johnson’s girlfriend, and she had the idea for Jackson to come in to court and lie with her. 128

128 Defense objections of relevance, hear say, and foundation were overruled with respect to what Jackson said Richard said Johnson said.232. On recross-examination, Jackson was as ked if Richard was still a drug dealer. Jackson responded that he would not know because he had been in custody the past seven months, but Richard still was when Jackson was out of custody. Jackson was aware Richard had been working for a local construc tion company since his release, but it was a cover for Richard’s drug operation. Asked if he (Jackson) had ever had a job to cover up the fact he was a drug dealer, Jackson resp onded that he never sold “major dope” and never got arrested by federal authorities. Th e court then inquiredabout the difference between a federal arrest and a county arre st. Jackson explaine d it depended on the amount of drugs being sold, and if it was over half a kilogram or a kilogram, it would be federal time, whereas small amounts would result in state or county time. Senior Deputy Little testif ied that on July 7, 2007, he found some letters at Dixon’s residence that contai ned gang writings and were addressed to Dixon. One was signed “Munchy Locsta.” This was Juaqkeib Oliver, who was senten ced to 25 years to life in prison for murder. He was also a c odefendant with Richard in a conspiracy to commit murder. Frederick Wright, a foreman/superintende nt for a construction company, testified that Richard had worked for the company since May 2008. Richard worked full time as a laborer. The work was physica lly demanding. Wright considered Richard a “pretty good worker.” Richard testified on direct examination that he had worked in construction in June 2008. “At this moment in time,” he did no t do anything else for money. Jackson was like a brother to Richard. Since Richar d came home, Jackson had been constantly seeking him out, and i nvited Richard to Jackson’s motel room. Richard was never told by Johnson — whom he had never met — or an yone else to try to convince Jackson not to come into court. Jackson did not tell Richard why he was testifying in this case; rather, he told Richard he was not testifying. Jackson said he was afraid of being charged with Raybo’s murder. Richar d spoke to Jackson about th is case on several occasions233. throughout the summer. Jacks on said something about some gi rl he was dating. Richard believed her name was Sara. Jackson had a relationship withher and told Richard she was supposed to be the ex-girl friend of one of the defendants . Jackson said she told him things about a murder. Rich ard opined that Jackson was “clearly being dishonest.” Jackson told Richard several lie s, telling him different stories at different times. Jackson admitted he was lying and saidhe would not testify. On cross-examination, the prosecutor e licited that Richard was a convicted felon, having been prosecuted by the United States Attorney’s Offi ce and, in February 1999, convicted by a jury in federal court. Although Richard was unsure of the code section under which he was convicted, he was conv icted of conspiracy to distribute and possession for sale of cocaine, and sentenced to 14 years. He believed his case was investigated by the FBI. While he was in fe deral custody, Richard was returned to Kern County. Asked by the prosecutor if he was prosecuted for conspiracy to commit murder, he responded that he was not sure if that wa s actually charged. He pled no contest in April 2000 to what he believed to be felony assault with a firearm. Asked if his codefendant or coconspirator in the case was Juaqkeib Oliver, also known as “Munch,” Richard said he was not sure. He went to tr ial; he did not recall anyone else being there with him. He could not be sure if there was testimony about Oliver, as he was not sure who Oliver was. The prosecutor asked the court to take judicial notice of the October 22, 1999, information in Richard’s Kern County case. According to the court, overt act number six alleged that on or about July 2, 1997, Juaqkeib “Little Munch” Oliver was sitting in the right front passenger seat of a Honda Acco rd. Overt act number nine also involved Oliver. Asked again by the prosecutor if he knew who Juaqkeib Oliver was, Richard said he recalled him. When the prosecutor pr essed Richard to admit he was accused of conspiring to do an act with Oliver, counsel for Johnson objected and represented that234. Richard was convicted of a 1997 assault. He argued Richard ha d admitted a conviction for assault, a crime of mora l turpitude; anything beyond that was an undue consumption of time on a side issue. The court ruled the prosecutor had a right to impeach. Richard then testified he believed he knew about whom the prosecutor was talking. He went to trial and possibly heard Oliver’s namementioned. It was long ago. The prosecutor then asked Richard if it wa s correct that in the federal case, he was convicted of distributing kilo quantities of cocaine. Richard said no, he was definitely guilty of being involved with cocaine and using it, and according to the authorities, he sold cocaine. He did not conspire with anyo ne, however, although he was found guilty of that. He did sell cocaine “before.” Over de fense objections on grounds of irrelevance, Evidence Code section 352, and improper impeachment, the prosecutor was then permitted to ask if Richard knew what a kilo was and ho w much cocaine he sold. Richard answered that he sold $5, $10, an d $20 worth of rock cocaine. Asked by the court how he got into federal court, Richard responded that he was not sure, but the FBI arrested him near Chicago. When the pros ecutor asked if Richard was wanted by the FBI for a period of time before he was arrested, the trial court overruled defense objections on relevance, speculation, and Evidence Code section 352 grounds. The prosecutor then asked if, when he was selling cocaine, Richard was working with a group of other people, the quantities of cocaine he sold, where he sold it, and how he sold it — by standing on a street corner, in houses, or over the phone. When the prosecutor asked the source of Richard’s coca ine, the trial court sustained the defense’s relevance objection. The prosecutor then elicited Richard’s de nial that he was ever a gang member or sold drugs to gang members. After delving into the nature of th e relationship between him and Jackson, she returned to the subjectof where Richard sold drugs and asked him to name specific places. Counsel for Lee a nd Johnson objected on grounds of relevance and undue consumption of time. The prosecutor argued that it tended to impeach Richard235. regarding his level of involvement, and also corroborated Jackson with respect to some statements he made about Richard. Af ter an unreported sidebar conference, the prosecutor moved to other subjects. She ex amined Richard on hi s conversations with Jackson about this case, and elicited that he never called the police, th e district attorney’s office, or the defense attorneys to tell them Jackson had lied. In addition, she elicited that he had twice been present and watched portions of the trial, whereupon, he claimed, he felt compelled to come forwar d and say what he knew. After questioning Richard about his acquaintance with members of Dixon’s and Lee’s families, the prosecutor asked if he wa s wanted for a period of time by the FBI. When he said he was not sure, she asked if he had any idea why the FBI would think he was hanging out with Crip gang members. When Richard resp onded that they never said that, the prosecutor asked if he had ever se en any wanted posters for himself. He answered no. Counsel for Jo hnson objected on grounds of relevance and prejudicial effect. The prosecutor responded, “I want to ask him a question in it.” ( Sic .) The court suggested it was going to be usedto refresh Richard’s recolle ction, and she agreed. The court then permitted her to s how Richard a wanted poster, which he said he had never seen before. She had Richard read the information contained on the poster and questioned him about it, including the represen tation that he associated with Crip gang members. On redirect examination, counsel fo r Johnson asked Rich ard if he had any understanding of how a decisi on was made to prosecute th rough the state or federal government. Richard responded that he was not sure, but knew that if there was a case involving someone being prosecuted by the fe deral government and an individual crossed paths with that person, chances were that regardless of the amount of drugs concerned, the federal authorities would try to get the in dividual involved in th e case because that individual associated with the other person.236. At the conclusion of the prosecution’s cas e in rebuttal, the prosecutor formally asked the court to take judicial notice of the file of Richard’s Kern County case, and she moved the information into evid ence. Counsel for Lee objectedon the grounds that if the information contained unconvicted counts, thos e counts were not subject to disclosure before the jury. Counsel conceded the court could take judicial notice of a charging document that corresponded to a conviction, but argued, on relevance and Evidence Code section 352 grounds, that anything add itional should not go before the jury. The prosecutor responded that the relevance was the mention of Oliver and impeachment of Richard. After a sidebar conference, the court admitted the informati on into evidence. Jurors were later instruct ed that in evaluating a witness’s testimony, they could consider anything that reasonabl y tended to prove or disprove the truth or accuracy of the testimony, including whether the witness had be en convicted of a felony and whether the witness had engaged in other conduct that re flected on his or her believability. Jurors were further instructed that if they found a witness had been convicted of a felony or had committed a crime or other misconduct, they c ould consider that fact in evaluating the credibility of the witness’s test imony, but that it did not nece ssarily destroy or impair the witness’s credibility; rather, it wa s up to the jury to decide th e weight of that fact and whether that fact made the witness less believable. 2. Analysis Evidence Code section 780 permits the trier of fact to consider, in determining the credibility of a witness, “any matter that has a ny tendency in reason to prove or disprove the truthfulness of his testimony at the hearing ....” Evidence Code section 788 allows felony convictions to be used to attack the credibility of a w itness. Such convictions can be shown by the witness’s testimony or by the record of the judgment. 129

129 To be relevant and, hence, admissible , the felony conviction must be one that necessarily involves moral turpitude, though the immoral trait may be one other than dishonesty. ( People v. Castro, supra , 38 Cal.3d at p. 306.) Richard’s convictions met237. It was long settled in California that a w itness could be impeac hed by proof he or she had suffered a prior felony conviction or convictions, and that the number, dates, and specific felonies coul d be shown. (E.g., People v. Smith (1966) 63 Cal. 2d 779, 790; People v. David (1939) 12 Cal.2d 639, 646; People v. Jones (1963) 216 Cal.App.2d 494, 494-495.) The prosecutor co uld not, however, go beyond the f act of such conviction(s) and the nature of the crime(s) committed. ( People v. David , supra , 12 Cal.2d at p. 646.) Accordingly, questions concerning the details and circumstances of the prior crime or crimes, including the length of time servedand conditions surro unding parole, were improper ( People v. Smith , supra , 63 Cal.2d at p. 790; People v. Szadziewicz(2008) 161 Cal.App.4th 823, 842) unless the defendant firs t sought to mislead the jury or minimize the facts of the conviction ( People v. Heckathorne (1988) 202 Cal.App.3d 458, 462). With the addition of secti on 28, subdivision (d) (now subd. (f)) to article I of the California Constitution, however, the issue has become less clear. 130 In People v. Harris (1989) 47 Cal.3d 1047, 1081, disapproved on another ground in People v. Wheeler (1992) 4 Cal.4th 284, 299, footnote 10, the Ca lifornia Supreme Court determined that this provision “effected a pro tanto repeal of Evidence Code section 790,” and it found “no this requirement. (See People v. Hinton (2006) 37 Cal.4th 839, 888 [assault with firearm is crime of moral turpitude]; People v. Harris (2005) 37 Cal.4th 310, 337 [same re: possession of drugs for sale]; United States ex rel. De Luca v. O’Rourke (8th Cir. 1954) 213 F.2d 759, 762 [same re : conscious participation in illegal drug traffic]; Portaluppi v. Shell Oil Co . (E.D.Va. 1988) 684 F.Su pp. 900, 904, fn. 13 [same re: narcotics possession with intent to distribute]; cf. People v. Garrett (1987) 195 Cal.App. 3d 795, 799 [question in conspiracy cases is whether object of conspiracy involved moral turpitude].)
130 Article I, section 28, subdi vision (f)(2) provides in part: “Right to Truth-inEvidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of th e Legislature, relevant evidence shall not be excluded in any criminal proceeding .... No thing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782, or 1103.” Subdivision (f)(4) provid es in part: “Use of Prior Convictions. Any prior felony conviction of any person in any criminal pr oceeding, ... shall subs equently be used without limitation for purposes of impeach ment ... in any criminal proceeding.”238. basis on which to distinguish Evidence Code sections 786 and 787.” Accordingly, statutes barring admission, to attack or sup port a witness’s credibilit y, of (1) evidence of traits of character other than honesty or ve racity or their opposites (Evid. Code, § 786), (2) specific instances of conduct relevant only as tending to prove a trait of character ( id ., § 787), and (3) evidence of goodcharacter, unless evidence of bad character was first admitted ( id ., § 790), no longer apply in criminal cases. Then, in People v. Wheeler , supra , 4 Cal.4th at page 288, the California Supreme Court further held the provision “abrogate[d] the felony-convictions-only rule in criminal cases and [gave] criminal courts broad discretion to admit or exclude acts of dishonesty or moral turpitude ‘relevant’ to impeachment ....” In criminal proceedings, the measure “supersedes all California restri ctions on the admission of rele vant evidence except those preserved or permitted by the express words of section 28[, subdivision (f)(2)] itself. [Citations.]” ( Id. at p. 291.) Accordingly, the court concluded “that if past criminal conduct amounting to a misdem eanor has some logical bear ing upon the veracity of a witness in a criminal procee ding, that conduct is admissible, subject to trial court discretion, as ‘relevant’ evidence unde r section 28[, subdivision (f)(2)].” (Id. at p. 295.) Our high court has since broadly stat ed, “A witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court’s exercise of di scretion under Evidence Code section 352.” ( People v. Clark (2011) 52 Cal.4th 856, 931, fn. omitted, italics added.) The court has not, however, specifically addressed the ques tion whether, when ev idence of a felony conviction is admitted for imp eachment, the details and circumstances of the underlying felony are now also admissible, subject to th e limits of Evidence Code section 352. (See People v. Watson (2008) 43 Cal.4th 652, 685-686; People v. Smith (2003) 30 Cal.4th 581, 633.) We fail to see how the “no details” limit ation reasonably could have survived the addition of article I, section 28, subdivision (f)(2) of the Ca lifornia Constitution, to the239. extent that, in any given case, such details have relevance beyond the fact of the prior felony conviction itself and are not more prej udicial than probative under Evidence Code section 352. For example, evidence tending to contradict a witness’s testimony is relevant for impeachment purposes ( People v. Cunningham , supra , 25 Cal.4th at p. 1025), and even a so-called collateral matter may be relevant to a witness’s credibility ( People v. Rodriguez(1999) 20 Cal.4th 1, 9). We need not determine th e viability of the limitation in the present case, however, because even assuming the limitati on no longer exists, the trial court abused its discretion by failing to curtail, under Evidence Code section 352, the prosecutor’s crossexamination of Richard concerning the f acts and circumstances underlying his prior convictions. This is especially true of evidence concerning whether Richard was wanted by the FBI for a period of time, whether he sold drugs with a group of people, and the information contained on his wanted poster. The events were fairly remote. Any probative value in terms of impeaching Richard’s denial of ever being a gang member were clearly outweighed by Evidence Code section 352 concerns, including consumption of time. Although showing Richard was acqua inted with Oliver was relevant to show bias and interest, the prosecutor certainly di d not need to reveal that the original conspiracy charge in the state prosecution involved a conspiracy to shoot someone. “‘Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test: The reviewing court mustask whether it is reasonably probable the verdict w ould have been more favorable to the defendant absent the error.’ [Citations.]” ( People v. Watson , supra , 43 Cal.4th at p. 686.) Here, even apart from the matter of Richard’s prior felony convictions , the prosecutor significantly impeached Richard’s credibility. Moreove r, Jackson’s own character and credibility were clearly in question regardless of whether jurors found Rich ard to be a credible witness. Under the240. circumstances, the error resulted neither in fundamental unfairness nor in cause for reversal under state law. (See ibid .; People v. Harris , supra , 37 Cal.4th at p. 339.) 131
b. Kevin Griffith Griffith was called to testify about the car used by the people who shot Adrian Bonner. Lee now says the trial court erred by permitti ng improper impeachment of Griffith concerning his distance from the sh ooting. Johnson and Dixon join. The People say the question at issue was pr operly based on good faith. 1. Background Griffith testified that he saw the red car involved in the Ad rian Bonner shooting both at the time of the incident and later that night. Shan non Fowler’s car was not the vehicle he saw. On direct examination, Gri ffith testified he was about 60 feet from the red car at the time of the shooting. On cross-examination, he testifie d his daughter was with him on the evening of August 11, 2 007, both at the time of the shooting and later, but he did not know if she was coming to co urt. Later, this took place: “Q. [by the prosecutor] So atthe time you heard those shots, had you pulled out of the parking lot yet, or were you still in the parking lot?
“A. No. We were about 60 feetfrom the stop sign on Planz Road -- Planz and Real Road. “Q. Sixty feet. [¶] Okay. Would it change your opinion if you knew that your daughter said you were 80 to 90 yards away from the intersection when this happened? “A. I don’t know why she told -- “[COUNSEL FOR JOHNSON]: Your Honor, this is hearsay. They can call the daughter in if they’d like.

131 We would reach the same conclusion even if the “no details” limitation remained in effect.241. “THE COURT : Well, ... I think it’s impeac hment. [¶] I’m going to overrule the objection.
“THE WITNESS : I don’t know what my daughter told. I just -- my version was what I just toldyou.” (Italics added.) 2. Analysis “The rule is well established that the prosecuting attorney may not interrogate witnesses solely ‘for the purpose of getting be fore the jury the f acts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers which might be given.’ [Citations.]” ( People v. Wagner (1975) 13 Cal.3d 612, 619-620; see also People v. Pitts (1990) 223 Cal.App.3d 606, 734 & cases cited therein.) Accordingly, the California Suprem e Court has “held that a prosecutor commits misconduct by asking ‘a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an an swer confirming the implied fact or is prepared to prove the fact by other means.’ [Citation.] For a prosecutor’s question implying facts harmful to the defendant to come within this form of misconduct, however, the question must put before the jury information that falls outside the evidence and that, but for the improper qu estion, the jury woul d not have otherwise heard. [Citation.] Moreover, if ‘the prosecu tor is not asked to justify the question, a reviewing court is rarely able to determine whether this form of misconduct has occurred.’ [Citation.]” ( People v. Earp (1999) 20 Cal.4th 826, 859-860, italics omitted.) “Therefore, a claim of misconduct on this basis is waived absent a timely and specific objection during the trial. [Citation.]” ( People v. Price (1991) 1 Cal.4th 324, 481, italics added.) A hearsay objection, as was made here, doe s not preserve a claim of prosecutorial misconduct or improper impeachment. ( People v. Foster , supra , 50 Cal.4th at p. 1353; see generally People v. Hill , supra , 17 Cal.4th at p. 820.) In any event, the prosecutor’s good faith is apparent from th e record. During a discussion outside the jury’s presence concerning whether Griffith’s 911 call was ad missible as an exc ited utterance, the242. prosecutor represented that Gri ffith told the police he only heard the shooting, and that Griffith’s daughter said they were 80 to 90 yards away when it happened. It was apparent the prosecutor was relying on a police report; since defense counsel did not object to lack of discovery, it is equally apparent they knew the daughter had indeed estimated the distance as 80 to 90 yards. Accordingly, there was no misconduct. (See People v. Friend (2009) 47 Cal.4th 1, 80-81.) Finally, were we to find error, we would conclude it was harmless. Griffith stood by his answer. While this doe s not cure any impropriety ( People v. Wagner , supra , 13 Cal.3d at pp. 619-620; People v. Pitts , supra , 223 Cal.App.3d at p. 734), here the prosecutor went on to ask Griffith how ma ny car lengths he believed 60 feet to be. Griffith responded that it was four or five, an d that he was approximately four or five car lengths away when he heard the shots. Unde r the circumstances, jurors were equally as likely to conclude the daughter’s estimate was wrong as they were to conclude Griffith was farther away than he testified. Mo reover, Griffith’s testimony was otherwise impeached and, perhaps mostsignificantly, the prosecution presented witnesses to establish that the car Griffith saw pulled ov er the night of the shooting could not have been involved. B. Shackling Dixon, the only defendant to testify, was subjected to physical restraints partway through trial. He now says the trial court’s decision in this regard constituted an abuse of discretion that requires reversal . The People say the trial c ourt’s decision was sufficiently justified, and in any event, any erro r was harmless under the circumstances. 1. Background Throughout trial, defendants were all in custody, Johnson and Lee in the custody of the Kern County Sheriff’s Department, and Dixon — who was serving a sentence on charges arising out of the vehicle pursuit/T ec-9 incident — in the custody of the California Department of Corrections and Rehabilitation (CDCR). Hearing on in limine243. motions began November 4, 2008; jury sel ection began November 17, 2008; and opening statements began Dece mber 12, 2008. On November 14, 20 08, the court determined that there should be at least one deputy or correctional office r in the courtroom per defendant, and that the correctional officers should be in plainclothes. On Novemb er 17, just before jury selection began, it was called to the court’s attention that defendan ts were still handcuffed and in leg irons. The court ordered them unshackled, noting it had no evidence that any had made attempts to escape or would endanger anyone’s safety. On December 18, 2008, CDCR filed a writte n request for reconsideration of the order removing Dixon’s restraints. The mo tion asserted that Dixon had a documented history of violent and disruptive crimes, as well as a history of nonconforming behavior while incarcerated, and so would pose an unreasonable safety risk if he were not restrained during trial. CD CR recommended placing him in leg restraints or a shock belt, either of which would not be visible to the jury. CDCR represented that if Dixon were unrestrained during trial, CDCR could not guarantee public safety. If the court did not order Dixon restrained, CDCR requested that cu stody of Dixon be transferred to the Kern County Sheriff’s Department un til the conclusion of trial. A supporting declaration by the litigation coordinator at Kern Valley State Prison related that Dixon had a hist ory of violent and sex-relate d crimes, both in and out of prison, with a current contro lling case of criminal gang activ ity and a noncontrolling case of voluntary manslaughter. The declaration lis ted Dixon’s prior arrests, and related that while in CDCR custody, Dix on had received several discip linary violations for indecent exposure, masturbation with ex posure, indecent exposure w ith priors, disobeying written orders, tattoos, and battery on an inmate. He had been identified as a member of a criminal street gang, and was currently housed in an institution for inmates classified as level IV and requiring close s upervision. The declaration asserted that, because Dixon had a history of violent behavi or and had historically presen ted a lack of respect for law244. and CDCR’s rules, he presen ted a “reasonable likelihood” that he “may” become violent or attempt to escape, with the fact he wa s facing a sentence of life without parole increasing the escape risk. The declaration conc luded that he was considered a high risk of escape or violence, and should remain phy sically restrained in court, either by leg restraints or a shock belt. Without such restraint, CDCR was unable to guarantee the safety of court personnel and the public during trial. Counsel for Dixon opposed the motion. He noted that they had been in court for five or six weeks without Di xon causing any problems; in addition, there were three CDCR officers present, and usually three depu ties. Counsel observed that the portion of the probation report appended to the declaration in support of the motion was from seven years earlier; moreover, it appeared from th e dates that some of the information concerned Dixon’s father, not Dixon. Counsel noted that Dixon’s current sentence would expire in August 2009, and th at while evidence had yet to be presented in the current case, Dixon was not going to jeopardize his po ssible release date. Counsel further argued that Dixon would have to go by him before escaping, and that Senior Officer Sherman — a big man — was also nearby. The court stated it had not had any prob lems with any of the defendants. An officer from CDCR represented that they had noiseless plastic restraints. Counsel for Lee reiterated that Dixon had been in court for weeks w ith no physical or verbal outbursts; there was a deputy located behind each defendan t, with the closest one within six to eight feet of Dixon; Sherman, who was the People’s investigating officer, was at counsel table for the People, located at the barrier between the gallery a nd the counsel area; and there were three plainclothed correctional officers seated in the audience. After further discussion about CDCR’s alternative request that Dixon be transferred to county custo dy, the court asked the CDCR o fficer to show the plastic restraints to counsel for Dixon, while it did some further research on the issue. It245. expressed concern that it had not seen anyt hing from any defendant that would indicate any of them posed a threat. The court statedthe matter would remainunder submission. By letter dated January 13, 2009, CDCR requested the opportunity personally to appear and address the court’s concerns. It not ed that while the distri ct attorney’s office had been present at the earlier hearing, that office was not CDCR’s legal counsel or a party to CDCR’s motion. 132 In discussing the letter, the court observed it did not feel there was a need for physical restraints, but it set a further hearing on the matter. The hearing was held on January 26, 2009 . CDCR represented that Dixon had an extensive, violent criminal hi story, and had also received a total of 13 rules violation reports while in prison. In addition, Dixon was charged at the beginning of December with battery on an inmate in a mutual combat situation a nd with being out of bounds in prison, thus indicating a propensity to dis obey orders. CDCR fu rther noted Dixon had received some minor violations for tattooing and grooming despite prior warnings, thus showing impulsivity and an ability to defy authority, and he al so had repeated violations for sexual offenses and indecent exposure. CDCR asserted that the fact Dixon was classified at a very high level in CDCR’s classification system indicated Dixon’s violence and escape threat. CDCR arguedthat all these things established manifest need for physical restraints, which coul d be harmonized with Dixon’s ri ght to a fair trial because leg restraints would be silent and not seen by the jury. CDCR noted that Dixon was in civilian clothes. If he attempted to escape, CDCR officers in the courtroom would have to respond, and, if Dixon we re unrestrained, might have no option but to use deadly force to stop him. Because Dixon was in civilian cl othes, he would be able to blend in with anyone in the courtroom, whereas if he were restrained, the officers would be able to control him immediately rather than resorting to an escalated response or not being able to respond at all if Dixon slipped into a crowd and could not be seen.

132 CDCR is represented by the Attorney General (AG).246. The court observed that there were three uniformed deputies sitting behind defendants, within eight feet of Dixon; three correctional officers in plainclothes on either side of the exit doors at the back of the courtroom; and usually Senior Officer Sherman sitting “directly behind the Elmo.” CDCR re sponded that given Di xon’s past behavior inside and outside of pr ison, plus his recent behavior and the fact there did not need to be a risk of prejudice, additional security was warranted. Counsel for Dixon objected to Dixon bein g subjected to leg restraints. Counsel pointed out that they had been in court si nce early November, and Dixon had not caused any problems. The court agreed with that observation. Couns el pointed out that the other two defendants were unrestraine d, and that being physically restrained had psychological effects. The court again observed that none of the defendants had caused any problems in the court’s presence, and that the court ha d not been told of any problems in the courtroom. CDCR argued that case law did not require recent activity or disruptions in front of the court, and pointed to the rece nt charge of battery on an inmate. The prosecutor then observed that Johnson had beeninvolved in a situa tion while in court, and so “the whole idea that everybody’s been acting like choirboys throughout the course of this case is not correct.” The prosecutor also noted the statement Lee made to Johnson about Agustin in the back ha llway. The prosecutor statedhis agreement with CDCR’s position. The sheriff’s department joined in requesti ng physical restraints. It argued that if there was a large crowd in the gallery, th ere was the potential for a civilian-clothed individual to slip from the courtroom, possibly with help from someone, ev en with the number of officers present. It noted an inci dent in another trial in which there was a power outage and the emergenc y lights did not immediately co me on, and asserted such an event would provide Dixon an excellent opportunity to slip from the courtroom if unrestrained. It suggested that as all the evidence was presented and Dixon realized he247. might be convicted, the likelihood of an es cape attempt would increase, regardless of however well behaved Dixon previously had been. The prosecutor added that there had been issues with the behavior of some of the people in the audience during the course of the trial. 133 CDCR pointed out that both it and the sheriff’s department concurred on the risk assessment, and, while not binding, the fact that trained law enforcement had assessed the security risk shoul d be considered by the court. At the conclusion of argument, the court found a manifest need for appropriate restraints. Accordingly, it orde red that noise-free restraints be used on Dixon. It further ordered that CDCR continue to house Di xon and provide assist ance from the three correctional officers who had been present throughout the trial. When court resumed following the lunch recess, counsel for Dixo n announced that Dixon was wearing leg shackles. Later during trial, Deputy Maxwell testified concerning Lee’s statement to Johnson about Agustin. At the request of counsel for Lee and Dixon, the court admonished the jury, “[T]he fact that a defendant and/or witn ess is in custody and/or is physically restrained is not evidence. In other words, a person can be in jail because perhaps they can’t make bail. Do not specul ate about the reason. You must completely disregard this circumstance in deciding the issu es in this case. Do not consider it for any purpose or discuss it during your deliberations.” Jurors were again so admonished during final instructions.

133 We are not certain of what issues the pr osecutor meant. The record does reflect, however, that on December 22, 2008, the court noted it had been advised of some gang confrontations outside the courtroom. On December 29, 2008 , one of the jurors reported that someone had approached his wife at l unch, mentioned the person recognized the juror, and said one of the person’s neph ews was on trial and not to hang him.248. Dupree Jackson was in custody at the time he testified. Although he was already seated on the witness stand when the jury en tered the courtroom, he stood and was sworn in front of the jury. After breaks in his te stimony, he was again seated on the witness stand when the jury was brought in. Dixon was sworn outside of the jury’s presence. He was seated on the witness stand when the jury was brough t in, and jurors were informedthat in their absence, he had been advised of hi s constitutional rights and sworn. At one point, when his attorney asked to call two witnesses out of order, the c ourt stated, outside the jury’s presence, that after the witnesses testified, a break would be taken “to transition Mr. Dixon back to the stand outside the presence of the jury.” After this and other breaks, Dixon was again seated on the witness stand when th e jury was brough t back in. Emmanuel Burts, Jr., who was also in cust ody when he testified, was also sworn and seated on the witness stand outside the jury’s presence. As in Dixon’s case, the court informed jurors that Burts ha d been previously advised of his constitutional rights and

sworn. After the verdicts for Johnson were re ad, Johnson directed several expletives toward the jury and the court. He was re strained and removed from the courtroom. 2. Analysis “[T]he Fifth and Fourte enth Amendments [to the United States Constitution] prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discreti on, that they are justified by a state interest specific to a particular trial.” ( Deck v. Missouri(2005) 544 U.S. 622, 62 9.) Under state law, “a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless ther e is a showing of a manifest need for such restraints.” ( People v. Duran (1976) 16 Cal.3d 282, 290-291, fn. omitted ( Duran ); see also § 688 [“No person charged with a public offense may be subjected, before conviction, to any more restraint than is n ecessary for his detention to answer the charge.”].)249. We review a trial court’s decision to shac kle a defendant for abuse of discretion. ( People v. Cunningham , supra , 25 Cal.4th at p. 987.) Under Duran ’s standard, however, “the trial court’s discretion is relatively narrow. [Citation.] ‘Manifest need’ arises only upon a showing of unruliness, an announced intention to es cape, or ‘[e]vidence of any nonconforming conduct or plan ned nonconforming conduct which disrupts or would disrupt the judicial process if unrestrained ....’ [Citation.] Moreover, ‘[t]he showing of nonconforming behavior ... must appear as a matter of record .... The imposition of physical restraints in the abse nce of a record showing of viol ence or a threat of violence or other nonconforming conduct will be deemed to constitu te an abuse of discretion.’ [Citation.]” ( People v. Cox (1991) 53 Cal.3d 618, 651, di sapproved on another ground in People v. Doolin , supra , 45 Cal.4th at p. 421, fn. 22.) A trial court must make its own inde pendent determination of the need for physical restraints, and may not rely solely on the judgment of court security personnel ( People v. Mar (2002) 28 Cal.4th 1201, 1218; People v. Hill , supra , 17 Cal.4th at p. 841) or on “rumor and innuendo” ( People v. Cox , supra , 53 Cal.3d at p. 652). The court is not required to hold a formal evidentiary hearing on the matter, “but [can] base its determination on factual inform ation properly brought to its attention. [Citation.]” ( People v. Medina , supra , 11 Cal.4th at p. 731.) We find the requisite “‘manifest need’” missing in the present case. CDCR cited Dixon’s criminal history. A defendant’s recordof violence, or the fact he or she is a prison inmate, does not by its elf justify shackling. ( People v. Cunningham , supra , 25 Cal.4th at p. 986; Duran , supra , 16 Cal.3d at p. 293.) Nor, in our view, does the fact of gang membership. Dixon had received 13 ru les violations during his time in prison, but nothing suggests all 13 were acquired during the term he was serving at the time of trial. Rather, it appears CDCR took in to account those received du ring the term Dixon served for his voluntary manslaughter conviction. Despite CDCR’s insistence Dixon was violent, only one incident brought to the tria l court’s attention invol ved violence, and that250. was a mutual combat situation. 134 Nothing presented to the trial court supported CDCR’s assessment that Dixon was an escape risk. It appears he was char ged with “being out of bounds” during the same incident that gave rise to the battery charge. This merely suggests the fight occurred some where not readily visible to prison personnel. The other circumstances cited by CDCR, the prosecuto r, and the sheriff’s department — the length of the sentence faced by Dixon, who might pe rceive the evidence was going against him; the fact there had been problems involvin g audience members; Dixon being dressed in civilian clothing in a courtroom that might suffer a power outage; and that Dixon’s codefendants had not been “choirboys” — were either speculative or did not establish any individualized suspicion that Dixon himself would engage in nonconforming conduct. (See People v. Seaton (2001) 26 Cal.4th 598, 652.) Weighing against the foregoing was Dixon’ s behavior in connection with the court proceedings. There was absolu tely no suggestion any of hi s failures to obey rules or orders, or any violence, were related to courtroom proceedi ngs, past or present, or involved any of the personne l charged with courtroom secu rity or with, for example, transporting Dixon to and from his appearances. (Compare, e.g., People v. Lomax , supra , 49 Cal.4th at pp. 559-560, 562 [defendant’s unprovoked violent attack on bailiff in courtroom holding cell sufficien t to warrant restraints]; People v. Gamache , supra , 48 Cal.4th at pp. 368-370 [sufficient showing where defendant found with hacksaw, plans for homemade silencer, and written escape plan, and deputies intercepted letters suggesting defendant had plan s to disrupt proceedings]; People v. Wallace , supra , 44 Cal.4th at pp. 1049-1050 [showing sufficient where defendant had 16 rules violations while awaiting trial in county jail, and vi olations included five jailhouse fights and

134 Nothing suggests any of Dixon’s purpo rted sexual offenses involved force or violence or, for that matter, anyone other than himself and, we surmise, the person or persons who viewed his actions.251. possession of illegal razors]; People v. Lewis and Oliver , supra , 39 Cal.4th at p. 1032 [showing sufficient where based on credible reports defendant had attacked another inmate with typewriter and threatened to kill deputies, in addition to which trial court stated it had observed defend ant’s demeanor in court and believed defendant was not a compliant person]; People v. Cunningham , supra , 25 Cal.4th at pp. 987-988 [physical restraints proper, although defendant ha d not acted violently during courtroom appearances, where defendant had been foun d in possession of handcuff key, courtroom had no lock, and bailiff was sometimes requi red to turn away from defendant when preoccupied with various tasks]; People v. Pride (1992) 3 Cal.4th 1 95, 231-233 [showing sufficient where defendant, who had muscular build, made threats of violence and behaved hostilely toward deputies who transported him to and from courtroom]; People v. Livaditis (1992) 2 Cal.4th 759, 773- 774 [showing sufficient wh ere sheriff’s department received information from confidential info rmant about possible escape attempt by defendant with outside help, and defendant had history of prior escape attempts]; People v. Sheldon (1989) 48 Cal.3d 935, 945-946 [eviden ce indicated substantial risk defendant might attempt escape, thus justifying shackli ng, where defendant’s confederate was found to possess handcuff key, evidence from confid ential informant indicated defendant might also have access to such a ke y, defendant had co mmitted five assaults on other inmates, and defendant was facing life prison term in another state]; People v. Condley (1977) 69 Cal.App.3d 999, 1006 [mere s howing each defendant had prior felony convictions involving use of force or vi olence insufficient, standing alone, but reached threshold of “‘manifest need’” when co upled with two recent join t escape attempts and one defendant’s prior conviction for escape by me ans of force or violence] with, e.g., People
v. Cox , supra , 53 Cal.3d at p. 652 [although shack ling decision not based on general policy, neither did it show necessity for restraints where, while there was undercurrent of tension and charged emotion on all sides, record did not c ontain single substantiation of violence or threat of viol ence on defendant’s part].)252. People v. Hawkins (1995) 10 Cal.4th 920 (Hawkins ), overruled on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v. Blakeley (2000) 23 Cal.4th 82, 89, comes closest to supporting the trial court’s ruling. There, the California Supreme Court upheld the trial court’ s decision to physically rest rain the defendant, stating: “We agree with defendant that his re cord of violence, or the fact that he is a capital defendant, cannot alone ju stify his shackling. [Citation.] But in this case, defendant’s three reported fistfights in prison, together with his extensive criminal history, are sufficien t to support the trial court’s order to shackle defendant, inasmuch as they de monstrate instances of ‘violence or nonconforming conduct’ while in custody. The trial court was therefore within its discretion to orde r the shackling of defendant. “Defendant argues that three fist fights in jail after being housed there for one and one-half years is ‘ not unusual’ and was insufficient to justify the shackling. He claims rather that shackling is justified only when a defendant has attempted to disrupt courtroom proceedings or to escape from jail .... We have never placed su ch preconditions on the trial court’s exercise of its discretion. When, as in this case, there were multiple instances of violent and nonconforming be havior while in jail, as well as an extensive background of criminal and violent activ ity, we will generally not second-guess the trial court’s decisi on to restrain a defendant.” ( Hawkins, supra, 10 Cal.4th at p. 944.)
In Hawkins , the defendant’s history of violence , both in and out of custody, was significantly more extensive than that of Dixon. Hawkins ha d suffered eight prior felony convictions and had committed uncharged assaults, two of which involved him striking or fighting with police. In addition (althou gh it is unclear whether this incident had occurred at the time the court held the hearing on the sher iff’s request for physical restraints), the defendant was involved in an incident in ja il in which he threatened the lives of the guards. Moreover, a syring e had been discovered in his cell. (Hawkins , supra , 10 Cal.4th at pp. 937, 943.) We recognize that a trial court is entitled to take a cautious approach in light of all the information before it, and is not require d to wait until confronted with a violent or disruptive incident in front of the jury before ordering restraints. (See People v. Pride ,253. supra , 3 Cal.4th at p. 233.) In addition, the decision to impose physical restraints need not be based on the conduct of the defendant at the time of trial. ( People v. Livaditis , supra , 2 Cal.4th at p. 774.) In Dixon’s case, however, there was absolutely no evidence of violence or nonconforming conduct, or planned violence or nonconforming conduct, that “would disrupt the judicial process if unrestrained ....” ( Duran , supra , 16 Cal.3d at p. 293, fn. 11.) Significantly, the trial court twice found no cause to impose physical restraints, once even after information concerning Dixon’s conduct in prison was brought to its attention. The record does not suggest anything changed in any relevant regard between the trial court’s implied denial of CDCR’s request for restraints in December 2008, and its granting of the request in January 2009. The only apparent differences are that in January, a representative of CDCR appeared in person, and the prosecution — instead of merely submitting the matter as it did in December — now argued for imposition of restraints. This is not enough to warrant the change in the court’s ruling. (Compare People v. Pride , supra , 3 Cal.4th at p. 231 & fn. 11 [although many incidents cited in support of shackling order took pl ace before April, at which time court and counsel informally agreed phys ical restraints did not seem necessary, court apparently was not aware of them until J une hearing on sheriff’s reque st to impose restraints].) The People quote the statement in People v. Gamache , supra , 48 Cal.4th at page 370, that “[g]iven time, [the defendant ] might attempt anything. The trial court was entitled to prepare for that risk .” Considered in isolation, this statement would permit shackling in all circumstances, because, of c ourse, anything is possible. The statement must be read in the context in which it was made, however. In Gamache , the defendant had made, and arguably started to carry out, plans to disrupt court proceedings and even254. escape. The quoted statement responds to his argument that hi s escape plans should have been discounted as the pr oduct of a delusional mind. 135
The record shows there were six traine d individuals in the courtroom — three deputies and three CDCR officers — whose jobs were solely to provide security by monitoring defendants. The three deputies were within a few feet of defendants, and the correctional officers were between defendants and the exit. In addition, the bailiff and Senior Officer Sherman were usually in clos e proximity to defendants. Defendants did not object to the presence of so many guards (a s long as the correctional officers were in civilian clothes, a state of affairs with wh ich CDCR did not appear to have a concern), and Dixon does not now claim the number was unreasonable. (See People v. Ainsworth (1988) 45 Cal.3d 984, 1003-1 004.) There was no showing of “manifest need” for shackles, let alone shackles in addition to the extra security. The error was not prejudicial, howev er. The California Supreme Court has “consistently held that courtr oom shackling, even if error, [is] harmless if there is no evidence that the jury saw the restraints, or that the shackle s impaired or prejudiced the defendant’s right to testify or particip ate in his defense. [Citations.]” ( People v. Anderson , supra , 25 Cal.4th at p. 596.) Here, great care was taken to ensure the restraints would not be visible to the jury, and the reco rd contains no suggestion the efforts in this regard were unsuccessful or that Dixon’s participation in his defense was impaired. Clearly, too, the physical restraints di d not prevent Dixon from testifying in his own behalf. He says, however, that the leg restraints resulted in the “conspicuous”

135 The People also note John son’s verbal outburst when the verdicts were read. Again, the fact that anything is possibl e does not justify the imposition of physical restraints. Moreover, assuming an outburst by Johnson could somehow be relevant to a determination whether to restrain Dixon , it had not occurred when the trial court made its ruling. (See People v. Welch (1999) 20 Cal.4th 701, 739 [we review correctness of trial court’s ruling at time it was made and not by reference to eviden ce produced later].)255. procedure of his being the only witness to be seated and sworn before jurors entered the courtroom. As a result, he says, he and th e jurors could not help but perceive he was being treated differently from everyone el se, even gang member s or parolees like Jackson. We disagree. Jurors likely assumed Dixon was in custody, if not as a result of the Tec-9 incident, then from the nature of the pe nding charges. This is especially true since it was revealed, during Deputy Maxwell’s te stimony, that Lee and Johnson were in custody. More importantly, the record shows that Jackso n, although sworn in the presence of the jury, was already seated on th e witness stand whenever the jurors entered the courtroom. Burts, like Dixon, was seated and sworn outside the jury’s presence. Also like Dixon, jurors were in formed that he had been advise d of his rights. Rather than assuming Dixon was being treated differently because he was sh ackled, it is likely jurors assumed he (and Burts) were sworn outside th eir presence because of some reason having to do with the need to advise them of their rights, a process Jackson did not need to undergo because he was testifying pu rsuant to an immunity agreement. 136 There is simply no evidence any juror wa s aware Dixon was in leg restraints when he was seated and sworn outside the jury’s presence. (See People v. McWhorter , supra , 47 Cal.4th at pp. 375-376.) 137 Accordingly, and regardle ss of whether we apply the Chapman or the
Watson standard (see People v. Hernandez(2011) 51 Cal.4th 733, 744-746; People v.
Mar , supra , 28 Cal.4th at p. 1225, fn. 7), unde r the circumstances “the procedures

136 Jurors subsequently were informed de fendants had a constitutional right not to testify.
137 We will not assume jurors must have been aware of the physical restraints because the trial court gave an admonition on the subject. (See People v. Miller (2009) 175 Cal.App.4th 1109, 1115.) Th e admonition initially was gi ven in conjunction with Maxwell’s testimony, and was e qually aimed at the witnesses who were in custody when they testified.256. implemented could not have influenced ... the ... verdict. ‘[A]ny error was clearly harmless.’ [Citations.]” ( People v. Cox , supra , 53 Cal.3d at pp. 652-653.) C. Juror Misconduct Johnson and Dixon each contend the trial court erred by refusing to discharge two jurors for misconduct when th ey admitted talking about th e case together prior to deliberations. Dixon joins in Johnson’s argume nt, and Lee joins in both. The People say the trial court properly declin ed to excuse the jurors. 1. Background At the outset of jury selection, the tr ial court instructed pot ential jurors not to discuss the case or anything occurring in the courtroom with anyone prior to deliberations, to maintain an open mind, and not to form an opinion until deliberations. At breaks during trial, the court admonished jurors not to ta lk to anyone about the case, and to maintain open minds. On February 6, 2009, however, it was brought to the court’s attention that Juror No. 12443 36 had had a blog since at leas t August 3, 2008, and that she had included comments about jury selection, and then the trial itse lf, in her blogs of November 17, 20, and 24, 2008 ; December 5, 8, 11, 15, 16, 21, and 30, 2008; January 15, 23, and 29, 2009, and February 3, 2009. 138 On December 16, 2 008, the juror posted, “[T]his is my secret blog. I don’t know how secret it really is though. I want to tell secret jury things.” At least one of her posts drew a comment fro m a family member who “love[d]” the blogger’s “hypothetical question to a case that you can not talk about (let alone blog about).” One of he r posts referred to “everyone” she talked to who found out she was on the jury.

138 The blog, which was designated court’s exhibits, was brought to the prosecutor’s attention by a member of the media. The pr osecutor brought it to the attention of the court and defense the next day.257. The People sought to have the blogging juror removed. Counsel for Lee asked the court to question the blogging juror and Ju ror Nos. 1267086 and 1355968, with whom she carpooled, followed by an inquiry of the remaining members of the jury and alternates to investigate whether any had discussed the case in violation of the court’s admonitions. Counsel for the other defendants joined. After further discussion, Juror No. 12 44336 was brought into the courtroom. Under questioning by the court, she adm itted having a bl og and discussi ng on it the general court experience, but denied saying anyt hing about this case. Shown a printout of her blog entries, she apologized. She said she had not been talking about the case, but that “everybody” knew sh e was on jury duty. Asked specifically about the two jurors who carpooled with her, Juror No. 1244336 said th ey tried “really hard,” when in th e car together, “not to deliberate,” and she asserted they had “not done that.” There had been times, however, when they tried to get straight something they heard. The juror poin ted to a timeline that was on a poster and had been shown the jury during openi ng statements. She related that she could see it from where she sat, but on e of the people with whom she travelled could not, and so that juror would ask about a particular date, and Juror No. 1244336 would say what she saw on the timeline. 139 On other occasions, as the jurors drove on Highway 58, one of them would jokingly tell the driver not to get off on Cottonw ood. Juror No. 1244336 related that the jurors talkedabout the experience of being together, but did not express opinions concerning the case. The court had Juror No. 1244336 taken to a secretarial area. It then found she had committed serious and willful misconduct, and good cause to believe she would not be

139 The prosecutor subsequently explained that it had been the prosecution’s intent all along ultimately to mark the timeline, a double-sized poster used during the course of opening statements, as an exhibit and move it into evidence.258. able to perform her duties, including the obliga tion to follow the court’s instructions. The parties then stipulated that she was to be excused. Juror No. 1267086 was subse quently examined. She denied discussing the facts of the case with anyone. She commuted with Juror Nos. 1244336 a nd 1355968, and they did not deliberate or discuss th e case because the court had told them not to. They might have talked, however, about frustration because of the length of the case. Juror No. 1267086 saw their ta lk as “idle chitchat,” not anything that might jeopardize the case. She could not think of any di scussions regarding any court exhibits or timelines. She personally did not have an Inte rnet site or use the Internet socially, but she knew Juror No. 1244336 was a phot ographer and so emailed her a picture of a rainbow. Juror No. 1244336 said she had usedthe photograph on her site , but Juror No. 1267086 had not seen anything or posted an ything on the Internet to do with this case. Asked if she had had any di rect contact with any of th e jurors regarding anything about this case, Juror No. 1 267086 answered that they ha d discussed a little bit about some of the witnesses, along the lines of feeling a bit sympathetic about their circumstances. The juror assured the court thatnothing had affected he r ability to be fair to both sides, however; the way she saw it, they had not heard the whole case. She thought there were a lot of circ umstances that still had to be looked at equally and fairly both ways. She stated that to come to a j udgment at this point would be wrong. Juror No. 1267086 related that she and Juror No. 1244 336 had not discussed the facts of the case. Juror No . 1267086 did not know if Ju ror No. 1244336 had had any communication with anyone else; although they lived in the same town, they did not socialize. With respect to the picture she sent, Juror No . 1267086 did see it and some other pictures Juror No. 1244336 took, but that was all. She did not read anything or see any references about the case. Although sh e could have looked at the writings, she did not. Her computer was old and slow and she was in a hurry, so she just scrolled through259. the blog and found the picture an d logged off. She ha d not looked at the blog since then. It would not affect her ability to be fair and impartial. Juror No. 1355968 wa s then examined. She did not recall any conversations with anyone regarding the facts of the case. Aske d if she had any type of communication with Juror No. 1244336 through any Internet fo rmat, Juror No. 1355968 said no, that she did not even know how to use the Internet. She did not know wh at a blog was. She had not had any communication about any issue regardin g people, places, exhibits, or anything along those lines, with anyone on the jury or with th ird parties. All she ever did was to tell her boss that she did not kn ow when she would be back, and to ask her brother to feed her animals in case she could not get home one night. If anybody aske d her, she just told them no questions, and they ab ided by that request. Asked if she or any of the jurors had talked about any aspect of a witness’s testimony or a photograph or document lik e the board that was brought up during opening statements, Juror No. 1355968 said the on ly thing mentioned about the timeline was that they wished it wa s where they could see it better. She said it was her understanding it would be in the room when th ey went into deliber ations. Told by the court that was so if it came in to evidence, she assured the c ourt it did not affect her ability to be fair and impartial. She was more of a note-taker than some of the others, and she was concerned with chronology . She heard nothing said ab out emotions or feelings regarding any witness. The court had Juror No. 1244336 brought back in and excused her. The parties subsequently requested additio nal inquiry of Juror Nos. 12 67086 and 1355 968. Counsel for Dixon and Lee argued it was obvious some discussion had taken place, and since those jurors were not being candid about it, they should be dismis sed. Counsel for Lee further argued that having ornot having sympathy for certai n witnesses and their plight was also a violation of jurors’ oaths and the court’s admonitions.260. Juror No. 1267086 was retu rned to the courtroom. She admitted asking the two jurors with whom she carpooled if they had seen the timeline, because she never had a chance to look at it and they sat closer to it than she did. That was the extent of the conversation, except for Juror No. 1267086 saying she guessed they would be able to look at it during deliberations. She did not reca ll what the others said in response, “[j]ust nothing, really.” She did not think there had been any other communication with them about any other piece of evidence . With regard to sympathy regarding certain witnesses, the conversation was just that it was sad so many people in the wo rld had to go through such a hard time to live their liv es and to be brought up in hard situations. There were no discussions regarding a particular witness or defendant or a particular person’s plight and how it might have touched or impacted that person’s involvement in this case. Juror No. 1267086 related that for he r personally, it did not matter one way or the other. It was more along the lines of, she could have be en born anywhere in the world, and by the grace of God was born to a g ood mother and fath er and ended up where she did. The plight or station in life of any of the people who were discussed did not cause her to have sympathy or prejudice regarding the outcome of the case, and did not impact her ability to judge each defendant and each situ ation individually and fairly. Juror No. 1355968 wa s then brought in. She reca lled the issue of the timeline arising during a conversation about what would be brought into the ju ry room when they deliberated. They assumed th e timeline would be brought in, so the matter was just dropped. There was no discussi on about the significance of a ny particular date or time. The juror believed the subject arose becaus e they had started out with evidence concerning the first day, then jumped a bit, then returned to the first day. Juror No. 1355968 recalled passing the Cottonwood off-ramp, and someone — possibly her — pointing it out. Nothing further was said about it. The juror did not believe anything was said about sympathy regarding witnesses or anyone involved in the case. She did not talk about it with anyone. She believed she could still be fair and impartial.261. The prosecutor urged th e court not to judge Juro r No. 1267086’s credibility by what was said by Juror No. 1244336, whom the prosecutor termed “a complete liar.” He observed that Juror No. 1267086 appeared to be very serious about what was going on and the true nature of the undertaking, an d the court confirmed that her body language seemed to convey that. Th e prosecutor argued that she and Juror No. 1355968 both assumed — validly — that they would be able to view the timeline during deliberations, and they did not ask questions of each other about specific da tes or times for events. The prosecutor further argued that any feeli ng of sympathy was not about any specific individuals, but, in light of some of the te stimony concerning people’s situations, was merely a reflection of human nature. More over, an offhand comme nt about not being able to get off on Cottonwood did not show any kind of prejudgment. The prosecutor concluded that the conversations were “very innocuous stuff” and did not come close to what Juror No. 1244 336 had done, and that the other two jurors were credible and should not be removed from the case. Counsel for Johnson argued the jurors sh ould not be talking to each other about the case at all, and he joined in the arguments of counsel for Dixon and Lee. He asserted that all three jurors committ ed clear misconduct, thereb y raising a presumption of prejudice, and he requested that Juror Nos. 1267086 and 1355968 be removed and alternate jurors substituted. Co unsel for Dixon and Lee agreed. The court found, from the totality of the testimony of Juror Nos. 1267086 and 1355968, including their body language and the manner in which they testified, that there was no willful failure to comply with the court’s instructi ons or breach of duty or misconduct on their part. Further, if there wa s misconduct, the presumption of prejudice was rebutted by their testimony. The court fo und no substantial likelihood of prejudice on their part, or anything that would undermine the integrity of the trial or result in any unfairness. The jury was then brought in, and the court aske d if any of the other jurors had had any discussion or communication, by Internet or any other means, among262. themselves or with anyone else, about any piece of evidence or witness or the nature of the case. There were no po sitive responses. The court then explained why Juror No. 1244336 was excused, and reiterated the jurors’ oaths to try the case according only to the evidence presented, a nd the instructions and admonitions not to discuss the case before deliberations. The court admonished ju rors not to give the excusal any weight or regard, then an alternate was selected and sworn to take Ju ror No. 1244336’s place. The court also asked Juror Nos. 1267086 and 1355968 to drive separately , which they agreed to do. The timeline ultimately was admitted into evidence, and the prosecutor used it in summation. In the course of ju ry instructions, jurors were cautioned again not to decide the case based on sympathy or prejudice. Johnson subsequently moved for a new trial based on juror misconduct. His motion was denied. 2. Analysis “If at any time, whether before or after th e final submission of th e case to the jury, a juror ... upon ... good cause shown to the court is found to be unable to perform his or her duty, ... the court may order the juror to be discharged ....” (§ 1089.) A trial court’s decision whether to retain or discharge a juro r is reviewed for abuse of discretion, and will be upheld unless it falls outside the bounds of reason. ( People v. Earp , supra , 20 Cal.4th at p. 892; People v. Marshall (1996) 13 Cal.4th 799, 843.) Its discretion in this regard is broad ( People v. Boyette (2002) 29 Cal.4th 381, 462, fn. 19); however, “‘[b]efore an appellate court will find error infailing to excuse a s eated juror, the juror’s inability to perform a juror’s functions must be shown by the record to be a “demonstrable reality.” The court will not pr esume bias, and will up hold the trial court’s exercise of discretion on whether a seated juror should be discharged for good cause under section 1089 if supported by substantial evidence. [Citation.]’ [Citations.]”263. ( People v. Farnam , supra , 28 Cal.4th at p. 141; accord, People v. Martinez(2010) 47 Cal.4th 911, 943.) “An accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ‘“capableand willing to decide the ca se solely on the evidence before it”’ [citations].” ( In re Hamilton (1999) 20 Cal.4th 273, 293-294; Smith v. Phillips (1982) 455 U.S. 209, 217; see also Ristaino v. Ross (1976) 424 U.S. 589, 595, fn. 6.) “A defendant is ‘entitled to be tried by 12, not 11, impartial and unprejudiced jurors. “Because a defendant charged with a crime ha s a right to the unanimous verdict of 12 impartial jurors [citation] , it is settled that a conviction ca nnot stand if even a single juror has been improperly influenced.” [Citations.]’ [Citations.]” ( People v. Harris (2008) 43 Cal.4th 1269, 1303.) “[W]here a verdict is attack ed for juror taint, the focus is on whether there is any

overt event or circumstance, ‘open to [corro boration by] sight, hearing, and the other senses’ [citation], which suggests a likelihood that one or more memb ers of the jury were influenced by improper bias. [¶] When the overt event is a direct violation of the oaths, duties, and admonitions imposed on actual or prospective jurors, su ch as when a juror conceals bias on voir dire, consciously receiv es outside information, discusses the case with nonjurors, or shares impr oper information with other juro rs, the event is called juror misconduct. [Citations.]” ( In re Hamilton , supra , 20 Cal.4th at p. 294, fn. omitted.) Misconduct can be good cause for discharge of a juror under section 1089 ( People v. Ledesma (2006) 39 Cal.4th 641, 743) even if it is “‘neutral’” in the sense it does not suggest bias toward either side ( People v. Daniels , supra , 52 Cal.3d at pp. 863-864), but removal is not necessarily the re medy required in every case (see People v. Guzman (1977) 66 Cal.App.3d 549, 559). In determining whether di scharge is required in a particular case, it must be remembered that “[m]isconduct by a juror ... usually raises a rebuttable ‘presumption’ of264. prejudice. [Citations.]” (In re Hamilton , supra , 20 Cal.4th at p. 295; Remmer v. United States (1954) 347 U.S. 227, 229; People v. Guzman , supra , 66 Cal.App.3d at p. 559.) “Still, whether an individual verd ict must be overturned for jury misconduct or irregularity ‘“‘is resolvedby reference to the substantial likelihood test, an objective standard.’”’ [Citations.] Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, includin g the nature of the misconduct or other event, and the surrounding circumstan ces, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased agai nst the defendant. [Citations.] “The standard is a pragmatic one, mindful of the ‘day-to-day realities of courtroom life’ [citation] and of society’s strong competing interest in the stability of criminal verdicts [citati ons]. It is ‘virtually impossible to shield juro rs from every contact or influence that might theoretically affect their vote.’ [C itation.] Moreover, the jury is a ‘fundamentally human’ ins titution; the unavoidable fact that jurors bring diverse backgrounds, philosophies, and personalities into the jury room is both the strength and the weakness of th e institution. [Citation.] ‘[T]he criminal justice system must not be rendered impotent in quest of an everelusive perfection.... [Jurors] are imbued with human frailties as well as virtues. If the system is to function atall, we must tolerate a certain amount of imperfection short of actual bias.’ [Citation.]” ( In re Hamilton , supra , 20 Cal.4th at p. 296; see also People v. Danks (2004) 32 Cal.4th 269, 302- 303.) 140

140 Citing Remmer v. United States , supra , 347 U.S. at page 22 9, defendants contend California’s “‘substantial likelihood’” test c onflicts with United States Supreme Court authority that they say requires a showing of no actual prejudice. Remmer involved attempted jury tampering that did not come to li ght until after the jury re turned its verdict. In his motion for a new trial, the defendan t requested an eviden tiary hearing on the matter, but the trial court denied the new trial motion without holding a hearing. (Id . at pp. 228-229.) In remanding the matter for a hearing, the United States Supreme Court stated in part: “The presumption [of prejud ice] is not conclusive, but the burden rests heavily upon th e Government to establish, after no tice to and hearing of the defendant, that such contact with th e juror was harmless to the defendant. [Citations.]” ( Id . at p. 229.) The California Supreme Court has consistently adhered to the “substantial likelihood” standard, often st ating it in conjunction with Remmer (see, e.g., People v. Foster , supra , 50 Cal.4th at p. 1342; People v. Lewis (2009) 46 Cal.4th 1255, 1309), and has rejected the notion that standard is inconsistent with federal law ( People v. Loker265. “‘Whether prejudice arose from juror mi sconduct ... is a mixed question of law and fact subject to an appellate court’s inde pendent determination.’ [Citation.] However, ‘[w]e accept the trial court’ s credibility determinations and findings on questions of historical fact if supported by subs tantial evidence.’ [Citation.]” ( People v. Danks , supra , 32 Cal.4th at pp. 303-304.) With respec t to credibility determinations, the trial court’s assessment of jurors’ states of mind will not necessarily be dispositive, such as when there is inherent prejudice (see Holbrook v. Flynn (1986) 475 U.S. 560, 570 [courtroom security arrangement]) or where bi as is “clearly apparent” from the record ( People v. San Nicolas (2004) 34 Cal.4th 614, 646). While a juror’s declaration of impartiality may not be conclusive (Irvin v. Dowd (1961) 366 U. S. 717, 728; People v. Williams (1989) 48 Cal.3d 1112, 1129), neither is it irrelevant: “‘[One] may not know or altogether understand the impo nderables which cause one to think what he thinks, but surely one who is trying as an honest man to live up to the sanctity of his oath is well qualified to say whether he has an unbiasedmind in a certain matter.’ [Citations.]” ( Smith v. Phillips , supra , 455 U.S. at p. 217, fn. 7.) At the time of trial, secti on 1122 provided, in pertinent part: “(a) After the jury has been sworn and before the people’s opening address, the court sha ll instruct the jury generally concerning its basic functions, dutie s, and conduct. The instructions shall include, among other matters, admonitions that the jurors shall not converse among themselves, or with anyone else, on any subjec t connected with the tr ial; .... [¶] (b) The jury shall also, at each adjournment of the court before the submission of the cause to the jury, ... be admonished by the court that it is their duty not to converse among themselves, or with anyone else, on any subjec t connected with the trial, or to form or express any opinion thereon until the cau se is finally submitted to them.”

(2008) 44 Cal.4th 691, 747 ). Accordingly, we rejectdefendants’ claim. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)266. As previously described, defendants’ ju ry was so instructed. Violation of the admonitions contained in section 1122 is misco nduct; when the violati on is in the form of discussing the case with a nonjuror , it is serious misconduct. ( People v. Wilson (2008) 44 Cal.4th 758, 838, 840; In re Hitchings (1993) 6 Cal.4th 97, 117-118.) When, however, the “misconduct is ‘“‘of such a trifli ng nature that it could not in the nature of things have been prejudicial to the moving party and where it appears that the fairness of the trial has been in no way affected by such improprie ty, the verdict will not be disturbed.’”’ [Citation.]” ( People v. Stewart (2004) 33 Cal.4th 4 25, 510; see also People v. Wilson , supra , 44 Cal.4th at pp. 839-840.) In the present case, the trial court fo und Juror Nos. 1267086 and 1355968 to be credible, and to not have willfully failed to comply with the c ourt’s instructions. Substantial evidence supports these determin ations. Although there were technical violations of section 1122 and the court’s admonitions, the violations were not pervasive, in that they occurred only occasionally inso far as the record s hows with respect to these jurors, as opposed to Juror No. 1244336. They also were not substantive, as they did not involve deliberative-type discussions abou t the merits of the case. (Contrast People v.
Cissna (2010) 182 Cal.App.4th 1105, 1118.) For example, the timeline ultimately was admitted into evidence, and, according to th e testimony implicitly credited by the court, there were no discussions about particular dates or times. Moreover, insofar as we can ascertain from the printed copy of the blog that is containe d in the record, it was indeed possible for Juror No. 1267086 to view the photograph sh e emailed to Juror No. 1244336 without reading the latter’s blog entries. Defendants argue that, through their sy mpathy for what could only have been prosecution witnesses, the jurors exhibited actual bias, and so the trial court’s findings of fact established actual prejudice. We disa gree. Jurors are not precluded from thinking about a case prior to deliberations ( People v. Wilson , supra , 44 Cal.4th at p. 840); moreover, they are not instructed not to feel sympathy for someone involved, but rather267. not to base their decision on sympathy or prejudice. What matters is whether the individual can separate feelings and emo tions from his or her duties as a juror, and evaluate the evidence fairly and decide the case solely on the evidence presented at trial. Here, the trial court’s inquiry wa s more than adequate (compare People v.
Farnam , supra , 28 Cal.4th at pp. 139-142 with People v. McNeal (1979) 90 Cal.App.3d 830, 835-838), and that court was in the be st position to observe the jurors’ demeanors when it questioned them about their ability to perform their duties. In addition, it emphasized and reiterated pertinent admon itions, which, under the circumstances, dispelled the presumption of prejudice. (See People v. Tafoya (2007) 42 Cal.4th 147, 192-193.) The record establishes th at the conversations and comments engaged in by Juror Nos. 1267086 and 1355968 “‘[are] not, judged ob jectively, “inherently and substantially likely to have influenced the juror[s].” [Citation.] Nor [do they] objectively demonstrate a substantial likelihood, or even a reasonabl e possibility, of actual bias. [Citations.]’ [Citation.]” ( People v. Lewis , supra , 46 Cal.4th at p. 1309, fn . omitted.) Accordingly, any presumption of prejudice stands rebutted, and the trial court did not abuse its discretion in refusing to disc harge either or both jurors. 141 D. Jury Instructions The instructions given the ju ry in this case were lengthy and, as to some matters, quite complex. Defendants now raise claims of error with respect to several of them.

141 “Since we find no violation of section 1089, a statute th at [the California Supreme Court has] previously held is consistent with state and federal constitutional proscriptions, our conclusion also necessarily disposes of defendant[ s’] state and federal constitutional claims. [Citation.]” ( People v. Martinez , supra , 47 Cal.4th at p. 943, fn. 6.)268. 1. Unjoined Perpetrators Dixon says the trial court erred by gi ving CALCRIM No. 373 (Other Perpetrator), or at least excluding Agustin and Jackson from its purview. He says the instruction discouraged jurors from discussing the effect of potential future prosecution (and fear thereof) on those witnesses’ credibility, because some speculation is inherent in any full consideration of the impact of potential prosec ution of an accomplice. The error, he says, deprived him of his state and federal c onstitutional rights to due process and a fundamentally fair trial, as well as his ri ght to confront witnesses and to present a meaningful defense. Johnson and Lee join . The People say the claim of error was forfeited by defendants’ failure to object to the instructi on, but in any event, when considered in context with additional acc omplice instructions, CALCRIM No. 373 was
proper.

a. Background Sara Agustin and Dupree Jackson testif ied under agreements granting them use immunity, with respect to this case, for everything except perj ury. Agustin testified to an understanding that the district attorney’s o ffice had conferred immunity from the use of any statements made while testif ying in this case and any future prosecution, other than for perjury. She further te stified she had not been granted immunity from federal prosecution or deportation. Jackson testifie d to an understanding that he could not be prosecuted for any type of criminal activity he might admit, while testifying, to having done in the past. He further testified he had not been given any other immunity agreements, including with respect to potential federal prosecution. The written immunity agreements were ad mitted into evidence. During the jury instruction conference , the trial court decided it would give CALCRIM No. 373, but strike the last bracketed sentence. When asked, no party voiced any objection.269. Jurors subsequently were instructed that, in dete rmining the credibility of a witness, they could consider anything that reasonably tended to prove or disprove the truth or accuracy of the testimony, including, inter alia, whether the witness’s testimony was influenced by a personal interest in how the case was decided, and whether the witness was promised immunity or leniency in exchange for his or her testimony. Jurors were also instructed to de termine whether Agustin was an accomplice to the crime of conspiracy to participate in a criminal street gang, as charged in count nine, and participating in a street gang, as charged in count eleven. If so, ju rors were told they could not convict defendants of those char ges based on her uncorroborated testimony alone. Jurors were further told that if the crime of conspi racy to commit the murder of David “Fumes” Taylor was committed, then Ja ckson was an accomplic e to that crime, and defendants could not be co nvicted of that offense base d on Jackson’s uncorroborated testimony alone. Jurors were told thatthe testimony of one accomplice could not corroborate the testimony of another accomplice, and to view with caution any statement or testimony of an accomplice that te nded to incriminate defendants. Pursuant to CALCRIM No. 373, jurors were told: “The evidence shows that another person or other persons may have been involved in the commission of the crimes charged against the defendants. There may be many reasons why someone who appears to have been involved might not be a co-defendant in this particular trial. You must not speculate about whether that other person has or those other persons have been or will be prosecuted. Your duty is to decide whethe r the defendants here on trial have committed the crimes charged.” The court omitted the bracketed op tional sentence, which would have provided: “[This instruction does not apply to the testimony of < insert names of testifying coparticipants >.]” It did so despite the Be nch Note advising that, if other alleged participants in the crime are testifying, the instruction should not be given or the bracketed portion should be given, exempting th e testimony of those w itnesses. (Judicial270. Council of Cal., Crim. Jury Instns. (2007-2008) Bench Notes to CALCRIM No. 373, p. 153.) b. Analysis The People are correct thatdefendants forfeited their claim when they failed to object to, or request modification o f, CALCRIM No. 373 at trial. ( People v. Moore , supra , 51 Cal.4th at p. 1134; People v. Sully , supra , 53 Cal.3d at p. 1218.) 142 In any event, defendants’ claim fails on the merits. “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” [Citation.]’ [Citation.]” ( People v. Smithey (1999) 20 Cal.4th 936, 987.) Accordingly, “[i]n assessing a claim of instru ctional error or ambiguity, we consider the instructions as a whole to determine whether there is a reasonable lik elihood the jury was misled. [Citations.]” ( People v. Tate (2010) 49 Cal.4th 635, 696; see Estelle v. McGuire , supra , 502 U.S. at p. 72.) 143

142 For the most part, the cases we and th e parties cite address CALCRIM No. 373’s counterpart, CALJIC No. 2.11.5. That instruction provides: “There has been evidence in this case indicating that a person other than a defendant was or may have been involved in the crime for which that defendant is on trial. [¶] There may be many reasons why that person is not here on trial. Therefore, do not speculate or guess as to why the other person is not being prosecuted inthis trial or whether [he] [she] has been or will be prosecuted. Your [sol e] duty is to decide whether the People have proved the guilt of [each] [the] defendant on trial.” (Italics adde d.) We reject defendants’ assertion that CALCRIM No. 373 is significantly (and impr operly) more restrictive than CALJIC No. 2.11.5 because the latter includes the italicized langu age. Accordingly, cases dealing with CALJIC No. 2.11.5 are on point.
143 Some cases state that “‘[i ]n determining whether an in struction interferes with the jury’s consideration of ev idence presented at trial, we must determine “ what a reasonable juror could have understood the charge as meaning .” [Citation.]’” ( People v. Cox , supra , 53 Cal.3d at p. 667, italics added; see also, e.g., People v. Garrison (1989) 47 Cal.3d 746, 780; People v. Fonseca (2003) 105 Cal.App.4th 543, 549.) Garrison , which was cited by People v. Cox , supra, 53 Cal.3d at p. 667 (which in turn was cited at p. 549 of Fonseca ), citedCalifornia v. Brown , supra , 479 U.S. 538, as authority for the271. The California Supreme Court has consisten tly held that an unmodified version of CALJIC No. 2.11.5 (and, by parity of reas oning, CALCRIM No. 3 73) should not be given when, as here, a nonprose cuted participant testifies, be cause the jury is entitled to consider the lack of prosecution, and incen tive the witness had to lie, in assessing the witness’s credibility. (E.g., People v. Williams (1997) 16 Cal.4th 153, 226-227; People v. Hardy (1992) 2 Cal.4th 86, 189-190; People v. Cox , supra , 53 Cal.3d at p. 667 & fn. 13; People v. Carrera (1989) 49 Cal.3d 291, 312 & fn. 10; People v. Sheldon , supra , 48 Cal.3d at p. 946.) That court has been less c onsistent as to whether, when given together with instructions that assist jurors in assessing witness cred ibility, such as were given in the present case, the giving of the unmodified instruction does not constitute error (e.g., People v. Moore , supra , 51 Cal.4th at pp. 1133-1134; People v. Williams , supra , 49 Cal.4th at pp. 457-458; People v. Crew (2003) 31 Cal.4th 822, 845; People v. Brown (2003) 31 Cal.4th 518, 560-561; People v. Lawley , supra , 27 Cal.4th at pp. 162-163; People v. Price , supra , 1 Cal.4th at p. 446), or constitutes error that was harmless whether assessed under Watson or Chapman (e.g., People v. Cornwell , supra , 37 Cal.4th at p. 88; People v. Williams , supra , 16 Cal.4th at p. 227; People v. Hardy , supra , 2 Cal.4th at pp. 190-191; People v. Sully , supra , 53 Cal.3d at pp. 1218-1219; People v.
Carrera , supra , 49 Cal.3d at p. 313; People v. Garrison , supra , 47 Cal.3d at p. 780).

standard. In Boyde v. California (1990) 494 U.S. 370, however, Brown was one of the cases cited by the United States Supreme Court as providing differing and hence a “less than clear” “legal standard for reviewing jury instructions claimed to restrict impermissibly a jury’s considerati on of relevant evidence ....” ( Boyde , at pp. 378, 379.) Finding it important “to settle upon a single formulation” to be empl oyed in deciding this kind of question, the high court determined that “the proper inquiry ... is whether there is a reasonable likelihood that the jury has app lied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” ( Id . at pp. 379, 380.) Although later United States Supreme Court cases appeared to again endorse the “reasonable juror” standard, Boyde ’s “reasonable likelihood” st andard was reaffirmed in Estelle v. McGuire , supra , 502 U.S. at page s 72-73, footnote 4.272. In the present case, the trial court shou ld have expressly ex cluded Agustin and Jackson from CALCRIM No. 373’s ambit. In light of the other instructions given on witness credibility and accomplice testimony, however, we find no r easonable likelihood jurors were misled in terms of their consid eration of the testimony of those witnesses. The instructions, considered as a whole (which the jury was admonish ed to do), correctly stated the law. 144 2. Accomplice Liability Dixon contends the accomp lice liability instructions we re prejudicially erroneous because (1) they gave jurors no guidance on how to dete rmine the degree of murder for a nonkiller, and (2) they inadvertently included overly br oad language on the natural-andprobable-consequences doctrine. Johnson an d Lee join. The People say defendants forfeited any claim of error by failing to object to the instruc tions, but in any event, the instructions as a whole correc tly stated the law and if erro r occurred, it was harmless.

a. Background The evidence adduced at trial is se t out in the statement of facts, ante . It suggested that, assuming defendants were the perpetrato rs of the charged offenses, one or more acted as an aider and abettor rather than the actual shooter. During the jury instruction conference , no one objected to, or requested any modification of, CALCRIM Nos. 400 (Aiding an d Abetting: General Principles) or 401 (Aiding and Abetting: Intended Crimes). W ith respect to CALCRIM Nos. 402 (Natural and Probable Consequences Do ctrine (Target and Non-Targ et Offenses Charged)) and 403 (Natural and Probable Consequences (O nly Non-Target Offens e Charged)), counsel for Lee argued defendants were charged with everything possible and Lee had asked for instructions on lesser offenses, so nothing else was left. As a result, the People withdrew their request for those instructions.

144 Were we to find error, we would c onclude it was harmless under any standard.273. In addition to aiding and abetting, the People sought to argue conspiracy as a theory of liability for th e nonconspiracy charges. 145 Over Lee’s objection to combining CALCRIM and CALJIC instructions, the Peop le withdrew their request for CALCRIM No. 417 (Liability for Coconspi rators’ Acts) in favor of a modified version of CALJIC No. 6.11 (Conspiracy — Joint Responsibility). The jury subsequently was instructed that defendants were being prosecuted for first degree murder under two theories: one, that the murders were willful, deliberate, and premeditated; and two, that the murders we re committed by lying in wait. Both were explained to the jury, and prem editation and deliberation were de fined. Jurors were also instructed that the duration of lying in wait had to be substantial enough to show a state of mind equivalent to deliberation or premeditation. Jurors were also instructed on transferred intent, to wit, if the defendant intended to kill one pers on but by mistake or accident killed another person, the crime (if any) was the sa me for the unintended killing as for the intended k illing. With respect to the multip le-murder special circumstance, jurors were instructed that if they found a defendant was guilty of first degree murder but was not the actual killer, they ha d to find he acted with the in tent to kill in order to find the special circumstance true. On the subject of aiding and abetting, th e court instructed, pu rsuant to CALCRIM No. 400: “A person may be guilty of a crime in two ways: “One, he or she may have direc tly committed the crime. I will call that person the perpetrator. “Two, he or she may have aided and abetted a perpetrator who directly committed the crime.

145 The prosecutor noted that the natu ral-and-probable-consequences doctrine provided a third theory of liability, but clarified the pros ecution was not asking for it in this case.274. “ A person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. Under some specific circumstances if the evide nce establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commi ssion of the first crime .” (Italics added.)
Pursuant to CALCRIM No . 401, jurors were to ld, in pertinent part: “To prove that the defendant is gui lty of a crime based on aiding and abetting that crime, the People must prove that: “One, the perpetrato r committed the crime; “Two, the defendant kn ew that the perpetrato r intended to commit the crime; “Three, before or during the co mmission of the crime the defendant intended to aid and abet the perp etrator in committing the crime; “And, fourth, the defend ant’s words or conduct did, in fact, aid and abet the perpetrator’s commission of the crime.
“Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission of that crime.” Jurors were also instructed that conspi racy was a crime and was charged in count nine, and that when the prosecution had no t specifically charged conspiracy but had introduced evidence of conspira cy to prove liability for othe r offenses or to introduce hearsay statements of coconspirators, the evid ence could be consideredfor that purpose. Jurors were told that “[a] c onspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of murder and/or shooting into an occupied vehicle, and with th e further specific intent to commit those crimes ....” As relevant to defendants’ claim of error on appeal, the court further instructed: “Whether conspiracy is charged or uncharged, each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if that act or declaration is in furtherance of the object of the conspiracy.275. “The act of one conspirator pursu ant to or in furtherance of the common design of the conspiracy is the act of all conspirators. “A member of a conspiracy is not only guilty of the particular crime that to his or her knowledge his or her confederates agreed to and did commit, but is also liable for the natural and probab le consequences of any crime or act of a co-conspirator to fu rther the object of the conspiracy even though that crime or act was not inte nded as a part of the agreed-upon objective and even though he or she was not present at the time of the commission of that crime or act.
“You must determine whether the de fendant is guilty as a member of a conspiracy to commit the originally agreed-upon crime or crimes and, if so, whether the crime alleged in a ll counts, except for Counts 6 and 10 [both charging Dixon alone with be ing an ex-felon in possession of a firearm], was perpetrated by co-con spirators in furtherance of that conspiracy and was a natural and proba ble consequence of the agreed-upon criminal objective of that conspiracy. “In determining whether a conseque nce is natural and probable, you must apply an objective test based not on what the defendant actually intended, but on what a person of r easonable and ordinary prudence would have expected would be likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. “A natural consequence is one whic h is within the normal range of outcomes that may be reasonably expect ed to occur if nothing unusual has intervened. “Probable means likely to happen.” The jury retired to deliberate on the afte rnoon of March 17, 20 09. On the morning of March 19, 2009, jurors sent out a note, with the time marked as 10:53 a.m., requesting “reading of 1st and 2nd degree murder & inte rpretation of the law.” Over counsel for Lee’s objection to doing anything other than directing the jury to CALCRIM Nos. 520 (First or Second Degree Murd er With Malice Aforethought (Pen. Code, § 187)) and 521 (First Degree Murder (Pen. Code, § 189)), the c ourt explained to the jury that it could not comment on the evidence, then re read those two instructions and invited jurors to write276. an additional note if they desired further assist ance. At 3:56 that afternoon, the jury sent out a note stating it had reached a verdict. b. Analysis Defendants did not object to, or request modification or clarification of, the instructions they now challenge . Generally, “[a] party may not complain on appeal that an instruction correct in law and responsi ve to the evidence was too general or incomplete unless the party has requested appr opriate clarifying or amplifying language. [Citation.]” ( People v. Lang (1989) 49 Cal.3d 991 , 1024.) At least two courts have held that a challenge to the “equally guilty” la nguage of CALCRIM No . 400 is forfeited by failure to request clarifying language. ( People v. Lopez(2011) 198 Cal.App.4th 1106, 1118-1119; People v. Samaniego , supra , 172 Cal.App.4th at p. 1163.) We find it appropriate to discuss defendants’ claims on the merits, however, as defendants say the instructions are not correct in law and so implicate various constitutional rights. (See People v. Smithey , supra , 20 Cal.4th at pp. 976-977, fn. 7; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7.) We turn first to the “e qually guilty” language of CA LCRIM No. 400. A direct perpetrator and an aider and abettor are equally guilty of a crim e in the sense that an aider and abettor does not escape treatment as a principal merely because he or she is not the actual perpetrator. Thus, section 31 provi des in part: “All persons concerned in the commission of a crime, ... whether they dire ctly commit the act c onstituting the offense, or aid and abet in its commission, or, not bein g present, have advised and encouraged its commission, ... are principals in any crime so committed.” The problem is, the “equally guilty” language of the in struction can be read as telling jurors that the direct perpetrator and aider and abettor must be found guilty, if at all, of the same crime(s) and degree(s) ther eof. So, for example, if defendants’ jury found Johnson guilty, as the shoot er, of first degree murder in the killing of Vanessa Alcala, the jury would have to find Dixon and Lee also guilty of first degree murder once277. jurors determined they were involved. This is not the law. The California Supreme Court has held that, depending on the circ umstances, an aider and abettor can be convicted of a crime greater than the offense for which the actual perpetrator is liable. ( People v. McCoy (2001) 25 Cal.4th 1111, 1118-1119, 1122.) Several appellate courts have held that under the same reasoning, an aider and abettor can be convicted of a crime lesser than the offense for which the ac tual perpetrator is liable. ( People v. Lopez , supra , 198 Cal.App.4th at p. 1118; People v. Nero (2010) 181 Cal.App. 4th 504, 513-518; People v. Samaniego , supra , 172 Cal.App.4th at pp. 1163- 1164.) As a result, CALCRIM No. 400, as given in defendant s’ case, was ambiguous, and potentially misleading, on this point. 146 Nevertheless, we find no prejudic e from the error. As stated in People v. Samaniego , supra , 172 Cal.App.4th at page 1165, “An instruction that omits or misdescribes an element of a charged offense vi olates the right to jury trial guaranteed by our federal Constitution, and the effect of this violation is measured against the harmless error test of Chapman [, supra ,] 386 U.S. 18, 24. [Citation.] Under that test, an appellate court may find the error harmless only if it de termines beyond a reas onable doubt that the jury verdict would have been the same absent the error. [Citation.] CALCRIM No. 400 misdescribes the prosecution’s burden in proving the aider and abettor’s guilt of first degree murder by eliminating its need to prove the aider and abettor’s (1) intent, (2) willfulness, (3) premeditation and (4) delib eration, the mental states for murder.” The Samaniego court found the error harmless be yond a reasonable doubt because the jury necessarily re solved the issues against the defe ndant under other instructions. ( People v. Samaniego , supra , 172 Cal.App.4th at p. 1165 .) Here, jurors necessarily found defendants acted willfully with intent to kill; they were instructed, pursuant to

146 The instruction has since been modifiedto remove the “equally guilty” language. (Judicial Council of Cal., Crim . Jury Instns. (2011) p. 167.)278. CALCRIM No. 521, that a defendant acted willfu lly if he intended to kill; and, pursuant to CALCRIM No. 702, that, in order to find a multiple-murder special circumstance as to a nonkiller, they had to find the defendant acted with the intent to kill . Because jurors found all multiple-murder special circumstan ces true as to all defendants, jurors necessarily determined each defendant had the specific intent to kill. (See Samaniego , at p. 1165.) Jurors also necessarily found defendants acted deliberately and with premeditation. CALCRIM No. 401 required ju rors to find the perpetrator committed the crime, the defendant knew th e perpetrator intended to commi t the crime, the defendant intended to aid and abet the perpetrator in committing the crime either before or during the commission of the crime, and the defendan t’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. The instruction further explained that “[s]omeone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to and does, in fact, ai d, facilitate, promote, encourage, or instigate the pe rpetrator’s commission of that crime.” We agree with the court in People v. Samaniego , supra , 172 Cal.App.4th at page 1166, which said: “It would be virtually impossible for a person to know of another’s intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation, which is all th at is required. [Citation.]” That the error was found prejudicial in People v. Nero , supra , 181 Cal.App.4th at pages 518-520, does not assist defendants. In that case, the jury expressly asked if an aider and abettor could be fou nd guilty of a lesser offense. Although the correct answer was “yes,” the trial court twice reread CALJ IC No. 3.00, including the statement, “‘Each principal, regardless of the extent or manner of the participation, is equally guilty.’” (Nero , at p. 512, italics omitted .) By contrast, CALCRIM No. 400, as given in the present case, uses more ambiguous language and, in any event, jurors expressed no279. confusion on this point. (See People v. Lopez , supra , 198 Cal.App.4th at p. 1120, fn. 6.) 147 Defendants next complain the instructions failed to tell jurors the nonkiller must personally premeditate or the killer’s prem editated murder must be natural and foreseeable to the nonkiller. 148 The People did not proceed on a natura l-and-probable-conse quences theory of liability insofar as aiding and abetting was con cerned. “To be guilty of a crime as an aider and abettor, a person must ‘aid[] the [d irect] perpetrator by acts or encourage[] him [or her] by words or gestures.’ [Citations.] In addition, except under the natural-andprobable-consequences doctrine [citations], ... the person must give such aid or encouragement ‘with knowledge of the criminal purpose of the [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of,’ the crime in question. [Citati ons.] When the crime at issue requires a specific intent, in order to be guilty as an aider and abettor the person ‘must share the specific intent of the [direct] perpetrator,’ [ 149 ] that is to say, the person must ‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or

147 The question asked by the ju ry about first and second degree murder is too general for us to assume jurors were confused by a nything related to aider-and-abettor liability. This is especially true since, insofar as the record shows, the rereading of CALCRIM Nos. 520 and 521 remedied whatever confusi on or problem existed. Neither instruction has anything to do with aiding and abetting, and the jury di d not ask for further, or more specific, clarification or assistance.
148 In People v. Favor (2012) 54 Cal.4th 868, 871-880 , the California Supreme Court rejected a virtually identical argument with respect to attempted premeditated murder. Favor is not necessarily dispositive of defenda nts’ claim because, as the high court recognized, there are different degrees of murder, whereas attemp ted murder is not divided into degrees, and attempted premed itated murder and attempted unpremeditated murder are not separate offenses. ( Id . at pp. 876-877.)
149 The direct (actual) perpetrator must harbor whatever mental state is required for each crime charged. ( People v. Mendoza (1998) 18 Cal.4th 1114, 1123.)280. encouragement with the intent or purpose of facilitating the [direct] perpetrator’s commission of the crime.’ [Citation.]” ( People v. Lee (2003) 31 Cal.4th 613, 623-624;

see People v. Beeman (1984) 35 Cal.3d 547, 560 ( Beeman ).) In short, “proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus — a crime committed by the direct perpet rator, (b) the aider and abettor’s mens rea — knowledge of the direct pe rpetrator’s unlawful intent a nd an intent to assist in achieving those unlawful ends, and (c) the ai der and abettor’s actus reus — conduct by the aider and abettor that in fact assists th e achievement of the crime. [Citation.]” ( People v. Perez(2005) 35 Cal.4th 1219, 1225.) We conclude CALCRIM No. 401, especially when considered in conjunction with CALCRIM No. 521, adequately convey ed the premeditation requirement. Cases addressing application of the doct rine vis-à-vis aiding and abetting are applicable even though the natural-and-probable-conseque nces doctrine came into play with respect to the conspir acy theory of liability. When application of the natural-and-pr obable-consequences doctrine is triggered in a conspiracy case, the trier of fact mustfind, in addition to the elements of the conspiracy, that the defendant’s coconspirator committed an offe nse other than the offense that was the object of the c onspiracy, and the offense committed by the coconspirator was a natural and probable c onsequence of the target offense. (See People v. Prettyman (1996) 14 Cal.4th 248, 262.) “The determination whether a particular criminal act was a natural and probable cons equence of another criminal act ... requires application of an objective rather than subjective test. [C itations.] This does not mean that the issue is to be consider ed in the abstract as a question of law. [Citation.] Rather, the issue is a factual question to be resolv ed by the jury in light of all of the circumstances surrounding the incident. [C itations.] Consequently, the issue does not turn on the defendant’s subjectiv e state of mind, but depends upon whether, under all of the circumstances presented, a reasonable pe rson in the defendant’s position would have281. or should have known that the charged offense was a reas onably foreseeable consequence of the act [that was the object of the conspiracy]. [Citations.]” ( People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) The crime ultim ately committed need not have been specifically planned or agreed upon, nor need it have been su bstantially certain to result from commission of the planned act. (Id . at p. 530.) The de fendant need not have actually foreseen the additional crime; the question is whether, judged objectively, the additional crime was reas onably foreseeable. ( People v. Mendoza , supra , 18 Cal.4th at p. 1133.) As previously noted, defendants’ jury was told that “[a] conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of murder and/or shooting into an occu pied vehicle, and with the further specific intents to commit those crimes ....” “[A] ju ry’s finding of the dual specific intents required for conviction of conspiracy to murd er necessarily establishes that the target offense of murder was premed itated and deliberated ....” ( People v. Cortez(1998) 18 Cal.4th 1223, 1238.) We find it difficult to s ee how a murder committed as a result of a conspiracy to shoot into an occupied vehicle could be anything but premeditated and foreseeable. In any event, the conspiracy instructions, coupled with CALCRIM No. 521, were adequate to ensure juro rs found the nonkiller(s) persona lly premeditated and/or that the perpetrator’s commission of premeditated murder was natu ral and foreseeable to the nonkiller(s). Finally, defendants say the trial court erred by including the final, optional sentence of CALCRIM No . 400, to wit: “Under some sp ecific circumstances, if the evidence establishes aiding and abetting of one crime, a person may also be found guilty of other crimes that occurred during the commi ssion of the first crime.” They say this language failed to identify and define target and nontarget crimes, and so risked a finding of guilt based on intent to aid and abet unspecified conduct.282. In People v. Prettyman , supra , 14 Cal.4th 248, the trial court instructed the jury that one who aids and abets is not only guilty of the crime aided and abetted, but is also liable for the natural and probable consequen ces of the commission of such crime. The court directed the jury to determine whether the defend ant was guilty of the crime originally contemplated, and, if so, whethe r any other crime charged was a natural and probable consequence of such orig inally contemplated crime. (Id . at pp. 257-258.) The California Supreme Court found that “once the trial court ... chose to in struct the jury on the ‘natural and probable consequences’ ru le, it had a duty to issue instructions identifying and describing each potential target offense suppo rted by the evidence. By failing to do so, the trial court erred.” ( Id . at p. 270.) Because “a conviction may not be based on the jury’s generalized belief that the defendant intendedto assist and/or encourage unspecified ‘nefarious ’ conduct,” “the trial court should identify and describe the target or predicate crime that the de fendant may have aided and abetted.” ( Id . at p. 268, fns. omitted.) “If the court fails to identify and definethese target offenses, we must then determine whether there is a ‘“reasonable likelihood” that the jury misapplied the trial court’s instructions on the “natural and probable consequences ” doctrine ....’ [Citation.]” ( People v. Prieto , supra , 30 Cal.4th at p. 252; accord, People v. Prettyman , supra , 14 Cal.4th at p. 272.) No such reasonable likeli hood exists here. In the first place, the trial court never mentioned the natural-and-prob able-consequences doctrine in conjunction with aiding and abetting liability, never identif ied the specific circumstances under which a defendant might be found guilty of other cr imes, and never directed the jury to make any sort of findings on the issue. In th e second place, when it explained aiding and abetting and conspiracy theories of liability to the jury, the prosecutor did not even discuss, let alone rely on, the natural-and-pr obable-consequences doctrine in the context of aiding and abetting. (Compare People v. Lucas (1997) 55 Cal.App.4th 721, 731-732.) Under the circumstances, the challenged lang uage neither introduced the concept of283. natural and probable consequenc es nor raised a risk jurors might base a finding of guilt on intent to aid and abet some unspecified “nefarious” conduct. “Where, as here, the court gives a legally correct, but irrelevant, instruction, the error ‘is usually harmless, having little or no effect “other than to add to the bulk of the charge.”’ [Citation.]” ( People v. Lee (1990) 219 Cal.App.3d 829, 841.) 3. In-Custody Informant Lee says the trial court erred by m odifying CALCRIM No. 336 (In-Custody Informant). He says the modification effec tively negated the required caution and close scrutiny the jury was to give all of Dupree Jackson’s testimony, th ereby denying Lee his right to a fair trial. Johnson and Dixon join . The People say the court properly tailored the instruction.

a. Background Jackson’s testimony is set out in the statement of facts, ante . He was in and out of custody during the timeframe in which the ch arged offenses occurred and at the time he obtained some of the information he gaveto law enforcement and about which he testified. However, he and Di xon were both in custody at the time Dixon, according to Jackson, made statements ab out some of the offenses. During the jury instructi on conference, the prosecutor drafted a modification of CALCRIM No. 336 to specify to which statemen ts the instruction applied. She explained that she did so because Jacks on was a percipient witness as well as a jailhouse informant. Counsel for Johnson expressed concern that the modification would lead to juror confusion about whether benefits Jackson was receiving or would receive could be considered. The court found the People’s vers ion of the instruction to be appropriately worded, and ruled it would be given. Accord ingly, it subsequently instructed the jury (with the People’s modification italicized): “The testimony of an in-custody informant should be viewed with caution and close scrutiny. In ev aluating such testimony you should284. consider the extent to wh ich it may have been influe nced by the receipt of or expectation of any benefits from the party calling that witness. This does not mean that you may arbitrarily disr egard such testimony, but you should give it the weight to which you find it to be entitled in light of all of the evidence in the case. “An in-custody inform ant is someone other than a co-defendant or percipient witness or accomplice or co-conspirator whose testimony is based on statements the defendant a llegedly made while both the defendant and the informant were held w ithin a correctional institution. “Dupree Jackson is an in-custody informant. Kern County Jail is a correctional institution. This instruction relates only to the statements allegedly made to Dupree Jackson by Joseph Dixon on or between August 24th, 2007, and August 29th , 2007, as testified to by Dupree Jackson .” (Italics added.) b. Analysis Section 1127a states, in pertinent part: “(a) As used in this section, an ‘in-custody in formant’ means a person, other than a codefendant, pe rcipient witness, accomplice, or coconspirator whose testimony is ba sed upon statements made by the defendant while both the defendant and the inform ant are held within a correctional institution. “(b) In any criminal trial or pr oceeding in whic h an in-custody informant testifies as a witness, upon th e request of a party, the court shall instruct the ju ry as follows: “‘The testimony of an in-custody in formant should be viewed with caution and close scrutiny. In ev aluating such testimony, you should consider the extent to wh ich it may have been influenced by the receipt of, or expectation of, any benefits from th e party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.’” CALCRIM No. 336 and its counterpart, CA LJIC No. 3.20, embody this statute. The People’s modification of CALCRIM No . 336 is consistent with the definition of an in-custody informant contained in su bdivision (a) of section 1127a. Defendants say, however, that subdivision (a) of the statute defines who is an in-custody informant,285. not the testimony that must be viewed with caution. Defendants argue that logically speaking, a witness’s status as an in-cust ody informant who has go ne to the authorities makes his or her entire testimony suspect, no t merely his or her testimony regarding a purported jailhouse conversation. We believe the exclusion in section 1127a , subdivision (a), of particular types of witnesses, and the inclusion in the statute of the basis for the witn ess’s testimony, shows defendants’ argument to be incorrect. (See People v. Bivert (2011) 52 Cal. 4th 96, 120- 121 [discussing legislative history of § 11 27a and distinction Le gislature deliberately drew between types of witnesses].) Who qu alifies as an in-custo dy informant under the statute cannot be separated from th e basis of his or her testimony. In any event, defendants were not harmed by the modification. Jurors were given a panoply of instructions on how to judge the credibility of witne sses that applied to Jackson’s testimony, including that, in eval uating a witness’s testimony, jurors could consider such factors as whether the witne ss’s testimony was influenced by bias or a personal interest in how the case was decided, whether the witness had been convicted of a felony, and whether the witness was promisedimmunity or leniency in exchange for testimony; that Jackson was an accomplice as to any conspiracy to murder David “Fumes” Taylor, and accomplice testimony had to be corroborated and was to be viewed with caution; and to consid er with caution any unrecorded inculpatory statement by a defendant. Under the circumstances, CA LCRIM No. 336 was duplicative, and the standard credibility instructions were ade quate to guide the jury’s assessment of Jackson’s testimony. (See People v. Hovarter (2008) 44 Cal.4th 983, 1021-1022; People v. Payton (1992) 3 Cal.4th 1050, 1059.) Defendants say, however, that the trial court’s modification of CALCRIM No. 336 led jurors to believe they n eed not give special scrutiny to Jackson’s testimony, which had the effect of negating the various other instructions. We disagree.286. “When instructions are claimed to beconflicting or ambiguous, ‘we inquire whether the jury was “reasonably likely” to have construed them in a manner that violates the defendant’s rights.’ [Citation.] We look to the instructions as a whole and the entire record of trial, including the arguments of counsel. [Citations.] We assume that the jurors are ‘“‘intelligent persons and capable of understanding and correlating all jury instructions ... given.’”’ [Citation.]” ( People v. Franco (2009) 180 Cal.App.4th 713, 720; see Estelle v. McGuire , supra , 502 U.S. at p. 72; Boyde v. California , supra , 494 U.S. at pp. 378-380 [discussi ng, and rejecting, various formulations of applicable standard of review, incl uding that contained in Francis v. Franklin , supra , 471 U.S. at p. 316].) Our examination of the entire record of trial sh ows no reasonable likelihood defendants’ jurors were misled concerning their assessment of Jackson’s testimony. Assuming error, it was not prejudicial under stat e law and did not deprive defendants of a fair trial. (See People v. Bivert , supra , 52 Cal.4th at pp. 119-121, People v. Carpenter (1997) 15 Cal.4th 312, 393, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) 4. Gang Evidence and Enhancements Dixon contends the instructions given on gang evidence and enhancements were erroneous in several respects. First, he sa ys the limiting instructi on for “‘evidence of gang activity’” allowed jurors to consider all such gang evidence — including the gang experts’ testimony and the charged gang crimes — in deciding whether defendants acted with the intent, purpose, and know ledge required to prove the gang-related crimes and not just the gang enhancements , and that the trial court neve r even informedjurors they could not consider other crimes or gang ac tivities that were not proven at least by a preponderance of the evidence. Second, he says another limiting instruction allowed jurors substantively to cons ider evidence — including gang expert testimonial hearsay and anecdotes — that is supposed to be lim ited to the nontruth ba sis of the opinion by287. telling jurors they had to determine whethe r the information on which the expert relied was true and accurate. Third, Dixon says yet another instruction allowed jurors to consider a charged crime, of wh ich they found a defendant guilty, to decide the issues of the gang’s primary activities and pattern of gang activity, and presumably knowledge of gang activity for purposes of the gang spec ial circumstance. Dixon says the errors deprived him of his right to a fair trial by reducing the prosecution’ s burden of proof and creating a strong risk of conviction based on irrelevant and inflammatory evidence and criminal disposition, and deprived him of his c onfrontation rights by permitting consideration of gang expert testimonial hearsay. Johnson and Lee join. The People say that, when the challenged instructions are considered in context, there is no reasonable likelihood the jury misunderstood any of them in the manner alleged.

a. Background The testimony of the various gang experts is set out at length, ante . Some limiting instructions were given to portions of th eir testimony, as well as other gang-related evidence, at the time the testimony was pres ented to the jury. For instance, when Sherman was testifying concerning Dixon’s prio r offenses, the trial court admonished the jury that the eviden ce was received only to show a pr edicate offense or pattern of criminal activity. The prosecutor made it cl ear that evidence of offenses committed by nondefendants was for the same limited purpose. In addition, the jury was informed that Sherman’s testimony concerning defendants’ criminal records was being received for the limited purpose of Sherman’s opinion whethe r the particular defendant was a gang member at the time the crime was committed. When Dixon’ s attorney cross-examined Sherman about the circumstances of the offens e that gave rise to Dixon’s manslaughter conviction, the prosecutor poin ted out that the ev idence on which Sherman was relying was hearsay, and came in as a basis for his opi nion and not for the truth of the matter. During the jury instructi on conference, the court and counsel had an extensive discussion about CALCRIM No. 1400 (Active Participation in Criminal Street Gang288. (Pen. Code, § 186.22(a))). The prosecutor and Johnson’s attorn ey expressly agreed with the notion that if the jury found a defendant guilty of a crime in this case, that crime could be considered in deciding whethe r one of the group’s primary activities was commission of that crime and whether a patte rn of criminal gang activity had been proved. Neither counsel fo r Lee nor counsel for Dixon objected. When CALCRIM No. 1403 (Limited Purpose of Evidence of Gang Activity) was discussed, the defense did not object to the court’s proposedwording of the instruction. During a later discussion of the gang instructions, there were no obj ections to CALCRIM Nos. 1401 (Felony or Misdemeanor Committed for Benefit of Crimin al Street Gang (Pen. Code, § 186.22(b)(1) (Felony) & § 186.22(d) (Felony or Misdemeanor))) or 1403. Based on Sherman’s testimony concerning the predicate offenses, the prosecution revised CALCRIM No. 1400, and the court an d counsel had a further discussion about the instruction. Although sp ecifically asked by the court, no defense attorney voiced any problem with the proposed wording of the in struction, or the modifications that were made later. Insofar as is relevant to this issue, the trial court ultimately gave the following instructions:

 CALCRIM No. 220 : “Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unle ss I specifically tell you otherwise.”

 CALCRIM No. 303 : “During the trial certain evidence was ad mitted for a limited purpose. You may consider that evidence only for that purpose and for no other.”

 CALCRIM No. 332 : “In evaluating the believability of an expert witness, follow the instructions about the believability of witnesse s generally. And, in addition, consider the expert’s knowledge, skill, experi ence, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether information on which the expert289. relied was true and accurate. You may disreg ard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.”

 CALCRIM No. 360 : “Certain medical and law enforcement personnel testified that in reaching his or her particular conclusions as an expert witness that he or she considered statements made by variou s individuals. You may consider those statements only to eval uate the expert’s opinion. Do not consider those statements as proof that the information contained in the statements is true.”

 CALCRIM No. 375 : “The People presented ev idence that the defendant [Dixon] allegedly committed th e offenses of voluntary mans laughter and/or shooting at an inhabited dwelling house, both of which are alleged to have occurred in 2001 that were not charged in this case. You may cons ider this evidence on ly if the People have proved by a preponderance of the evidence that the defenda nt, in fact, committed the uncharged offenses. Proof by a preponderance of evidence is a different burden of proof than proof beyond a reasonable doubt. [¶] ... [¶] If you conclude that said defendant committed the uncharged offenses, that conclu sion is only one factor to consider along with all of the other evidence. It is not su fficient by itself to prove that the defendant is guilty of the crimes charged or that the enhancements or allegations have been proved. The People must still prove each charge, enhancement, and allegation beyond a reasonable doubt.”

 CALCRIM No. 736 : “The defendants are charged with the special circumstance of committing murder while an activ e participant in a criminal street gang, in violation of Penal Code Section 190.2(a )(22). [¶] To prove that this special circumstance is true, the People must prove th at: [¶] One, the defendant intentionally killed James Wallace and/or Vane ssa Alcala and/or Baby Boy Al cala; [¶] Two, at the time of the killing the defendant was an active participant in a criminal street gang; [¶] Third, the defendant knew that the members of the gang engaged in or have engaged in a pattern of criminal gang activity; [¶] And, fourth, the murder was carried out to further290. the activities of the criminal street gang. [¶] Active participation means involvement with a criminal street gang in a way that is mo re than passive or in name only. [¶] The People do not have to prove that the defendant devoted all or a substantial part of his time or efforts to the gang or that he was an actual member of the gang. [¶] A criminal street gang will be defined in another instru ction to which you should refer.”

 CALCRIM No. 1400 : “The defendant is ch arged in Count 9 with conspiracy to participate in a criminal street gang and in Count 11 with participating in a criminal street gang, in violation of Penal C ode Section 186.22(a). [¶] To prove that the defendant is guilty of this crime as alleged in Count 11 and in orde r to define the crime which defendants are charged with conspiring to commit, Count 9, th e People must prove that: [¶] One, the defendant actively particip ated in a criminal stre et gang; [¶] Two, when the defendant participatedin the gang he knew that members of the gang engaged in or have engaged in a pattern of criminal gang activity; [¶] And, three, the defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang either by: [¶] A, directly and activ ely committing a felony offense; [¶] Or, B, aiding and abetting a felony offense. [¶] ... [¶] A criminal street gang is any ongoing organization, association, or gr oup of three or more persons, whether formal or informal: [¶] One, that has a common name or common id entifying sign or symbol; [¶] Two, that has as one or more of its primary activities the commission of the sale and possession for sale of narcotics, ... and/or possession of con cealed and loaded firearms, and/or threats, intimidation of witnesses and victims, ... and/or shootings and/or murders; [¶] And, three, whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity. [¶] ... [¶] A pattern of criminal gang activity as used here means: [¶] One, the commission of or attempted commission of or conspiracy to commit or any conviction of any combination of two or more of the following crimes: Shooting at a residence, voluntary manslaughter, attempted murder by gang member, possession of an assault rifle, and/or possessi on of cocaine for sale .... [¶] ... [¶] If you291. find the defendant guilty of a crime in this cas e, you may consider th at crime in deciding whether one of the group’s primary activitie s was commission of that crime and whether a pattern of criminal gang activity has been proved. [¶] ... [¶] Felonious criminal conduct means committing or attempting to commit any of the following crimes: Murder, possession of a firearm by a felon as to defendant Joseph Di xon only, shooting at an occupied vehicle, robbery, sales of illega l narcotics, assault with a firearm, and/or conspiracy, other than conspiracy to co mmit a violation of Penal Code Section 186.22(a).”

 CALCRIM No. 1401 : “If you find a defendant gu ilty of the crimes charged in Counts 1, 2, 3, 4, 5, 6, 7, 8, 9, or 10, ... you must then decide whether for each crime the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in a ssociation with a criminal street gang.... [¶] To prove this allegation the People must prov e that: [¶] One, th e defendant committed or attempted to commit the crim e for the benefit of, at the di rection of, or in association with a criminal street gang; [¶] And, two, the defendant intended to assist, ... further, or promote criminal conduct by gang members. [¶] A criminal street gang is defined in another instruction to wh ich you should refer.”

 CALCRIM No. 1403 : “You may consider evidence of gang activity, ... only for the limited purpose of deciding whether the defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related crimes or enhancements and special circumstance allegati ons charged. You may also consider this evidence when you evaluate th e credibility or believability of a witness and when you consider the facts and information relied on by an expert witness in reaching his or her opinion. You may not consider this evid ence for any other purpose. You may not conclude from this evidence that a defendant is a person of bad character or that he has a disposition to commit crime.”292. b. Analysis “[A] defendant who believes an instruc tion requires clarification or modification must request it. [Citation.]” ( People v. McKinnon , supra , 52 Cal.4th at p. 670; cf. People v. Hernandez(2004) 33 Cal.4th 1040, 1051-1052 [tri al court has no duty to give limiting instruction on gang evidence on own motion].) Defendants made no such request here, despite ample opportunity to do so. Accordingly, most, if not all, of their claims have been forfeited. Nevertheless, we address them on the merits in light of defendants’ alternative claims of ineffec tive assistance of counsel. We turn first to CALCRIM No. 1403. This instruction — which, as written, gives the option of allowing considera tion of evidence of gang activ ity in deciding whether the defendant acted with the intent, purpose, an d knowledge that are required to prove the gang-related crimes, enhancements, and sp ecial circumstance allegations charged 150 — has been held to be “neither contrary to law nor misleading.” ( People v. Samaniego , supra , 172 Cal.App.4th at p. 11 68.) We see no reason, in the present case, to have limited the instruction to the gang enhancements, since the evidence showed the charged crimes were all gang related, in addition to which defendant s were charged with active participation in a criminal street gang. 151 As the evidence of gang membership and activity was clearly releva nt with respect to the charged offenses (see People v. Funes (1994) 23 Cal.App.4th 1506, 15 16, 1518-1519), the trial court appropriately instructed the jury on the purposes for which that evidence could be considered.

150 The instruction reads, in part: “You ma y consider evidence of gang activity only for the limited purpose of deciding whether: [¶] [][The defendant acted with the intent, purpose, and knowledge that are required to prove the gang-related (crime[s]/ [and] enhancement[s]/ [and] sp ecial circumstance allegations) charged(;/ .)].”
151 The instruction given in People v. Samaniego , supra , 172 Cal.App.4th 1148 did not permit consideration of th e evidence of gang activity with respect to gang-related crimes, but, unlike here, there was no active participation charge under section 186.22, subdivision (a). ( Samaniego , at pp. 1153, 1166.)293. In light of the abundance of eviden ce that was admitted for limited purposes and/or as to fewer than all defendants, the tr ial court reasonably chose to remind jurors of limiting instructions given at the time the evid ence was admitted, rather than attempting to include all that informa tion in an instruction such as CALCRIM No. 1403. We recognize the complex ity involved; as we previously observed, however, “[w]e assume that the jurors are ‘“ ‘intelligent persons and capable of understanding and correlating all jury instructions ... given.’”’ [Citation.]” ( People v. Franco , supra , 180 Cal.App.4th at p. 720.) Moreover, “[w]e credit jurors with intelligence and common sense [citation] and do not assume that these virtues will aban don them when presen ted with a court’s instructions. [Citations.]” ( People v. Coddington , supra , 23 Cal.4th at p. 594.) Here, jurors had the attorneys’ arguments and instru ctions to guide them, and they expressed no confusion with respect to the purpose(s) for which various evidence permissibly could be used. Defendants complain, however, that the trial court failed to instruct jurors that they could not consider other crimes or gang ac tivities that were not proven by at least a preponderance of the evidence. To the contrary, jurors were so instructedwith respect, specifically, to Dixon’s prior crimes. Beyond that, jurors were instructed that if the People had the burden of proving something, this meant they had to prove it beyond a reasonable doubt unless the court specifically in structed otherwise. Jurors were also instructed that before they could rely on circumstantial evidence to conclude a fact necessary to find a defendant guilty had be en proved, they had to be convinced the People had proved each fact essential to th at conclusion beyond a reasonable doubt. “‘“[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.” [Citation.]’ [Citation.]” ( People v. Smithey , supra , 20 Cal.4th at p. 987.) Jurors were admonished to co nsider the instructions toge ther, and we find no reasonable294. likelihood they were misled by, or misapplied, the instructions as defendants now claim. (See People v. Tate , supra , 49 Cal.4th at p. 696.) Nor did the instructions improperly permit substantive use of testimonial hearsay. 152 Under Gardeley , supra , 14 Cal.4th 605 at pages 61 8-619, the gang experts properly related in detail the hear say on which they relied. (See People v. Valdez , supra , 58 Cal.App.4th at pp. 510-511 .) “Most often, hearsay problems will be cured by an instruction that matters admitte d through an expert go only to the basis of his opinion and should not be considered for their truth. [Citation.]” ( People v. Montiel (1993) 5 Cal.4th 877, 919.) CALCRIM No. 360 is adequate fo r this purpose and does not conflict with CALCRIM No. 332. “[J]uries are properly instructed to assess critically the disclosed factual basis of an expert opinion.” ( People v. Felix (2008) 160 Cal.Ap p.4th 849, 860.) Several appellate opini ons have held that Crawford does not apply to hearsay forming the basis for an expert’s opinion, re asoning variously that he arsay in support of expert opinion is not the sort of testimonial hearsay the use of which Crawford condemned ( People v. Ramirez(2007) 153 Cal.App.4th 1422, 1427) or that hearsay relied on by experts in formulating their opin ions is not testimonial because it is not offered for the truth of the facts stated ( People v. Cooper (2007) 148 Cal.App.4th 731, 747; People v. Thomas (2005) 130 Cal.App.4th 1202, 1210 ) and the expert is subject to cross-examination concerning his or her opinions ( People v. Sisneros (2009) 174 Cal.App.4th 142, 154). In People v. Hill , supra , 191 Cal.App.4th 1104, by contrast, the court determined that “where basis evidence consists of an out-of-court statement, the jury will often be required to determine or as sume the truth of the statement in order to utilize it to evaluate th e expert’s opinion.” ( Id . at p. 1131, fn. omitted.) Nevertheless, the

152 Defendants acknowledge that the court gave CALCRIM No. 360, but say it only applied to “statements” made to an expert and not to documents on which the expert relied. Defendants fail to identify any documents that did not consist of written statements.295. court found itself bound by Gardeley and similar California Supreme Court precedent, and so concluded the trial court in the case before it proper ly determined the challenged basis evidence did not violate the hearsay rule or confrontation clau se, since it was not offered for its truth but only to ev aluate the expert’s opinions. ( Hill , supra , at p. 1131.) The court further found that most of the hear say relied upon by the gang expert in its case would not be considered“testimonial” under Crawford . ( Hill , at pp. 1135-1136.) The United States Supreme Court itsel f has produced fractured opinions concerning Crawford ’s application to expert tes timony and the information on which such testimony is based. (See, e.g., Williams v. Illinois (2012) 567 U.S. ___ [132 S.Ct. 2221]; Bullcoming v. New Mexico (2011) 564 U.S. ___ [131 S.Ct. 2705]; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305.) Thus far, the California Supreme Court has attempted to make sense out of these opinions in cases involving basi s evidence such as autopsy and laboratory analysis reports. ( People v. Rutterschmidt (2012) 55 Cal.4th 650, 655-656, 658-659; People v. Dungo (2012) 55 Cal.4th 608, 612, 617-618; People v. Lopez (2012) 55 Cal.4th 569, 573, 579-582; see also People v. Geier, supra, 41 Cal.4th at pp. 593-594, 596-607.) It has yet to do so, however, with resp ect to the basis evidence of a gang expert, whose testimony is usually base d, at least in part, in his or her own experience and investigation. Until the California Supreme Court says otherwise, Gardeley remains good law. Not every conversation betw een a gang member and a gang expert constitutes “interrogation” or results in “testimonial” evidence for conf rontation clause purposes within the meaning of Crawford and its progeny. Under neither analysis did the instructions here improperly permit the substan tive use of testimonial hearsay in violation of defendants’ constitutional rights. Finally, defendants assert jurors should not have been permitted to use the charged crimes to infer gang primary ac tivities and pattern of criminal gang activity with respect to the knowledge/active participation elem ents of the gang special circumstance296. allegations. We find no merit to this argumen t. The current, charged offenses may be used both to show a defendant’s involvem ent in a gang was more than nominal or passive, as required to show active participation ( People v. Castenada (2000) 23 Cal.4th 743, 752-753), and in determining whether the People have proven a pattern of criminal gang activity ( People v. Loeun (1997) 17 Cal.4th 1, 10-11, People v. Bragg (2008) 161 Cal.App.4th 1385, 1401; see Gardeley , supra , 14 Cal.4th at p. 625). Although these cases do not deal with the gang special ci rcumstance, we see no reason it should be treated any differently, and we reject defendants’ claim of “bootstrapping the special circumstance on the char ged offenses.”
III C OUNT N INE Count nine charged all three defendants with conspiracy to commit any or all of four separate criminal offens es — assault with a firearm (§ 245, subd. (a)(2)), murder (§ 187), robbery (§ 211), and active participation in a crimin al street gang (§ 186.22, subd. (a)). No victim(s) or particular dates (other than March 2-Au gust 22, 2007) were specified. The jury re turned separate guilty verdicts, and separately found true one or more overt acts, with respect to each defe ndant and each object of the conspiracy. Defendants were each sentenced on count nine for conspiracy to commit first degree murder. They now challenge some of the verdicts and the sentences. A. Conspiracy to Commit Robbery Lee says the jury’s finding of conspira cy to commit robbery must be reversed because there is no overt act related to the r obbery. As a result, he claims, the entire sentence on count nine must be vacated as violative of section 654, because nothing shows the jury found a conspi racy to murder (for which se ntence was imposed) that was unrelated to murders and attempted murders for which Lee was separately sentenced. Johnson and Dixon join. The People conced e the conspiracy to commit robbery lacks a valid overt act, but say substantial evidence supports the trial court’s determination that297. the count was based on a separate act of c onspiracy to murder Fu mes (David Taylor); hence, section 654 does not bar imposition of sentence. 1. Background The following overt acts were alleged as to all purported objects of the conspiracy charged in count nine:

 Overt act one: “On or about Marc h 21, 2007, DAVID LEE and/or COREY JOHNSON were present near the corner of Inyo and Monterey Streets in Bakersfield, California.”

 Overt act two: “On or about Marc h 22, 2007, DAVID LEE and/or COREY JOHNSON were present at Deborah and Joe Streets in Bakersfield, California.”

 Overt act three: “On or about Ap ril 19, 2007, COREY JOHNSON and/or DAVID LEE and/or JOSEPH DIXON were pres ent in the 1200 and/ or 1300 block of McNew Court in Bakersfield, California.”

 Overt act four: “On or about Ap ril 19, 2007, COREY JOHNSON left clothing near [a specified address in the 1200 block of] McNew Co urt in Bakersfield, California.”

 Overt act five: “On or about Augus t 11, 2007, COREY JOHNSON and/or JOSEPH DIXON and/or DAVID LE E were present in a red au tomobile on South Real Road in Bakersfield, CA.”

 Overt act six: “On or about and betw een August 9, 2007 and August 18, 2007, COREY JOHNSON, and/ or JOSEPH DIXON and/or DAVID LEE were together in a motor vehicle in Bakersfield, California with a firearm.” As previously set out in the statement of facts, Agustin and Jackson both testified about defendants robbing Reese’s house. 153 According to Agustin , this occurred after

153 A location that was also referred to in the testimony as the “dodie spot” or “chronic house,” i.e., a house from whic h high grade marijuana is sold.298. she and Johnson moved back to Bakersfield from San Jose and moved in with P.G. and Dreenie, thus making it between late June and early July 2007. Acco rding to Jackson, it took place in the summer of 2007, pe rhaps toward the end of July. Agustin and Jackson also testified abou t defendants’ reaction to Raybo’s killing, which occurred on August 9, 2007. Accordi ng to Agustin, Johnson told her that a Mexican individual had shot Raybo, and th at Johnson called this person on his cell phone. When the person refused to meet w ith him, Johnson threatened him. He and Dixon found out that the individual’s father lived out on the bluffs near Bakersfield College, and the two of them went to that location. They were walking toward what they believed to be the house of the person’s father, but left when they were seen. Agustin did not recall Johnson saying Lee was with them. According to Jackson, he heard that Keshawn Johnson, Fumes, and John B were behind the killing. Keshawn Johnson told Jackson that they set Raybo up, then Fumes s hot him. Jackson subsequently got together with all three defendants, then the four of them took guns and drove up to where Fumes’s father was believed to live, as Jackson believe d Fumes was hiding out there. They talked about killing Fumes for revenge. During argument to the jury, the prosecutor told jurors they had a choice of crimes defendants could have comm itted that would lead to th em being found guilty of conspiracy to commit assault, but that in order to convict de fendants, jurors had to agree on a particular incident. Th e prosecutor asked jurors to find defendants guilty of conspiracy to commit an assau lt with a deadly weapon on Fu mes and/or his father. The prosecutor acknowledged Jackson was an ac complice, but argued Agustin’s testimony, taken together with the cell phone tower evid ence, provided ample corroboration. The prosecutor further stated that if jurors did not find a conspiracy to assault Fumes and/or his father with a deadly weap on, they could choose any of the other shootings, including the Bonner shooting and the McNe w Court murders, as long as they unanimously agreed.299. The prosecutor told jurors they needed to make a finding on an overt act, and asked them, if they used the Fumes shooting, to find overt act six to be true. 154 With respect to conspir acy to commit murde r, the prosecutor acknowledged there were plenty of incidents from which to choose . She again noted the jurors had to agree on which particular act, then asked them to find conspiracy to murder Fumes and/or his father, since the other murders were alrea dy covered by the substantive crimes. With respect to conspiracy to commit robbery, the prosecutor argued that the charge involved the robbery of Reese. She informed the jury that overt act six applied. Jurors were instructed that they all had to agree that at least one alleged overt act was committed by at least one alleged member of the conspiracy, but did not all have to agree on which overt acts were committed or who committed them. They were further instructed that they could not convict a defendant of conspira cy unless they all agreed the defendant conspired to commit at least one of the crimes alleged as objects of the conspiracy, and all agreed which crime he conspired to commit. All six overt acts alleged were found true, with respect to all alleged objects of the conspiracy, as to Johnson. As to Dixon, overt acts one and tw o were found not true as to any crimes. Overt act four was found not true as to conspiracy to commit active participation in a gang, murder, or robbery. Overt act five was found not true as to conspiracy to commit robbery. 155 As to Lee, only overt act four was found not true, and then only as to conspiracy to actively participate in a gang.

154 The prosecutor also noted that Jo hnson and Lee could be found guilty of conspiracy to commit assault with a deadly weapon based on the incident of March 22, 2007, in which they went to a location on Deborah Street to shoot people from a rival gang, and that that was cove red by overt act two.
155 When the clerk read the verdicts, she readthat overt act five was found true with respect to Dixon and conspiracy to commit robbery. The wr itten verdict contained in the clerk’s transcript, however, shows the finding on overt act five was left unsigned with300. Each defendant was senten ced, on count nine, to a fully consecutive term of 25 years to life in prison (doubl ed to 50 years to life in Dixon’s case due to his prior strike conviction) for conspiracy to comm it first degree murder. During Dixon’s sentencing hearing, the court explained that, while count nine alleged a conspiracy to violate several Penal Code sections, conspira cy to commit murder carried the greatest term of imprisonment. In connection with count nine, th e court further ordered each defendant to pay restitution, in an amount to be determined by the probation department, to David Taylor (Fumes) or his father “for related losses.” 2. Analysis “A criminal conspiracy exists when tw o or more persons agree to commit a crime and do some overt act in furtherance of the agreement. [Citations.]” ( People v. Cockrell (1965) 63 Cal.2d 659, 667; §§ 182, 184.) However, “acts committedby conspirators subsequent to the completion of the crime wh ich is the primary object of a conspiracy cannot be deemed to be overt acts in furtherance of that conspiracy.” ( People v. Zamora (1976) 18 Cal.3d 538, 560.) The People concede that the conspiracy to commit robbery, which took place in July 2007, is not supported by a valid overt ac t. We agree, since overt act six postdated the robbery. The verdicts finding each defend ant guilty of conspiracy to commit robbery must be reversed, and the jury’s findings on the overt acts alleged in support of the conspiracy to commit robbery must be vacated. This does not automatically require th at sentence on count nine be vacated, however, because the jury’s verdicts dem onstrate they unanimous ly found defendants guilty on the other theories of c onspiracy as well. (See, e.g., People v. Pulido (1997) 15 Cal.4th 713, 727; People v. Kelly (1992) 1 Cal.4th 495, 531.) The jury not having

respect to the conspiracy to commit robbery . This discrepancy does not affect our analysis of the issues.301. specified the conspiracy to commit which murder(s) it found, the question becomes whether the trial court properly could impose sentence based on the conspiracy to murder Fumes or whether it was required to assume the conspiracy-to-commit-murder verdict was based on one or more of the charged sh ootings. If the trial court properly based count nine’s sentence on the conspiracy to murd er Fumes, that sentence can stand. (See People v. Ramirez (1987) 189 Cal.App.3d 603, 617.) Otherwise, section 654 prohibited the court from sentencing defendants on boththe conspiracy and on the substantive offense that was the object of the conspiracy. ( People v. Hernandez (2003) 30 Cal.4th 835, 866, disapproved on another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) 156 Section 654’s purpose is to ensure th at punishment is commensurate with a defendant’s culpability. ( People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Thus, the statute “precludes multiple punishment for a si ngle act or indivisible course of conduct punishable under more than one criminal st atute. Whether a course of conduct is divisible and therefore gives rise to more th an one act within the meaning of section 654 depends on the ‘intent and objec tive’ of the actor. [Citation.] If all of the offenses are incident to one objective, the court may punish the defendant for any one of the offenses, but not more than one. [Citation.] If, however, the defendant had multiple or simultaneous objectives, independent of and not merely incidental to each other, the defendant may be punished fo r each violation committed in pursuit of each objective even though the violations share common acts or were parts of an otherwise indivisible course of conduct. [Citation.]” ( People v. Cleveland (2001) 87 Cal.Ap p.4th 263, 267- 268; see also People v. Harrison (1989) 48 Cal.3d 321, 335.)

156 Section 654, subdivision (a) provides in pe rtinent part: “An act or omission that is punishable in different ways by different pr ovisions of law shall be punished under the provision that provides for the longest pote ntial term of imprisonm ent, but in no case shall the act or omission be punishedunder more than one provision.”302. Where conspiracy is involved, “a de fendant cannot be punished for both a substantive offense and a conspiracy to commit it unless the conspiracy had an unlawful objective in addition to the commission of the substantive offense.” ( In re Romano (1966) 64 Cal.2d 826, 828.) “A fortiori it would violate that rule to sentence a defendant for conspiracy to commit several crimes and for each of those crimes where the conspiracy had no objective apart from those crimes. If, however, a conspiracy had an objective apart from an offense for which the defendant is punished, he may properly be sentenced for the conspiracy as well as for that offense. [Citation.]” (In re Cruz (1966) 64 Cal.2d 178, 180-181.) “The question whether section 654 is factually applicable to a given series of offenses is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this ques tion must be upheld on appeal if there is any substantial evidence to support them. [Citati ons.] ‘We must “vie w the evidence in a light most favorable to the respondent and pr esume in support of the [sentencing] order the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]” [Citation.]’ [Citation.]” ( People v. Hutchins (2001) 90 Cal. App.4th 1308, 1312-1313, italics added.) However, “[a]ltho ugh the determination of whether the facts and circumstances reveal a single intent and objective within the meaning of section 654 is generally a factual matter, the dimensi on and meaning of sec tion 654 is a legal question. ‘The applicability of a statute to conceded facts is a question of law.’ [Citation.]” ( People v. Perez (1979) 23 Cal.3d 545, 552, fn. 5.) We believe the question whether the trial court here could properly determine, for sentencing purposes, which murder was the object of the conspiracy to commit murder, of which defendants were convicted, is one of law, not fact. (See People v. Perez, supra, 23 Cal.3d at p. 552 & fn. 5.) We further believe that when a specific obj ect (or, as in this case, victim) of a conspiracy is argued to th e jury and jurors findtrue the overt act(s) related thereto, it is within the trial court’s po wer to rely on that object to make its factual303. determinations under sec tion 654, at least absent some indi cation in the reco rd that jurors did not actually rely on that specific object as a basis for their verdict. Although we have been unab le to find any case addressing this exact issue, a number of cases suggest our conclusion is correct. For example, in People v. Osband (1996) 13 Cal.4th 622, the trial court impos ed consecutive sentences for the rape and robbery of victim S. On appeal, the defend ant claimed his sentence violated section 654 and the proscription against do uble jeopardy, because the jury may have found him guilty of felony murder on the basis of the unde rlying crimes of rape and/or robbery. ( Osband , at p. 730.) The People re sponded that because it was not known whether the defendant was found guilty of first degr ee murder on a theory of fe lony murder or premeditation and deliberation, there was no constitutional orstatutory violation. The People further claimed that when the court sentenced the de fendant on the rape and robbery counts, it implicitly found the crimes ag ainst S. involved more than one objective, a factual determination that had to be sustained if supported by substantial evidence. ( Ibid .) The California Supreme Court agreed with the latter part of the People’s argument and declined to stay any sentence, while not deciding whether a stay was required because the jury might have found the defendant guilty on a theory of felony murder. ( Id . at pp. 730- 731.)
In People v. Assad (2010) 189 Cal.App. 4th 187, the defendant contended that because the prosecution charge d aggravated mayhem, as a continuous conduct crime occurring in the same time peri od as that charged for the torture count, it would constitute double punishment to punish him twice for the same continuous course of conduct. ( Id

. at p. 200.) The Court of Appeal rejected the claim, saying: “The flaw in this argument is that the application of secti on 654 does not depend on the allegationsof the charging instrument, but on what was proven at trial. Here, the Peopl e argue that ‘[t ]he evidence offered at trial established multiple acts th at satisfied the legal requirements of both torture and aggravated mayhem su ch as, the knife burning incident and the three separate304. beatings that occurred on Sept ember 9 and 10, 2007. Thus, the jury, which was given a unanimity instruction and was further instruct ed to “consider each count separately and return a separate verdict for each one,” had multiple incidents to choose from in reaching its guilty verdicts for both counts .’ Defendant does not dispute th e truth of this assertion. Thus, it follows the trial court — like the ju ry — reasonably could have concluded the torture and aggravated mayhem counts were not based on the same conduct or course of conduct, and therefore the trial court did not err in refusing to stay the sentence on one or the other of those counts.” ( Ibid .)
In People v. Ramirez , supra , 189 Cal.App.3d 603, the defendants were convicted of multiple sex crimes, robbery and attempted robbery, attempted murder, and two counts of conspiracy to commit murd er, apparently one with re spect to each victim. ( Id . at p. 607.) The appellate court discussed th e general rules relati ng to section 654 and conspiracy, then stated: “In the present case, had murder been the sole object of the conspiracy it would be impermissible to punish both the conspiracy and the substantive offense of attempted murde r, but permissible to punish the sex offenses and robberies which were not objects of the conspiracy. Since the evidence necessarily shows an agreement to comm it sex offenses as well as murder, however, punishment for both th e sex offenses and the conspiracy violated the prohibition of section 65 4 just as would punishment for both conspiracy and attempted murder — desp ite the fact that only conspiracy to commit murder was charged. Thus the case must be remanded to allow the trial court to choose whether to stay sentence on the conspiracy or on the sex offenses. [Citation.] The stay of sentence on the attempted murder counts must, of course, remain. “Punishment on the robbery counts presents a somewhat different issue, as the facts do not similarly co mpel a conclusion that these offenses were an object of the conspiracy. The robberies occu rred after the sex offenses were well under way, were minor in comparison to the other offenses, and were not as likely a subject of agreement between the appellants. Although the trial court could reasonably have relied upon these factors to conclude that the robb eries were spontaneous acts, separate from the conspiracy and therefore i ndependently punishable, the record305. does not indicate whether in fact it did so. Upon remand appellants are entitled to have the trial court make the appropriate finding as to their intent and overall objective. [Citation.]” ( People v. Ramirez, supra, 189 Cal.App.3d at p. 617, fns. omitted.)
In People v. Cooks (1983) 141 Cal.App.3d 224 ( Cooks ), Cooks was charged in a separate action with the Octobe r 30, 1973, murder of Frances Rose. He pled guilty in December 1973. ( Id . at p. 317.) In May 1974, the gr and jury returned an indictment accusing Cooks and three others of conspira cy to commit murder between October 20, 1973, and April 30, 1974. Co oks and a cohort were also accused of multiple offenses, including murder, in which Qu ita Hague was the victim; and multiple offenses, including assault with a deadly weapon, in which Richard Hague wa s the victim. The crimes against the Hagues were committed on Octobe r 20, 1973. The other two defendants were accused of the January 28, 1 974, murders of Tana Smith and Jane Holly; and one was charged with the April 14, 1 974, assault with a deadly weapon agai nst Ward Anderson and Terry White. All defendants were convicted as charged. ( Id . at pp. 242-243.) On appeal, Cooks claimed that allowing evidence of the France s Rose murder to be received in this case violated his right to protection against do uble jeopardy under the state and federal Constitutions, and also resulte d in double punishment under section 654. ( Cooks, supra, 141 Cal.App.3d at p. 317.) The appella te court stated: “It is true that while a defendant may be convicted of the substantive crime and the conspiracy to commit it, he may not be punished for both offenses unless the conspiracy extended beyond the substantive offense. [Citations.] In this case the alleged conspiracy was not limited to the murder of Fran ces Rose but extended to the murder of a number of other people. Under these circumstances, Cooks could be lawfully punished for murdering Frances Rose and for conspiracy to murder. [¶] Likewise, [the other three defendants] could be lawfully punished for the substantiv e offenses of first degree murder and for conspiracy to commit murder.” ( Ibid .)306. From the foregoing cases — especially Cooks — we discern that where there could be multiple bases on which the jury could return a verd ict of conspiracy to commit a specific crime, punishment may be imposed without knowing, for purposes of section 654, which particular ba sis or bases jurors agreed up on. As long as substantial evidence supports its determination, “‘[i ]n sentencing pursu ant to Penal Code section 654, the trial court retains discre tion to impose punishment for the offense that it determines, under the facts of the case, c onstituted the defendant’s “primary objective”’ keeping in mind the over all purpose of section 654. [Citation.]” ( People v. Cleveland,

supra, 87 Cal.App.4th at p. 268, italics added.) People v. Coelho (2001) 89 Cal.App.4th 861 ( Coelho ), on which defendants rely, does not alter our conclusion. In that case , the issue was whether the trial court had discretion to impose concurrent or consecu tive sentences, or whether consecutive sentences were mandatory, under the “Three Strikes” law. The question turned on whether the current offenses were committe d on the same occasion and arose from the same set of operative facts. ( Coelho, supra, 89 Cal.App.4th at pp. 864-865.) To prevent a court from negating the defendant’s right to a jury trial by clarifying ambiguous verdicts and assigning factual bases to convic tions other than those actually found by the jury, the appellate court held th at “at sentencing, a trial court must accept and rely upon the same factual basis which the jury unanim ously selected and relie d upon to convict the defendant on a particular count.” ( Id . at pp. 875-876.) The appellate court further determined that in determining the factual basi s for a jury’s verdict, “the federal standard of certainty beyond a reasonable doubt applies. [Citation.]” ( Id . at p. 876.) It concluded that when a trial court “is unable to determ ine beyond a reasonable doubt which unlawful acts among many the jury based its verdicts on, the court for the purposes of sentencing should assume the factual bases that would provide the most discretion.” ( Id . at p. 885.) Although Coelho contains language that could be interpreted as applying to the issue in the present appeal, that case doe s not apply because it does not deal with307. section 654. Unlike the provisions of the Three Strikes law at issue in Coelho , section 654 “‘is a sentencing “reduction” st atute.... [I]t is a discretionary benefit provided by the Legislature to apply in those limited situati ons where one’s culpability is less than the statutory penalty for one’s crim es. Thus, when section 654 is found to apply, it effectively “reduces” the total sent ence otherwise authorized by the jury’s verdict.’” ( People v. Solis (2001) 90 Cal.App.4th 1002, 1022; cf. People v. Black (2007) 41 Cal.4th 799, 823; People v. Black (2005) 35 Cal.4th 1238, 12 63-1264, overruled on another ground in Cunningham v. California (2007) 549 U.S. 270, 293.) Having concluded the trial court here appropriately determined which murder was the object of the conspiracy to commit murd er of which defendants were convicted, we turn to whether substantial evidence supports the court’s findings. In argument, the prosecutor urged jurors to base their verdic t on the conspiracy to murder Fumes. The testimony of Jackson, if sufficiently corrobo rated since he was an accomplice (§ 1111; People v. Garcia (2000) 84 Cal.App.4th 316, 325), provi ded substantial evidence of that offense. To be adequate, corroboration must be “by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” (§ 1111.) “The corroboration must, without aid from the accomplice’s testimony, connect the defendant to the charged offens e, but may be circumstantial, slight and entitled to little consideration wh en standing alone. [Citations .] Corroborating evidence need not be sufficient to esta blish the defendant’s guilt or corroborate the accomplice to every fact to which the accomplice testified. [Citations.] It must raise more than a suspicion or conjecture of guilt, and is suffi cient if it connects the defendant with the crime in such a way as to reas onably satisfy the trier of fact as to the truthfulness of the accomplice. [Citations.]” ( People v. Samaniego, supra, 172 Cal.App.4th at pp. 1177-308. 1178.) Corroborative ev idence must be furnished by mean s of a nonaccomplice witness. ( People v. Fauber, supra, 2 Cal.4th at p. 834.) Agustin’s testimony concerning what Johnson told her about the incident sufficiently corroborated J ackson’s testimony with re spect to Johnson and Dixon. 157 Cell phone tower records showing Lee’s phone was near Bakersfield College — which in turn was near the house of Fumes’s father — on the date and around the time of evening Jackson said he and defendants went looking for Fumes, suffi ciently corroborated Jackson’s testimony as to Lee. Accordingly, the trial court did not err by imposing, and not staying, sentence for conspiracy to comm it murder on each defendant with respect to count nine. B. Conspiracy to Actively Partic ipate in a Criminal Street Gang Lee claims he was improperly charged wi th conspiracy to commit a violation of section 186.22, subdivision (a), active participati on in a criminal street gang. He says this is an invalid crime because a violation of section 186.22 is itsel f a conspiracy, and “a conspiracy to commit a conspiracy is a nonsensical redundancy that results in unconstitutional vagueness.” 158 He further says the subjec t of conspiracy relating to gangs and active participation is usurped by section 182.5, a specific statute on the subject. Because of the error, he says, the prosecution was permitted to introduce evidence of the codefendants’ criminal activities and statements (Evid. Code, § 1223) that were unrelated to Lee or to the specific other crimes charged in the case. Johnson and

157 Agustin was not an accomplice to the conspiracy to murder David “Fumes” Taylor. Additionally, Johnson’s statements to Agustin about the incident did not require corroboration. (See People v. Sully, supra, 53 Cal.3d at p. 1230; People v. Jeffery (1995) 37 Cal.App.4th 209, 218.)
158 Such a claim may be raised for the firs t time on appeal. (See , e.g., §§ 1004, 1012; People v. McKenna (1889) 81 Cal. 158, 159; In re P.C. (2006) 137 Cal.App.4th 279, 287; People v. Butler (1980) 105 Cal.App.3d 585, 588.)309. Dixon join. The People say the offense is constitutionally valid, and in any event, the coconspirator hearsay exception applied even in the absen ce of a formal conspiracy charge. 1. Background During the course of trial, some eviden ce that otherwise would have been limited to one or two of the defendants or as to purpo se — or that might not have come in at all — was admitted against all defendants or for an unlimited purpose due to the existence of the conspiracy charge. Neither the prosecuto r nor the court always specified which crime alleged as an object of the conspiracy was the basis for finding the evidence relevant or otherwise admissible. It is apparent, howe ver, that some of the evidence was admitted against all three defendants pursuant only to the charged conspiracy to actively participate in a criminal street gang. At one point, a discussion took place out side the jury’s pres ence about whether the overt acts alleged in the indictment addresse d the subjects of some of the testimony. During the course of the debate, counsel for Lee observed that since it took a minimum of three people to have a gang, it seemed red undant to allege, by me ans of a conspiracy charge, that Lee was part of what was alre ady a group of more than two people doing something for the benefit of the gang. With counsel for the other defendants joining in his comments, counsel for Lee asked whether it was th e position of the law “that everyone that is responsible for having co mmitted 186.22(a) also be a conspirator for 186.22(a)?” Counsel for Lee ar gued that if there were the requisite number of people for a gang, then any time there were two individual s, they were necessarily conspiring to be in the gang. He asserted that allowing liability by duplicate means was unconstitutional. At that point, unfortunately, the discussion turned to hearsay exceptions and never fleshed out the question whether a gang is essentially a conspiracy and so whether alleging conspiracy to actively participate in a gang amounted to charging conspiracy to participate in a conspiracy.310. 2. Analysis In our original opinion, we agreed with defendants’ claim they were improperly charged with conspiring to ac tively participate in a criminal street gang. We found the crime of actively participating in a criminal street gang was, at its core, a form of conspiracy. As such, we concluded a charge, that would most accurately be characterized as a conspiracy to commit a conspiracy, was improper. The California Supreme Court reversed our holding on this issue. We are bound to follow its pronouncement. ( Auto Equity Sales, Inc. v. Superior Court , supra , 57 Cal.2d at p. 455; People v. McGuire (1872) 45 Cal. 56, 57-58.) Ac cordingly, we reject defendant s’ challenge to the charge (and jury’s finding) of conspiracy to actively participate in a criminal street gang/violate section 186.22, subdivision (a). IV C UMULATIVE P REJUDICE Defendants contend the cumulative effect of the errors at trial rendered the trial fundamentally unfair. Th e People disagree. A number of errors occurred at trial, so me trivial and some not. No individual error furnished cause for reversal of the verdicts in their en tirety. When we examine the cumulative effect of the errors found and assu med, we still find no cause for reversal. The properly admitted evidence, while primarily circumst antial, was overwhelming as to each of the three defe ndants. (Contrast People v. Felix (1993) 14 Cal.App.4th 997, 1008- 1009.) Although the prosecutors had an unfo rtunate tendency to overprove their case (see People v. Williams, supra, 170 Cal.App.4th at p. 610), neither that nor the errors — even taken together — undermine the fairne ss of the trial as a whole. Although defendants did not receive a perfect trial, they received the fair one to which they were entitled. ( People v. Beeler (1995) 9 Cal.4t h 953, 994.) Nor did “‘“gross unfairness”’” or the denial of a fair trial result from the denial of severance. ( People v. Ervin (2000) 22 Cal.4th 48, 69.) Our review of the record as a311. whole “fails to show that the jurors in this joint trial were unable or unwilling to assess independently the respective culpability of each codefendant or were confused by the limiting instructions.” (Ibid .; contrast People v. Biehler (1961) 198 Cal.App.2d 290, 298, 303.) The mere possib ility of juror confusion is not enough. (See Ervin , at p. 69.) V
M ARSDEN Lee contends the trial court erred by denying his postver dict request to substitute appointed counsel. ( People v. Marsden (1970) 2 Cal.3d 118 (Marsden ).) The People say the court acted within its discretion. A. Background On the date originally set for sentencing, Lee asked for a Marsden hearing with respect to his trial attorney. 159 Lee asserted he was denied a fair trial and the effective assistance of counsel, and he requested new counsel to bring a new trial motion based on ineffective assistance of counsel. Lee claimed:

 His case should have been severed from that of his codefendants.

 Counsel should have filed a motion in limine to exclude gang expert testimony.

 Counsel should have filed a motion in limine to impeach prosecution witnesses who were biased and had motive and opportun ity to lie.

 Counsel failed to object to or file motions to exclude the prison letters authored by Lee’s brother, Lee’s ta ttoo, and the Internet postings.

 Witnesses existed who could have te stified concerning the events of March 21, 2007, and the condition of Lee’s ha nd after he was shot , and who could have

159 Lee twice sought unsuccessfu lly to have new counsel appoi nted prior to trial. He does not now challenge the rulings on those motions.312. testified he was not at the tatt oo parlor when Bonner was there. No investigator talked to these witnesses and they were not called at trial.

 Counsel failed to obtain Lee’s cell phone records for the entire time period to show a pattern of calls, to call an expert on cell phone records, and to call an expert disputing the prosecution’s ce ll phone tower evidence.

 Counsel failed to present evidence that Saleta Ro seburr’s house, the Crip house at Monitor and Pacheco Road, and where Bonner was shot were on the same cell phone tower, so Lee could have been at Roseburr’s house when the shooting took place.

 Counsel failed to call a witness to te stify concerning how long Lee had had his firearm tattoo and what it meant.

 Counsel failed to call the person wh o actually created the MySpace page and put “Keepin’ it Gangsta” on it, or L ee’s cousin, who wrote the messages the prosecutor found significant.

 Lee wanted to testify about the message s he wrote and what they meant, but counsel told him it probably wa s not a good idea to testify.

 Counsel failed to subpoen a a witness who was subpoenaed by counsel for Johnson, or to request a bench warrant wh en the witness, who could have testified Bonner was lying about some of Bonner’s activ ities before the shooting, failed to appear.

 Counsel failed to elicit the di stance between McNew Court and the Country, to show Johnson would not have had to leave his clothes at a crime scene if he had a getaway driver, since he could have run to Country B oy Crip territory in under a minute.

 Counsel failed to present evidence that when gang members rent cars, they do not use credit cards and their own driver’s licenses. Counsel also failed to call witnesses who would have testified that when Lee rented cars, he was out of town with them.313.  Counsel failed to present jail housing re cords to show that Bonner could not have been threaten ed in jail.

 Counsel failed to present a letter Ja ckson wrote to Dixon apologizing and stating Jackson was lying.

 Counsel failed to intro duce Lee’s medical records to show he could not have fired a gun because, after he wa s shot, his fingers would not bend.

 Although counsel sought to exclude Lee’s statement to Johnson in the back hallway, counsel used it in his closing argu ment against Lee’s wishes and even though Lee told him it was not what he said.

 Counsel used an argument tying Lee to the McNew Court shootings against Lee’s wishes.

 Counsel failed to provide evidence a nd paperwork to Lee or to go over things with him. A lthough, as the court noted, the tw o spoke in the courtroom, there was only so much they could discuss there, and by then it was too late because trial had started.

 Counsel refused to call any of Lee’ s witnesses, and did not have an investigator talk to Lee abou t which witnesses should be c ontacted. Counsel himself saw Lee at the jail only about four times. The court questioned defense counsel ab out some of Lee’s claims. Counsel related that he had an investig ator if he was meeting with a client and the client indicated there would be a reason to have alibi witn esses investigated. Early on, however, Lee indicated he did not remember where he was on the dates of the various incidents, and so there was not really a list of people to have an investigator talk to. With respect to Lee’s claim no witnesses were called, counsel explained there was indeed an expert appointed to review th e cell tower information, a DNA expert was appointed early on, and a witne ss with a criminalistics background was called at trial. As for other potential witnesses, it was never the People’s theory that Lee was a shooter at314. any of the crime scenes, but rather that he was the driver. Because there were photographs of vehicles owned and driven by Lee that were outside the Bakersfield area during the time of the incidents, a reasonabl e inference could be drawn that he was capable of driving. Counsel did not call Le e’s doctor because (1) the doctor was not an expert in trajectory, and (2) would have had to speculate about what Lee’s condition might have been at a certain time or date ha d he taken a certain medication. Moreover, Lee’s injuries were not suffered during a crim inal act Lee was alleged to have committed. The crimes Lee was convicted of committing we re incidents in whic h the People’s theory was that he was capable of driving a car. There was no indication he fired a weapon during those incidents. With respect to whether Lee was given th e opportunity to testify, counsel pointed out that Lee was admonished of his rights in that regard on the record. Counsel explained he understood it was a client’s constitutional right to testify or not, and that counsel did not make that decision for his clients. Counsel chose to address Lee’s other clai ms by category, rather than individually. With respect to motions and ob jections, counsel observed, and the court confirmed, that counsel filed a number of in limine motions. Counsel also objected, during the trial process, on both state and fe deral constitutional grounds. Experts were appointed and utilized. Counsel interviewed but chose not to call Burts to impeach Agustin, believing his testimony would be harmful; counsel for Dixon ultimately ca lled him as a witness. As far as character witnesses, counsel pointed out that the nature of character evidence is not someone who is called to testify to what they believe a tatt oo to mean. Counsel believed such testimony would beobjectionable on a number of grounds. Finally, as to the issue of alibi witnesses, Lee was unable to say where he was or when, making it difficult to acquire alibi witnesses. Counsel acknowledged that he and Lee had disagreements concerning what counsel would say during closi ng argument. After Dixon and Burts testified, and Burts315. corroborated some of Agustin’s testimony, counsel felt he had to shift positions to mitigate the damage done by that testimony and the testim ony concerning the cell phone towers. Counsel felt it was in Lee’s best interests to ask for instructions on lesser included offenses with respect to the Bonner sh ooting. He also chose to give the jury an option they could accept, whic h was that Lee was contacted after the McNew Court shootings and used as a means of escape, wh ich was why his cell phone was in the area. Counsel also acknowledged that he a nd Lee disagreed about whether to call certain witnesses such as L ee’s father. Counsel explaine d that as a defense lawyer assessing credibility, he had to consider motiv ation and bias, the am ount of time that had passed, and any criminal records that might be present on certain witnesses. Ultimately, counsel had to make those decisions. Counsel conceded that his visits with Lee were minima l. He explained, however, that Lee had always maintained he was not involved, but did not re member where he was at the various times. Accord ingly, counsel found it more fruitful to use his time doing other things such as trying to use Lee’s work records as a platform to determine whether he might have been working some of the days in question, going through rental car receipts, and the like. The court invited Lee to respond. Lee questioned why, if there was no indication he was the actual shooter, counsel asked for th e lesser offenses, which gave the jury the option of finding him guilty as the shooter in the Bonner incident. Lee also noted his attorney asked no questions of Burts, even though Bu rts testified Agustin said either Lee or Dixon did not do anything. Lee conceded he told counsel that he did not know where he was at on all of the occasions, but there we re witnesses who could have said where he was within certain time periods. Lee also opined that the expert witness called by counsel was not an effective witness. Lee al so complained that co unsel did not call the officers who were present on at least two oc casions when Lee’s house was searched, to testify they did not find any gas masks or gang attire; moreover, counsel did nothing to316. show that the Robert Lee for whom an obituary was found committed suicide and was not related to Lee. Counsel admitted having a copy of Jacks on’s jail kite. However, when he asked Jackson on the stand whether hehad ever communicated with Dixon about the incident or written anything to him, Jackson denied it. This left counsel unab le to authenticate the writing. Counsel pointed out that Dixon coul d not do it, because it was made through a third person and was not a direct communication. Counsel also pointed out that he gave Lee a search warrant applicatio n containing the best descrip tion of evidence available at the time. In ruling on Lee’s motion for new counsel, the tria l court observed that the standard was the same regard less of when the motion was made, to wit, whether defense counsel was not providing adequate represen tation or whether counsel and the defendant had such an irreconcilable conflict in their re lationship that ineffective representation was likely to result. The court stated:
“... I find from a review of all of the matters you’ve set forth here this morning and your written pa pers and your attachments in this matter, and from the totality of the evid ence that [counsel] at all stages of this case, ... has provided very adequate representa tion and that you and [counsel] have not engaged in an irreconcilable conf lict in your relationship that would prevent ineffective [ sic ] representation in the fu ture, and arguments that counsel would not make certain moti ons, disagreement on trial tactics, refusal to make certain arguments, those, as they stand alone, or in this case as you mentioned them, are insufficient to require discharge of appointed counsel. [¶] ... [¶] “If you’re telling your attorney that he needs to call witnesses, needs to do certain things, and you don’t kn ow where you are on a given day, it puts the attorney in a very difficult position. “And I watched with great ad miration on your attorney’s presentation of the final argument, a nd ... he used a PowerPoint display, and I have never seen, in 26 years on the bench, a more effective use of electronic media and his presentation an d the way in which he linked all of the evidence. I’ve just never seen an argumen t presented quite so well.317. “And I think when an attorney has ... limited material to present, he did the best he could u nder those circumstances. “So I think that what you’re trying to do certainly can’t be criticized, but you’re trying to say that -- or misrepresent -- and I say this most respectfully to you -- motives on his part or lack of determination. I mean, he’s been in our court many, many times and he goes to the mat for everyone, regardless of their position, and I certainly don’t think that he gave up on you or faile d to call any appropriate witness.” The court further found no irreconcilabl e conflict. As a result, it denied the Marsden motion. B. Analysis “[C]riminal defendants ar e entitled under the Constitutio n to the assistance of court-appointed counsel if they are unable to employ private counsel. However, the decision whether to permit a de fendant to discharge his appo inted counsel and substitute another attorney during the tria l is within the discretion of th e trial court, and a defendant has no absolute right to more than one appo inted attorney.... [¶ ] ‘“The right of a defendant in a criminal case to have the assistance of counsel for his defense ... may include the right to have coun sel appointed by the court ... discharged or other counsel substituted, if it is shown ... that failure to do so would substantially impair or deny the right ..., but the right to such discharged or substitution is not absolute, in the sense that the court is bound to accede to its assertion without a sufficient showing ... that the right to the assistance of counsel would be substantially impaired ... in case the request is not granted, and within these limits there is a fiel d of discretion for the court.”’ [Citations.]” (Marsden , supra , 2 Cal.3d at p. 123.) Marsden established “that the trial court must give the defendant the opportunity to explain the reasons for desiring a new a ttorney. [Citation.] ‘[T ]he trial court cannot thoughtfully exercise its disc retion in this matter without listening to [the defendant’s] reasons for requesting a change of attorn eys.’ [Citation.] Accordingly, ‘When a defendant moves for substitutio n of appointed counsel, the court must consider any318. specific examples of counsel’s inadequate re presentation that the defendant wishes to enumerate. Thereafter, substitutio n is a matter of judicial discretion. Denial of the motion is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would “substantially impair ” the defendant’s right to assistance of counsel. [Citations.]’ [Citation.]” ( People v. Smith (1993) 6 Cal.4th 684, 690-691.) Marsden applies posttrial as well as precon viction, and the standard, although sometimes worded differently, is the same. “‘When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the c ourt must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of in adequacy relates to courtroom events that the tria l court observed, the court will generally be able to resolve the new trial motion without ap pointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant’s claim of in adequacy relates to matters that occurred outside the courtroom, and th e defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.]’ [Citation.]” ( People v. Bolin (1998) 18 Cal.4th 297, 346.) The “colorable claim” language originated in People v. Stewart (1985) 171 Cal.App.3d 388, 396-397, which was the first case to apply Marsden posttrial (see People v. Smith , supra , 6 Cal.4th at p. 691). The California Supreme Court has made it clear that this does not state a lesser standard than that established in Marsden ( Smith , at p. 693); instead, “the standard expressed in Marsden and its progeny applies equally preconviction and postconviction.... A defendant has no greater right to substitute counsel at the later stag e than the earlier.” ( Id . at p. 694.) Stewart has been disapproved to the extent its language implies a different rule than that of Marsden . ( People v. Smith , supra , 6 Cal.4th at pp. 694, 696.)319. In the present case, Lee moved to discharge defense counsel and have new counsel appointed to bring a motion for new trial based on ineffective assistance of counsel. (See People v. Lucky (1988) 45 Cal.3d 259, 281.) Thereaf ter, the trial court afforded him ample opportunity to explain the reasons for his request. (See People v. Vera (2004) 122 Cal.App.4th 970, 979.) Accordingly, we revi ew the denial of Lee’s motion for abuse of discretion. ( People v. Memro (1995) 11 Cal.4th 786, 857; Vera , at p. 979.) “[D]iscretion is abused whenever the court exceeds the bounds of reas on, all of the circumstances being considered. [Citations.]” ( People v. Giminez , supra , 14 Cal.3d at p. 72.) We conclude the trial court’s ruling was re asonable, both with respect to counsel’s purported inadequacies and any irreconcilable conflict between client and counsel. (See People v. Memro , supra , 11 Cal.4th at p. 857.) The c ourt patiently perm itted Lee to fully state his claims, seeking clarification wh ere necessary for the court to ensure it understood Lee’s true complaints. It inqui red of defense counse l with respect to particular assertions by Lee, and solicited Lee’s response af ter defense counsel addressed the various categories of Lee’s claims. Many of Lee’s complaints of counsel’s purported inadequacy amounted to tactical disagreements. Marsden error will not be found under such circumstances. ( People v. Dickey (2005) 35 Cal.4th 884, 922; see also People v. Lazenby (1992) 6 Cal.App.4t h 1842, 1846.) To the extent there was a credibility question between Lee and defense counsel, the tria l court was entitled to accept counsel’s explanations. ( People v. Smith , supra , 6 Cal.4th at p. 696.) In light of those explanations, it was not required to accept Lee’ s assertions of inadequate investigation ( People v. Vera , supra , 122 Cal.App.4th at p. 979) nor, in our view, was it required to elicit from defense counsel a response to every single point raised by Lee (see People v.
Turner (1992) 7 Cal.App.4th 1214, 1218-1219). Lee says the trial court errone ously believed the scope of the Marsden inquiry was limited to in-court matters. We disagree. Although the court quoted at length from Justice Baxter’s concurring opinion in People v. Smith , supra , 6 Cal.4th at pages 697-320. 706, the record clearly show s it denied the motion only after obtaining and considering defense counsel’s explanations of his conduc t. The court was not required to ignore its own knowledge and observations of what went on at trial. (See People v. Abilez(2007) 41 Cal.4th 472, 488-489; People v. Bolin , supra , 18 Cal.4th at p. 347.) Under the circumstances presented here, “‘ we find no basis for concluding that the trial court either faile d to conduct a proper Marsden inquiry or abused its discretion in declining to substitute co unsel.’ [Citation.]” ( People v. Smith , supra , 6 Cal.4th at p. 697, fn. omitted.) Lee is entitled neither to reversal nor to remand for a new Marsden hearing. VI S ENTENCING Defendants contend a variety of sentencing errors occurre d. In each instance, the People appropriately concede the error. The following errors require modification or correction:

 Johnson and Lee were sent enced on counts one, five, and seven, and Dixon on counts five and seven, to seven years to life in prison for atte mpted murder, exclusive of any enhancements. 160 Because premeditation was ne ither charged nor found true, however, the indeterminate terms must be stricken and sentence modified on each count to a determinate term of seven years, doubledto 14 years in Dix on’s case, exclusive of any enhancements. (§ 664, subd. (a).)

 The trial court ordered Dixon’s sentence on count two enhanced by five years pursuant to section 667, subdivision (a), plus one year pursuant to section 667.5, subdivision (b). Because both enhancements arose from the sa me prior offense, however, only the five-year enhancement can stand. Th e one-year enhancement must be stricken. ( People v. Jones (1993) 5 Cal. 4th 1142, 1153.)

160 Sentence was doubled in Dixon’s case due to his prior strike conviction.321.  As to Dixon, the trial court impose d separate five-year enhancements, pursuant to section 667, subdivision (a), w ith respect to counts five and seven on the assumption they were indeterminate terms. Modification of sent ence on those counts,

ante , means separate serious felony enhancements can no longer be imposed. They must be stricken. ( People v. Tassell (1984) 36 Cal.3d 77, 90, overruled on another ground in People v. Ewoldt , supra , 7 Cal.4th at p. 401.)

 The court ordered each defendant to pay victim restitu tion pursuant to section 1202.4, subdivision (f). As to Dixon, the court clarifie d its intent that liability for such restitution be joint and several among all three codefendants, but it neglected to do so when sentencing Johnson and Lee. The sentencing minute orders and abstracts of judgment for all three defend ants should include the notation that victim restitution liability is joint and several. (See, e.g., People v. Neely(2009) 176 Cal.App.4th 787, 800; People v. Blackburn (1999) 72 Cal.App.4th 1520 , 1535 & cases cited therein.)

 The abstract of judgment for Dixon’s indeterminate term correctly shows, at line 6.d., imposition of a sentence of 50 year s to life on count nine for conspiracy to commit murder. At line 5., howe ver, it incorrectly shows an a dditional term of life with the possibility of parole on count nine. The abstract of judgment must be corrected to remove the reference to count nine from line 5. DISPOSITION
In People v. Corey Ray Johnson (Super. Ct. Kern County, 2009, No. BF122135A), the verdict on count nine, insofar as it finds Johnson guilty of conspiracy to commit robbery/violate section 211, is reversed, and th e true findings on the overt acts alleged in support thereof are vacated. Se ntence on counts one, five, and seven is modified to a determinate term of seven years in prison on each count, exclusive of any enhancements. The trial court is directed to cause the sent encing minutes and abstract of judgment to include the notation that liability for victim restitution imposed pursuant to section 1202.4, subdivision (f), is joint and several. As so modified , the judgment is affirmed.322. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modifications a nd corrections, and to transmit a certified copy of same to the appropriate authorities.
In People v. Joseph Kevin Dixon (Super. Ct. Kern County, 2009, No. BF122135B), the verdict on count nine, insofar as it finds Dixon guilty of conspiracy to commit robbery/violate section 211, is reve rsed, and the true findi ngs on the overt acts alleged in support thereof are vacated. Sentence on counts five and seven is modified to a determinate term of 14 years in prison (s even years doubled pu rsuant to the Three Strikes law) on each count, exclusive of a ny enhancements. The one-year enhancement imposed on count two pursuant to section 667.5, subdivision (b) is stricken. The fiveyear enhancements imposed on counts fi ve and seven pursuant to section 667, subdivision (a) are stri cken. The trial court is directedto cause the sentencing minutes and abstract of judgment to include the notation that liability for victim restitution imposed pursuant to section 1202. 4, subdivision (f), is joint and several. As so modified, the judgment is affirmed. The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modi fications and correcti ons, and deleting the reference to count nine in line 5. of the in determinate portion of said abstract, and to transmit a certified copy of same to the appropriate authorities.
In People v. David Lee, Jr., (Super. Ct. Kern County, 2009, No. BF122135C), the verdict on count nine, inso far as it finds Lee guilty of conspiracy to commit robbery/violate section 211, is reversed, and th e true findings on the overt acts alleged in support thereof are vacated. Se ntence on counts one, five, and seven is modified to a determinate term of seven years in prison on each count, exclusive of any enhancements. The trial court is directed to cause the sent encing minutes and abstract of judgment to include the notation that liability for victim restitution imposed pursuant to section 1202.4, subdivision (f), is joint and several. As so modified , the judgment is affirmed. The trial court is directed to cause to be prepared an amended abstract of judgment323. reflecting said modifications a nd corrections, and to transmit a certified copy of same to the appropriate authorities.

_________________________ DETJEN, J. WE CONCUR:

_______________________________ GOMES, Acting P.J.

_______________________________ POOCHIGIAN, J.