1

Filed 6/23/22 P. v. Washington CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

QUINCY ISIAH WASHINGTON et al.,

Defendants and Appellants.

C070732

(Super. Ct. No. 09F07195)

ORDER MODIFYING

OPINION AND DENYING 

REHEARING

[CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed on May 26, 2022, be modified as follows:

1) At the first full paragraph on page 4 of the Slip Opinion insert: “, and 

Washington’s firearm enhancement,” so that the first sentence of the paragraph now 

reads: “We shall reverse the gang enhancements, and Washington’s firearm 

enhancement, and remand to provide the prosecution an opportunity to retry the 

enhancements under the law as amended by Assembly Bill No. 333.” 
2

2) In a new paragraph at the end of page 50 before the heading “Sentencing 

Error” insert: “Reversal of Washington’s gang enhancements requires reversal of his 

firearm enhancement under Penal Code section 12022.53, subdivisions (d) and (e), as the 

firearm enhancement was predicated on a valid true finding on the gang enhancement. 

(See Lopez, supra, 73 Cal.App.5th at pp. 346-348; People v. Vasquez (2022) 

74 Cal.App.5th 1021, 1033.) The prosecution will have the opportunity to prove the 

related vicarious firearm enhancement along with the gang allegations.”

3) On page 51, after the sentence beginning with “In light of the amendments to 

section 186.22 made by Assembly Bill No. 333,” insert: “We further reverse defendant 

Washington’s firearm enhancement (which was predicated on the gang enhancements) 

and remand to provide the prosecution an opportunity to retry it.”

This modification results in a change in judgment. 

The petition for rehearing is denied.

BY THE COURT:

 

HULL, Acting P.J.

 

HOCH, J.
1

Filed 5/26/22 P. v. Washington CA3 (unmodified opinion)

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

QUINCY ISIAH WASHINGTON et al.,

Defendants and Appellants.

C070732

(Super. Ct. No. 09F07195)

On a September afternoon in 2010, 16-year-old C.T. was “hanging out” outside a 

house on Bishopgate Court in South Sacramento with friends, three of whom were 

affiliated with a street gang called Guttah Boyz. Their good time together ended and her 

life was to be changed forever after one of the friends came out of the house and made a 

face that caused the other friends to turn and look at a group of boys coming up the court, 

whereupon everyone started running into the house.
2

C.T. ran as well but was able during her escape to recognize two of the faces in the 

approaching group of boys, though she was reluctant to disclose their names in response 

to questioning at trial. Prodded, she testified that she recognized “Little Diddy” 

(defendant Allen Deshaun Oliver) and a boy she knew as Isiah (defendant Quincy Isiah

Washington); that she probably told a detective that Little Diddy pulled out a gun and 

Little Diddy probably shot her; and that when shown a picture of Little Diddy after the 

shooting she broke down in tears and told a detective the shooting would never get out of 

her head. She recognized Washington from a party she attended the day before when he 

pulled out a long black revolver like the gun she saw at the shooting.

C.T. was the last in the line of people running into the house. She did not make it. 

Though at trial she could not recall hearing gunshots, a bullet entered the middle of her 

back. She was transported to the hospital by friends and lost function in her right hand.

Mere happenstance or chance could not explain the intersection of these two 

groups of young people and the tragedy that ensued. Antoine Jackson instantly 

recognized the looming danger posed by Little Diddy and the group of gang members 

behind him; they had not come to talk but, in Jackson’s words, were coming for “funk.” 

One yelled “FAB” before gunshots rang out. As Little Diddy approached, Jackson told 

everyone to get in the house and then ran also, returning quickly to the outside after 

hearing four gunshots, only to find C.T. lying on the ground. The group of gang boys

also ran, laughing gleefully as they went, before climbing over a fence at the end of the 

cul-de-sac.

No sense can be made of this senseless violence, but the motivation was explained 

by a gang expert who spoke of a long-standing and deadly conflict between the G-Mobb 

gang and its subsets, on the one hand, and the Oak Park Bloods and its FAB subset on the 

other. Five homicides and 20 other shootings resulting in injury had occurred, and all 

involved a shooter in a group setting.
3

Eyewitnesses identified Oliver as the shooter in this instance. A sixth amended

information charged defendants with attempted murder and shooting at an inhabited 

dwelling. (Pen. Code, §§ 664/187, subd. (a), 246.)1 A jury found Oliver guilty on both 

counts and Washington guilty of shooting at an inhabited dwelling. The court sentenced 

Oliver to 17 years in state prison plus an indeterminate term of 55 years to life, and 

Washington to five years in state prison plus an indeterminate term of 25 years to life.

Defendants appeal, contending (1) insufficient evidence supports Washington’s 

conviction of shooting at an inhabited dwelling, (2) the court erred in allowing evidence 

of Washington’s prior criminal activity, (3) ineffective assistance of counsel in defense 

counsels’ failure to object to a hearsay statement and to the prosecutor’s improper 

comments during closing argument, and (4) cumulative error. (5) Defendants argue their 

sentences constitute cruel and unusual punishment under the Eighth Amendment to the 

United States Constitution by reason of their young ages. (6) Oliver also asserts 

sentencing error. Following the original briefing, legislative changes and California 

Supreme Court decisions led to supplemental briefing and additional arguments by 

defendants. Defendants were able to avail themselves of these ameliorative decisions 

because of the delay in bringing their appeals to finality. In supplemental briefing 

defendants argue: (7) The equal protection clauses of the state and federal Constitutions 

require the parole eligibility dates of both defendants to be set in accordance with section 

1170, former subdivision (d)(2)(A). Washington asserts as a fallback position, that if the

court rejects his equal protection argument, it should modify his sentence to reflect that 

he will be eligible for parole after serving 25 years of his sentence. (8) Both defendants 

challenge portions of testimony provided by gang expert Detective Justin Saario as case 

1

 All further statutory references are to the Penal Code unless otherwise designated.
4

specific hearsay under the California Supreme Court’s holding in People v. Sanchez

(2016) 63 Cal.4th 665 (Sanchez), decided after the jury’s verdict herein, and argue the

improper admission of the evidence compels reversal. (9) Both defendants argue the 

judgment must be conditionally reversed, and the case remanded to the juvenile court for 

a transfer hearing pursuant to Proposition 57, and insist if the case remains in adult court 

both defendants should be afforded a “Franklin Hearing”2to establish a factual predicate 

for later parole consideration. (10) Both defendants argue the case must be remanded to 

permit the court to exercise the discretion afforded by Senate Bill No. 620 (2017-2018 

Reg. Sess.) to dismiss the firearm enhancement imposed under section 12022.53. And 

finally, (11) both defendants argue changes to section 186.22 made by Assembly Bill 

No. 333 (2021-2022 Reg. Sess.) require that we reverse the gang enhancement findings.

We shall reverse the gang enhancements and remand to provide the prosecution an 

opportunity to retry the enhancements under the law as amended by Assembly Bill 

No. 333. We shall conditionally reverse the remaining judgments, and remand to the 

juvenile court for juvenile transfer hearings. Should either defendant’s conviction and 

enhancement findings be reinstated, his matter shall return to the trial court for a new 

sentencing hearing and an exercise of discretion under Senate Bill No. 620 (2017-2018 

Reg. Sess.) (Stats. 2017, ch. 682, §§ 1 & 2). Defendants shall be given an opportunity to 

supplement the record with information relevant to a future youth offender parole 

hearing. We also direct the trial court to correct an error in Oliver’s abstract of judgment. 

In all other respects, the modified judgments shall be affirmed.

2

 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
5

FACTUAL AND PROCEDURAL BACKGROUND

The events underlying the charges against defendants transpired in a matter of 

minutes and can be quickly summarized. C.T. and a group of friends were sitting outside 

a house in the early afternoon when a group of young men walked up the street. One of 

them pulled out a gun and began firing. As C.T. ran, bullets struck her in the back. As a 

result of the injury, C.T. lost function in her right hand. Under the prosecution’s theory 

of the case, Oliver fired the weapon, aided by Washington. The shooting was part of an 

escalating war between two rival gangs.

A sixth amended information charged defendants with premeditated attempted 

murder and shooting at an inhabited dwelling. The information further alleged both 

defendants’ crimes were committed for the benefit of or in association with a criminal 

street gang. (§ 186.22, subd. (b)(1).) In the case of Oliver, the information alleged that 

with respect to both offenses he personally and intentionally discharged a firearm, 

causing great bodily injury. (§ 12022.53, subd. (d).) In the case of Washington, the 

information alleged with respect to both offenses that a principal personally and 

intentionally discharged a firearm, causing great bodily injury. (§ 12022.53, subds. (d), 

(e)(1).) Finally, as to Oliver, the information alleged he personally inflicted great bodily 

injury within the meaning of section 12022.7, subdivision (a).

A jury trial followed. The jury informed the trial court that it could not reach a 

verdict and the trial court declared a mistrial. The following evidence was introduced at 

the second jury trial.

C.T.’s Testimony

The victim of the shooting, C.T., was a reluctant witness at the second trial. She 

acknowledged that being a witness in the case caused stress. She thought “this time in 

my life is over” and she had “moved on.” “[D]ealing with that on top of everything else 

that I’m dealing with and my personal issues is just too much.” She no longer wanted to 

be bothered. Her memory was refreshed with a recording of an interview between her 
6

and Detective Saario at the hospital two days after the shooting. The recording was 

played in open court. Her testimony did not flow as smoothly as the recording.

In summary, the afternoon of the shooting, 16-year-old C.T. sat outside a house

with a female friend, Quisha, and three male friends, Jackson, Jamal Dawson, and 

Deandre G. Jackson, Dawson, and Deandre were all affiliated with a criminal street gang 

known as the Guttah Boyz. She knew Guttah Boyz had a conflict with a gang called 

Gunz Up.

C.T. noticed Deandre make a face as he stepped out of the front door of the house. 

When she turned around, C.T. saw a group of young men walking up the street in a 

group. Among the group, C.T. recognized a person she knew as Little Diddy and another 

individual she knew as Isiah Washington, which is Washington’s middle name.

C.T. saw Little Diddy put his hand to his waist. As Little Diddy pulled out a gun, 

everyone began to run. C.T. also fled but was shot in the back as she ran. When 

interviewed by Detective Saario, she recalled hearing multiple shots, falling to the 

ground, and going numb.

C.T. remained in the hospital for about one week. The gunshot damaged the 

nerves in her hand and she is not able to fully utilize her right hand. At trial, C.T. could 

not write with her right hand or open it completely. She had given up on her plans to 

work in the medical field.

A few days after the shooting, C.T. provided officers with descriptions of the 

suspects. She described Little Diddy as a five feet eight inches tall, 16- or 17-year-old 

male with dark skin. He wore a white T-shirt, jeans, and a grey beanie. C.T. described 

Washington as a skinny, five feet six inches tall, 15- to 16-year-old male with dark skin 

and a short “afro.” Washington wore a white shirt and jeans.

On the same day, a detective showed C.T. photographs of Oliver and asked if she 

recognized him. C.T. began to cry and identified the person in the photographs as Little 

Diddy. She was positive he was the person who shot her. C.T. knew both Little Diddy 
7

and Washington prior to the shooting. Washington had been involved with one of her 

friends. She knew Little Diddy because they went to camp together in the past. She had 

seen both men at a party the day before the shooting. At the party, she saw Washington 

pull out a gun, which she described as a long black revolver. By revolver, C.T. referred 

to a gun “with a wheel.” The gun she saw at the shooting was also a “wheel type gun.”

Antoine Jackson’s Testimony

Jackson was part of the group that included C.T. the day of the shooting. Four or 

five people walked up the street, including Washington, Washington’s brother Isaac, 

Little Diddy (Oliver), Deqwon Davis, and Darias. Oliver walked in the front of the 

group, with the others behind.

Jackson told the others on the porch that members of the “Gun Niggers” were here 

and told everyone to get inside the house. Jackson knew Oliver and the others were not 

coming to talk, but that they were coming for “funk.” Jackson saw Isaac, Isiah, Deqwon

and Darias. Deqwon and Darias were members of the FAB street gang. Isaac, Isiah and 

Little Diddy were members of the Gunz Up street gang. During a February 3, 2010 

interview with Detective Saario, however, Jackson talked about an incident during which 

Junius Winters was shot. According to Jackson, several Gunz Up members, including 

Washington and Oliver, were involved.

Oliver and Jackson made eye contact and Oliver shook his head as though to warn 

Jackson. Jackson did not see Oliver pull out a gun. Jackson ran into the house and then 

heard four shots. When he went back outside, Jackson found C.T. lying on the ground. 

After the shooting, Oliver’s group ran toward the end of the cul-de-sac.

Jackson believed Davis was the shooter, although he did not see Davis pull out a 

gun. Davis had a reputation for shooting, and just before the shooting Davis had a look 

on his face like a smile. Jackson believed Dawson was the target and that C.T. was 

merely an innocent bystander.
8

Female Resident’s Testimony

At the time of the shooting, a woman and her daughter were living at the house 

where the shooting occurred. Deandre and his mother also lived there. The woman 

testified at trial. Some of Deandre’s friends stood outside the house. The woman stepped 

outside and noticed some boys coming around the corner. The boys were AfricanAmerican teenagers who wore white T-shirts. After one of the boys yelled “FAB,” 

gunshots rang out.

The woman did not see who fired the gun and did not know if it was the same 

person who yelled “FAB.” She did note that the group of boys who had approached the 

house were together in the street during the shooting. She heard four or five gunshots.

After the shooting, she saw a girl on the ground. She took the girl to the hospital. 

When she returned, the woman found bullet holes in the hallway, front bathroom, master 

bathroom, and in a post near the front walkway of the house.

Officer Jason Hewitt’s Testimony

Officer Jason Hewitt responded to the shooting and found a pool of blood on the 

porch and a hole through the front porch window. A search of the area failed to uncover 

any shell casings. According to Officer Hewitt, such casings are more likely to be found 

when a semiautomatic weapon is fired as opposed to a revolver. Shell casings from a 

revolver stay inside the firearm after it is fired, while a semiautomatic ejects empty shell 

casings.

Officer Nicholas Fox’s Testimony 

Officer Nicholas Fox obtained video footage from a home surveillance system 

located in a nearby house. He viewed footage close in time to the shooting. The footage 

showed five African-American juvenile males climbing over the fence at the end of the 

cul-de-sac and running down the street. They ran in the direction of the residence of a 

known Gunz Up gang member.
9

Neighbor No. 1’s Testimony

A neighbor who lived on the same street where the shooting took place testified. 

Before the shooting he was outside his house with his wife and mother-in-law. He heard 

five gunshots and told his wife and mother-in-law to get down on the ground.

After the shooting, he saw five young African-American males running away. 

They ran in a group and were laughing. He did not hear anyone yell “FAB.” The males 

climbed over a fence, and the last one over was holding a gun that looked like a black 

revolver with a long barrel. The neighbor ran to the house where he heard a lot of 

commotion and saw a five-year-old boy coming out stating that his sister got shot. He 

told the boy to call 911 and then jumped in his truck and tried to follow.

The neighbor then saw Dawson with a gun, chasing the males who had climbed 

the fence. The neighbor told Dawson to put the gun away because the police were 

coming. Although he looked for the boys with his truck, he did not see them again. He 

told officers that all the males wore jeans and no shirts, except for the one with the gun, 

who wore a white shirt. The shooter was about six feet tall with a slender build. They 

were wearing red braids. The man with the gun had dreads. The neighbor’s description 

of the shooter’s distinctive hair matched photographs of Oliver introduced at trial.

Detective Justin Saario’s Testimony

The prosecution offered the testimony of a gang expert to support its theory that 

the shooting was related to a conflict between two gangs. Detective Saario worked in the 

gang suppression unit and had investigated over 50 cases involving African-American 

gangs. He had attended formal gang training conferences and had testified at least 11 

times at trial regarding African-American gangs. The trial court recognized Detective 

Saario as an expert on African-American gangs.

Detective Saario explained derivations of the Guttah Boyz gang and the Gunz Up 

gang. Guttah Boyz and a gang called Starz Up are subsets of the G-Mobb gang. There 
10

are approximately 150 G-Mobb members in Sacramento. G-Mobb’s principal rival is the 

Oak Park Bloods gang.

The Oak Park Bloods have around 250 members and various subsets, including 

Zilla, Ridezilla, or Underwood Zilla (Zilla) and the Fourth Avenue Bloods, or FAB. Zilla 

is the “all star team” of the Oak Park Bloods, and to be a member you need to do prison 

time or something serious for the Oak Park Bloods.

Gunz Up is a split-off gang from the Starz Up gang. After breaking away from 

Starz Up, Gunz Up members associated with the Oak Park Bloods and the FAB subset. 

As a consequence, Gunz Up and Guttah Boyz have become rivals and enemies.

The primary activities of Gunz Up are residential burglaries, weapons possessions, 

assaults with a deadly weapon, shootings into an inhabited dwelling, and attempted 

murder. Gunz Up identifies with the number 10-5 and has its own gang signs.

Detective Saario testified as to the long-standing, volatile conflict between GMobb and the Oak Park Bloods. In 2008 Thomas Bryant, a FAB member, shot Philip 

Tigner in the back at a light rail station. Tigner was friendly with G-Mobb gang 

members. Bryant was accompanied by other gang members from FAB during the 

shooting. The same year, an Oak Park Blood member was shot and killed at a party 

attended by G-Mobb gang members. The shooting escalated the tensions between the 

gangs, and Detective Saario described it as “gasoline on the fire.”

According to Detective Saario, between May 2008 and July 2010 there were 26 

incidents between G-Mobb and the Oak Park Bloods and their subsets. These 26 

incidents resulted in five homicides and 20 other shootings resulting in injury. Most 

victims were juveniles. The incidents all involved a shooter in a group setting, a group 

dynamic common to the rivalry between the two gangs.

In addition, Detective Saario stated, the actions of the gang members who 

accompanied the shooter also benefited the gang. These other members provided backup 

and aided the shooter. Based on Detective Saario’s experience and his contact with gang 
11

members, the shooting would not have occurred had it not been for the participation of 

these other gang members. In his opinion, the group dynamic allowed the shooting to 

occur.

With respect to a shooting on Nedra Court, Jackson recalled to Detective Saario 

that on the day of the shooting, Jaren Jones “g[o]t into it” with Gunz Up members, 

including Isaac and Isiah. Little Diddy was also present. Jackson identified Isaac, Isiah, 

and Little Diddy in photographs shown to him by Detective Saario. At trial, Jackson 

testified that Little Diddy was Oliver and that he was familiar with brothers named Isiah 

and Isaac Washington. Detective Saario testified that Washington’s nickname was 

“Isiah,” his middle name is Isiah, and Washington’s brother’s nickname was “Isaac.”

Documentary Evidence

The prosecution introduced photographs and a video establishing defendants’ gang 

involvement. People’s Exhibit No. 11 showed Washington with other known Gunz Up 

members, making the “Gunz Up” gang sign. People’s Exhibit Nos. 10 and 13 showed

Washington making a “Starz Down” gesture, a sign of disrespect to the Starz Up gang.

People’s Exhibit Nos. 7, 8 and 9 were images of Washington “throwing a Zilla gang 

sign.” Zilla was described by Detective Saario as basically an “all star team” of the Oak 

Park Bloods, a group that Gunz Up members associated with. Detective Saario also 

described a “J. Rock” tattoo on the webbing of Washington’s fingers. J. Rock was 

known to Detective Saario as Jalen Spearman, a validated Gunz Up member. Detective 

Saario located People’s Exhibit No. 22, a video, on Washington’s cellphone. The video

showed Guttah Boyz and Starz Up gang members disrespecting Gunz Up members.

Defense Case

Neighbor No. 2’s Testimony

A second neighbor, who lived on the same street where the shooting took place, 

testified. He saw a man in a dark shirt with a small handgun, which he believed was a 
12

semiautomatic. The man walked down the street and tucked the gun into the waistband 

of his pants. Officers detained the man, who may have been Dawson.

Neighbor No. 3’s Testimony

The surveillance tape officers reviewed was from the residence of another 

neighbor. That neighbor saw the image of a person running on the tape and assumed the 

person had climbed the fence at the end of the street. He had seen people do this in the 

past, since the fence was a shortcut.

Stipulation

The parties stipulated that Washington was 16 years of age and Oliver was 

17 years of age at the time of the shooting. The parties also stipulated that Bryant was 

convicted of attempted murder with a gang enhancement for the benefit of FAB, a 

criminal street gang.

Verdict and Sentencing

The jury found Oliver guilty of one count of attempted murder (§§ 187, subd. (a),

664) and one count of shooting at an inhabited dwelling (§ 246), and found true all of the 

allegations except the allegation that the attempted murder in count one was committed 

willfully, deliberately, and with premeditation. The jury did not reach a decision on that 

allegation and the judge declared a mistrial on it.

The jury found Washington guilty of shooting at an inhabited dwelling (§ 246) and 

found all the related allegations true. The jury could not reach a verdict on one count of 

attempted murder and the court declared a mistrial on that count.

The court sentenced Oliver to a determinate term of 17 years in state prison plus 

an indeterminate term of 55 years to life: the middle term of seven years on attempted 

murder, plus 10 years for the section 186.22 enhancement, plus 25 years to life for the 

section 12022.53, subdivision (d) enhancement; plus 30 years to life on count two, 

pursuant to section 186.22, subdivision (b)(4)(A) the middle term of five years plus 

25 years to life under the section 12022.53, subdivision (d) enhancement. The court 
13

sentenced Washington to a determinate term of five years in state prison, the middle term 

on count two, plus an indeterminate term of 25 years to life pursuant to the section 

12022.53, subdivisions (d) and (e)(1) enhancement. Both defendants filed timely notices 

of appeal.

DISCUSSION

I

Sufficiency of the Evidence

Washington challenges the sufficiency of the evidence admitted at trial to support 

his conviction for aiding and abetting a shooting at an inhabited dwelling. Washington 

claims there is no substantial evidence that he provided Oliver with aid or encouragement 

with the intent or purpose of facilitating the shooting; no evidence that he said anything 

or handed anything to Oliver prior to the shooting; no evidence that he was involved in 

any meeting prior to the shooting in which the shooting was planned; or that he acted as a 

lookout. According to Washington, the case against him centered on three pieces of 

evidence: his gang membership, his possession of a gun the night before the shooting, 

and his fleeing the scene. This evidence admitted at trial and considered by the jury, 

Washington contends, was insufficient to prove he aided and abetted Oliver when he shot 

at the house. At most, Washington argues, the evidence shows he was present at the 

shooting and was in the same gang as Oliver and the others.

Background

In reviewing a defendant’s challenge to the sufficiency of the evidence, we review 

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

discloses substantial evidence. Substantial evidence is evidence that is credible, 

reasonable, and of solid value such that a reasonable jury could find the defendant guilty 

beyond a reasonable doubt. (People v. Rodriguez (1999) 20 Cal.4th 1, 11 (Rodriguez).)

We do not reassess the credibility of witnesses, and we draw all inferences from 

the evidence that supports the jury’s verdict. (People v. Olguin (1994) 31 Cal.App.4th 
14

1355, 1382.) Unless the testimony of a single witness is physically impossible or 

inherently improbable, it is sufficient to support a conviction. (People v. Young (2005) 

34 Cal.4th 1149, 1181.) “We determine ‘whether, after viewing the evidence in the light 

most favorable to the prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.’ [Citation.] In so doing, a reviewing 

court ‘presumes in support of the judgment the existence of every fact the trier could 

reasonably deduce from the evidence.’ ” (People v. Edwards (2013) 57 Cal.4th 658, 

715.)

The jury is entitled to draw reasonable inferences based on the evidence (People v. 

Livingston (2012) 53 Cal.4th 1145, 1166), and we must accept all logical inferences the 

jury might have drawn from the evidence, even if we would have concluded otherwise 

(People v. Salazar (2016) 63 Cal.4th 214, 242). “ ‘Although it is the jury’s duty to acquit 

a defendant if it finds the circumstantial evidence susceptible of two reasonable 

interpretations, one of which suggests guilt and the other innocence, it is the jury, not the 

appellate court that must be convinced of the defendant’s guilt beyond a reasonable 

doubt.’ ” (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.) “A reversal for 

insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever 

is there sufficient substantial evidence to support” ’ the jury’s verdict.” (Id. at p. 357.)

The person who aids and abets in the commission of a crime is a “principal” in the 

crime and shares the guilt of the actual perpetrator. (People v. Prettyman (1996) 

14 Cal.4th 248, 259.) “ ‘[A] person aids and abets the commission of a crime when he or 

she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the 

intent or purpose of committing, encouraging or facilitating the commission of the 

offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of 

the crime.’ ” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 295-296.)

Among the factors the jury may consider in finding a defendant guilty of aiding 

and abetting are presence at the crime scene and a defendant’s conduct before and after 
15

the offense. While a defendant’s mere presence at the crime scene or a failure to prevent 

the crime do not constitute aiding and abetting, these factors may be considered in 

determining a defendant’s culpability. The act required need not be a substantial factor in 

the offense. Whether a defendant aided and abetted in a crime is a question of fact, and 

we resolve all conflicts in the evidence and draw all reasonable inferences in favor of the 

judgment. (People v. Garcia (2008) 168 Cal.App.4th 261, 272-273; People v. SwansonBirabent (2003) 114 Cal.App.4th 733, 743-744; In re Juan G. (2003) 112 Cal.App.4th 1, 

5.)

Discussion

Washington’s effort to minimize the evidence of his aiding and abetting Oliver’s 

acts fails. Contrary to his assertion, the evidence presented by the prosecution 

concerning his involvement was not “mere speculation.” The evidence of aiding and 

abetting may be circumstantial. Washington argues there was no evidence that he said 

anything or handed anything to Oliver prior to the shooting. Nor was there any evidence 

Washington was involved in any meeting prior to the shooting in which the shooting was 

planned, or that he acted as a lookout. No doubt a prosecution premised on evidence of a 

meeting where a shooting was discussed and planned with assigned roles would be more 

compelling. However, crimes are often sneaky undertakings, structured to conceal 

evidence of planning. Unlike legitimate businesses, participants in criminal enterprises 

try to conceal their meetings and plans so that evidence of aiding and abetting must be 

derived from the circumstances of their interactions and knowledge of their customary 

practices and habits and history of prior clashes and conflicts rather than evidence of 

plans and schemes. As this case illustrates, it is difficult to maintain the cooperation of

victims and witnesses following gang violence; to require evidence of explicit plans and 

agreements to commit crimes would make prosecution of all but the direct perpetrators 

difficult if not impossible.
16

After the offense, the victim readily identified Oliver as the person who shot her 

and identified Washington as a cohort who was also with Oliver the night before, flashing 

a revolver of the same description as the one used by Oliver to shoot her. And yet at the 

trial she remembered very little, could not recall details and her earlier identification 

could only be revived by her recorded statement. There were no recordings of statements 

by Washington, but his conduct spoke volumes regarding his complicity. The history of 

conflict between Guttah Boyz and Gunz Up described by the prosecution expert,

including shootings and murders, attests to the violence of Oliver and Washington’s

gang. The stroll down Bishopgate Court was not an innocent walk down memory lane. 

As Jackson declared, “they came to funk”—to dispense their venom and hatred via the 

gun fired by Oliver, a gun of the same description as the gun pulled out by Washington 

the night before. After the shots were fired, they ran merrily away towards a house 

occupied by a fellow gang member. 

The jury could reasonably infer that the long black revolver in Washington’s 

possession the night before was the long black revolver seen by the neighbor shortly after 

the shooting and that Oliver used the revolver in the shooting. 

Washington argues that even if it could be inferred the gun he possessed the night 

before was the same gun used in the shooting, “there is still no substantial evidence that 

[Washington] gave it to [Oliver] for the purpose of committing this particular shooting.” 

Certainly there is no transcript of a conversation between defendants to that effect. But 

evidence established that defendants belonged to the same gang and the house Oliver shot 

at was inhabited by a rival gang member. Previously Washington’s brother had been shot 

during a drive-by shooting by suspected rival gang members. Five days before the 

shooting, Washington and other gang members were involved in a shootout with rival 

gang members. Just prior to the shooting, the Gunz Up group walked up to Deandre’s 

house and began shooting without any hesitation. Given this sequence of events, the jury 
17

could reasonably conclude the gun was an instrument used by Washington and shared 

with Oliver.

It is also reasonable to conclude that this was all part of a plan, a plan to which 

Washington subscribed and supported. He should not escape responsibility because he 

chose not to share his agreement in the manner that members of civilized groups share 

their agreement to innocent undertakings. 

It is not simply Washington’s gang membership or his possession of a gun that 

provides sufficient evidence to find him guilty of aiding and abetting. Instead, it is the 

interplay of Washington’s involvement in the gang, the events preceding the shooting, 

and his possession of a weapon similar to that identified at the scene and the night before 

the shooting. Add to these factors Washington’s actions immediately following the 

shooting. Witnesses described the fleeing group of men, which included Washington, as 

laughing while they ran. Washington’s group all fled in the same direction toward a 

closed cul-de-sac. Silence does not give consent, but nor does it preclude a jury from 

examining the circumstances of the offense and the conduct of gang members involved in 

gang wars before and after a criminal shooting and conclude a gang member, here 

Washington, joined in a plan to walk down a street and direct deadly fire into a residence 

occupied by members and friends of an opposing gang. The events surrounding the 

shooting support the inference that it was a planned attack on a rival gang carried out by 

Oliver using the same revolver displayed by Washington the prior evening. Substantial 

evidence supports the jury’s finding of aiding and abetting.

II

Evidence Erroneously Admitted

In his opening brief, Washington argued the court erroneously admitted certain 

evidence over his objection and to his prejudice. During the course of this appeal, the 

Supreme Court decided Sanchez, supra, 63 Cal.4th 665 concerning the admissibility of 

hearsay evidence through the testimony of an expert witness. Washington objects to 
18

specific testimony provided by the gang expert at trial in his case. Defendants filed 

supplemental briefs raising points based on the Sanchez decision. We address each set of 

objections in turn.

Evidence of Prior Criminality

In his opening brief, Washington contends the trial court erred in allowing 

evidence of his prior criminal activity. According to Washington, the three incidents 

admitted into evidence were only marginally necessary for the prosecution and were 

highly inflammatory.

Background

Proceedings Prior to First Trial

Prior to the first trial, the prosecution moved to admit evidence of 29 criminal 

incidents between the G-Mobb/Guttah Boyz/Starz Up street gangs and the FAB/Gunz Up 

street gangs between 2008 and the date of the shooting. Oliver filed a motion to sever his 

jury trial from Washington and/or exclude evidence of the 29 prior gang incidents. 

Oliver argued the incidents should be excluded because they were cumulative and 

prejudicial.

Washington also filed motions in limine. In one of his motions, Washington 

requested an Evidence Code section 402 hearing on the issue of the gang-related conduct. 

Washington argued the incidents posed a great risk of the admission of inflammatory and 

irrelevant evidence.

The court held an Evidence Code section 402 hearing. The 29 incidents were 

more accurately described as 26 incidents. At the hearing the gang expert, Detective 

Saario, did not detail all 26 incidents but provided a few examples of those incidents. 

Detective Saario explained the 26 incidents were relevant to show that crimes between 

the gangs only took place when the gang members were in the company of fellow gang 

members. The court found all the incidents admissible, finding the evidence probative on 

the issues of motive and intent and not unduly prejudicial.
19

In addition, at the hearing, the prosecution provided details of a jail assault 

involving Washington in August 2011. The prosecution argued the assault, which also 

involved an attempted or completed sexual penetration of the victim, was committed in 

association with Underworld Zilla and Blood members after one of the victims tried to 

stick up for the other, a perceived sign of disrespect by the gang members. The 

prosecution agreed to sanitize the incident by removing any reference to sexual 

penetration. Detective Saario explained that gang members affiliated with the Bloods 

who go to prison side with the Zilla gang. Such a prison assault benefits the individual 

who carries out the assault, his street gang, and the Zillas. Neither of the two assault 

victims were identified as members of Guttah Boyz, G-Mobb, or Starz Up.

Defense counsel agreed to submit on the issue provided the prosecution redacted 

the sexual component of the assault. The trial court found the incident proposed for 

redaction admissible since the incident was probative of Washington’s commitment to 

the gang, and found the danger of prejudice to be “virtually nonexistent compared to the 

probative value here.”

Proceedings Following Mistrial

After the first trial resulted in a mistrial, retrial began. Prior to the second trial, the 

court stated that all of the in limine evidentiary objections and rulings made during the 

first trial were deemed to have been raised and made for the second trial. The court held 

that any previous objections made by the parties at the first trial need not be renewed at 

the second trial and would be preserved for appellate review. The court invited the 

parties to present additional argument and any new issues that were not presented at the 

first trial. The prosecutor stated he had become aware of several of defendants’ gang 

contacts he was unaware of at the first trial.

During the second trial, the prosecution presented evidence of the September 2009 

shootout at Nedra Court, the August 2011 jail assault, and a burglary by Washington in 

May 2009. On appeal, Washington objects to the admission of these three incidents.
20

May 2009 Burglary

In May 2009 officers responded to a report of a burglary in progress. When they 

arrived, officers found several people carrying property out of the residence. The officers 

confronted the individuals, who fled. Officers surrounded the property, and 

Washington’s brother and James Hamilton were detained. Hamilton told officers “Skeet” 

was also involved. Skeet was later identified as Washington. Washington’s brother was 

a member of Gunz Up. A witness identified Washington as the person they saw breaking 

into the residence.

September 2009 Shootout

A shootout between Gunz Up and Guttah Boyz gang members took place at Nedra 

Court in September 2009. Emory Allen, affiliated with Gunz Up, and Jaren Jones lived 

together on Nedra Court. Jackson, affiliated with G-Mobb, also lived on the court. 

Previously, Jones associated with Gunz Up but had begun hanging around G-Mobb 

members. Gunz Up members had tagged Nedra Court with numbers associated with the 

gang and considered it their turf.

The day of the shooting, Washington, his brother, and Oliver visited Allen on 

Nedra Court. Jones told Allen he was calling friends to come over. Allen knew the 

friends were members of the Guttah Boyz gang, and he and Jones argued. Jackson came 

out to see what was going on and saw Jones making a call.

Timothy Barksdale, a Guttah Boyz member, arrived with a gun and shooting broke 

out between Guttah Boyz and Gunz Up. Washington and Allen were known to have had 

guns prior to the shootout for the Gunz Up gang, and Allen and Winters had guns for the 

Guttah Boyz gang. Winters, who was later associated with C.T. and Jackson, was shot in 

the altercation.

August 2011 Jail Assault

In the county jail, Marquis Greenwood, a member of the Zilla gang, acted 

disrespectfully toward another man, Lorenzo Mays. Donell Pruitt came to May’s defense 
21

and told Greenwood to leave him alone. Greenwood responded that “his crew” would 

take care of business. Subsequently, Mays and Pruitt were attacked by members of the 

Bloods and Zillas. The attackers entered Mays’ and Pruitt’s jail cells while another gang 

member stood watch. Washington took part in the assault.

Discussion

Washington objects to the admission of these three prior incidents, arguing their 

admission was “unnecessary, cumulative, and highly prejudicial.” Washington contends 

these prior incidents were only marginally necessary to the prosecution’s case given the 

abundance of other evidence of his gang involvement and were highly inflammatory as 

propensity evidence. Therefore, Washington argues the court abused its discretion in 

admitting the three incidents. In the alternative, he contends counsel performed 

ineffectively in failing to object to the evidence.

Under Evidence Code section 352, the trial court has the discretion to determine 

the admissibility of evidence, weighing the probative value of that evidence against its 

prejudicial impact. We will not disturb the court’s exercise of its discretion unless we 

find the court exercised that discretion in an arbitrary, capricious, or patently absurd 

manner that resulted in a miscarriage of justice. (Rodriguez, supra, 20 Cal.4th at pp. 9-

10.)

We review the trial court’s decision to admit evidence of gang activity for such an 

abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 547.) Gang evidence is 

admissible if relevant to prove motive and opportunity. In addition, such evidence is 

relevant and admissible when the underlying crime is gang motivated. (People v. 

Williams (1997) 16 Cal.4th 153, 193; People v. Samaniego (2009) 172 Cal.App.4th 1148, 

1167.) However, gang evidence cannot be used by the jury to improperly infer that the 

defendant has a criminal disposition because of the membership in the gang. (People v. 

Champion (1995) 9 Cal.4th 879, 922.)
22

Washington acknowledges that in order to prove the gang enhancement allegation, 

the prosecution must prove that Gunz Up and FAB are criminal street gangs engaged in a 

violent rivalry with Guttah Boyz and G-Mobb, and that Washington and Oliver were 

members of the gang. However, Washington contends the three incidents he challenges 

were only marginally necessary to the prosecution’s case and highly inflammatory, 

resulting in an abuse of discretion on the part of the trial court.

We consider each incident in turn. The trial court found the September 15, 2009 

shootout probative on the issue of motive and intent. Washington concedes the 

prosecution was required to demonstrate that the Gunz Up gang engaged in a pattern of 

criminal activity. However, the evidence that the gang engaged in criminal activity was 

overwhelming and “it was simply unnecessary for the prosecution to introduce into 

evidence an incident in which [Washington] himself was the alleged perpetrator.” 

Washington also concedes the September 15, 2009 shootout’s probative value but again 

argues the evidence was cumulative and highly prejudicial since he was the alleged 

shooter.

The September 15, 2009 shootout took place between Gunz Up and Guttah Boyz 

gang members and occurred just five days before the shooting in the present case. The 

shootout involved the same two rival gangs, and many of the same individuals, who 

clashed in this case and took place in an area of town that Gunz Up members considered 

their turf. Given the cast of characters, the rivalry over turf, and the timeliness of the 

prior shootout, this evidence was highly probative of the motive for Gunz Up members to 

attack Guttah Boyz gang members just five days later. We cannot find the trial court 

erred in finding the probative value of the September 15, 2009 shootout outweighed any 

prejudicial impact.

The trial court found the May 7, 2009 burglary admissible because it would 

support “an opinion that Detective Saario would have that these two gentlemen are both 

gang members, heavy duty gang members with lengthy involvement with the gang.” 
23

Again, Washington does not dispute the probative value of the incident, but instead 

argues his role in Gunz Up was virtually undisputed. Washington points out that the 

prosecution introduced multiple photographs of Washington giving gang signs and his 

gang tattoos, evidence of his gang contacts and Detective Saario’s opinion that 

Washington was a validated member of Gunz Up. Therefore, the prosecution did not 

need to introduce the May 7, 2009 burglary to convince the jury he was an active member 

of Gunz Up.

The May 7, 2009 burglary established both Washington’s commitment to the 

Gunz Up gang and his participation in gang activities. As Washington notes, the 

prosecution presented other evidence of Washington’s commitment to the gang, but the 

evidence of Washington flashing gang signs, sporting tattoos, and admitting gang 

membership pales in comparison to an incident that Washington perpetrated with and for 

fellow gang members. Washington argues this evidence suggests that if he committed 

crimes in the past, he is more likely to have been involved in the charged offense, an 

impermissible use of propensity evidence. We disagree.

In order to prove a pattern of criminal gang activity, the prosecution is not 

prohibited from introducing evidence of the defendant’s misconduct on other occasions. 

(People v. Tran (2011) 51 Cal.4th 1040, 1046.) “The prosecution cannot be compelled to 

‘ “present its case in the sanitized fashion suggested by the defense.” ’ ” (Id. at p. 1049.) 

The prosecution introduced the 2009 burglary as evidence of Washington’s commitment 

to the gang and his participation in gang activities. Although the probative value of the 

evidence “inevitably decreases with each additional offense, while its prejudicial effect 

increases” (ibid.), here the 2009 burglary was extremely probative of Washington’s 

willingness to be involved in a pattern of gang activity and was not outweighed by its 

potential prejudicial impact.

The trial court found the August 20, 2011 jail assault was also probative of 

Washington’s “commitment to the gang.” Washington posits the same objection to the 
24

inclusion of this evidence: it is both cumulative and overly prejudicial. However, the 

evidence of Washington’s participation in a gang-related crime that occurred after the 

charged crimes is extremely probative of the level of his participation in gang activities. 

Such evidence provided support that Washington was motivated by gang loyalty to aid 

and abet the shooting in the present case. Again, the trial court did not err in finding the 

probative value of the jail assault outweighed its prejudicial impact.

People v. Sanchez

Following the trial and after the close of briefing on appeal, the Supreme Court 

decided Sanchez, supra, 63 Cal.4th 665. The Sanchez case changed the rules with respect 

to the admissibility of hearsay evidence relied on by experts to explain the basis for 

expert opinion. In Sanchez, the defendant was convicted of drug and firearm offenses 

with attached gang enhancements (§ 186.22, subd. (b)(1)) as well as the substantive 

offense of active gang participation (§ 186.22, subd. (a)). (Sanchez, at p. 671, fn. 1.) On 

appeal, the defendant challenged the gang expert’s testimony about five prior contacts he 

had with police. Though his knowledge about the contacts was derived solely from 

reading police reports, the expert was permitted to testify about the information described 

in the reports to explain the basis of his opinion that the defendant was a gang member 

and committed the charged offenses for the gang’s benefit. Consistent with prior 

authority, the Sanchez jury was instructed that the testimony was not admitted for its truth 

but only to explain the basis for the expert’s opinion.

The Supreme Court reversed prior authority and announced a new rule: “If an 

expert testifies to case-specific out-of-court statements to explain the bases for his 

opinion, those statements are necessarily considered by the jury for their truth, thus 

rendering them hearsay” and thus inadmissible unless “properly admitted through an 

applicable hearsay exception.” (Sanchez, supra, 63 Cal.4th at p. 684.)

“[I]mproper admission of hearsay may constitute state law statutory error” 

(Sanchez, supra, 63 Cal.4th at p. 698), which would ordinarily be assessed under People 
25

v. Watson (1956) 46 Cal.2d 818 (Watson). That test inquires whether “it is reasonably 

probable that a result more favorable to the appealing party would have been reached in 

the absence of the error.” (Id. at p. 836.) However, if the improperly admitted hearsay is 

also testimonial within the meaning of the high court’s confrontation clause jurisprudence 

(see, e.g., Crawford v. Washington (2004) 541 U.S. 36, 68-69 (Crawford)), the error is 

assessed under the federal constitutional standard of Chapman v. California (1967) 

386 U.S. 18, 24 (Chapman), which requires any error to be harmless beyond a reasonable 

doubt. (See Sanchez, at p. 698.)

Notwithstanding the new rule, general testimony about a gang’s behavior, history, 

territory, and general operations is usually admissible. (See Sanchez, supra, 63 Cal.4th at 

p. 698.) The same is true of the gang’s name, symbols, and colors. This background 

information can be admitted through an expert’s testimony, even if hearsay, if there is 

evidence that it is considered reliable and accurate by experts on the gang. Much of 

Detective Saario’s testimony fell into this category. 

As an alternative to a hearsay exception, the Supreme Court has indicated “the 

[hearsay] evidence can be admitted through an appropriate witness and the expert may 

assume its truth in a properly worded hypothetical question in the traditional manner.” 

(Sanchez, supra, 63 Cal.4th at p. 684.)

In response to a hypothetical setting forth the facts surrounding the shooting of 

C.T., Detective Saario testified such a shooting benefits the gang because it instills fear in 

the rival gang and the surrounding community. The aggressor gang gains respect from 

both its rivals and own gang members as a result of the shooting.

In supplemental briefing, Washington, joined by Oliver, challenges testimony 

provided by Saario as case specific hearsay. Some of the testimony had already been

challenged in the opening brief on grounds of relevance and undue prejudice. 

(1) Testimony that a witness identified Washington as a participant in a home 

burglary on May 7, 2009.
26

(2) Testimony that Washington was involved in an assault in the Sacramento 

County jail in 2011, testimony apparently based on a report from other law 

enforcement officers. 

(3) Testimony regarding a gang information report dated May 19, 2000, authored 

by “POP officers,” who searched Jamarr Washington’s residence pursuant to 

a search warrant, that among photographs discovered during the search was a 

photograph of 12 individuals throwing Gunz Up gang signs. Defendants

were two of the individuals. In the same report, Washington was identified 

in a photograph on a social media Web site throwing up Gunz Up gang signs. 

Washington asserts “it is entirely possible, if not probable, that the search 

was conducted as part of the investigation into one of the many shootings that 

occurring during that time period” and thus the report was testimonial, in 

which case the confrontation clause is implicated.

(4) Testimony by Detective Saario based on information provided to him by 

officers who conducted a search of Washington’s residence on May 20, 2009,

during which Washington and his brother told officers about the feud 

between Gunz Up and Starz Up. Washington argues the conversations may 

have been part of an investigation into a crime and thus were testimonial.

(5) Testimony based on a July 3, 2009 report prepared by POP officers that 

Washington was among a group of Gunz Up members loitering near an 

apartment complex.

(6) Testimony by Detective Saario that on April 23, 2009, after some unnamed 

officers were able to stop a vehicle that initially evaded their pursuit,

Washington admitted he and his brother were Gunz Up members. 

(7) Testimony by Detective Saario that unnamed “officers” observed 

Washington’s image in a photograph on a Gunz Up member’s social media 

page.
27

(8) Testimony by Detective Saario that “officers” monitoring a party saw 

Washington at the party.

(9) Testimony by Detective Saario that “officers” spoke with a group that 

included Washington, and several members of the group told the officers 

they were Gunz Up members, showed gang signs and related the history of 

the gang.

Oliver also challenges Detective Saario’s testimony that Oliver was at the shooting 

at Nedra Court. The testimony was apparently based on a report of the incident. On 

cross-examination by Oliver’s counsel, Detective Saario disclaimed any direct knowledge 

of the incident, but confirmed the statement by Oliver’s counsel that: “Basically the 

report indicates he’s hiding in the garage and looking out the crack of the garage and 

seeing shell casings fall?” Oliver also joins in the challenge to Detective Saario’s 

testimony regarding the May 19, 2000 POP officers’ report and the July 3, 2009 POP

officers’ report. 

Discussion

In summary, the Sanchez objections raised by defendants challenge evidence 

concerning their gang membership. However, defendants never contested their 

membership in Gunz Up. As set forth in Washington’s opening brief, “[Defendant] does 

not dispute the sufficiency of the evidence demonstrating the feud between these gangs or 

even his membership in Gunz Up.” Rather, Washington argued “ ‘Membership in an 

organization does not lead reasonably to any inference as to the conduct of a member on 

a given occasion.’ ” This case is unlike those in which the defendants disclaimed gang 

membership and hearsay testimony by an expert was critical in proving membership 

despite the defendants’ denials. 

The parties argue vociferously as to whether the erroneous admission of the 

challenged hearsay should be analyzed for prejudice under the standard set forth in 

Chapman, supra, 386 U.S. at p. 24, which requires reversal unless the error was harmless 
28

beyond a reasonable doubt, or under the more relaxed state evidentiary error standard set 

forth in Watson, supra, 46 Cal.2d 818, which requires the defendant on appeal to show 

that it was reasonably probable that the result would have been different had the specific 

item of evidence not been presented before the jury. Chapman is the appropriate 

standard if the hearsay was testimonial within the meaning of Crawford, supra, 541 U.S. 

36 and thus violative of defendants’ right of confrontation. The People insist defendants 

fail, in all but a few instances, to establish the erroneously admitted hearsay was

testimonial and urge us to reject the rule urged by defendants that when both testimonial 

and nontestimonial hearsay is received, the cumulative effect should be assessed under 

Chapman.

Defendants cite People v. Iraheta (2017) 14 Cal.App.5th 1228, 1252-1255 in 

support of such a rule. But in Iraheta the question of whether the defendant was a gang 

member was hotly contested. The defendant denied being a gang member. He never 

admitted such membership to law enforcement. Indeed, he consistently denied being a 

gang member and presented considerable evidence undercutting the prosecution’s 

evidence. The prejudice of hearsay evidence of his gang membership, admitted in 

violation of Sanchez, was easy to find, whether testimonial or otherwise. Here, 

Washington never denied his gang membership. Indeed, he objected to some of the gang 

evidence as excessive and cumulative given his admission of gang membership and other 

evidence of his gang involvement.

The erroneous admission of hearsay testimony establishing his gang membership 

was cumulative and not prejudicial under either Watson or Chapman. Here, we have the 

testimony of the victim in this case, Washington’s presence at the shooting, and 

Washington walking down the street with a shooter who used a gun that was arguably the 

same gun displayed by Washington the night before. All of this was far more compelling

than Detective Saario’s testimony about his gang membership.
29

Oliver’ s Prejudice Claim

Oliver’s claim of prejudice from the admission of case specific hearsay also fails. 

The victim had met Oliver on previous occasions. She saw him and Washington walking 

down the street together. She saw him pull out a gun similar to the gun she saw in 

Washington’s hands the night before. When shown a photograph of Oliver after the 

shooting she burst into tears and identified the photograph as that of the person who shot 

her. Jackson also identified Oliver as the person in front of the group walking down 

Bishopgate Court. Jackson also knew Oliver from previous friendly encounters. Oliver 

made eye contact with him and shook his head back and forth as if to warn him of the 

violence to come. Jackson knew the object of the group; not just talk but they were 

coming for “funk.”

The Gunz Up gang membership of defendants though undisputed, was relevant. 

Their disdain for Guttah Boys/Starz Up gang members provided a motive for the 

otherwise senseless violence. The shooting in this case involved the home of Deandre, an 

individual who was affiliated with Guttah Boyz. At the time of the shooting, Deandre 

and two other males, who were affiliated with Guttah Boyz, were sitting outside his 

Bishopgate Court residence. Gang expert Detective Saario testified that Gunz Up and 

Guttah Boyz are enemies and that Guttah Boyz and Starz Up are subsets of the same 

umbrella gang, G-Mobb. Additionally, tensions were high between Gunz Up and Guttah 

Boyz at the time of the Bishopgate Court shooting as there had just been a shooting 

between the two gangs at Nedra Court a few days before and Oliver was also at the Nedra 

Court shooting.

The eyewitness testimony and the testimony regarding the hostility between Gunz 

Up and Guttah Boyz provided strong evidence that Oliver was the shooter at Bishopgate 

Court and was guilty of the crimes for which he was convicted irrespective of the 

challenged evidence. The same evidence supported the allegations against his fellow 

gang member, Washington.
30

Writings found when Detective Saario and others searched Oliver’s bedroom 

illustrate the level of hostility felt by Oliver. Detective Saario testified to recovered 

writings Oliver wrote: “If we from smutta . . . Nigga, I’m going to split his shit. . . . Dat 

Nigga hella fucking soft and he be aiming to miss. I aim to hit dat Nigga just a lil ass 

bitch, yeah, he be yapping out da mouth but he ain’t waken up shit.” According to 

Detective Saario, “smutta” is a disrespectful term for “Guttah” and the phrase “I’m going 

to split his shit” refers to shooting someone.

Detective Saario testified the writing also stated: “It’s hit squad gunna Boyz. I be 

a captain. I’m Little Diddy Mackin. We can get this shit cracking.” The writing 

continued: “Letting these Stars Down Niggas may pump you up to get slumped. Little 

Niggas you get found in the trunk. You Niggas ain’t worth killing cause you Niggas be 

punks.” Detective Saario testified another writing found in Oliver’s bedroom, stated:

“Bread over bitches my nigga. That’s what we claim. Fucking with this BOB shit. 

These hoes, they getting played fucking with the squad. These niggas, they sprayed. 53 

hunnit my nigga. That’s where we stay, We Bounce Out Boys. My nigga, this ain’t no 

game.” Detective Saario opined that “sprayed” in this context referred to “shooting 

multiple rounds.” He also believed “53 hunnit” referred to 5300 Mack Road, the Aspen 

Apartments, and that location was associated with Gunz Up.

Further: “A lot of niggas acting hard but they really be soft. I’m a squad made 

nigga. I ain’t taking a loss. . . . I’m little Diddy Mackn bra. On the strip pulling trigger -

- or on the strip pulling nighters. We be thizzin in the shit. And when them niggas slide 

through, Ima empty the clip.” Detective Saario believed that the reference to “squad” 

was significant because Gunz Up called themselves “a squad.” Additionally, the 

detective believed that “little Diddy Mackn” referred to defendant Oliver. Oliver’s 

attitude was reflected in his writings and actions.

Their words and actions, considered in the context of an ongoing gang war 

between two gangs, provided far more compelling evidence of the guilt of Washington 
31

and Oliver than any of the hearsay evidence provided by Detective Saario of their gang 

membership.

III

Ineffective Assistance of Counsel

Washington asserts that defense counsel performed ineffectively in failing to 

object to hearsay evidence that Washington and his brother dropped off Deandre at his 

house on a previous occasion. Defendants also label as ineffective defense counsel’s 

failure to object to the prosecutor’s comments during closing argument. 

To establish ineffective assistance of counsel, a defendant must show counsel’s 

performance was deficient and fell below an objective standard of reasonableness, and it 

is reasonably probable that a more favorable result would have been reached absent the 

deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) A 

reasonable probability is a “probability sufficient to undermine confidence in the 

outcome.” (Id. at p. 694.)

Hearsay Evidence

During a recorded interview with Detective Saario, Jackson described the actions 

of the shooter and the rest of the group outside Deandre’s house just prior to the shooting. 

Jackson told Detective Saario “everybody” looked at Deandre’s house. Jackson

explained that two individuals knew Deandre because they went to school with him and 

had dropped him off at his house in the past.

At trial the prosecutor asked Jackson:

“Q. Also, a point that you mentioned during the tape, you said that the two people 

had actually dropped off Deandre at his home because they went to school with him, do 

you remember that part?

“A. Yeah.

“Q. We were just looking at that?

“A. Yeah.
32

“Q. When you said the two people, you pointed at something on the tape, do you 

remember that?

“A. Yeah.

“Q. Were the two people you were pointing at, were they a photograph of Isaac 

Washington and Isiah Washington?

“A. Yeah.

“Q. Were those the two guys you meant?

“A. Huh?

“Q. Were these the two guys that you meant when you said these two guys 

dropped Deandre off at his house?

“A. Yeah.

“Q. How do you know they dropped Deandre at his house, or you knew where he 

lived?

“A. Deandre told me.”

Discussion

Washington contends the information that he and his brother previously dropped 

off Deandre at his house was inadmissible hearsay. According to Washington, these 

hearsay statements implied Washington was more than just a bystander at the shooting, 

but instead was the person who directed the shooter to the house. Defense counsel’s 

failure to object to this testimony, Washington contends, constitutes ineffective assistance 

of counsel.

Under Evidence Code section 1200, “evidence of a statement that was made other 

than by a witness while testifying at the hearing and that is offered to prove the truth of 

the matter stated” is inadmissible as hearsay, except as otherwise provided by law. (Evid. 

Code, § 1200, subds. (a), (b).) Deandre’s statement to Jackson, which Jackson repeated 

at trial, was inadmissible hearsay under Evidence Code section 1200.
33

Washington argues there was no tactical reason for defense counsel’s failure to 

object to Jackson’s testimony. According to Washington, the inadmissible remarks flew 

in the face of the defense argument that Washington had no role in the shooting: “If the 

jury were to accept what Deandre told [Jackson] as true—that [Washington] knew 

exactly where Deandre lived—and if the jury were to leap to the conclusion that the 

shooter learned where Deandre’s house was from [Washington], then [Washington]

would be guilty as an aider and abettor.” Therefore, there was no conceivable tactical 

reason not to object to Deandre’s out-of-court statement.

We disagree. Defense counsel, faced with Deandre’s statement, may well have 

decided not to object in order to minimize any potential impact of the statement. The 

brief reference to Washington and his brother dropping off Deandre at his house would 

have been magnified had defense counsel objected. We reverse a conviction on the 

ground of inadequate counsel only if the record discloses defense counsel had no rational 

tactical purpose for failing to object. (People v. Frye (1998) 18 Cal.4th 894, 979-980, 

disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) 

We do not second-guess defense counsel’s difficult tactical decisions in the harsh light of 

hindsight. (People v. Scott (1997) 15 Cal.4th 1188, 1212.)

Prosecutor’s Comments

During closing argument, the prosecutor stated: “Come into court and tell you the 

truth? There’s no place for that. That makes you a snitch. But you put them someplace 

where they’re in a hospital bed, they don’t know they’re being recorded, they’re in a 

police station and they don’t realize that they’re being recorded, and all of a sudden 

everything changes. We talked a little about the snitching effect, how it applies, and no 

one wants to be a snitch. 

“And the respect and the fear. Because this is all about respect and fear. That’s 

why these things are happening is because of respect and fear. And that fear and respect 

is what keeps people from coming to court and telling the truth. But, at the end of the 
34

day, the idea and question is this: When is enough going to be enough? When is it going 

to stop? When do we stop shooting each other over nothing? 

“The [C.T.s] of the world, despite being crippled -- I can’t put it any other way, 

she doesn’t want to come in here and testify. Antoine Jackson is a Guttah Boy. He’s not 

interested in that. 

“The only way that this stops is if these people are held responsible for the things 

that they do, for the conduct that they engaged in. Being held responsible for the lack of 

respect for human life, theirs and others. That’s the first step. That’s what has to 

happen.”

Later during closing argument, the prosecutor argued: “No matter what happens 

in this particular case, gang violence isn’t going to go away. It’s not like these men are 

convicted and all of a sudden there’s no more gang wars. That’s just unfortunately, the 

way it is. But at least in this case, at least on what happened on September 20th, 2009, at 

least on that day, there can be justice. That’s what this is about. This is about on that 

particular day these men being held responsible for what they did. And that can only 

happen one way, and that’s if they’re found guilty of each and every charge and each and 

every enhancement because they are guilty beyond all reasonable doubt.”

During rebuttal, the prosecutor stated: “And at the end of the day, both of these 

men should be convicted of all of these crimes and not because I, as the prosecutor, am 

standing up here and asking you to convict them. [¶] They shouldn’t be convicted 

because you felt bad that a young girl was hit. They should be convicted for each and 

every one of these crimes because it’s the truth. They did it. They’re responsible. And 

the right thing is that they’re held responsible for that because it’s the truth. And, at the 

end of the day, that’s what this is all about, getting to the truth. And the truth of the 

matter is they’re both guilty, and verdicts that support that will equal justice.”
35

Discussion

A prosecutor’s conduct violates the federal Constitution when it comprises a 

pattern of conduct so egregious that it infects the trial with such unfairness as to deny the 

defendant due process. Prosecutorial conduct that does not render a criminal trial 

fundamentally unfair is prosecutorial misconduct under state law only if it involves the 

use of deceptive or reprehensible methods to attempt to persuade either the court or the 

jury. (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)

As a general rule, a defendant must object to prosecutorial misconduct and request 

an admonishment when the misconduct occurs. (Samayoa, supra, 15 Cal.4th at p. 841.) 

The defendant’s failure to object or request an admonition is excused if either it would be 

futile or an admonition would not have cured the harm caused by misconduct. (People v. 

Hill (1998) 17 Cal.4th 800, 820.)

The prosecution may make fair comments on both the evidence presented and the 

credibility of witnesses. (People v. Clark (1993) 5 Cal.4th 950, 1029, disapproved on 

another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) However, the 

prosecution may not suggest the existence of facts outside of the record, misstate the 

evidence, or appeal to the jury’s sympathy, passion, or prejudice. (People v. Davis

(2005) 36 Cal.4th 510, 550; People v. Benson (1990) 52 Cal.3d 754, 794-795; People v. 

Fields (1983) 35 Cal.3d 329, 362.)

On appeal, the defendant bears the burden of affirmatively demonstrating the 

prosecutor’s misconduct. (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) 

Defendants contend the arguments cited above from the prosecutor’s closing constitute 

misconduct, and therefore defense counsel performed ineffectively in failing to object. In 

support, defendants rely on a pair of federal cases: U.S. v. Solivan (6th Cir. 1991) 

937 F.2d 1146 (Solivan) and U.S. v. Johnson (8th Cir. 1992) 968 F.2d 768 (Johnson). In 

these cases, defendants argue, the prosecution committed misconduct by implying the 

jurors could help with the war against drugs by finding the defendants in those particular 
36

cases guilty. Defendants claim the prosecution in the present case committed the same 

misconduct, and defense counsel should have objected to the argument.

In Solivan, during closing argument the prosecutor stated: “What you’re listening 

to is a wholesale distributor of narcotics, cocaine discuss her business affairs and 

complain about her busy schedule, the lack of good product and the trouble she’s having 

getting this stuff up here now. And I’d submit to you folks, that she’s been caught now. 

And I’m asking you to tell her and all of the other drug dealers like her—(defense 

counsel’s objection and Court’s response omitted)—[t]hat we don’t want that stuff in 

Northern Kentucky and that anybody who brings that stuff in Northern Kentucky 

and . . . .” (Solivan, supra, 937 F.2d at p. 1148.)

The court found these comments constituted misconduct since they were 

“designed, both in purpose and effect, to arouse passion and prejudice and to inflame the 

jurors’ emotions regarding the War on Drugs by urging them to send a message and 

strike a blow to the drug problem.” (Solivan, supra, 937 F.2d at p. 1153.) In addition, 

the court found: “The prosecutor in the instant case went beyond stating the obvious, and 

went so far as to urge the jury to send a message to the community, to defendant and ‘all 

of the drug dealers like her’ by convicting defendant. The prosecutor suggested to the 

jury that convicting defendant would help keep its community in Northern Kentucky free 

of the drug trade by sending the message that ‘we don’t want that stuff in Northern 

Kentucky and that anybody who brings that stuff . . .’ presumably would be convicted 

just like defendant in this case.” (Id. at p. 1155.)

In Johnson, another case involving drugs, the prosecutor stated: “[The defense’s 

attorney] says your decision to uphold the law is very important to his client. Your 

decision to uphold the law is very important to society. You’re the people that stand as a 

bulwark against the continuation of what Mr. Johnson is doing on the street, putting this 

poison on the street.” (Johnson, supra, 968 F.2d at p. 769.) The court found these 

comments unduly inflammatory: “Clearly, the drug problem is a matter of great concern 
37

in this country today. This court is sympathetic to prosecutors’ vigorous efforts to 

prosecute participants in the drug trade. However, we are in agreement with the 

precedent cited above that the pressing nature of the problem does not give prosecutors 

license to encumber certain defendants with responsibility for the larger societal problem 

in addition to their own misdeeds. We conclude that by urging the jury to act as a 

‘bulwark against . . . putting this poison on the streets,’ the prosecutor in this case 

appealed to the jurors to be the conscience of the community in an improper and 

inflammatory manner.” (Id. at p. 771.)

According to defendants here, the prosecutor referenced the larger problem of 

gang violence, asking the jury, “When is enough going to be enough? When is it going 

to stop? When do we stop shooting each other over nothing?” Defendants also note the 

prosecutor argued: “The only way this stops is if these people are held responsible for 

the things that they do, for the conduct that they engaged in. Being held responsible for 

the lack of respect for human life, theirs and others. That’s the first step. That’s what has 

to happen.” Defendants argue, “This is what the prosecutors in Solivan and Johnson did, 

the only difference being the subject matter. The prosecutor implied that the jury could 

begin to have an effect on the societal problem of gang violence by holding [Washington] 

and Oliver responsible for what they did. Accordingly, the prosecutor committed

misconduct.”

We disagree. Instead, we find the prosecution’s comments have more in common 

with those found not to constitute misconduct in People v. Adanandus (2007) 

157 Cal.App.4th 496 (Adanandus). In Adanandus, a murder case, the prosecutor argued: 

“ ‘[W]ith your verdicts you cannot bring Joseph Wills back to his mother, and you cannot 

change any of the events that [defendant] put into place when he started this motion on 

April 19, 2005. [¶] What you can do is restore justice to that street. That street on that 

day was without justice. . . . [¶] . . . [¶] You, as jurors in this case, have taken an 

obligation and oath to uphold the law. Believe in the law. Restore the law to the 2500 
38

block of 65th Avenue, those are the only true and correct verdicts in this case, and I am 

confident and believe that you’ll return those verdicts.’ ” (Id. at pp. 511-512.)

The Adanandus court found no misconduct: “The prosecution’s references to the 

idea of restoring law and order to the community were an appeal for the jury to take its 

duty seriously, rather than efforts to incite the jury against defendant. Thus, they were 

not misconduct.” (Adanandus, supra, 157 Cal.App.4th at p. 513.) Here, the prosecutor

argued to the jury: “The only way that this stops is if these people are held responsible 

for the things that they do, for the conduct that they engaged in. Being held responsible 

for the lack of respect for human life, theirs and others. That’s the first step. That’s what 

has to happen.” Despite defendants’ protestations to the contrary, the prosecutor’s 

comments were not inflammatory or designed to arouse prejudice. As in Adanandus, the 

prosecutor asked the jury to hold defendants responsible for their actions, not for the 

actions of others. Nor did the prosecution connect defendants’ actions with a societal evil 

or suggest that convictions would reduce future crime. Instead, the prosecutor told the 

jury that convicting defendants would not halt gang warfare, but instead would achieve 

justice for the crimes committed on September 20, 2009.

Since the prosecution did not commit misconduct during argument, defense 

counsel did not perform ineffectively in failing to object.3

IV

Cruel and Unusual Punishment

Defendants argue their sentences constitute cruel and unusual punishment under 

the Eighth Amendment to the United States Constitution because they amount to de facto 

life-without-parole sentences.

3

 Since we find no error, we do not address Washington’s cumulative error argument.
39

Background

Oliver was 17 years old when he committed the attempted murder and shooting at 

an inhabited dwelling. The court sentenced Oliver to a determinate prison term of 

17 years plus an indeterminate term of 55 years to life. Washington was 16 years of age 

when he committed the crime of shooting at an inhabited dwelling. The court sentenced 

Washington to a determinate term of five years plus an indeterminate term of 25 years to 

life. The People calculate Washington will be eligible for parole when he is 41 or 42 

years of age.

Discussion

Beginning with Graham v. Florida (2010) 560 U.S. 48 (Graham), followed by 

Miller v. Alabama (2012) 567 U.S. 460 (Miller), and concluding with People v. 

Caballero (2012) 55 Cal.4th 262 (Caballero) and Franklin, supra, 63 Cal.4th 261, the 

United States and California Supreme Courts explored the constitutional limits of 

government’s power to punish minors tried as adults. In response to these decisions, the 

California Legislature enacted Senate Bill No. 260 (2013-2014 Reg. Sess.), adding 

section 3051, which provides minors sentenced to a determinate term of years or a life 

term an opportunity to prove their rehabilitation and secure release on parole after serving 

a prescribed term of confinement.

In the wake of these decisions and the resulting legislation, we invited the parties 

to flesh out the issue and they have provided differing interpretations of the interaction 

between section 3051 and the concerns expressed in Caballero, Graham, and Miller. We 

also asked the parties to address what impact, if any, section 1170, subdivision (d)(2)(A) 

had on defendants’ sentencing.

Section 1170, Subdivision (d)(2)(A)

Section 1170, former subdivision (d)(2)(A)(i) stated: “When a defendant who was 

under 18 years of age at the time of the commission of the offense for which the 

defendant was sentenced to imprisonment for life without the possibility of parole has 
40

served at least 15 years of that sentence, the defendant may submit to the sentencing court 

a petition for recall and resentencing.” Since the parties’ supplemental briefing on the 

statute, subdivision (d)(2)(A)(i) has been redesignated as subdivision (d)(1)(A) and now 

reads “When a defendant who was under 18 years of age at the time of the commission of 

the offense for which the defendant was sentenced to imprisonment for life without the 

possibility of parole has been incarcerated for at least 15 years, the defendant may submit 

to the sentencing court a petition for recall and resentencing.” (Stats. 2021, ch. 719. § 2.)

Oliver contends that this resentencing provision, in combination with section 

3051, violates his right to equal protection. According to Oliver, this combined statutory 

scheme “allows [life without parole] juvenile offenders to petition for release of parole 

10 years before non-[life without parole] juvenile defendants with sentences of 25 or 

more years to life.” Washington contends, under the equal protection clause and pursuant 

to section 1170, former subdivision (d)(2)(A), he is entitled to petition for recall and 

resentencing after serving 15 years of his sentence.

Equal protection under the state and federal Constitutions requires that persons 

similarly situated must receive like treatment under the law. To establish an equal 

protection claim, an individual must show that the state has adopted a classification that 

affects two or more similarly situated groups in an unequal manner. (In re Eric J. (1979) 

25 Cal.3d 522, 531.) Equal protection does not require that all persons be dealt with 

identically, but it does require that any distinction have some relevance to the purpose for 

which the classification is made. (Baxstrom v. Herold (1966) 383 U.S. 107, 111.) Unless 

the statute questioned involves a suspect class or a fundamental right, the challenged 

provision need only meet minimal equal protection standards and is reviewed under the 

rational basis standard. Under this standard, the classification must be rationally related 

to a legitimate governmental purpose. (People v. Wilkinson (2004) 33 Cal.4th 821, 836;

Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 913.)
41

Defendants contend that juvenile offenders sentenced to lengthy or de facto lifewithout-parole terms are similarly situated to juvenile offenders sentenced to life without 

parole. We disagree. In the present case, defendants received lengthy prison sentences 

for the commission of a nonhomicide offense. A juvenile sentenced to life without parole

must be convicted of a homicide offense; the juvenile must have killed someone. Under 

the Eighth Amendment, juvenile offenders who commit nonhomicide offenses cannot be 

sentenced to life without parole. (Graham, supra, 560 U.S. 48.) Moreover, under section 

3051, nonlife-without-parole juvenile offenders such as defendants, whose controlling 

terms under the statute are 25 years to life, are guaranteed to be eligible for parole no 

later than their 25th year of incarceration. However, section 3051 does not apply to 

juvenile offenders sentenced to life without parole. (§ 3051, subd. (h).) Defendants are 

not similarly situated to life-without-parole juvenile offenders, which dooms their equal 

protection claim.

Section 3051

Section 3051, subdivision (b)(3) states that a juvenile defendant with a controlling 

offense of 25 years to life shall be eligible for release on parole by the board during his or 

her 25th year of incarceration. Here, Oliver’s controlling offense was 25 years to life for 

the firearm enhancement. Therefore, Oliver will be eligible for release on parole during 

his 25th year of incarceration, when he is approximately 42 years old. Caballero requires 

that a juvenile offender have a meaningful opportunity for release on parole during his or 

her natural life expectancy. (Caballero, supra, 55 Cal.4th at pp. 268-269.) Section 3051 

provides Oliver the opportunity for release at age 42, well within his natural life 

expectancy.

Washington concedes he will not be eligible for parole until he serves 25 years of 

his indeterminate sentence, which does not begin to be served until he first serves his 

five-year determinate sentence. However, he argues that under section 3051, subdivision 

(b)(3), he should be deemed eligible for parole after having served 25 years in the 
42

aggregate. Therefore, once Washington has served 25 years of his aggregate sentence, he 

should be eligible for a youth parole hearing.

We agree. Section 3051, subdivision (a)(2)(B) states: “ ‘Controlling offense’ 

means the offense or enhancement for which any sentencing court imposed the longest 

term of imprisonment.” Section 3051, subdivision (b)(3) states: “A person who was 

convicted of a controlling offense that was committed when the person was 25 years of 

age or younger and for which the sentence is a life term of 25 years to life shall be 

eligible for release on parole at a youth offender parole hearing during the person’s 25th 

year of incarceration . . . .”

V

Remand Issues

Senate Bill No. 620

Defendants seek remand to permit the trial court to exercise its discretion to strike 

the firearm use enhancements under the amendment to section 12022.53, subdivision (h), 

enacted by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2, 

effective Jan. 1, 2018). The court had no such discretion at the time of trial. Subdivision 

(h) was later amended to provide: “The court may, in the interest of justice pursuant to 

Section 1385, and at the time of sentencing, strike or dismiss an enhancement otherwise 

required to be imposed by this section.” (§ 12022.53, subd. (h).)

The People agree that the amendment is retroactive to cases like the present one,

which are not yet final. We so held in People v. Woods (2018) 19 Cal.App.5th 1080. 

Remand is required unless “the record shows that the trial court clearly indicated when it 

originally sentenced the defendant that it would not in any event have stricken [the] 

enhancement” even if it had the discretion. (People v. McDaniels (2018) 22 Cal.App.5th 

420, 425; see also People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; People v. Franks

(2019) 35 Cal.App.5th 883, 892-893.) In reviewing whether the trial court made such an 

indication, we consider the trial court’s statements and sentencing decisions. (See People 
43

v. McVey (2018) 24 Cal.App.5th 405, 418-419.) The trial court need not have stated it 

would not strike the enhancement if it had the discretion to do so. (Ibid.)

More recently, in People v. Tirado (2022) 12 Cal.5th 688, the California Supreme 

Court held that trial courts have discretion to strike a greater section 12022.53 

enhancement and impose a lesser included section 12022.53 enhancement whether or not 

the lesser included enhancement was alleged. (Id. at pp. 692, 697, 700.)

The People agree that remand is appropriate in Washington’s case but insist that it 

would be inappropriate in Oliver’s case, even for the purpose of imposing a lesser 

included enhancement; “doing so would be an idle act that exalts form over substance 

because it is not reasonably probable the court would impose a different sentence.” 

(People v. Coelho (2001) 89 Cal.App.4th 861, 889.) While the offenses committed by 

both defendants are serious and deserving of severe punishment, we cannot find a clear 

indication in the record that the trial court would not consider striking or reducing the 

enhancements in either case. Accordingly, the matter must be remanded for the trial 

court to consider exercising its discretion pursuant to Senate Bill No. 620 and under 

People v. Tirado.

Retroactivity of Proposition 57—Juvenile Transfer Hearing

Defendants also contend Proposition 57 (as approved by voters, Gen. Elec. 

(Nov. 8, 2016) eff. Nov. 9, 2016) applies retroactively to this case and requires a remand 

to the juvenile court for a juvenile transfer hearing. Defendants were minors at the time 

of the offenses and were directly charged in adult criminal court. Proposition 57 became 

effective while their appeal was pending and amended the Welfare and Institutions Code 

to eliminate direct filing by prosecutors in adult criminal court. Minors could still be 

tried in adult criminal court, but only after a juvenile court judge conducted a transfer 

hearing to consider various factors such as their age, maturity, intellectual capacity, 

mental and emotional health, degree of criminal sophistication, prior delinquent history, 

whether they can be rehabilitated, and the circumstances and gravity of the offense 
44

alleged. (Welf. & Inst. Code, § 707, subd. (a).) The People initially argued that 

Proposition 57 was not intended to apply retroactively and thus did not apply to this case 

in which trial had been completed in adult criminal court. 

In People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), our Supreme 

Court held: “The possibility of being treated as a juvenile in juvenile court—where 

rehabilitation is the goal—rather than being tried and sentenced as an adult can result in 

dramatically different and more lenient treatment. Therefore, Proposition 57 reduces the 

possible punishment for a class of persons, namely juveniles. For this reason, [the] 

inference of retroactivity [set forth in In re Estrada (1965) 63 Cal.2d 740] applies. As 

nothing in Proposition 57’s text or ballot materials rebuts this inference, we conclude this 

part of Proposition 57 applies to all juveniles charged directly in adult court whose 

judgment was not final at the time it was enacted.” (Id. at pp. 303-304.) 

Accordingly, Proposition 57 must be given retroactive effect and thus applies to 

this case. 

There remains the question of remedy where, as here, defendants were tried, 

convicted, and sentenced in adult criminal court before Proposition 57 took effect. The 

Supreme Court endorsed the remedy for such cases provided in People v. Vela, a Court of 

Appeal decision: 

“ ‘Here, under these circumstances, Vela’s conviction and sentence are 

conditionally reversed and we order the juvenile court to conduct a juvenile transfer 

hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the 

extent possible, treat the matter as though the prosecutor had originally filed a juvenile 

petition in juvenile court and had then moved to transfer Vela’s cause to a court of 

criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the 

court determines that it would have transferred Vela to a court of criminal jurisdiction 

because he is “not a fit and proper subject to be dealt with under the juvenile court law,” 

then Vela's convictions and sentence are to be reinstated. [Citation.] On the other hand, 
45

if the juvenile court finds that it would not have transferred Vela to a court of criminal 

jurisdiction, then it shall treat Vela’s convictions as juvenile adjudications and impose an 

appropriate “disposition” within its discretion.’ ” (Lara, supra, 4 Cal.5th at p. 310, 

quoting People v. Vela (2017) 11 Cal.App.5th 68, 82 [judgment vacated and cause 

remanded, reaffirmed at People v. Vela (2018) 21 Cal.App.5th 1099].)

We will apply the same remedy here. 

Franklin Remand

Defendants contend we must order a limited remand under Franklin, supra, 

63 Cal.4th 261.

Following the sentencing in this case, the United States Supreme Court decided 

Miller, supra, 567 U.S. 460, and the California Supreme Court decided Caballero, supra, 

55 Cal.4th 262. Both decisions reflected a view that young people are less culpable and 

have greater prospect of reform. They are less fixed in their character and more capable 

of change than adults. Childhood trauma, mental illness, peer threats and immaturity can 

be addressed in time and render them redeemable. In response, the California Legislature 

passed Senate Bill No. 260 (2013-2014 Reg. Sess.), which became effective January 1, 

2014, and enacted various statutes (§§ 3046, subd. (c), 3051, 4801, subd. (c)) to provide a 

parole eligibility mechanism for reformed juvenile offenders. (Franklin, supra, 

63 Cal.4th at p. 276.) 

Later, the Legislature amended 3051 to expand the rights of youthful offenders to 

a youth offender parole hearing. (Stats. 2013, ch. 312 (Sen. Bill No. 260), § 4; amended 

by Stats. 2015, ch. 471 (Sen. Bill No. 261), § 1, eff. Jan. 1, 2016; Stats. 2017, ch. 675 

(Assem. Bill No. 1308), § 1, eff. Jan. 1, 2018; Stats. 2017, ch. 684 (Sen. Bill No. 394), 

§ 1.5, eff. Jan. 1, 2018; Stats. 2019, ch. 577 (Assem. Bill No. 965), § 2, eff. Jan. 1, 2020.)

The Legislature recognized that “The purpose of this act is to establish a parole 

eligibility mechanism that provides a person serving a sentence for crimes that he or she 

committed as a juvenile the opportunity to obtain release when he or she has shown that 
46

he or she has been rehabilitated and gained maturity, in accordance with the decision of 

the California Supreme Court in People v. Caballero (2012) 55 Cal.4th 262 and the 

decisions of the United States Supreme Court in Graham v. Florida (2010) 560 U.S. 48, 

and Miller v. Alabama (2012) 183 L.E.2d 407. . . . It is the intent of the Legislature to 

create a process by which growth and maturity of youthful offenders can be assessed and 

a meaningful opportunity for release established.” (Stats. 2013, ch. 312, § 1.) 

The Supreme Court in Franklin held that the young defendant must have had 

sufficient opportunity in the trial court “to put on the record the kinds of information that 

sections 3051 and 4801 deem relevant at a youth offender parole hearing.” (Franklin, 

supra, 63 Cal.4th at p. 284.) “If the trial court determines that [defendant] did not have 

sufficient opportunity, then the court may receive submissions and, if appropriate, 

testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the 

California Rules of Court, and subject to the rules of evidence. [Defendant] may place on 

the record any documents, evaluations, or testimony (subject to cross-examination) that 

may be relevant at his eventual youth offender parole hearing, and the prosecution 

likewise may put on the record any evidence that demonstrates the juvenile offender’s 

culpability or cognitive maturity, or otherwise bears on the influence of youth-related 

factors.” (Ibid.)

The sentencing hearings for Oliver and Washington were conducted prior to the 

decision in Miller and prior to the effective date of section 3051. It is doubtful they “had 

sufficient opportunity to put on the record the kinds of information that sections 3051 and 

4801 deem relevant at a youth offender parole hearing.” (Franklin, supra, 63 Cal.4th at 

p. 284.) We thus agree with the People and defendants that this case should be remanded 

for the trial court to afford defendants that opportunity if it has not been provided.

Assembly Bill No. 333

We granted Oliver permission to file a supplemental brief addressing amendments 

to section 186.22 effected by the enactment of Assembly Bill No. 333 (2021-2022 Reg. 
47

Sess.). Thereafter Washington filed a joinder, the People responded with a supplemental 

brief and on April 18, 2022, Oliver filed a supplemental reply brief.

When defendants were convicted section 186.22 made it a crime to actively 

participate in a criminal street gang, and provided for enhanced punishment when a 

defendant is convicted of an enumerated felony committed “for the benefit of, at the 

direction of, or in association with any criminal street gang.” 

The trial court sentenced Washington to a determinate term of five years (middle

term on count two), plus an indeterminate term of 25 years to life pursuant to the section 

12022.53, subdivisions (d) and (e)(1) enhancement. No additional term was imposed for 

the section 186.22, subdivision (b)(1) enhancement. However, the trial court added 10 

years to Oliver’s sentence for the section 186.22, subdivision (b)(1) enhancement, plus 25 

years to life for the section 12022.53, subdivision (d) enhancement.

Assembly Bill No. 333 made significant changes to the definitions of “criminal 

street gang” and “pattern of criminal gang activity” and clarified the evidence needed to 

establish that an offense benefits, promotes, furthers or assists a criminal street gang. 

A “ ‘criminal street gang’ ” was previously defined as “any ongoing organization, 

association, or group of three or more persons . . . whose members individually or 

collectively engage in, or have engaged in, a pattern of criminal gang activity.” A pattern 

of criminal activity meant the commission of at least two offenses from a list of predicate 

crimes on separate occasions within three years of one another. (Former § 186.22, subd. 

(e).)

Under the revised definition, the predicate offenses must be committed by two or 

more “members” of the gang and must have commonly benefited a criminal street gang,

with the last offense occurring within three years of the currently charged offense. The 

currently charged offense does not count as a predicate offense. The benefit derived from 

the predicate and current offenses must be “more than reputational.” (§ 186.22, subd. (e), 

as amended by Assem. Bill No. 333.)
48

In summary, section 186.22 now “requires proof of the following additional 

requirements with respect to predicate offenses: (1) the offenses must have ‘commonly 

benefited a criminal street gang’ where the ‘common benefit . . . is more than 

reputational’; (2) the last predicate offense must have occurred within three years of the 

date of the currently charged offense; (3) the predicate offenses must be committed on 

separate occasions or by two or more gang members, as opposed to persons; and (4) the 

charged offense cannot be used as a predicate offense.” (People v. Lopez (2021) 

73 Cal.App.5th 327, 345 (Lopez).)

The parties agree Assembly Bill No. 333’s changes apply retroactively to the 

present case in which the judgment of conviction is not final. Defendants argue reversal 

is required because two predicate offenses are not established by evidence in the record.

The prosecution’s challenge in this appeal is the challenge presented whenever the 

rules of engagement are changed after the battle is over. At the time of trial, section 

186.22 did not require the prosecution to prove a common benefit that is more than 

reputational. Questions that might have ferreted out the precise benefit that accrued to a 

gang from a particular criminal act or excluded any thought the benefit was 

“reputational” were never asked. And the prosecution expert in testifying about benefit 

of such gang attacks spoke about enhancing the shooter’s reputation, unaware that 

reputation would take on added significance in the future. 

The People contend the enhancement is supported by three predicate offenses:

a. A shooting on Pinion Way

According to the People, Bryant, a FAB gang member, “shot someone” on Pinion 

Way. The exact date of the shooting is not detailed but it occurred sometime in July 

2008. According to the People, “there was undisputed evidence presented at trial that 

Bryant was a FAB gang member and that Gunz Up was associated or ‘cliqued up’ with 

FAB.” It is difficult to fathom how a shooting so bereft of details could qualify as a 

predicate offense. We think not.
49

b. The shooting of Phillip Tigner

In the Tigner shooting, Bryant and other FAB gang members encountered Tigner 

who was with Demario Fulbright, a member of Guttah Boyz or G-Mobb. Fulbright was 

attacked by Bryant and his gang members. Tigner sought to help Fulbright. Bryant shot 

Tigner. Bryant was convicted of attempted murder with a gang enhancement, “for the 

benefit of F.A.B. [,which] is a criminal street gang.” Asked to describe whether the 

shooting had a benefit to the FAB/Gunz Up gangs, the prosecution expert indicated it 

benefitted the FAB gang: “Basically it started as a fight. The mentality is if you don’t 

fear me, then you don’t respect me.” “If you’re not fearing me, then I’m going to force 

you to fear me by pulling the guns and shooting you.” The expert suggested no other 

benefit.

c. The Nedra Court Shooting.

In this shooting on September 15, 2009, members of the Guttah Boyz traveled to 

Nedra Court and encountered Gunz Up gang members. There was a shooting. Winters, 

affiliated with Guttah Boyz, was shot, allegedly by a Gunz Up member. When asked to 

describe the benefit, the expert used the same terms used to describe the benefit of the 

Tigner shooting: “It’s the whole if you don’t fear me, then, you know I’m going to force 

you to fear me kind of mentality. Respect, disrespect.’

“Q And does that type of action and that type of conduct, does it have a benefit 

to the reputation of the Gunz Up gang?

“A Yes.

“Q How does it affect the reputation?

“A It affects the reputation by, one, they’re not looked at as weak. If they’re 

looked at as weak, they’re looked at as inferior. So if they’re willing to pull a gun and 

shoot, they’re looked at as somebody that you should be afraid of. If you are afraid of 

them, then, you know, you fear me. If you fear me, then you respect me.”
50

The prosecution’s case focused on reputational benefit, an understandable focus 

given the law at the time. So, of the three candidate predicate offenses, one is too lacking 

in details to qualify and the other two, in the estimation of the gang expert who testified 

about them, conferred a reputational benefit—adequate at the time of the testimony but 

now inadequate by the subsequent statutory change rendered by Assembly Bill No. 333. 

The People argue that jury was not limited to the testimony of experts and could 

divine its own view of the benefit derived. However, we cannot divine from this record, 

in the absence of limiting instructions, whether the jury selected predicate offenses barred 

by the subsequently enacted Assembly Bill No. 333. So also, Assembly Bill No. 333 

excludes consideration of the charged offense as a predicate offense, but the jury was not 

informed of this exclusion because the law was otherwise at the time of trial. It is 

impossible to determine whether the current offense was considered a predicate offense.

Under the circumstances, the proper remedy is to vacate the gang enhancement 

findings and remand to give the prosecution an opportunity to prove the applicability of 

the gang allegations under the new standards. (Lopez, supra, 73 Cal.App.5th at p. 346.)

4 

We decline to also reverse the underlying substantive offenses as suggested by a recently 

published case, People v. Burgos (2022) 77 Cal.App.5th 550 cited by Washington. 

Burgos holds that a new procedure enacted in 2015, allowing the defense to request a 

bifurcated trial on gang enhancements, must be applied retroactively to cases tried long 

before enactment of the new statute. No other case so holds.

4

 Oliver also objects to the testimonial evidence offered by the prosecution in support of 

the predicate offenses, asserting that it constitutes testimonial hearsay, in violation of the 

Supreme Court’s decision in People v. Sanchez. The objection is rendered moot by our 

conclusion that Assembly Bill No. 333 compels reversal of the enhancement.
51

Sentencing Error

Finally, Oliver contends that the abstract of judgment erroneously includes a fiveyear determinate term for count two. The People concede the issue.

The court sentenced Oliver on count two to an indeterminate prison term of 

30 years to life, the middle term of five years on count two plus 25 years to life for the 

firearm enhancement. (§§ 186.22, subd. (b)(4)(A), 12022.53, subd. (d).) The court did 

not impose a five-year term on count two in addition to the 30-year-to-life term. Since 

the oral pronouncement of sentence is controlling, the abstract of judgment should be 

modified to reflect a 30-year-to-life term on count two. In addition, the People point out 

that the term imposed under section 186.22, subdivision (b)(4)(A) is listed as an 

enhancement but is actually an alternative penalty provision that combines the term of the 

underlying felony with applicable enhancements. Therefore, Oliver’s abstract of 

judgment should be modified on both counts.

DISPOSITION

In light of the amendments to section 186.22 made by Assembly Bill No. 333, we 

reverse the gang enhancements (§ 186.22, subd. (b)(1)) found true as to both defendants

and remand to provide the prosecution an opportunity to retry the section 186.22 

enhancements under the law as amended by Assembly Bill No. 333.

We direct the trial court to correct Oliver’s abstract of judgment as to his sentence 

on count two.

The remaining judgments are conditionally reversed, and remanded to the juvenile 

court for juvenile transfer hearings. If that court determines it would have transferred

either defendant to a court of criminal jurisdiction because he was not, at the time his 

case was originally filed in the trial court, “a fit and proper subject to be dealt with under 

the juvenile court law” (Welf. & Inst. Code, § 707.1, subd. (a)), the murder convictions

and firearm enhancement findings are to be reinstated. The prosecution shall be 

permitted to retry the section 186.22 enhancements as to both defendants. Should either 
52

defendant’s conviction and enhancement findings be reinstated, his matter shall return to 

the trial court for a new sentencing hearing and an exercise of discretion under Senate 

Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, §§ 1 & 2) consistent with 

People v. Tirado, supra, 12 Cal.5th 688. Defendants shall be given an opportunity to 

supplement the record with information relevant to a future youth offender parole 

hearing.

If, however, the juvenile court finds it would not have so transferred either 

defendant, then it shall treat that defendant’s conviction and enhancement findings as 

juvenile adjudications and impose an appropriate disposition within its discretion.

In all other respects, the modified judgments are affirmed.

 /s/

RAYE, P. J.

We concur:

 /s/

HULL, J.

 /s/

HOCH, J.