IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL ALLAN LAMB,

Defendant and Appellant.

S166168

Orange County Superior Court

03CF0441

July 11, 2024

Justice Evans authored the opinion of the Court, in which 

Chief Justice Guerrero and Justices Corrigan, Liu, Kruger, 

Groban, and Jenkins concurred.
1

PEOPLE v. LAMB

S166168

Opinion of the Court by Evans, J.

A jury convicted defendant Michael Allan Lamb of the first 

degree murder of Scott Miller (Pen. Code, § 187, subd. (a))1 and 

the willful, deliberate, and premeditated attempted murder of 

Sergeant Michael Helmick, a peace officer (§§ 664, 187, 

subd. (a)). The jury also found Lamb guilty of conspiracy to 

commit murder (§§ 182, subd. (a)(1), 187, subd. (a)), unlawfully 

carrying a loaded firearm in public by an active participant in a 

criminal street gang (former § 12031, subd. (a)(1), (2)(C)), and 

two counts each of possession of a firearm by a felon (former 

§ 12021, subd. (a)(1)) and street terrorism (§ 186.22, subd. (a)). 

The jury found true a gang-murder special-circumstance 

allegation. (§ 190.2, subd. (a)(22).) As to all counts except the 

street terrorism charges, it also found true the allegation that 

the offenses were committed for the benefit of, at the direction 

of, or in association with a criminal street gang with the intent 

to promote, further, or assist in the criminal conduct of the gang 

members. (§ 186.22, subd. (b)(1)(A).) As to the murder and 

conspiracy to commit murder counts, the jury found true 

allegations that Lamb intentionally and personally discharged 

1 All undesignated statutory references are to the Penal 

Code. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

2

a firearm in the commission of the offenses causing death. 

(§ 12022.53, subd. (d).)2

The jury failed to reach a penalty verdict. At the penalty 

phase retrial, a different jury fixed the penalty at death. The 

court entered a judgment of death. 

This appeal is automatic. (§ 1239, subd. (b).) Based on 

recent amendments to section 186.22 from the enactment of 

Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill No. 

333), we reverse Lamb’s convictions for street terrorism and 

unlawfully carrying a loaded firearm in public by an active 

participant in a criminal street gang. For the same reason, we 

reverse the true findings on the gang enhancements and gangmurder special circumstance. We vacate Lamb’s death 

judgment and remand the case to the trial court for any retrial 

of the reversed convictions, enhancements, and special 

circumstance. In all other respects, we affirm. 

I. FACTUAL BACKGROUND

A. Guilt Phase

1. Prosecution Evidence

On the evening of March 8, 2002, Scott “Scottish” Miller, 

a founding member of white supremacist gang Public Enemy 

Number One (PEN1), also known as PEN1 Death Squad, was 

2 Lamb was tried with Jacob Rump against whom the 

prosecutor did not seek the death penalty. Rump also was 

convicted of Miller’s murder and conspiracy to commit murder, 

and the jury found true the gang-murder special-circumstance

allegation. He was sentenced to life imprisonment without the 

possibility of parole. Coperpetrator Billy Joe Johnson was tried 

separately and convicted of Miller’s murder and the jury 

returned a verdict of death. His judgment was affirmed on 

appeal. (People v. Johnson (2016) 62 Cal.4th 600, 607.)
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

3

found dead in an alley with a single gunshot wound to the back 

of his head. Three days later on March 11, fellow PEN1 

members Lamb and Jacob Rump were arrested after a pursuit 

during which Lamb fired a shot at Sergeant Helmick using the 

same gun that had killed Miller. The prosecutor’s theory was 

that, acting upon an order to kill Miller in retaliation for having 

participated in a news program about the gang, fellow PEN1 

member Billy Joe Johnson drove Miller to the alley where Lamb, 

backed up by Rump, shot Miller. 

a. Murder of Scott Miller

Christina Harris testified that she lived in a two-story 

apartment on West Gramercy Avenue in Anaheim. Lamb and 

Rump, as well as PEN1 associate Tanya Hinson, would 

occasionally stay at Harris’s apartment. On March 8, Lamb 

called the apartment to speak to Hinson and said he had 

something very important to talk about. Harris conveyed this 

message to Hinson. Later that night, Harris saw Lamb, Rump, 

and Hinson in her living room. She asked them to leave, and 

they complied. 

Two to three minutes later, between 10:30 p.m. and 11:00 

p.m., Harris heard a single gunshot. Between three and 10

minutes after the gunshot, Harris looked out her bedroom 

window and saw a blue car driving through the alley with what 

appeared to be three “Mexican” men with shaved heads. About 

10 minutes later, Harris and a friend went outside and saw a 

body lying on the ground, who was later identified as Miller. 

Residents in the area of West Gramercy Avenue testified 

that at approximately 11:30 p.m. that evening, they heard a loud 

bang or gunshot coming from a nearby alleyway. Approximately 

20 seconds later, a neighbor heard screeching tires coming from 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

4

the alley. Anaheim police arrived on the scene just before 

midnight and discovered Miller with a gunshot wound to the 

back of the head lying facedown in the alley next to a dumpster. 

A shell casing was found nearby. A black baseball hat and a 

Pepsi can were underneath Miller’s body. The pathologist 

testified that Miller died from a single gunshot wound to the 

back of the head and that he had no defensive wounds. He 

would have been immediately rendered unconscious and most 

likely died several minutes after being shot. 

b. Attempted murder of Sergeant Michael 

Helmick

Anaheim Police Sergeant Michael Helmick testified that 

on the afternoon of March 11, he was working undercover and 

therefore was not in uniform. While driving an unmarked white 

Buick Century, he was dispatched to investigate a possible 

stolen vehicle, a 2002 Ford Taurus, parked in an alley near a 

home where Lamb and Rump had recently been staying. 

Sergeant Helmick arrived at the alley and an Anaheim Police 

Department helicopter provided assistance, flying a wide orbit 

about 1,800 feet above the ground to avoid detection. Looking 

over an adjacent wall, Sergeant Helmick confirmed that the 

Taurus had been reported stolen, and then took up a position at 

the south end of the alley and contacted Anaheim Police 

Detective Danny Allen for assistance. 

Sergeant Helmick was advised that the Taurus, which 

was driven by Rump, had begun to move, and Sergeant Helmick 

followed the Taurus in his vehicle when it exited the alley. 

Marked police cars were also asked to respond and the 

helicopter began to descend. After driving a short distance, the 

Taurus stopped in the middle of the roadway and Sergeant 

Helmick brought his vehicle to a stop about five car lengths 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

5

behind; there were no other vehicles between Sergeant Helmick 

and Rump, and Sergeant Helmick could see Rump continuously 

staring at him through the left side-view mirror. A man later 

identified as Lamb with a shaved head and carrying a black 

jacket ran toward and entered the Taurus. Rump continued 

looking at Sergeant Helmick through the mirror and the Taurus 

then made an abrupt U-turn and a pursuit commenced. 

After a short pursuit joined by Detective Allen driving an 

unmarked Monte Carlo, Lamb and Rump exited the Taurus and 

ran into an apartment complex. The helicopter had descended 

to between 400 and 600 feet above the ground, and Sergeant 

Helmick and Detective Allen pursued Lamb and Rump on foot. 

At that altitude, the helicopter was extremely loud to a person 

on the ground. Though they were both in plain clothes, Sergeant 

Helmick had a badge on his belt and Detective Allen was 

wearing a raid jacket marked with “Police” on the front and 

back. Both officers were holding their radios and had their guns 

drawn. Lamb and Rump went to a second story balcony of the 

apartment complex. As the officers approached, they heard a 

gunshot directly above them. The helicopter pilot observed 

Lamb lift himself over the railing and point a stainless steel 

handgun at Sergeant Helmick; the pilot saw a muzzle flash from 

the gun. A witness thought he heard someone yell “police” 

before hearing a gunshot. Though when asked on crossexamination whether he was sure he heard the announcement 

before the gunshot, the witness responded, “Well, um, I don’t 

know.” Lamb and Rump ultimately were taken into custody. 

c. Investigation

Forensic specialists testified that after Lamb’s arrest,

gunshot residue was found on his right dominant hand. This
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

6

indicated that he had either fired a gun, was in close proximity 

to a fired gun, handled a discharged gun, or had touched a 

surface that was near a gun when it was fired. A glove found in 

the Taurus also had gunshot residue. 

A forensic supervisor testified that the single-action 

semiautomatic handgun recovered from the March 11 crime 

scene was jammed. The safety was off, the hammer was cocked 

in the firing position, and the magazine was loaded with 10

rounds of live ammunition; however, a spent cartridge had not 

ejected from the chamber. A forensic firearm examiner testified 

that a bandana tied around the grip may have impeded the 

movement of the slide, and that this gun had also fired the 

expended casing found near Miller’s body. 

PEN1 member Darrell Mason testified that he was in 

custody in the Orange County jail with Lamb in June 2002. 

Lamb claimed to have killed Miller and said “he had stripes 

coming for that,” which Mason understood to mean that Lamb

expected “some status coming to him.” Lamb told Mason he had 

shot Miller in the back of the head. Lamb seemed to be “looking 

for a little bit like a pat on the back or something.” Before Miller 

was killed, Lamb did not have a high status within PEN1. 

Mason knew Miller had spoken about PEN1 to Fox 11 News and 

that as a result, there was an understanding within the gang 

that something was “supposed to happen” to Miller. Miller was 

“in the hat”3for bringing new members into the gang at a time 

3 Mason explained that if a person is “in the hat” or has a 

“green light” on them, that means “that you are no longer 

considered to be in good graces with active members or people 

that are in general population. You have a hit on you.” 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

7

when a PEN1 founder, Donald Mazza, wanted PEN1 to go under 

the radar. 

d. Expert testimony regarding white supremacist 

gangs

Lieutenant Clay Epperson of the Costa Mesa Police 

Department testified concerning his investigations of PEN1 and 

provided expert testimony on white supremacist gangs. 

Lieutenant Epperson opined Lamb and Rump were active PEN1 

members in March 2002. In early 2002, Lieutenant Epperson 

heard a recurring rumor that Miller would be killed for his 

participation in broadcast interviews with a local Fox television 

station. It was initially rumored that PEN1 members John 

Gross or Jesse Wyman had been designated to carry out the hit. 

Before his death, Miller was disliked within PEN1 and 

perceived as out of control, although he still had standing in the 

gang. 

Lieutenant Epperson testified that a white supremacist 

gang member earned respect through the use of violence for the 

benefit of the gang. Bragging about committing a violent crime 

was expected. One member was expected to back up another in 

committing violent crimes. 

In white supremacist gang culture there was “payback,”

including violent sanctions, for any perceived wrong. A lengthy 

period could elapse between an act of disrespect and the 

payback; Lieutenant Epperson had investigated cases where 

payback happened years after a “disrespectful” act. Disclosing 

information about the gang to outsiders or to law enforcement 

was seen as treasonous. 

Miller had been a founding member of PEN1, along with 

Mazza, Brody Davis, Devlin Stringfellow, and Dominic Rizzo. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

8

The PEN1 internal discipline process was arbitrary and ad hoc. 

PEN1 leaders used egregious violence to intimidate and 

dissuade other gang members, associates, and the general 

public from speaking with police or testifying in court. 

e. Fox 11 News videos

In 1999, Miller participated in a taped interview with Fox 

11 News about PEN1. On February 20 and 21, 2001, Fox aired 

two videos (the Fox videos or videos) styled as an exposé of the 

gang and featuring Miller’s interview. Although Miller’s 

appearance and voice were disguised, it was stipulated that the 

person in question featured in the video was Miller. Moreover, 

Johnson testified that he immediately knew it was Miller based 

upon his tattoos, Miller’s pit bull featured in the videos, and 

“things that were around him, range of movement, everything.” 

Johnson further testified that when the videos aired, he was not 

the only person to immediately recognize Miller: “Not only me, 

everybody did. Everybody called everybody. Everybody was 

like, ‘what the hell’s up with that?’ ” 

The videos discussed the origins of PEN1 and its place in 

the skinhead movement, its efforts to recruit new members, an

alliance Mazza, Rizzo, and Stringfellow made with the Aryan 

Brotherhood and Nazi Lowriders, and detailed some of the 

violent acts committed by its members. It also displayed images 

of white supremacist symbols and tattoos, guns, and drugs. 

Miller’s interview was interspersed throughout the videos, with 

Miller describing PEN1’s activities, including its history of 

violence, weapon use, and drug use and sales.

2. Defense Evidence

Lamb’s defense was that Johnson, assisted by Wyman and 

Shirley Williams, had killed Miller.
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

9

Testifying on behalf of Lamb, Johnson claimed sole 

responsibility for the murder. Sometime on March 8, Miller, 

Johnson, and Andrea Metzger attended a party. Johnson had 

known Miller for about 20 years, but their relationship had been 

strained for some time because of the Fox videos and other 

personal issues. The party was the first time Johnson had seen 

Miller since the videos aired. Metzger saw Johnson and Miller 

talking at the party and heard Miller joking that he had to keep 

his guard up.

Williams, who knew Miller, arrived at the party at 

approximately 10:00 p.m. but left shortly thereafter. When she 

returned around 11:00 p.m., Miller was no longer at the party, 

but Johnson was. Johnson testified that at some point in the 

evening, between 8:00 and 10:00 p.m., he and Miller left the 

party in Johnson’s truck to buy drugs. At one point Miller asked 

Johnson to pull into a strip mall, where Miller made a phone 

call. Miller’s friend Marnie Simmons received a voicemail from 

Miller at 10:23 p.m. that night telling her he was at the party 

but was going to some address and was scared. A voice that 

sounded like Johnson’s was heard in the background telling 

Miller to get off the phone and to “tell her, see ya.” 

Johnson testified that after Miller got back in the truck, 

they drove to an alley and parked. As they were walking, 

Johnson testified that he was “pretty perturbed with the guy, 

really had it with him,” so he reached in his waistband, grabbed 

his gun, “and blasted him.” Johnson then went back to the 

party. 

Johnson further testified that the night after killing Miller 

he happened to see Lamb. Johnson had not seen Lamb since 

meeting him about a year earlier. Lamb told Johnson that he 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

10

had been shot at the previous night and that he needed a 

weapon, so Johnson gave Lamb the murder weapon explaining 

it was “hot.” 

Johnson told mutual friend Gordon Bridges that they had 

found Miller shot in the back of the head in an alley in Anaheim. 

Bridges testified that on some later date, Williams told him that 

Johnson forced her to drive Johnson and Miller to Anaheim with 

Wyman in the back of the truck. A couple of weeks after the 

murder, Johnson told Bridges to watch his mouth and to “back 

off” Wyman. Bridges asked Johnson to “look me in the eye and 

tell me you didn’t kill Scottish,” a nickname for Miller, and 

Johnson told Bridges to mind his business and that it was 

“politics.” Bridges told investigators that Johnson said Miller 

was shot in the back of the head three times. 

In 2004, while Rump was awaiting trial for Miller’s 

murder, Johnson and Rump were cellmates at the Orange 

County jail and got along very well. Around that time, Johnson 

contacted Rump’s defense investigator and informed him that 

Lamb and Rump were not guilty and that the gun had “came 

from” Johnson. On June 30, 2006, Johnson pled guilty to an 

unrelated second degree murder charge and other crimes and 

was sentenced to 45 years to life. On July 5, 2006, Johnson 

reached out to Lamb’s defense investigator and confessed to 

killing Miller in 2002.

Dr. David Smith, an addiction medicine specialist,

reviewed videotaped interviews of Lamb and Rump conducted

on March 11 as well as a transcript of an interview with Harris 

conducted on March 9 and a videotaped interview with her

conducted on March 18. Dr. Smith testified that 

methamphetamine can affect the user’s ability to perceive time 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

11

and it appeared Harris was having trouble with regard to time 

references in her March 9 interview. As to Harris’s taped 

interview, Dr. Smith opined that while Harris was not psychotic, 

she was “hyper” and clearly under the influence of 

amphetamine. In Dr. Smith’s view, Rump was also under the 

influence of methamphetamine during his interview and was 

“crashing,” or falling asleep, and was at the “rage, beginning of 

psychosis” stage of methamphetamine impairment. Lamb was 

less impaired and “was in the agitation, kind of anger/rage 

period.” On an impairment scale of one to 10, with 10 being the 

most impaired, Dr. Smith would place Lamb at six and Rump at 

eight. Dr. Smith did not conduct a clinical analysis of Lamb, 

Rump, or Harris and his opinion was entirely based upon 

viewing the interview videos and reading the transcript. 

Daniel Vasquez, a former correctional officer and state 

prison warden, testified as a prison and gang expert. Vasquez 

stated that a person “in the hat” would be “hit at the next and 

earliest convenience or opportunity,” though the opportunity to 

exact payback could take months to present itself. Vasquez also 

testified that he would not expect a gang member to be carrying

a firearm known to have been used in a recent homicide. 

Frances Valdovinos testified that she was at Harris’ 

apartment on the evening of March 8. When detectives later 

presented her with a photographic lineup that included Lamb, 

Valdovinos did not identify him as someone who had been at the 

apartment that night. 

3. Rebuttal Evidence

Defense investigator George Rowell testified Bridges told 

him on June 4, 2007, that in the early morning hours after 

Miller’s murder, Bridges said to Johnson, “Look me in the eyes 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

12

and tell me you didn’t kill Scottish,” to which Johnson 

responded, “You’ve been around. It’s politics. There is nothing 

that could have been done about it.” 

Defense investigator Gail Greco testified that she 

interviewed Johnson in jail on July 5, 2006. Johnson told her: 

“I was there. I did it. They had nothing to do with this murder.” 

Johnson mentioned he had previously told Rump’s investigator 

that he had supplied the murder weapon. Johnson told Greco 

that he did not really know Lamb that well, but that he gave 

Lamb the gun at the bar the night after the murder, stating, “I 

ran into him at that bar, one convict to the other. I just 

happened to have one, that was it. This should clear the books.” 

Anaheim Police Officer David Heinzel arrived at the 

Miller murder scene a few minutes after midnight and spoke 

with neighbor Maria Baumgartner. Baumgartner stated that at 

around 10:50 p.m., she heard two gunshots and saw two people 

running in front of her residence.

The parties stipulated that Robin Freiwald told Anaheim 

detectives that Lamb and Rump were at her residence on March 

8 from 7:00 p.m. until she went to sleep, and that during that 

time, they had all watched a movie together. Freiwald first 

stated that she went to sleep between 9:30 p.m. and 10:00 p.m.;

she later said she went to sleep at 11:30 p.m. that night. 

B. Penalty Phase Retrial

At the penalty phase retrial, the parties presented largely 

the same evidence concerning the offenses that was presented 

at the guilt phase trial in addition to other evidence in 

aggravation and mitigation. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

13

1. Prosecution Evidence

The prosecution presented evidence of Lamb’s other 

criminal activity involving violence or the threat to use violence. 

In 1995, Lamb was arrested after threatening a beachgoer 

at the San Clemente Pier. In 1996, Lamb and two other inmates 

attacked another prison inmate, beating him with closed fists 

resulting in an injury to the inmate’s right eye requiring seven 

stitches. In 1999, Lamb stabbed an inmate with a metal shank 

in a prison culinary hall, resulting in a four-inch wound to the 

inmate’s neck and an inch-long wound to his mid-back. 

In 2003, a seven-inch-long metal shank, another piece of 

metal approximately three-and-a-half inches long, and two 

plastic lighters were found in Lamb’s Orange County jail cell. 

In 2005, deputies discovered a six-inch metal shank hidden in 

Lamb’s jail cell. As the deputies who conducted the search were 

leaving Lamb’s cell, Lamb said, “Shank you later.” In 2006, a 

shank was discovered embedded in Lamb’s jail mattress. 

The prosecution also presented evidence of Lamb’s 

involvement in an alleged conspiracy to smuggle weapons and 

instruments of escape into jail, and to escape from jail.

Lamb also had suffered a juvenile adjudication for 

multiple vehicular burglaries, and adult felony convictions for 

vehicular burglary, marijuana sale, and the unlawful taking of 

a vehicle, as well as probation and parole violations.

The prosecution presented victim impact testimony from 

Miller’s mother, Bonnie Miller, who testified about the impact 

her son’s death had on her and Miller’s grandmother, older 

brother, father, and his son who was born after his murder. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

14

2. Defense Evidence

Lamb’s parents, Cathy and Steven Lamb, his brothers, 

Daniel and Mathew Lamb, and his maternal aunt, Claudia 

Hayes, testified regarding his childhood.4 Steven served in the 

Vietnam War and was dishonorably discharged for going AWOL 

and committing assault. Steven and Cathy married upon his 

return from the military and Lamb was born in 1973. Daniel 

and Matthew were born six and nine years later. 

Lamb’s father was verbally, mentally, and physically 

abusive during Lamb’s childhood. Lamb was an exceptional 

baseball player, but Steven would publicly berate Lamb when 

he played. Lamb did not defend himself against Steven’s 

physical abuse, which left welts on his body, but on one occasion, 

Lamb protected Daniel from one of Steven’s beatings. Lamb’s 

development was affected by his mother’s chronic and 

debilitating alcoholism, which was recounted by numerous 

friends, neighbors, and family members. As a result, Lamb 

parented his younger siblings and shouldered household 

responsibilities. Others described Lamb as a polite and 

respectful neighbor, student, and friend.

Lamb also presented Vasquez to testify concerning prison 

gangs and conditions. 

4 For clarity and not out of disrespect, relatives sharing 

Lamb’s surname will be referred by their first names. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

15

II. PRETRIAL ISSUES5

A. The Trial Court Did Not Err in Denying Lamb’s 

Severance Motion

Before trial, Rump unsuccessfully moved to sever the 

Miller murder count from the Sergeant Helmick attempted 

murder count on the grounds that joinder would render the trial 

grossly unfair and result in a denial of due process. These 

counts had previously been consolidated without Lamb’s 

objection. When Lamb later moved to sever the charges, the 

court noted, “[t]he counts are both pretty inflammatory,” found 

that there was a significant amount of cross-admissible 

evidence, and ultimately denied the motion, commenting that 

the fact that Lamb was being prosecuted for a capital crime 

“does enter into it, but I don’t think anything the defense has 

come up with has overcome the preference for consolidation.” 

Lamb concedes the offenses were properly joined under 

section 954 but now argues the trial court abused its discretion 

when it denied his motion to sever. We disagree. 

A defendant may be charged with and convicted of “two or 

more different offenses of the same class of crimes or offenses, 

under separate counts . . . .” (§ 954.) The capital murder and 

attempted murder offenses are assaultive crimes against the 

5

“[A]s to many claims defendant[] allege[s] for the first time 

that the error complained of violated [his] federal constitutional

rights. To the extent that in doing so defendant[] ha[s] raised 

only a new constitutional ‘gloss’ on claims preserved below, that 

new aspect of the claims is not forfeited. However, ‘[n]o separate 

constitutional discussion is required, or provided, when 

rejection of a claim on the merits necessarily leads to rejection

of [the] constitutional theory . . . .’ ” (People v. Bryant, Smith

and Wheeler (2014) 60 Cal.4th 335, 364.) 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

16

person and are therefore of the same class of crimes within the 

meaning of section 954. (People v. Jones (2013) 57 Cal.4th 899, 

924.) The statutory requirements for joinder having been met, 

Lamb “ ‘ “can predicate error in denying the motion only on a 

clear showing of potential prejudice.” ’ ” (Id. at p. 925.) We 

review the denial of severance under a deferential abuse of 

discretion standard. (People v. Zambrano (2007) 41 Cal.4th 

1082, 1128.) “In reviewing such a ruling, we consider: ‘(1) 

whether evidence of the crimes to be jointly tried is crossadmissible; (2) whether some charges are unusually likely to 

inflame the jury against the defendant; (3) whether a weak case 

has been joined with a stronger case so that the spillover effect 

of aggregate evidence might alter the outcome of some or all of 

the charges; and (4) whether any charge carries the death 

penalty or the joinder of charges converts the matter into a

capital case.’ ” (People v. Holmes, McClain and Newborn (2022) 

12 Cal.5th 719, 746.) 

“ ‘ “[T]he first step in assessing whether a combined trial 

[would have been] prejudicial is to determine whether evidence 

on each of the joined charges would have been admissible, 

under Evidence Code section 1101, in separate trials on the 

others.” ’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 948.) In the 

trial court, Lamb conceded “that there is some crossadmissibility issues with regard to the gun,” but disputed that 

the attempted murder was probative of the homicide. In 

response, the prosecutor proffered it would argue that Lamb 

shot at Sergeant Helmick to evade being apprehended for the 

murder he committed three days prior. On appeal, Lamb 

maintains that the gun was the only common feature of the 

offenses, arguing the manner of the commission of the offenses 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

17

was radically different and insufficient to prove a common plan 

or scheme, identity, or intent. 

In People v. Merriman (2014) 60 Cal.4th 1, 38 (Merriman), 

we held “[e]vidence that defendant, thinking he was being 

arrested for murder, fled from police and resisted arrest by 

engaging in a dramatic, hours-long standoff generally would be 

admissible at a separate trial on the murder charge to show his

consciousness of guilt for killing [the victim]. Likewise, evidence 

of the murder generally would be cross-admissible in a separate 

trial on the resisting arrest charges to help explain the intensity 

of his efforts to evade police.” (Id. at p. 44.) Similarly, in People 

v. Cummings (1993) 4 Cal.4th 1233 (Cummings), we held that 

the trial court did not abuse its discretion in denying a motion 

to sever robbery counts from the murder of a peace officer 

because the motive for the murder was to avoid arrest for the 

robberies, which was circumstantial evidence of premeditation 

and deliberation. (Id. at p. 1284.) 

Lamb attempts to distinguish Merriman and Cummings

by arguing that in both cases, the defendants knew they were 

being pursued by the police for a previous crime, whereas there 

was no evidence Lamb knew his pursuers were law enforcement 

officers. Lamb’s argument misses the mark. In Merriman, we 

rejected the defendant’s contention that the evidence was not 

cross-admissible because there were any number of reasons why 

defendant would have fled the police other than a consciousness 

of guilt for the murder. (Merriman, supra, 60 Cal.4th at p. 44.) 

Here, too, such an argument “demonstrates only that the 

evidence proffered by the prosecution regarding defendant’s 

motive for evading police was disputed by the defense,” and 

Lamb “points to no case, and we have located none, suggesting 

that a finding of cross-admissibility is an abuse of discretion 
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Opinion of the Court by Evans, J.

18

simply because the defense has challenged the inferences that 

may be drawn from the proffered evidence.” (Ibid.) While Lamb 

argued in closing the evidence demonstrated he and Rump did 

not know they were being pursued by peace officers, there was 

sufficient evidence demonstrating otherwise such that it cannot 

be said the trial court erred in finding cross-admissible evidence. 

Though not “a precondition to joinder of charges” (People 

v. O’Malley (2016) 62 Cal.4th 944, 968), cross-admissibility “ ‘is 

normally sufficient to dispel any suggestion of prejudice and to 

justify a trial court’s refusal to sever properly joined charges.’ ” 

(Merriman, supra, 60 Cal.4th at p. 38.) An examination of the 

remaining factors only further reinforces the propriety of the 

trial court’s refusal to sever. 

Neither the murder count nor the attempted murder count 

was more inflammatory than the other. Lamb argues the

inflammatory nature of the attempted murder worked to his 

disadvantage in the murder charge, claiming, “the specter of an 

armed gang member shooting at an officer of the law is perhaps 

considered more nefarious than any act other than a crime 

against a child.” We disagree. Shooting an individual in the 

back of the head is also inflammatory conduct. Both the murder 

and the attempted murder involved a single gunshot at a single 

victim, with one killing the victim, and the other missing the 

victim. While Sergeant Helmick may have been a more 

sympathetic victim than Miller, Helmick was unscathed in the 

attack. Under these circumstances, we cannot say that the 

attempted murder charge was “particularly likely to inflame the 

jury against” Lamb. (People v. Thomas (2012) 53 Cal.4th 771, 

799; see also People v. Capistrano (2014) 59 Cal.4th 830, 850–

851.) 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

19

Nor was the murder charge a weak case bolstered through 

joinder such that the spillover effect altered the outcome. Lamb 

contends the evidence of the attempted murder was much 

stronger than the murder in that the former involved questions

of intent rather than identity, while the opposite was true for 

the murder. Not so. 

There was strong evidence of Lamb’s identity as Miller’s

killer. The gun Lamb used to shoot at Sergeant Helmick was 

identified by a forensic firearm examiner as the gun used three 

days before at the scene of Miller’s murder. Lamb boasted to 

Mason that he had killed Miller. Other evidence included 

Lamb’s need to speak with Hinson about something important 

on the night of the murder, Lamb’s later presence at Harris’s 

apartment located next to the murder site, and Lamb’s

departure from the apartment shortly before the murder. As to 

the attempted murder, Lamb was identified as the gunman and 

the surrounding circumstances, including Detective Allen’s 

police jacket and the loud police helicopter hovering overhead, 

demonstrated that he knew he was shooting at a peace officer.

This evidence “defeats the notion that strong evidence of one 

inflammatory crime was improperly used to bolster any weak 

evidence supporting the other crime.” (People v. Westerfield 

(2019) 6 Cal.5th 632, 691; see also People v. Scott (2015) 61 

Cal.4th 363, 396 [“the potential for a spillover effect was 

minimal” from nonmurder to murder charge, where evidence of 

the murder “was also substantial”].) Accordingly, Lamb was not 

prejudiced by any spillover effect. 

Nor did joinder of the attempted murder and murder 

charges render Lamb eligible for the death penalty or convert 

the matter into a capital case. (Alcala v. Superior Court (2008) 

43 Cal.4th 1205, 1228–1229; see also People v. Simon (2016) 1 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

20

Cal.5th 98, 128–129 (Simon) [where one of two joined incidents 

would independently give rise to a capital charge, there is less 

risk of prejudice].) In sum, Lamb has not shown prejudice to 

establish that the trial court abused its discretion by denying 

his pretrial severance motion. 

Lamb further contends joinder of the attempted murder 

and murder charges, in hindsight, resulted in gross unfairness 

amounting to deprivation of a fair trial or a denial of due process

at the guilt phase. (See Simon, supra, 1 Cal.5th at p. 123 

[“[E]ven if the trial court’s ruling was proper as a matter of state 

law, we will reverse the judgment if the defendant shows that 

joinder of the charges actually resulted in ‘gross unfairness’ 

amounting to a denial of due process during the guilt phase”].) 

“Whether joinder worked a gross unfairness turns upon 

assessing whether it was ‘reasonably probable that the jury was 

influenced by the joinder in its verdict of guilt.’ ” (People v. 

Vargas (2020) 9 Cal.5th 793, 819.) Here, the trial evidence was 

similar to that before the court when it ruled on defendant’s 

severance motion, and “ ‘strong evidence warranting conviction’ 

supported all the charges.” (Ibid.) Hence there is no reasonable 

probability that the guilt verdict would have been different if 

evidence regarding the attempted murder had not been 

introduced and no gross unfairness at trial occurred. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

21

B. We Need Not Reach Lamb’s Claim That the 

Gang-murder Special Circumstance Is 

Unconstitutionally Vague or Insufficiently 

Narrowing

Lamb contends the gang-murder special circumstance6is 

unconstitutionally vague and fails to sufficiently narrow the 

offenses in which the death penalty may be imposed. (§ 190.2, 

subd. (a)(22).) He asserts there is no meaningful distinction 

between a first degree murder charge with a gang enhancement 

and a substantive gang offense, and a murder charge with a 

gang-murder special circumstance. 

As discussed below, we conclude that the gang-murder 

special circumstance and death judgment must be vacated due 

to the changes to section 186.22 from Assembly Bill No. 333. 

Accordingly, Lamb’s challenge to the constitutionality of the 

gang-murder special circumstance is moot, and we need not

address this claim. 

III. GUILT PHASE

A. The Trial Court Did Not Err in Admitting the 

Fox Videos

On February 20 and 21, 2001, Fox 11 News broadcast two 

video segments described as an undercover report “expos[ing] 

[PEN1] for the first time on TV.” Lamb contends the Fox videos

were irrelevant and unduly prejudicial. Although the question 

6 Section 190.2, subdivision (a)(22), or the gang-murder 

special circumstance, provides, “[t]he defendant intentionally 

killed the victim while the defendant was an active participant 

in a criminal street gang, as defined in subdivision (f) of 

Section 186.22, and the murder was carried out to further the 

activities of the criminal street gang.” 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

22

is close, we conclude the trial court did not abuse its broad 

discretion in admitting the videos. 

1. Factual Background

a. Fox 11 News videos

The two videos collectively ran about 12 minutes. In the 

first video, after the reporter introduces PEN1 as a gang 

“increasing recruitment efforts in the ranks of white 

supremacist skinheads” and making a push for power in prison 

and out on the streets, Miller7 appears with his pit bull. Amid 

images of dogs fighting and a tattooed Miller holding and firing

a gun, Miller discusses using his dog as a weapon and owning 

over 300 guns. Miller is described as a shot caller in PEN1, and

the reporter describes the gang as “ready to kill enemies and 

snitches.” The video then explores the origins of PEN1 and its 

place in the white supremacist skinhead movement

accompanied by images of PEN1 graffiti, PEN1 and other white

supremacist tattoos, including swastikas, and gang members 

making Nazi salutes. The video cuts to Miller saying, censored 

for broadcast, “F___ that n______” while shooting at a target. It 

also portrays PEN1’s drug activity by featuring law 

enforcement, unknown gang members, and Miller discussing 

selling and using methamphetamine alongside imagery of drug 

use, paraphernalia, and a cabin destroyed in a 

methamphetamine manufacturing accident. 

As the video shifts to describing PEN1’s efforts to recruit 

new members and “strengthen their position among other white 

7 Although Miller’s appearance and voice were disguised in 

the videos, it was stipulated that the person in question featured 

in the video was Miller. Also, as noted ante in part I.A.1.e., 

Johnson and others immediately recognized Miller in the videos. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

23

criminal elements,” a correctional officer states, “[t]hese groups 

are going to start popping up everywhere and they are . . .

extremely violent.” Accompanied by more images of swastika 

tattoos and Nazi-saluting gang members, the reporter states 

PEN1’s “die on your shield philosophy . . . fits well with a group 

that has evolved from punk rockers to racist skinheads to a gang 

of thugs moving into organized crime.” Miller reappears with 

his pit bull and states: “In this business it’s guns, speed, 

violence and sex. That’s what it’s all about.” The first video 

concludes with a preview of the next with the reporter claiming, 

“[l]aw enforcement sources say there is an alarming chain of 

events launching PEN1’s power, causing an alliance with 

another well known white supremacist group and threatening 

to beef up PEN1’s influence in prison yards and out in the 

street.” 

In the second video, which aired the following day, the 

reporter states that PEN1 is “now positioning themselves as a 

criminal force inside prison walls,” and that “cops say PEN1 

violence can already reach from prison yards to neighborhood 

streets.” Alongside images of PEN1 president Mazza’s 

mugshots and racist tattoos, the video describes an incident in 

which Mazza was released from prison in 1999 and within five 

hours he was back in Orange County smoking 

methamphetamine and beating and stabbing a gang dropout. A 

correctional officer states, “[t]his particular group has a very 

great potential for violence and are pretty much unpredictable 

when that violence may occur.” 

Accompanied by images of prisons, tattooed prisoners 

exercising, white supremacist gang graffiti and tattoos, and a 

burning and spinning swastika, the video then discusses PEN1’s 

rise to influence within the prison system, explaining that with 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

24

members of the Aryan Brotherhood locked away in special units 

at maximum security prisons, the Nazi Lowriders began 

running the prison yards “and calling the shots for white Nazi 

gangs out in the streets.” However, when the Department of 

Corrections named the Nazi Lowriders a prison gang in 1999, 

its members were also locked down in special security cells, 

which according to the reporter, “has opened a prison door for 

PEN1.” 

After stating that PEN1 leaders Mazza, Rizzo, and 

Stringfellow formed alliances with the Aryan Brotherhood and 

Nazi Lowriders, and that they “[a]ll still embrace their white 

supremacist philosophy,” the video states PEN1 “are now 

modeling themselves into a more seasoned prison gang” with 

their main goal being to profit from drug sales. Miller then 

appears alongside images of drugs and bullets on a table, and 

states, “I sell it for 125 dollars an 8-ball,” and “[i]t’s a white 

man’s drug.” The video then shifts to discussing PEN1’s efforts 

to expand into other counties and prisons, and describes a

violent assault committed by 18-year-old PEN1 member Bryan 

O’Leary against an ex-white supremacist in Huntington Beach. 

With images of Miller’s fist with brass knuckles, the reporter 

states, “[t]here is no doubt that PEN1 figuratively and literally

have put on white supremacist brass knuckles,” after which 

Miller declares: “If I sock you with this, you’re not going to get 

up. I guarantee that.” 

At the video’s conclusion the reporter states: “And gang 

investigators guarantee that PEN1 has already moved beyond 

its neo-Nazi beginnings into organized crime. At the same time, 

attorneys for reputed PEN1 leaders Donald Mazza and Dominic 

Rizzo say their clients are not guilty of conspiracy to murder 

charges that they now face in Orange County and they quote, 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

25

look forward to the truth coming out at trial, and that’s 

scheduled to begin next week.” 

b. Admissibility argument and ruling

Before trial, the prosecutor sought to introduce the Fox 

videos on the ground they were probative of the “motivation 

behind the murder of Scott Miller.” Rump, joined by Lamb,

objected to the videos on the ground they were unduly 

prejudicial because Miller rarely appeared in the videos and the 

videos had “a lot of media hype” to make PEN1 “look like the 

most dangerous thing out there.” 

The trial court expressed concern that the prosecutor had 

substituted a television program for the testimony of an expert 

with no opportunity for cross-examination, and that certain

images were prejudicial: “We’ve got cross burnings. We’ve got 

swastikas. We’ve got attack dogs. We’ve got 

methamphetamine. We’ve got people being accused of murder. 

We’ve got allegations of association with Nazi Lowriders, with 

Aryan Brothers. How much more inflammatory could it get?” 

However, the court was ultimately persuaded that the probative 

value of demonstrating a motive to kill Miller was not 

substantially outweighed by the prejudice, finding the videos

relevant to proving the requisite knowledge for the street 

terrorism charge as well as supplying the motive for the 

homicide. (Evid. Code, § 352.) 

At Lamb’s request, the trial court admonished the jury on 

the limited purpose of the videos as follows: “Evidence 

consisting of news segments aired by Fox 11 News was 

introduced during the trial. This evidence was presented to you 

for limited purposes. By admitting this evidence the court is not 

advising you that it actually goes towards proving any issue in 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

26

this case; that determination is to be made by you. The news 

broadcast contains images of bigotry, opinions by certain 

individuals, inflammatory remarks by purported gang members 

and sensationalism by newscasters. You may not consider the 

recording as proof of the truth of any statements made by 

anyone during the recording. The information contained in the 

news segments is relevant for two purposes only: 1. Did a 

defendant view either broadcast and if so did the broadcast 

serve to notify that defendant that members of PEN1 engage in 

criminal activity? 2. Did the airing of the broadcast provide a 

motive for the killing of Scott Miller? You may not consider 

anything contained on the recording for any other purpose. You 

may not conclude from this evidence that the defendant is a 

person of bad character or that he has a disposition to commit 

crime.” The prosecutor read the admonishment to the jury prior 

to playing the videos during his guilt phase opening statement. 

The videos were admitted into evidence at the conclusion of the 

prosecution’s case-in-chief. The court repeated the limiting 

instruction and admonishment during guilt phase instruction,

and it was included in the written instructions provided to the 

jury. 

2. Analysis

“Except as otherwise provided by statute, all relevant 

evidence is admissible.” (Evid. Code, § 351.) Relevant evidence 

is that which has “any tendency in reason to prove or disprove 

any disputed fact that is of consequence to the determination of 

the action.” (Evid. Code, § 210.) Lamb contends the Fox videos 

were irrelevant because — as the prosecutor conceded in his 

closing argument — there was no direct evidence that Lamb had 

seen the videos prior to Miller’s death. Nor, contrary to the 

prosecutor’s opening statement, was any evidence introduced 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

27

that Mazza had ordered that Miller be killed. Lamb further 

argues that because the videos were broadcast over one year 

before Miller’s murder, they are not probative of Lamb’s motive 

to kill. We disagree. 

In People v. McKinnon (2011) 52 Cal.4th 610, 656, we held 

evidence of rumors that the victim had killed a member of the 

defendant’s gang was admissible to establish the defendant’s 

motive for killing the victim more than a year later. In doing so, 

we rejected the defendant’s argument that the evidence was 

inadmissible “simply because the prosecution failed to establish, 

by direct means, that defendant had heard the rumors about 

[the] death or the gang-related circumstances surrounding it. 

Ample evidence confirmed defendant’s gang membership, his 

gang identity, and his association with other gang 

members . . . .” (Ibid.) Under these circumstances, “the jury 

could readily infer defendant’s familiarity with the 

information . . . that was circulating ‘on the street.’ ” (Ibid.) 

Here, too, although there was no direct evidence Lamb watched 

the Fox videos, there was other evidence from which the jury 

could readily infer Lamb’s familiarity with the videos, including 

his membership in PEN1, where it was known that Miller had 

appeared in the videos. 

Additionally, Lieutenant Epperson testified that the time 

between an act of disrespect and payback can sometimes be 

lengthy and that he had investigated cases where payback was 

enacted years after a disrespectful act. Mason testified there 

was an understanding within the gang that “something” was 

supposed to happen to Miller as a result of the Fox videos, and 

Lieutenant Epperson was also aware of a recurring rumor that 

Miller would be killed for participating in the videos. The jury 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

28

could reasonably infer that Lamb was also aware of Miller’s 

participation in the Fox videos and their import.8 

Lamb contends that the videos should have been excluded 

under Evidence Code section 352, which provides that a trial 

court, “in its discretion may exclude evidence if its probative 

value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) 

create substantial danger of undue prejudice, of confusing the 

issues, or of misleading the jury.” We review a trial court’s 

decision to admit evidence under Evidence Code section 352 for 

abuse of discretion, and “do not disturb the trial court’s ruling 

unless it was arbitrary, capricious, or made in a ‘ “patently 

absurd manner that resulted in a manifest miscarriage of 

justice.” ’ ” (People v. Thomas (2023) 14 Cal.5th 327, 358; see 

People v. Doolin (2009) 45 Cal.4th 390, 439 (Doolin) [“ ‘In other 

words, evidence should be excluded as unduly prejudicial when 

it is of such nature as to inflame the emotions of the jury, 

motivating them to use the information, not to logically evaluate 

the point upon which it is relevant, but to reward or punish one 

side because of the jurors’ emotional reaction. In such a 

circumstance, the evidence is unduly prejudicial because of the 

substantial likelihood the jury will use it for an illegitimate 

purpose’ ”].) 

8 Aside from motive, the Fox videos were also admitted as 

probative of Lamb’s knowledge that PEN1 engaged in criminal 

activity, which was an element of the street terrorism charges. 

(§ 186.22, subd. (a).) The question of whether the court erred in 

admitting the videos for this purpose is moot given our 

conclusion below that the gang convictions must be reversed due 

to the changes to section 186.22 occasioned by Assembly Bill No. 

333. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

29

Lamb argues the Fox videos were unduly inflammatory 

and created the substantial likelihood that the jury would use 

them for an illegitimate purpose. He relies upon People v. Diaz

(2014) 227 Cal.App.4th 362. There, the defendant was convicted 

of second degree murder arising out of a fatal car crash in which 

defendant was driving with a 0.21 blood-alcohol level after 

having been twice convicted for driving with an elevated bloodalcohol level. (Id. at pp. 366–368.) Two videos that the 

defendant had viewed at mandatory alcohol education programs 

that explored the consequences of alcohol-related driving 

offenses and the impact they had on victims’ families were 

played for the jury. The Court of Appeal concluded admission of 

the videos was error as they “created a substantial danger of 

inflaming the jury’s passions by engendering similar feelings of 

sympathy for the victims of the charged offenses and their 

families,” and contained “numerous images that serve to 

heighten the emotional impact of the videos” as well as 

“numerous statements that were entirely irrelevant to the case, 

and were highly prejudicial in that they suggested to the jury 

that it would be acting in an aberrant fashion if it were to find 

[the defendant] not guilty.” (Id. at pp. 380, 381.)

Diaz is distinguishable here. The Fox videos, although 

graphic, had substantial probative value in establishing motive. 

Indeed, that Miller described PEN1’s criminal enterprise in 

sensationalized videos aired shortly before two of the gang’s 

founders were set to go to trial is highly relevant evidence of 

motive, which “makes the crime understandable and renders 

the inferences regarding defendant’s intent more reasonable.” 

(People v. Roldan (2005) 35 Cal.4th 646, 707.) Thus, the Fox 

videos were not introduced simply to improperly elicit strong 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

30

emotion and are substantially more probative than the videos in 

Diaz so as to outweigh their prejudicial effect. 

The videos contained graphic and disturbing material and 

were played in the prosecutor’s opening statement. The 

prosecutor admitted the material was disturbing and the trial 

court expressed concern over the videos’ potential prejudice. 

However, Evidence Code section 352 “ ‘speaks in terms of undue

prejudice. Unless the dangers of undue prejudice, confusion, or 

time consumption “ ‘substantially outweigh’ ” the probative 

value of relevant evidence, a[n] [Evidence Code] section 352 

objection should fail.’ ” (Doolin, supra, 45 Cal.4th at p. 439.) 

Although Lamb argued in the trial court that the prosecutor’s 

theory of the case could be accommodated through other means

or that portions of the videos should be redacted,

9

“the 

‘persuasive power of the concrete and particular is often 

essential to the capacity of jurors to satisfy the obligations that 

the law places on them.’ ” (People v. Marks (2003) 31 Cal.4th 

197, 227 (Marks).) The jury was entitled to view what the 

prosecutor theorized and witnesses confirmed was the 

motivation for murder, and the Fox videos and the inflammatory 

content contained therein “assisted the jury in understanding”

the motivation for the crime, “and the People were entitled to 

employ such evidence to prove their case.” (Ibid.)10 Lamb has 

9 Lamb does not argue on appeal that the videos should 

have been redacted.

10 The Attorney General argues the videos were not unduly 

prejudicial because the evidence was “case-neutral” in that the 

defense attempted to portray Johnson as the person who killed 

Miller partially because of his participation in the Fox videos. 

Lamb argues we should reject this argument because his 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

31

failed to demonstrate that the probative value of the Fox videos 

was substantially outweighed by a substantial danger of undue 

prejudice to constitute an abuse of discretion. 

Additionally, “ ‘[a] limiting instruction can ameliorate 

[Evidence Code] section 352 prejudice by eliminating the danger 

the jury could consider the evidence for an improper purpose.’ ” 

(People v. Gonzalez (2021) 12 Cal.5th 367, 409.) Here, the court 

instructed the jury multiple times that the Fox videos contained

images of bigotry, opinions by certain individuals, inflammatory 

remarks by purported gang members, and sensationalism by 

newscasters. It also instructed the jury it was not to consider 

the videos as proof of the truth of any statements made by 

anyone in the recording or for any purpose other than that 

provided, nor were they to conclude that Lamb was a person of 

defense did not depend on playing the videos, much of the 

content was irrelevant to prove motive, and their inflammatory 

nature would not assist the defense case. However, the trial 

court, irrespective of the defense theory, could validly consider 

the fact that the videos provided “case-neutral” evidence of 

motive for PEN1 members generally, which would include 

Johnson, when evaluating the risk of prejudice under Evidence 

Code section 352 to Lamb. This is a unique scenario where the 

challenged inflammatory evidence could actually raise some 

doubt as to the identity of the perpetrator and thereby 

neutralize the risk that the jury would improperly “prejudge” 

Lamb himself and “reward . . . one side because of the jurors’ 

emotional reaction.” (People v. Bell (2019) 7 Cal.5th 70, 105, 

italics added.) Although we do not conclude that Lamb 

acquiesced to the prejudicial nature of the video simply because 

defense counsel attempted to make the best of an adverse ruling 

(see People v. Calio (1986) 42 Cal.3d 639, 643), we observe that 

in conducting an Evidence Code section 352 analysis, the trial 

court was not precluded from considering the fact that at least 

certain aspects of the videos were not prejudicial, and perhaps 

even helpful, to Lamb.
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

32

bad character or disposed to commit crimes. The prosecutor 

read this admonition prior to playing the videos during his 

opening statement and iterated that they were being introduced 

for a very limited purpose, and the admonition was again read 

during guilt phase instruction and included in the written 

instructions. We presume that the jury understood and followed 

these instructions. (People v. Hajek and Vo (2014) 58 Cal.4th 

1144, 1178.) 

Lamb contends the admonition was insufficient to avoid 

undue prejudice, because “the prejudicial evidence presented to

the jury is a sensationalized mass-media presentation designed 

to incite an emotional rather than a rational reaction, and to 

instill fear into the jurors personally because of the gang’s threat 

to the public at large.” (Fn. omitted.) However, the admonition 

explicitly confronted and addressed the particularized 

complained of potential prejudice. 

Even assuming the videos were erroneously admitted, we 

conclude it is not reasonably probable that a result more 

favorable to Lamb would have been reached absent the error. 

(People v. Watson (1956) 46 Cal.2d 818, 836.) Lamb argues that 

the admission of the Fox videos was so prejudicial that it 

violated his federal constitutional rights to due process and a 

fair trial, and that we should therefore apply the standard of 

review in evaluating the harmlessness of the alleged violations 

of the federal Constitution set forth in Chapman v. California

(1967) 386 U.S. 18 (Chapman), which requires reversal unless 

the error is “ ‘ “harmless beyond a reasonable doubt.” ’ ” (People 

v. Schuller (2023) 15 Cal.5th 237, 251.) “But the admission of 

evidence, even if erroneous under state law, results in a due 

process violation only if it makes the trial fundamentally 

unfair.” (People v. Partida (2005) 37 Cal.4th 428, 439; see also 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

33

Marks, supra, 31 Cal.4th at p. 227 [the application of ordinary 

rules of evidence like Evid. Code § 352 does not implicate the 

federal Constitution and thus we review such allegations of 

error under Watson].) Regardless, even if the admission of this 

evidence were viewed as a due process violation, it would be 

harmless under either standard. 

As observed ante in part II.A., there was strong evidence 

of Lamb’s guilt. Lamb told Mason he had killed Miller, he was 

in possession of the murder weapon a few days after the murder, 

and he was present with Rump at an apartment adjacent to the 

murder location and departed shortly before the murder. Other 

evidence, including Mason’s and Lieutenant Epperson’s 

testimony, demonstrated that Lamb was a PEN1 member and 

had a related motive for the killing. 

In addition, substantial other evidence of PEN1’s bigotry

and violent criminal activities was introduced at trial. While 

the Fox videos contained incendiary images of racist symbols 

and white supremacist emblems, there was evidence shown to 

the jury that Lamb had such imagery tattooed on his own body. 

The jury was aware Lamb had the words “blood” and “honor” 

with a swastika in the middle around his neck, another swastika 

under his right eye, yet another swastika on his right arm, a 

Celtic cross with “skin” tattooed on top of it, “P.D.S.” (for PEN1 

Death Squad) on top of his right eye, “L.A.S.” (for Los Angeles 

Skins) on his left arm, “W.P.” (for white power or pride) on his 

back, and “Death Squad” on his leg. 

In addition, Lieutenant Epperson testified that PEN1 had 

become one of the fastest growing white racist gangs in 

Southern California and in the California prison system. PEN1 

was antisemitic and tended to hate any nonwhite racial group. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

34

Lieutenant Epperson also testified that PEN1 hated law 

enforcement and government because they viewed them as 

Zionist organizations established to suppress Aryans. Likewise,

Johnson testified that he gave a Nazi salute while in court on a 

separate case and referred to the courthouse as the “house of the 

Jews.” 

The methamphetamine sale and use depicted in the Fox 

videos was substantiated by Lieutenant Epperson’s testimony 

concerning his personal knowledge of PEN1’s sale and use of the 

drug. Lieutenant Epperson’s expert testimony also covered the 

relationship between PEN1, the Aryan Brotherhood, and the 

Nazi Lowriders discussed in the Fox videos. 

Accordingly, although the Fox videos were offensive and 

graphic, their contents were largely proven by other properly 

admitted evidence at the guilt phase. (See People v. Riccardi

(2012) 54 Cal.4th 758, 828–830.) Given these circumstances, 

any error was harmless.

B. Admitting Rump’s Jailhouse Statement Was Not 

Reversible Error

Lamb argues a recording of a jailhouse conversation 

between himself and Rump was erroneously admitted under 

state hearsay law and violated his confrontation right under 

Crawford v. Washington (2004) 541 U.S. 36 (Crawford), Bruton 

v. United States (1968) 391 U.S. 123, and People v. Aranda 

(1965) 63 Cal.2d 518. We see no constitutional error and hold

harmless any state law error. 

1. Background

When Lamb and Rump were arrested, they were placed in 

separate interview rooms and videotaped yelling back and forth 

to each other. During this time, Rump asked Lamb, “[w]ho the 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

35

fuck was that dude in the white car trying to get our ass?” Lamb 

responded, “I don’t know.” Soon after, a detective entered

Lamb’s room and Lamb yelled to Rump: “Hey, hold on dog. I 

got tell them I got nothing to say.” Afterward, Rump yelled, “I 

think that white car might have been a parole agent,” and Lamb 

said, “I’m out of here Comrade.” Rump then stated: “I thought, 

I thought he was trying to hit me, though. Hello. Where did you 

go?” Lamb responded, “[bye] homie.” 

Before trial, the prosecutor moved to introduce Rump’s 

statement that he thought he and Lamb were being pursued by 

a parole officer, and Lamb objected, arguing the evidence was 

irrelevant, speculative, and did not constitute an adoptive 

admission. As to Rump, the court ruled the statement would be 

relevant to establish knowledge for the attempted murder 

charge noting a parole officer qualifies as a peace officer. The 

court also found that the statement did not qualify as an 

adoptive admission by Lamb but otherwise reserved ruling on 

its admissibility against Lamb until the presentation of 

evidence. 

During his opening statement, the prosecutor asserted 

Lamb and Rump knew they were being overheard. Referencing 

the statement that Rump believed the man in the white car was 

a parole agent, the prosecutor stated Rump “is thinking about 

the excuse they wanted to come up with for running from the 

officers.” 

During testimony about the recorded conversation, the 

prosecutor moved to admit the recording into evidence. Defense 

counsel indicated no objection “other than as stated” and the

court admitted the video and a transcript. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

36

The court revisited the issue prior to the close of evidence 

and ultimately found that the “statement is arguably hearsay, 

but technically it’s not. The relevance of the statement is the 

possible proof of the defendant’s knowledge of intent, not for the 

truth that the person in the white car was actually a parole 

officer. Even if it were hearsay, the declaration-against-penalinterest exception would apply.” The court also found the 

statement was not testimonial. The court indicated it would 

admonish the jury that if the statement constituted an 

admission it could be considered as such only against Rump, and 

it could only be used against Lamb for the purpose of 

determining that such statement is circumstantial evidence 

that Lamb had a motive to commit the crime of attempted 

murder on a peace officer. 

During his closing argument, the prosecutor argued that 

Rump’s statement was contrived and that “[t]he reason why

they were running is because they figured out somebody 

realized they killed Scott Miller.” The prosecutor also asserted

that Lamb and Rump were worried that someone had seen them 

commit the murder or knew they were responsible, “[a]nd that’s 

why Mr. Rump comes up with the story, ‘well, we’ll say that’s a 

parole officer.’ ” The prosecutor noted that a parole officer is a 

peace officer and that the statement “hurts both ways” because 

it demonstrated both their knowledge that they were being 

pursued by a peace officer, “[b]ut more importantly, it’s 

consciousness of guilt relating to the March 8th incident. ‘That 

white car is a parole officer; let’s make that our story.’ ” 

However, the prosecutor conceded that there was no evidence 

Lamb had heard the statement. 

On rebuttal, the prosecutor again argued the reason Rump 

made the statement was “not because he wants to tell us about 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

37

parole agents, but because they’re thinking about excuses for 

why they were running from the cops. ‘Let’s float this idea: we 

ran because we’re parolees at large and this is a parole agent.’ ” 

The court instructed the jury in the modified language of 

CALCRIM No. 305: “You have heard evidence that the 

defendants made oral and written statements before trial. You

may consider that evidence only against the defendant who 

made the particular statement and not against the other 

defendant. There is one exception to this instruction. Evidence 

was presented that Mr. Rump made a statement to Mr. Lamb 

while both were incarcerated in the Anaheim City Jail. Such 

statement was ‘Hey I think that white car might have been a 

parole agent.’ You must determine 1) whether such statement 

is circumstantial evidence that Mr. Rump knew he was being 

pursued by a peace officer on March 11, 2002 and 2) if it is, 

whether that statement is also circumstantial evidence that the 

defendant Lamb had the motive or intent to commit the crime 

of attempted murder on a peace officer.” 

2. Analysis

Lamb contends Rump’s statement was introduced against 

Lamb for the truth of the matter stated in violation of his state 

hearsay and federal confrontation clause rights. 

As to state law, the trial court ruled the statement was 

nonhearsay “as possible proof of the defendant’s knowledge of 

intent, not for the truth that the person in the white car was 

actually a parole officer.” Even if hearsay, the court found the 

statement constituted a declaration against penal interest, and

then stated the jury would be admonished it could only be 

considered an admission against Rump and circumstantial 

evidence of motive as to Lamb. However, the modified 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

38

instruction stated the evidence could be used as circumstantial 

evidence that Rump knew he was being pursued by a peace 

officer and that Lamb had the “motive or intent to commit the 

crime of attempted murder on a peace officer.” 

Accordingly, the convoluted arguments and rulings lack 

clarity, as evidenced by the parties’ positions on this issue. The 

Attorney General claims the statement is not hearsay because 

it was not offered to prove that Lamb and Rump were being 

pursued by a parole officer because the pair were in fact being 

pursued by a police officer. Lamb contends the statement was 

admitted for the truth of Rump’s belief that they were being 

pursued by a parole officer, which would constitute hearsay.

However, even if we were to assume the trial court erred 

in admitting Rump’s statement against Lamb, it is not 

reasonably probable the outcome would be different absent the 

error considering other evidence that Lamb knew or reasonably 

should have known they were being pursued by police. Though 

Sergeant Helmick and Detective Allen were driving unmarked 

vehicles, Lamb and Rump engaged in a headlong flight after 

Rump observed Sergeant Helmick in his side-view mirror. 

During the foot pursuit, an extremely loud police helicopter was 

hovering overhead and though the pursuing officers were in 

plain clothes, both were holding their radios, had their guns 

drawn, and were wearing some indicia of their status as law 

enforcement. 

Additionally, the admission of Rump’s statement did not 

violate the federal confrontation clause, and Crawford and the 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

39

Aranda-Bruton doctrine are inapplicable here.

11

 Out of court 

statements that are not offered for their truth are not hearsay 

(Evid. Code, § 1200) and no further Crawford analysis is 

required. (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6 (Cage) 

[“Crawford made clear that there are no confrontation clause 

restrictions on the introduction of out-of-court statements for 

nonhearsay purposes”], citing Crawford, supra, 541 U.S. at 

p. 60, fn. 9.) However, even if Rump’s statements were admitted 

for their truth, they would not qualify as testimonial statements 

as that term has been articulated by the high court. (See Cage, 

at p. 981 [“the confrontation clause is concerned solely with 

hearsay statements that are testimonial”], citing Davis v. 

Washington (2006) 547 U.S. 813, 823–825.) Inter alia, the 

colorful and informal remarks between the two suspects shouted 

through the interview room walls are not sufficiently formal to 

meet that prong of the Crawford test. Further, they were not 

made by their declarants for the primary purpose of preserving 

evidence for later use at trial. (See Ohio v. Clark (2015) 576 U.S. 

237, 243–249 [for a summary of its own jurisprudence and the 

evolution of the proper understanding of what circumstances 

can render a statement “testimonial”].) “Thus, binding high 

court precedent requires us to hold that the Sixth Amendment 

11 We have held that “[t]o the extent that our decision” in

Aranda, regarding redaction or exclusion of the out-of-court 

confession of a defendant that implicates a codefendant, 

“constitutes a rule governing the admissibility of evidence, and 

to the extent this rule of evidence requires the exclusion of 

relevant evidence that need not be excluded under federal 

constitutional law, it was abrogated in 1982 by the ‘truth-inevidence’ provision of Proposition 8 (Cal. Const., art. I, § 28, 

subd. (d) [now subd. (f)(2)]).” (People v. Fletcher (1996) 

13 Cal.4th 451, 465.) 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

40

is inapplicable and that defendant’s confrontation clause claim 

therefore fails.” (People v. Cortez (2016) 63 Cal.4th 101, 129; see 

also People v. Tran (2022) 13 Cal.5th 1169, 1196 (Tran) [“In sum, 

because the confrontation clause applies only to testimonial 

hearsay statements, the Aranda-Bruton doctrine’s Sixth 

Amendment protections likewise apply only to testimonial 

hearsay statements”].) 

C. The Firearm Examiner’s Testimony Did Not 

Violate People v. Sanchez

Lamb argues that the firearm expert’s testimony 

improperly relayed information from a report prepared by a 

nontestifying firearms examiner, in violation of People v. 

Sanchez (2016) 63 Cal.4th 665 (Sanchez). We disagree. 

1. Background

The prosecution called Rocky Edwards, a forensic firearm 

and toolmark examiner employed by the Santa Ana Police 

Department. Edwards testified that he was familiar with 

Laurie Crutchfield, a firearm examiner with the Orange County 

crime lab, and that she had previously conducted an 

examination of ballistic evidence in this case. However, in April 

2007, Edwards became aware that defense counsel wanted him 

“to do a reexamination of the evidence from the beginning” to 

see what conclusions he would reach, and that as a result of the 

defense request, the prosecutor arranged to have Edwards 

reexamine “from the beginning all of the evidence . . . .” 

Edwards testified that he reviewed Crutchfield’s report 

prior to his examination. In doing so, Edwards discovered that 

Crutchfield found the firearm to operate normally and noted the 

magazine to have a maximum capacity of 13 bullets. Edwards 

also confirmed that Crutchfield’s report concluded the following: 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

41

a casing found inside the gun had been fired by that gun; the 

casing found at the homicide scene had been fired by that same 

weapon; the bullet core recovered from the inside of Miller’s 

head did not have enough characteristics to reach a conclusion; 

and the bullet jacket recovered from Miller’s head had enough 

characteristics “for her to conclude that it’s consistent as being 

fired from the weapon, but not enough for her to give a complete 

match . . . .” 

Edwards explained the scientific basis for determining 

whether a specific bullet or cartridge case was fired by a specific 

weapon and stated that he “need[s] overwhelming agreement 

before I’ll make a determination.” Edwards described how he 

conducted his examination, which included test firing the 

weapon to test its functionality and to recover fired bullets and 

casings for comparison purposes. 

Edwards concluded that the weapon functioned properly 

and that he had “zero doubt” that the two cartridge cases 

submitted for examination were fired by the handgun. The 

bullet jacket had the same “class characteristics” as the gun but 

had “insufficient individual characteristics for comparison” to 

make a conclusive determination as to whether it had been fired 

by the handgun. Examination of the bullet core was also 

inconclusive. Edwards also testified that an expended casing 

found inside the gun may not have ejected because some 

external force impeded the movement of the slide, possibly a 

white bandana wrapped around the grips. Edwards explained 

that this did not contradict his and Crutchfield’s conclusion that 

the weapon functioned properly when test fired. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

42

2. Discussion

In Sanchez, we “adopt[ed] the following rule: When any 

expert relates to the jury case-specific out-of-court statements, 

and treats the content of those statements as true and accurate 

to support the expert’s opinion, the statements are hearsay. . . . 

If the case is one in which a prosecution expert seeks to relate 

testimonial hearsay, there is a confrontation clause violation 

unless (1) there is a showing of unavailability and (2) the 

defendant had a prior opportunity for cross-examination, or 

forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th 

at p. 686; see Crawford, supra, 541 U.S. at pp. 62, 68.)12 

First, it is unclear whether Edwards’s testimony 

concerning Crutchfield’s conclusions runs afoul of Sanchez, as 

there is no indication that Edwards told the jury that he relied

upon Crutchfield’s report as a basis for his opinion or suggested 

that the jury rely on the report’s content because Edwards 

considered Crutchfield’s statements to be true. (Sanchez, supra, 

63 Cal.4th at pp. 684–685; see also id. at p. 682 [“When an 

expert relies on hearsay to provide case-specific facts, considers 

the statements as true, and relates them to the jury as a reliable 

basis for the expert’s opinion, it cannot logically be asserted that 

the hearsay content is not offered for its truth”].) Though 

Edwards testified that he had reviewed the report and relayed 

its conclusions to the jury, Crutchfield’s opinions were not 

presented or relied upon as the basis of a hypothetical question. 

Nor did Edwards indicate that he relied upon Crutchfield’s 

examination or agreed with her conclusions, aside from relating 

12 Though no objection was raised in the trial court, a failure 

to object here does not forfeit Lamb’s Sanchez claim on appeal. 

(People v. Perez (2020) 9 Cal.5th 1, 9.) 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

43

his own conclusions without reference to Crutchfield’s. Indeed, 

Edwards confirmed that he “did a complete, thorough and from 

the beginning examination of this weapon . . . independent of 

what Miss Crutchfield did . . . .” It was also made clear that his 

opinion was based upon his own original, independent 

examination at the behest of defense counsel. 

Thus, it appears that testimony about Crutchfield’s report

was admitted not to bolster Edwards’s opinion, but to explain 

the context in which Edwards was brought into the case as an 

independent expert and to establish that his opinion was not 

influenced by the earlier examination. The truth of 

Crutchfield’s conclusions was immaterial to Edwards. “Neither 

the hearsay doctrine nor the confrontation clause is implicated 

when an out-of-court statement is not received to prove the truth 

of a fact it asserts.” (Sanchez, supra, 63 Cal.4th at p. 681, citing 

Crawford, supra, 541 U.S. at p. 59, fn. 9.) 

Nevertheless, Crutchfield’s conclusions were admitted 

without limitation, and the record is silent as to whether they 

were admitted as nonhearsay or under an exception to the 

hearsay rule. Assuming that admission was erroneous under 

Sanchez or Crawford, any error is harmless beyond a reasonable 

doubt. (Sanchez, supra, 63 Cal.4th at p. 698.) 

Edwards’s conclusions were uncontroverted and 

supported by testimony concerning his extensive expertise, the 

science of firearm and toolmark comparison, the examination he 

undertook, and the independent bases for his conclusions. 

Though we acknowledge the potential for Edwards’s conclusions 

to be bolstered in that they comported with another firearm 

examiner’s findings, that danger is mitigated both by evidence 

of Edwards’s independent analysis and evidence that he was 
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Opinion of the Court by Evans, J.

44

sought by defense counsel to reexamine the ballistics evidence 

“from the beginning.” Indeed, in closing, Lamb’s counsel argued: 

“Rocky Edwards is the expert. That’s why I wanted Rocky 

Edwards.” 

Lamb’s reliance on the Court of Appeal’s decision in People 

v. Azcona (2020) 58 Cal.App.5th 504 (Azcona) does not compel a 

different result. Lamb argues that “Crutchfield’s hearsay 

conclusions, testified to by Edwards, infected the jury with the 

false sense that his conclusions had been vetted or confirmed by 

the first analyst, an impression underscored by his statements 

about there being ‘zero doubt’ as to his conclusions, and that no 

other possible result could have been reached.” In Azcona, a 

firearms expert testified to his opinion that two bullet casings 

were fired from the same gun. (Id. at p. 510.) When asked how 

he ensured his work was correct, the expert explained his work 

was reviewed and approved by his supervisors “ ‘for technical 

aspects in the report to be sure I had everything correct in my 

work and I didn’t transpose anything . . . .’ ” (Id. at p. 514.) On 

appeal, the defendant argued this testimony violated his 

confrontation rights. (Ibid.) The appellate court agreed, holding 

that the expert related testimonial hearsay statements that 

presented case specific facts “when the expert told the jury that 

another examiner had indicated approval of and agreement with 

the expert’s conclusions in this case. The prosecution was in 

effect able to introduce the opinion of a second expert without 

exposing that witness to cross-examination, depriving 

defendant of his Sixth Amendment right of confrontation.” (Id.) 

That is not what happened here. Edwards’s examination 

and opinion were not reviewed or approved by Crutchfield. To 

the extent Crutchfield’s opinions were introduced without 

affording Lamb his right to confrontation, the appellate court in 
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Opinion of the Court by Evans, J.

45

Azcona “acknowledge[d] that when a testifying expert offers an 

independently formed opinion, erroneously admitted evidence 

that a supervisor agrees with the opinion will often be 

harmless.” (Azcona, supra, 58 Cal.App.5th at p. 515, citing 

People v. Lopez (2012) 55 Cal.4th 569, 585 [admission of 

nontestifying analyst’s laboratory report linking the defendant’s 

name to blood sample was harmless beyond a reasonable doubt 

in light of testifying analyst’s independent opinion].) The Court 

of Appeal also found that the expert’s independent opinion was 

“itself inadmissible insofar as it contained the unsupported 

conclusion that the bullet casings were certain to have been fired 

from the same gun. Taken together, that conclusion and the 

hearsay statements about supervisor approval gave the 

impression that the expert’s opinion was entitled to more weight 

than it would otherwise deserve.” (Azcona, at p. 515.) We do 

not have the same compounding error here. Because Edwards’s

testimony was based on his independent analysis and he, at 

most, relayed Crutchfield’s similar conclusion without relying 

on it, any error in admitting Edwards’s testimony was 

harmless.13 

D. The Prosecutor Did Not Commit Misconduct

During Closing Argument

Lamb argues the prosecutor committed misconduct during 

guilt phase closing argument. Describing the prosecutor’s 

strategy as “a number of one-two punches,” Lamb asserts the 

prosecutor attacked defense counsels’ integrity while 

13 Given our conclusion that any Sanchez error would be 

harmless, we need not address Lamb’s further contention that 

the purported Sanchez error demonstrates that the refusal to 

sever the murder and attempted murder charges resulted in 

gross unfairness. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

46

improperly vouching for the strength of the evidence. We 

disagree. 

As a preliminary matter, Lamb never objected to the 

statements he now challenges and has thus forfeited this claim. 

“As a general rule a defendant may not complain on appeal of 

prosecutorial misconduct unless in a timely fashion — and on 

the same ground — the defendant made an assignment of 

misconduct and requested that the jury be admonished to 

disregard the impropriety.” (People v. Samayoa (1997) 

15 Cal.4th 795, 841.) 

The claim also lacks merit. “Under federal law, 

‘ “Improper remarks by a prosecutor can ‘ “so infect[ ] the trial 

with unfairness as to make the resulting conviction a denial of 

due process.” ’ ” ’ [Citation.] Under state law, ‘ “a prosecutor 

who uses deceptive or reprehensible methods to persuade either 

the court or the jury has committed misconduct, even if such 

action does not render the trial fundamentally unfair.” ’ ” 

(People v. Huggins (2006) 38 Cal.4th 175, 206 (Huggins).) 

“When attacking the prosecutor’s remarks to the jury, the 

defendant must show that, ‘[i]n the context of the whole 

argument and the instructions’ [Citation], there was ‘a 

reasonable likelihood the jury understood or applied the 

complained-of comments in an improper or erroneous manner.’ ” 

(People v. Centeno (2014) 60 Cal.4th 659, 667.)

1. Asserted Attacks on Defense Counsel’s Integrity

“The prosecution is given wide latitude during closing 

argument to make fair comment on the evidence, including 

reasonable inferences or deductions to be drawn from it.” 

(People v. Harris (2005) 37 Cal.4th 310, 345.) “ ‘A prosecutor 

commits misconduct if he or she attacks the integrity of defense 
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Opinion of the Court by Evans, J.

47

counsel, or casts aspersions on defense counsel.’ ” (People v. 

Pearson (2013) 56 Cal.4th 393, 442 (Pearson).) “ ‘It is, of course, 

improper for the prosecutor “to imply that defense counsel has 

fabricated evidence or otherwise to portray defense counsel as 

the villain in the case . . . . Casting uncalled for aspersions on 

defense counsel directs attention to largely irrelevant matters 

and does not constitute comment on the evidence or argument 

as to inferences to be drawn therefrom.” ’ ” (People v. Redd

(2010) 48 Cal.4th 691, 749.) 

Defense expert Dr. Smith testified regarding the effects of 

methamphetamine use and opined that the jail video of Lamb 

and Rump showed that Lamb was at the “agitation/rage” stage

of methamphetamine impairment, while Rump was “more in 

rage, beginning of psychosis” phase. (See ante, pt. III.B.) Dr. 

Smith conceded that psychosis requires a clinical analysis that

he did not conduct on Rump, nor did Dr. Smith consider his own 

2007 examination of Lamb in rendering this opinion. Rather, 

Dr. Smith based his opinions about Lamb and Rump solely on

the video.

During the prosecutor’s closing argument, he said: 

“[W]hat [Dr. Smith] was trying to do is not fair and it is not right. 

Psychoses? Think about it.” The prosecutor also asserted that 

Dr. Smith’s opinion based solely upon video of Lamb and Rump 

was “absolute trash, and it has no place in a courtroom in a case 

like this.” The prosecutor also said: “Don’t let them fool you. 

When I say, ‘them,’ I’m talking about the defendants.” 

A prosecutor “ ‘is free to remind the jurors that a paid 

witness may accordingly be biased and is also allowed to argue, 

from the evidence, that a witness’s testimony is unbelievable, 

unsound, or even a patent “lie.” ’ ” (Pearson, supra, 56 Cal.4th 
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Opinion of the Court by Evans, J.

48

at p. 442.) That is what occurred here. Although the 

prosecutor’s reference to Dr. Smith’s opinion as “absolute trash”

was intemperate, there is no reasonable likelihood that the jury 

would have understood the prosecutor to be asserting that 

defense counsel sought to deceive the jury. (Ibid.) Rather, the 

prosecutor argued in effect that Dr. Smith’s opinion lacked 

sound foundation and should not be credited. 

Lamb next asserts that when the prosecutor argued that 

defense counsel failed to deliver on assurances made in his

opening statement, he insinuated defense counsel had 

attempted to fool the jury. The prosecutor argued: “[Defense 

counsel] stood in front of you in opening statement and said, ‘I’m 

gonna prove to you beyond a reasonable double that the gun was 

not jammed.’ And I remember thinking, ‘man, you’re gonna buy 

me a big drink because this gun was jammed.’ ” Lamb further

faults the prosecutor for arguing that defense counsel used “red 

herring[s] . . . to get your focus away from your job” and for 

asking the jury to “[t]hink about what the defense want[s] you 

to buy.” These statements were proper argument. (People v. 

Harris (1989) 47 Cal.3d 1047, 1085, fn. 19 [“It is totally proper 

to remind the jury in this way that the [defense’s opening] 

statement was inaccurate in that some of those pieces are 

missing and that the verdict should rest only on evidence that 

has been admitted”]; People v. Cunningham (2001) 25 Cal.4th 

926, 1002, 1003 [prosecutor’s argument that defense counsel’s 

“job is to create straw men” and “put up smoke, red herrings,” 

was not misconduct and “would be understood by the jury as an 

admonition not to be misled by the defense interpretation of the 

evidence, rather than as a personal attack on defense counsel”].) 

The prosecutor also argued that “[t]hey don’t want 12 . . .

because if they can fool one juror into taking his or her focus 
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Opinion of the Court by Evans, J.

49

away from the facts and the law, they win. That’s not really fair 

because if you follow the law reasonably, objectively and fairly, 

the only conclusion is that they’re guilty beyond any reasonable 

doubt.” Even assuming there is a reasonable likelihood the jury

would understand the prosecutor to be referring to defense 

counsel, he “simply used colorful language to permissibly 

criticize counsel’s tactical approach,” and did not improperly 

attack counsel’s integrity. (Huggins, supra, 38 Cal.4th at 

p. 207.) The prosecutor simply “urg[ed] the jury not to be misled 

by defense evidence” and argument. (Cummings, supra, 4 

Cal.4th at p. 1302.) 

Lamb next objects to the prosecutor’s response to Rump’s 

argument that Lieutenant Epperson had refused to answer 

questions. On cross-examination, Rump asked Lieutenant

Epperson whether a particular hypothetical scenario would be 

consistent with a crime committed for the benefit of a criminal 

street gang. Lieutenant Epperson responded that it was such 

an absurd set of hypothetical facts that he could not give a valid 

answer. During Rump’s closing argument, he asserted that 

Lieutenant Epperson, Mason, and Johnson had all refused to 

answer questions, adding, “[m]ust be something contagious 

about gangs.” On rebuttal, the prosecutor argued: “Doesn’t . . .

it kind of turn your stomach — it turned mine — when [Rump] 

gets up here and says [Lieutenant] Clay Epperson refused to 

answer questions just like Mason and just like Billy Joe 

Johnson. I mean, this is just pure imagination that has no basis 

in reality. He said . . . he refused to answer questions. You 

know what I think he’s referring to is when [Lieutenant] Clay 

Epperson said, ‘the hypo you’re giving me is absurd. I can’t 

answer your question because the hypo you’re giving me is 

absurd.’ And he calls that refused to answer question. 
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Opinion of the Court by Evans, J.

50

Remember his hypo is, you shoot at somebody, but you don’t 

intend to kill them.” 

Lamb asserts the “prosecutor[ ] insiste[d] that the 

argument was nausea-inducing to him personally, and . . .

suggest[ed] that the jurors should have the same reaction. . . .” 

We see no impropriety. “The prosecutor’s comments responded 

directly . . . to earlier arguments made by defense counsel . . . . 

When the comments are considered in context, there is no 

[reasonable] likelihood that the jury would have understood the 

comments as anything beyond criticism of defense counsel’s 

tactical approach in argument and the defense view of the 

evidence in the case, as is allowed. [Citations.] The comments 

did not constitute an improper argument or an attack on 

counsel’s personal integrity.” (People v. Linton (2013) 56 Cal.4th 

1146, 1206; cf. People v. Cole (2004) 33 Cal.4th 1158, 1203 (Cole) 

[not reasonably likely that the jury understood the prosecutor’s 

references to defense counsel as “ ‘deceiv[ing],’ ” “ ‘unfair,’ ” 

“ ‘misleading,’ ” or “ ‘tricky’ ” to be personal attacks on counsel’s 

integrity where each of the statements was made in the context 

of rebutting a statement defense counsel had made during his 

closing argument].) 

The prosecutor told the jury: “I know you’re getting tired. 

I know it’s been a long day already. Please bear with me. You’d 

want me to do my job, so please bear with me. Let me just — I’ll 

tell you what I sometimes worry about. What I worry about 

sometimes is somebody sitting there going, ‘[prosecutor], I got it. 

I re[a]l[l]y got it. You really don’t have to keep going. I got it.’ 

I have to be able to go to sleep at night and I have to do my job. 

So bear with me. I’m not trying to insult anybody’s intelligence. 

I know you got it, probably, but I need to talk about — I need to 

do my job. So please bear with me. I know it’s hard. I know it 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

51

gets tedious. I know we’ve been sitting for a few hours. So 

please bear with me.” Lamb focuses on one sentence in this 

portion of the prosecutor’s argument, “I have to be able to go to 

sleep at night, and I have to do my job.” He argues the 

prosecutor contrasted his approach with that of defense counsel 

and insinuated they “were conducting their job in an unfair 

manner and were trying to keep the jurors from doing their 

jobs.” 

Not so. “Although defendant singles out particular 

sentences to demonstrate misconduct, we must view the 

statements in the context of the argument as a whole.” (Cole, 

supra, 33 Cal.4th at p. 1203.) The prosecutor did not mention 

defense counsel. Moreover, this statement was made during a 

discussion of jury instructions and the above-quoted language 

was preceded by the prosecutor turning to the conspiracy 

instruction (“Okay. All right. So now we start with count one, 

okay? That’s CALJIC — excuse me, CALCRIM 563 is the 

instruction that defines a conspiracy — it’s a long instruction. 

We’re going to talk about it.”) and a discussion of that 

instruction followed. As such, the complained-of statement was 

merely the prosecutor recognizing that it had been a long day 

and that the jury was getting tired and acknowledging the

necessary but tedious task of applying the evidence to the 

instructions, but that he needed to do his job. 

Finally, Lamb takes exception to the prosecutor’s 

statement that Lamb and Rump “are not here on trial because 

they can serve as a billboard for Hitler. They’re not here on trial 

because they’re white supremacists. They’re not here on trial 

because they’re filled with hate. They’re not here on trial 

because they glorify a symbol that stands for unimaginable 

atrocity, that swastika symbol. That’s not why they’re here on 
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Opinion of the Court by Evans, J.

52

trial. It’s despicable, absolutely despicable, but that’s not why 

they’re here on trial. They’re here on trial because they killed 

this human being, and they’re here on trial because they tried 

to kill a peace officer.” 

Lamb claims that giving the jury this reminder was 

“paralipsis,” a rhetorical device where a statement is made then 

denied for the purpose of emphasizing the statement. He claims 

this was improper in light of the prosecution’s evidence that 

Lamb was a white supremacist, though he does not separately 

argue that the trial court erred in admitting such evidence. The 

prosecutor did not commit prejudicial misconduct by 

commenting on potentially inflammatory evidence in the record

when urging the jury not to convict Lamb of any crime simply 

because he was a white supremacist. (See People v. Bradford

(1997) 15 Cal.4th 1229, 1379 [though a “prosecutor commits 

misconduct in making comments calculated to arouse passion or 

prejudice,” such remarks will not be so construed unless a 

reasonable juror would have interpreted them as such]; People 

v. Wrest (1992) 3 Cal.4th 1088, 1106–1107 [prosecutor’s use of 

paralipsis to highlight improper argument was not prejudicial].) 

2. Asserted Vouching

Lamb claims that during closing argument, the prosecutor

improperly vouched for the strength of his evidence based on his 

personal experience. We disagree. 

“ ‘Improper vouching occurs when the prosecutor either (1) 

suggests that evidence not available to the jury supports the 

argument, or (2) invokes his or her personal prestige or depth of 

experience, or the prestige or reputation of the office, in support 

of the argument.’ ” (People v. Rodriguez (2020) 9 Cal.5th 474, 

480; see People v. Frye (1998) 18 Cal.4th 894, 971 (Frye) [“A 
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Opinion of the Court by Evans, J.

53

prosecutor is prohibited from vouching for the credibility of 

witnesses or otherwise bolstering the veracity of their testimony 

by referring to evidence outside the record”].) “The vice of such 

remarks is that they ‘may be understood by jurors to permit 

them to avoid independently assessing witness credibility and 

to rely on the government’s view of the evidence.’ [Citation.] 

However, these limits do not preclude all comment regarding a 

witness’s credibility. ‘ “ ‘ [A] prosecutor is given wide latitude 

during argument. The argument may be vigorous as long as it 

amounts to fair comment on the evidence, which can include 

reasonable inferences, or deductions to be drawn therefrom.’ ” ’ ” 

(People v. Bonilla (2007) 41 Cal.4th 313, 336–337.) “[S]o long as 

a prosecutor’s assurances regarding the apparent honesty or 

reliability of prosecution witnesses are based on the ‘facts of 

[the] record and the inferences reasonably drawn therefrom, 

rather than any purported personal knowledge or belief,’ [their] 

comments cannot be characterized as improper vouching.” 

(Frye, at p. 971.) 

Lamb’s complaints concerning the prosecutor’s recurring 

argument that the case was “not even close” and his repeated 

use of the phrases, “[i]t gets better,” “I love this one,” “[g]ive me 

a break,” and “[y]ou got to be kidding me” while arguing the 

evidence are completely without merit. These instances were 

comments on the trial evidence and there is no reasonable 

likelihood the jury would understand the prosecutor to be 

relying on evidence outside the record. “Counsel may vigorously 

argue his case and is not limited to ‘Chesterfieldian politeness’ ”

(People v. Bandhauer (1967) 66 Cal.2d 524, 529), and there is 

nothing to suggest these arguments constituted the prosecutor 

injecting his personal beliefs based on facts not in evidence
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

54

rather than merely commenting on the evidence adduced at 

trial.

On rebuttal, the prosecutor referred to Johnson’s assertion 

that he gave the murder weapon to Lamb and argued: “I’ve been 

doing this for awhile, and . . . Johnson is not the first murderer 

I cross-examined. He’s not gonna be the last. I’m telling you 

this because it’s rare when the People’s case gets better after the 

defense put their witnesses on, but that happened here. I was 

sitting going, ‘this is great.’ The People’s case by the time I 

rested was great, proof beyond a reasonable doubt. By the time 

they finished putting their evidence on, I’m going, ‘man, it just 

got better.’ It just kept getting better and better and better. It 

has nothing to do with me. It has nothing to do with me. I’m 

not saying I’m a good lawyer, no. It’s the truth.” 

The propriety of the prosecutor’s reference to his own 

experience is a close question. “[P]rosecutors should not purport 

to rely on their outside experience or personal beliefs based on 

facts not in evidence when they argue to the jury.” (People v. 

Medina (1995) 11 Cal.4th 694, 758; see ibid. [prosecutor’s 

statement that “ ‘no case I have ever seen’ ” had such 

overwhelming evidence was “ ‘objectionable’ ”].) The 

prosecutor’s comments that “I’ve been doing this for awhile” and

that it is rare for the People’s case to get better after the defense 

presents their witnesses arguably references extra-record 

evidence, namely, the prosecutor’s experience in trying other 

cases. 

However, we have found statements ostensibly 

referencing a prosecutor’s experience to be proper commentary 

on the evidence. (People v. Stansbury (1993) 4 Cal.4th 1017, 

1057–1058 (Stansbury) [prosecutor’s statement “ ‘that’s the best 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

55

case I’ve ever seen in any case I’ve ever prosecuted of intentional 

misrepresentation and consciousness of guilt’ ” was not 

inappropriate]; People v. Rich (1988) 45 Cal.3d 1036, 1092 [“ ‘I 

have never seen deliberation and premeditation like that’ ” held 

to be nothing more than fair comment on the evidence and 

vigorous argument].) Here, these statements were made in the 

context of arguing the implausibility and ineffectiveness of 

Johnson’s testimony that he gave Lamb the murder weapon, 

and thus was commentary on evidence produced at trial. 

While we do not condone a prosecutor referencing their 

experience in comparing a case to other matters not in evidence, 

on balance, we conclude that there is no reasonable likelihood 

the jury would have understood the prosecutor’s statement here

to be based on evidence outside the record. (Frye, supra, 18 

Cal.4th at p. 1018; see Stansbury, supra, 4 Cal.4th at p. 1058 

[“It must have been evident to the jury that it was the evidence 

produced at trial, not the prosecutor’s experience, that 

demonstrated defendant’s mendacity and consciousness of 

guilt”].) The reference to the prosecutor’s experience was brief, 

and it is unlikely the jury would have viewed the comment as an 

invitation to determine the trustworthiness of Johnson’s 

testimony based upon the prosecutor’s experience in other

criminal trials, as opposed to the testimony itself. Additionally, 

the jury was instructed that the attorneys’ arguments are not 

evidence, and we presume the jury was able to understand and 

follow the instructions. (People v. Morales (2001) 25 Cal.4th 34, 

47; People v. Yeoman (2003) 31 Cal.4th 93, 139.) 

E. The Conspiracy to Commit Murder Conviction 

Was Supported by Substantial Evidence

Lamb asserts that the trial court erred in denying his 

motion for entry of judgment of acquittal for the charge of 
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Opinion of the Court by Evans, J.

56

conspiracy to commit murder (§ 1118.1) and argues that no 

substantial evidence supports his conviction for that crime.14

We disagree. 

“ ‘The standard applied by a trial court in ruling upon a 

motion for judgment of acquittal pursuant to section 1118.1 is 

the same as the standard applied by an appellate court in 

reviewing the sufficiency of the evidence to support a conviction, 

that is, “whether from the evidence, including all reasonable 

inferences to be drawn therefrom, there is any substantial 

evidence of the existence of each element of the offense 

charged.” ’ [Citation.] ‘The purpose of a motion under 

section 1118.1 is to weed out as soon as possible those few 

instances in which the prosecution fails to make even a prima 

facie case.’ [Citations.] The question ‘is simply whether the 

prosecution has presented sufficient evidence to present the 

matter to the jury for its determination.’ [Citation.] The 

sufficiency of the evidence is tested at the point the motion is 

made. [Citations.] The question is one of law, subject to 

independent review.” (People v. Stevens (2007) 41 Cal.4th 182, 

200.) 

We conclude that there was substantial evidence of 

conspiracy to commit murder at the time the court denied the 

section 1118.1 motion, and the record supports Lamb’s 

14 Section 1118.1 provides in relevant part: “In a case tried 

before a jury, the court on motion of the defendant or on its own 

motion, at the close of the evidence on either side and before the 

case is submitted to the jury for decision, shall order the entry 

of a judgment of acquittal of one or more of the offenses charged 

in the accusatory pleading if the evidence then before the court 

is insufficient to sustain a conviction of such offense or offenses 

on appeal.” 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

57

subsequent conviction for this crime. “ ‘ “ ‘Conspiracy requires 

two or more persons agreeing to commit a crime, along with the 

commission of an overt act, by at least one of these parties, in 

furtherance of the conspiracy.’ ” ’ [Citation.] ‘ “ ‘Evidence is 

sufficient to prove a conspiracy to commit a crime ‘if it supports 

an inference that the parties positively or tacitly came to a 

mutual understanding to commit a crime.’ ” ’ [Citation.] 

‘Evidence of an agreement does not require proof that the 

parties met and expressly agreed; a criminal conspiracy can be 

shown through circumstantial evidence. . . .’ [Citation.] ‘ “ ‘The 

existence of a conspiracy may be inferred from the conduct, 

relationship, interests, and activities of the alleged conspirators 

before and during the alleged conspiracy.’ ” ’ ” (People v. 

Navarro (2021) 12 Cal.5th 285, 302–303 (Navarro).) “ ‘[A]ll 

conspiracy to commit murder is necessarily conspiracy to 

commit premeditated and deliberated first degree murder.’ ” 

(People v. Maciel (2013) 57 Cal.4th 482, 515 (Maciel).)

Here, there was substantial circumstantial evidence of a 

conspiracy to murder. (See People v. Homick (2012) 55 Cal.4th 

816, 870 [the element of agreeing to commit a crime “must often 

be proved circumstantially”].) That Lamb and Rump committed 

the murder together is probative of an agreement to have done 

so. Although two people committing a crime together does not 

alone prove a conspiracy, it is probative of a conspiracy when 

there is indicia of organization and forethought. (See People v. 

Cockrell (1965) 63 Cal.2d 659, 667 [“The agreement may be 

inferred from the conduct of the defendants in mutually carrying 

out a common purpose in violation of a penal statute”].) Under 

analogous precedent, the jury could reasonably infer that Lamb 

and Rump entered the conspiracy to kill Miller at some point 

after the Fox videos aired. (See Maciel, supra, 57 Cal.4th at 
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Opinion of the Court by Evans, J.

58

p. 516; People v. Jurado (2006) 38 Cal.4th 72, 121 (Jurado)

[“Although there is no direct evidence that defendant and [an 

accomplice] discussed in advance the killing of [the victim], 

there was evidence that they were alone together . . . shortly 

before the killing, during which a discussion and agreement 

could have taken place”].) 

Moreover, the circumstances of the killing further 

evidence an agreement. On the day of the murder Lamb called 

to speak to Hinson about something important. Lamb, Rump, 

and Hinson were seen together later that night at Harris’s

apartment adjacent to where Miller was killed, and Miller was 

killed moments after Lamb and Rump left the apartment. These 

circumstances evidence planning activity and support an 

inference that Lamb and Rump came to a mutual understanding 

to murder Miller. Evidence that Lamb and Rump fled when 

confronted by police also demonstrates a consciousness of guilt. 

Miller was killed by a single gunshot wound to the back of 

his head, a manner of killing that suggests planning and an 

intent to kill. Miller had no defensive wounds, and a Pepsi can 

and baseball hat were found underneath his body, indicating a 

surprise attack. There was no evidence that Miller frequented 

the area where he was killed. From this, the jury could 

reasonably infer he was taken by agreement to the area where 

Lamb and Rump were waiting to kill him. 

Lamb, Rump, Johnson, Hinson, and the victim Miller were 

all associated with PEN1. Their relationship provided insight 

into their common understandings and motivations, and 

ultimately the bases for an agreement. Mason’s and Lieutenant 

Epperson’s testimony provided evidence that it would have been 

known within the gang that Miller’s participation in the Fox 
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Opinion of the Court by Evans, J.

59

videos would be met with severe consequences. Lieutenant 

Epperson also testified that members of white supremacist 

gangs would be expected to be aware of the crimes committed by 

other members and would understand that committing a violent 

crime would increase their status within the gang. Miller’s 

status within PEN1 was already diminished prior to the videos

and he had become personally disliked within the gang. Mason

testified that Lamb did not have a high status in PEN1 prior to 

committing the murder and expected “stripes” for having done 

so. Additionally, it would be expected for a gang member to have 

another gang member alongside as backup when committing a 

violent crime. Furthermore, that Lamb and Rump had a close 

relationship was evident, as jail correspondence between the 

pair revealed expressions of love and loyalty and that they 

referred to each other as their left and right “butt cheek.” 

Along with evidence of Lamb and Rump’s conduct, the

“relationship, interests, and activities of the alleged 

conspirators” here provides circumstantial evidence from which 

a conspiracy may be inferred. (Navarro, supra, 12 Cal.5th at 

p. 303.) Contrary to Lamb’s assertion, the absence of evidence 

that Mazza ordered Miller to be killed does not render 

insubstantial this other evidence supporting the conspiracy to 

commit murder conviction. 

We conclude this evidence collectively supports an 

inference that the parties, including Lamb, “ ‘positively or 

tacitly came to a mutual understanding’ ” to murder Miller. 

(People v. Rodrigues (1994) 8 Cal.4th 1060, 1135.) “As the object 

of the conspiracy was to kill [the victim], his murder satisfied 

the element of an overt act committed in furtherance of the 

conspiracy.” (Maciel, supra, 57 Cal.4th at p. 518, see also 

Jurado, supra, 38 Cal.4th at p. 121 [“Commission of the target 
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Opinion of the Court by Evans, J.

60

offense in furtherance of the conspiracy satisfies the overt act 

requirement”].) 

F. Assembly Bill No. 333 Requires the Reversal of 

the Gang Convictions, Enhancements, and 

Special Circumstance

Lamb contends that the changes to section 186.22 

occasioned by the enactment of Assembly Bill No. 333 require 

reversal of the gang convictions, and the jury’s true findings on 

the gang enhancements and the gang-murder specialcircumstance allegation. (See People v. Rojas (2023) 15 Cal.5th 

561, 566, 580 [Assembly Bill No. 333’s definition of “criminal 

street gang” applies to the gang-murder special circumstance].) 

Specifically, Lamb argues that although the prosecution 

introduced certified records of five predicate offenses to prove 

the element of the gang’s pattern of criminal activity,15 there 

was no evidence introduced at trial that the predicate offenses 

“commonly benefited a criminal street gang, and the common 

benefit from the offenses [was] more than reputational,” as 

required under the amended statute. (§ 186.22, subd. (e)(1), as 

amended by Stats. 2021, ch. 699, § 4.) 

We conclude that although there was an abundance of 

gang evidence presented to the jury, and each predicate offense 

had a gang enhancement under a prior version of section 186.22, 

the record does not sufficiently disclose the circumstances 

surrounding the predicate offenses or how any specific predicate 

offense actually benefited the gang. Thus, a rational juror could 

15 “The offenses comprising a pattern of criminal gang 

activity are referred to as predicate offenses.” (People v. 

Valencia (2021) 11 Cal.5th 818, 829 (Valencia).) 
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Opinion of the Court by Evans, J.

61

have reasonably concluded that any common benefit was not 

more than reputational.

1. Background

a. Evidence of predicate offenses

The prosecution’s gang expert, Lieutenant Epperson, 

discussed 14 offenses committed by various PEN1 members. 

However, the prosecution admitted into evidence certified 

records of only five of those offenses. In accordance with our 

rulings in Sanchez, supra, 63 Cal.4th at page 686 [an expert 

cannot relate as true case-specific facts asserted in hearsay 

statements unless they are independently proven by competent 

evidence or are covered by a hearsay exception] and Valencia, 

supra, 11 Cal.5th at page 839 [facts concerning particular 

events and participants alleged to have been involved in 

predicate offense constitute case-specific facts that must be 

proved by independently admissible evidence], the Attorney 

General only discusses the predicate offenses established by 

such evidence. Assuming, without deciding, that these records 

constitute independently admissible evidence, we also only 

consider these five predicate offenses here. 

i. Brody Davis

In 1999, Brody Davis pled guilty and admitted that on 

July 14, 1998, he knowingly, willfully, and unlawfully prevented 

or dissuaded “a victim and witness to a crime” from giving 

testimony at a preliminary hearing. (See § 136.1, subd. (a)(1).) 

As the factual basis for the plea, Davis admitted that on that 

date he “knowingly and actively participated in a criminal street 

gang called [PEN1],” he “willfully promoted, aided and abetted 

and furthered the interest of that gang and its members by 

committing” the offense, and he committed the offense “for the 
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Opinion of the Court by Evans, J.

62

benefit of, at the direction of, or in association with the [PEN1] 

criminal street gang with the specific intent to promote, further, 

or assist in any criminal conduct by [PEN1] gang members.” 

(See § 186.22, subd. (b)(1).) Davis also pled guilty to street 

terrorism. (§ 186.22, subd. (a).) 

ii. Daniel Lansdale 

In 2001, Daniel Lansdale pled guilty to 12 separate counts 

involving theft and forgery. The factual basis for the plea 

provided, in pertinent part: “On or about November 15, 2001 

. . . I willfully and unlawfully entered . . . two different 

department stores located at the Brea Mall, with the intent to 

commit larceny and any felony as charged in counts 1 & 2 of 

Amended #1 complaint. I committed the crime of burglary as 

charged in count 1 of the Amended #1 complaint for the benefit 

of, at the direction of, and in association with a criminal street 

gang, to wit, [PEN1], while I was an active member of that gang 

and I did so with the specific intent to promote, further and 

assist in criminal conduct by [PEN1] gang members.” 

iii. Brian Arthur O’Leary 

In 2000, a jury found Brian Arthur O’Leary guilty of 

attempted murder (§§ 187, subd. (a), 664) and street terrorism 

(§ 186.22, subd. (a)), with an enhancement that the attempted 

murder was committed for the benefit of PEN1 (§ 186.22, 

subd. (b)(1)). 

iv. Donald Mazza and Nick Rizzo

In 1999, Mazza, Rizzo, and Albert Sherwin were charged 

with conspiracy to murder (§§ 182, subd. (a)(1), 187, subd. (a)) 

and the attempted murder of W.A. (§§ 187, subd. (a), 664), with 

attendant gang enhancements (§ 186.22, subd. (b)(1)). 

According to the overt acts alleged in the amended information, 
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Opinion of the Court by Evans, J.

63

which was included as part of the certified records of the 

predicate offenses admitted into evidence, Mazza, Rizzo, and 

Sherwin went to an address to look for W.A., Mazza repeatedly 

stabbed W.A. and “said to witnesses present ‘want some too 

punk’ to intimidate and frighten witnesses,” Rizzo punched 

W.A., Sherwin stood by as backup, and the three fled the scene 

together. 

In 2003, Mazza pled guilty to attempted murder with a 

gang enhancement and street terrorism. The factual basis for 

the plea was as follows: “On April 6, 1999, in Orange County, I, 

with others aiding and abetting me, stabbed [W.A.] multiple 

times, intending to kill him without excuse or justification. I did 

this for the benefit of and in association with a criminal street 

gang, [PEN1], within the meaning of Penal Code sections 

186.22(a)[,] (b)(1), knowing that [PEN1] has engaged in a 

pattern of criminal activity and while an active member of 

[PEN1].” 

In 2003, a jury found Rizzo guilty of conspiracy to commit 

murder, attempted murder, and street terrorism. According to 

the minute order of the verdict admitted into evidence, as to the 

conspiracy and attempted murder convictions, the jury found it 

true “that the defendant crime committed for the benefit of 

criminal street gang within the meaning of [section] 

186.22(b)(1).” (Sic.) 

b. Instructions provided to Lamb’s jury

The instructions on the street terrorism charges here 

provided that a criminal street gang, among other criteria, is 

any ongoing organization, association, or group of three or more 

persons, whether formal or informal, “[w]hose members, 

whether acting alone or together, engage in or have engaged in 
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Opinion of the Court by Evans, J.

64

a pattern of criminal gang activity.” The jury was instructed 

that a “pattern of criminal activity” means: “1. The commission 

of, or attempted commission of, or conspiracy to commit, or 

solicitation to commit, or conviction of, or having a juvenile 

petition sustained for commission of any combination of two or 

more of the crimes listed in Instruction 1400A,[16] or two or more 

occurrences of one or more of the crimes listed in Instruction 

1400A; 2. At least one of those crimes was committed after 

September 26, 1988; AND 3. The crimes were committed on 

separate occasions or were personally committed by two or more 

persons on the same occasion.” The jury was further instructed 

that “[t]he crimes, if any, that establish a pattern of criminal 

gang activity, need not be gang-related.”17 

16 Instruction 1400A instructed the jury: “The following is a 

list of the applicable crimes contained in Penal Code Section 

186.22(e): 1. Murder, Attempted Murder or Conspiracy to 

Commit Murder. 2. Manslaughter or Attempted 

Manslaughter[.] 3. Assault with a deadly weapon or by means 

of force likely to produce great bodily injury. 4. Robbery. 5. The 

sale, possession for sale, transportation, manufacture, offer for 

sale, or offer to manufacture controlled substances. 6. 

Dissuading, intimidating or attempting to dissuade or 

intimidate witnesses or victims. 7. Burglary. 8. Criminal or 

Terrorist Threats. 9. Theft and unlawful taking or driving of a 

vehicle, in violation of Section 10851 of the Vehicle Code.” 

17 This instruction also provided: “If you find a defendant 

guilty of a crime in this case, you may consider that crime in 

deciding whether one of the group’s primary activities was 

commission of that crime and whether a pattern of criminal 

gang activity has been proved.” However, as amended by 

Assembly Bill No. 333, section 186.22, subdivision (e)(2) now 

provides, “[t]he currently charged offense shall not be used to 

establish the pattern of criminal gang activity.” (Stats. 2021, ch. 

699, § 4.)
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

65

As to the gang enhancements, the jury was instructed that 

the prosecution had to prove that Lamb “committed or 

attempted to commit the crime for the benefit of, at the direction 

of, or in association with a criminal street gang” and with the 

“specific intent to assist, further, or promote in any criminal 

conduct by gang members.” The instructions on the gang 

enhancements, carrying a firearm by an active gang member, 

and the gang-murder special circumstance all incorporated by 

reference the definition of “criminal street gang” provided in the 

street terrorism instruction. 

2. Discussion

a. Changes to the definition of a criminal street 

gang

Effective January 1, 2022, Assembly Bill No. 333 amended 

section 186.22’s definition of a “criminal street gang.” (Stats. 

2021, ch. 699, § 3.) In order to demonstrate the “pattern of 

criminal gang activity” element of a “ ‘criminal street gang,’ ” 

(§ 186.22, subd. (f)) the statute now requires, among other 

things, proof of at least two enumerated predicate offenses 

“committed on separate occasions or by two or more members” 

which “commonly benefited a criminal street gang,” and that the 

common benefit be “more than reputational.” (§ 186.22, 

subd. (e)(1), as amended by Stats. 2021, ch. 699, § 4.) The 

revised statute also provides, “[e]xamples of a common benefit 

that are more than reputational may include, but are not limited 

to, financial gain or motivation, retaliation, targeting a 

perceived or actual gang rival, or intimidation or silencing of a 

potential current or previous witness or informant.” (§ 186.22, 

subd. (g), as amended by Stats. 2021, ch. 699, § 4.)
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

66

Lamb observes that his jury was not required to find that 

the predicate crimes used to establish the pattern of criminal 

activity “commonly benefited” a criminal street gang in a way 

“more than reputational.” (§ 186.22, subd. (e)(1).) Lamb also

notes that absent from the gang enhancement instructions were 

the updated requirements of section 186.22, subdivision (g), that 

to “benefit, promote, further, or assist means to provide a 

common benefit to members of a gang where the common benefit 

is more than reputational.” (Stats. 2021, ch. 699, § 4.)

The parties agree that Lamb’s jury was instructed under 

the prior law and that the new requirements apply retroactively 

to his case on appeal. (In re Estrada (1965) 63 Cal.2d 740; People 

v. Cooper (2023) 14 Cal.5th 735, 738–739 (Cooper); Tran, supra ̧ 

13 Cal.5th at pp. 1206–1207.) 

b. Harmless error standard

The parties agree that the prejudice from an instruction 

that omits an element of an offense is assessed under Chapman. 

(Neder v. United States (1999) 527 U.S. 1, 4 (Neder); see Tran, 

supra ̧ 13 Cal.5th at p. 1207 [“When a substantive change occurs 

in the elements of an offense and the jury is not instructed as to 

the proper elements, the omission implicates the defendant’s 

right to a jury trial under the Sixth Amendment, and reversal is 

required unless ‘it appears beyond a reasonable doubt’ that the 

jury verdict would have been the same in the absence of the 

error”].) 

In this assessment, we “conduct a thorough examination 

of the record. If, at the end of that examination, [we] cannot 

conclude beyond a reasonable doubt that the jury verdict would 

have been the same absent the error — for example, where the 

defendant contested the omitted element and raised evidence 
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Opinion of the Court by Evans, J.

67

sufficient to support a contrary finding — [we] should not find 

the error harmless.” (Neder, supra, 527 U.S. at p. 19.) 

Conversely, where we conclude “beyond a reasonable doubt that 

the omitted element was uncontested and supported by 

overwhelming evidence, such that the jury verdict would have 

been the same absent the error, the erroneous instruction is 

properly found to be harmless.” (Id. at p. 17.) 

“In assessing prejudice in this context, the question is not 

whether there is evidence in the record that would support a 

jury finding of the missing element. Instead, we ask whether 

we can conclude beyond a reasonable doubt that ‘the jury verdict 

would have been the same’ had the jury been instructed on the 

missing element.” (People v. Brown (2023) 14 Cal.5th 453, 474, 

quoting Neder, supra, 527 U.S. at p. 17.) “Our task, then, is to 

determine ‘whether the record contains evidence that could 

rationally lead to a contrary finding with respect to the omitted 

element.’ ” (People v. Mil (2012) 53 Cal.4th 400, 417 (Mil), 

quoting Neder, at p. 19.) 

c. People v. Cooper

Both parties rely on our recent decision in Cooper. There, 

the defendant was a member of a gang, and the records of 

conviction and gang expert testimony establishing the predicate 

offenses showed that two fellow gang members committed one 

crime each — robbery (§ 211) and a narcotics sale (Health & Saf. 

Code, § 11351.5). (Cooper, supra, 14 Cal.5th at pp. 739–741.) 

The gang expert also testified that the gang’s primary activities 

were, among other offenses, robbery and narcotics sales, but did 

not testify as to how the alleged predicate offenses benefited the 

gang. (Id. at p. 741.) We concluded that, as now required by 

Assembly Bill No. 333, “the failure to instruct that the alleged 
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Opinion of the Court by Evans, J.

68

predicate offenses must have ‘commonly benefited’ the gang in 

a ‘more than reputational’ manner (§ 186.22, subd. (e)(1)) was 

not harmless beyond a reasonable doubt.” (Cooper, at p. 739.) 

In doing so, we observed that, “[i]n sum, the grand total of 

evidence relied on by the Attorney General for proving that the 

alleged predicate offenses provided a common benefit that is 

more than reputational to the gang is that there was a robbery 

and a sale of narcotics by gang members and that a primary 

activity of the gang is to commit robberies and the sale of 

narcotics.” (Cooper, supra, 14 Cal.5th at p. 746.) We noted that 

“the record does not disclose the circumstances surrounding the 

predicate offenses and the prosecution never introduced any 

evidence about how the gang commonly benefited from them. 

While robbery and the sale of narcotics typically provide a 

financial benefit to the offender, the record contains evidence 

that could rationally lead to a contrary finding regarding 

whether the fruits of the offenses were intended to or did benefit 

the gang as a whole.” (Id. at p. 743.) Based upon this record, 

we held that “a jury could have reasonably concluded that the 

predicate offenses at issue were committed for personal gain 

alone.” (Id. at p. 744.) 

d. Analysis

Lamb argues there was no evidence — either documentary 

or testimonial — that the offenses actually benefited the gang 

and that the common benefit was more than reputational. Lamb 

observes that “[w]hile burglary and dissuading a witness could 

theoretically have been committed to benefit the gang, there was 

no evidence in support of that theory,” and that “[t]here was no 

testimony as to how the offenses provided an actual and common 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

69

benefit to the gang beyond enhancing the reputation and status 

of individual members.” We agree. 

As to evidence concerning how committing crimes 

benefited the gang, Lieutenant Epperson testified to his general 

belief that any crime committed by a gang member benefits the 

gang. Lieutenant Epperson explained that “criming into a gang” 

was a way for a person to join a white supremacist gang by 

“do[ing] crimes that would benefit the gang in some capacity, 

and if you did enough work in terms of the crime, that you could 

be admitted to the gang based on that alone.” However, 

Lieutenant Epperson did not expound upon what crimes would 

benefit the gang, or how. To gain respect in the gang, 

Lieutenant Epperson testified that a person could demonstrate 

that they are “willing to wade in and fight other people for the 

benefit of the gang,” though he did not explain how that could 

benefit the gang. Lieutenant Epperson also provided his 

ultimate opinion that the murder and attempted murder 

committed here would have been for the benefit of the gang, but 

again did not explicate how. Lieutenant Epperson explained 

that while PEN1 espoused a white racist ideology, it did not 

motivate their day-to-day activities, and that “if you look at 

what they actually do, they are self-serving mercenary 

criminals.”18

18 That is, they did not “go out looking to commit crimes 

against minorities” or “burn synagogues” or “burn crosses on 

people’s lawns.” Rather than committing hate crimes, PEN1 

“would be much more inclined to target people within their own 

milieu, peer group . . . weaker Whites in their group. . . . to a 

greater extent, the community at large, they’re victimizing them 

by selling drugs, stealing property, engaging in identity theft.” 
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Opinion of the Court by Evans, J.

70

Lieutenant Epperson provided some more specific 

explanations as to how various crimes benefited the gang, 

though they are also lacking. When asked by defense counsel 

whether a gang member on drugs stealing a sandwich benefits 

the gang, Lieutenant Epperson testified that it did because “he 

can feed himself without having to spend his own money or to 

sell any dope to buy that food.” In explaining the “concept of 

backup within a gang,” Lieutenant Epperson stated that if a 

fellow member were attacked or needed assistance with some 

type of criminal enterprise, such as collecting on a debt, a 

member would be expected to “back up the other players in the 

gang. That is the benefit of the gang.” Lieutenant Epperson 

also testified that victim and witness intimidation “is a feature 

of the gang that is directly related to their use of violence. That 

through the use of egregious violence, you hope to intimidate 

other gang members, associates, and the general public that 

they would be intimidated not to either inform on you to the 

police or testify against you in court, and that they can stop a lot 

of prosecutions against them by intimidating the witnesses.” 

Lieutenant Epperson also explained how PEN1 was not a 

turf-oriented gang or one which attached its identity to a 

particular neighborhood and protected it from outside 

intervention. Rather, white supremacist gangs tend not to 

associate with a specific area but instead “tend to see themselves 

in terms of being . . . an ideological movement.” Lieutenant 

Epperson also stated that “white racist gang members, while 

they use violence as a tool of their enterprise, they don’t use 

violence in the same way that traditional gangs, Black and 

Hispanic gangs, which tend to do a lot of, say, drive-bys, walkbys, walk up shoot other gang members in turf confrontations. 

They use firearms as an intimidation factor and as a tool to 

achieve a violent end when they need it.” 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

71

Even if a jury were to parse this testimony and deduce 

exactly how PEN1 commonly benefited from crimes committed 

by its members, the lack of evidence of the circumstances 

surrounding the predicate offenses at issue does not establish 

that they fit into any of those scenarios so as to preclude a jury 

from reasonably concluding that any common benefit was not 

more than reputational. Here, other than general testimony 

concerning how gang members could benefit the gang through 

criminal acts, there was no other evidence “about how the 

specific predicate offense actually benefited the gang. (See 

People v. E.H. (2022) 75 Cal.App.5th 467 (E.H.) [finding that 

though the predicate offenses included crimes that could, in 

theory, provide a monetary benefit to the gang, the evidence did 

not show that these predicate offenses actually benefited the 

gang].)” (Cooper, supra, 14 Cal.5th at pp. 743–744.) There is no 

evidence as to how Davis’s dissuasion of a witness, Lansdale’s 

financial crimes, and O’Leary’s, Mazza’s, and Rizzo’s attempted 

murder convictions actually provided a common benefit that 

was more than reputational.

19

19 It should be noted that the Fox videos did provide some 

information on the circumstances of these crimes. The second 

video describes the April 1999 attempted murder committed by 

Mazza and Rizzo: “Detectives say within five hours of his 

release [Mazza] was back in Orange County, seated inside a 

camper smoking methamphetamine with two accomplices and 

hit the victim, a gang dropout, [W.A.]. According to this felony 

complaint, Dominic Rizzo, another PEN1 parolee, beat and held 

[W.A.] as [Mazza] plunged a knife into him over and over again. 

Then [Mazza] turned to witnesses and asked, ‘Want some too 

punk?’ ” The second video also displayed O’Leary’s image and 

stated that he along with another “young skinhead” attacked an 

ex-white supremacist, and an officer states, “[o]ne guy took a 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

72

The Attorney General states that Assembly Bill No. 333 

“did not alter or otherwise amend the ordinary rules of evidence, 

including the principle that reasonable inferences may be drawn 

from the evidence,” and argues that the revised statute does not 

disallow “reasonable inferences based on the facts of a particular 

case — including inferences from the evidence about a gang’s 

primary activities — that might inform whether a predicate 

offense involved a common benefit that was more than 

reputational.” In Cooper, we rejected a similar characterization 

of our standard of review, and again do so here. (Cooper, supra, 

14 Cal.5th at p. 743, fn. 7 [“The Attorney General incorrectly 

characterizes the Chapman inquiry before us as asking whether 

the jury could draw a reasonable inference that the alleged 

predicate offenses commonly benefited the gang. This, however, 

is not the proper standard”]; see also id. at p. 743 [a jury’s 

determination that an offense is within the gang’s primary 

activities merely constitutes a conclusion about the types of 

activities in which a gang typically engages, which is distinct 

from the question of whether a particular offense has commonly 

benefited the gang, which “asks about how the specific predicate 

offense actually benefited the gang”].) Though it may be 

“permissible, as a general matter, to use circumstantial 

evidence to prove a common benefit that is more than 

reputational” (id. at p. 745, fn. 9), our inquiry here is not 

whether a jury could have found a more-than-reputational 

knife, stabbed him twice, another guy took a baseball bat and 

hit him upside the head.” However, the jury was instructed that 

it “may not consider the recording as proof of the truth of any 

statements made by anyone during the recording.” Accordingly, 

the jury could not supplement the evidence concerning the 

predicate offenses with the circumstances detailed in the videos. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

73

common benefit. (See Mil, supra, 53 Cal.4th at p. 418 [unlike 

sufficiency of the evidence claims, where we view the evidence 

in the light most favorable to the prosecution and presume in 

support of the judgment the existence of any facts the jury might 

reasonably infer from the evidence, “our task in analyzing the 

prejudice from the instructional error is whether any rational 

fact finder could have come to the opposite conclusion”].) 

To be sure, unlike Cooper and other cases that have

examined this issue following the enactment of Assembly Bill 

No. 333, there was no direct evidence presented at Lamb’s trial 

indicating PEN1 members committed crimes merely to enhance 

the gang’s reputation at large. (Cf. Cooper, supra, 14 Cal.5th at 

p. 741 [gang expert testified: “ ‘They’re out there going on 

missions, they’re doing shootings, they’re doing robberies, they 

function to do gang banging things. And that gets that gang’s 

name out there”]; People v. E.H., supra, 75 Cal.App.5th at p. 473 

(E.H.) [officer “explained that when members of the gang 

commit violent crimes, like robbery, they benefit the gang by 

bolstering its reputation within the community for violence”]; 

People v. Sek (2022) 74 Cal.App.5th 657, 669 [“Although there 

was a great deal of evidence of benefits to the gang that went 

beyond reputational,” Court of Appeal could not “rule out the 

possibility that the jury relied on reputational benefit to the 

gang as its basis for finding the enhancements true” where gang 

expert testified that the type of crime committed “ ‘enhances not 

only the individual gang members . . . but enhances the status 

and their reputation of the . . . gang as a whole’ ”].) But here, as 

in Cooper, “the prosecution made no attempt to prove that the 

alleged predicate offenses provided a more than reputational 

common benefit to the gang and [defendant] made no such 

concession.” (Cooper, at p. 743.) Although the Attorney General 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

74

repeatedly argues that the jury could infer an extrareputational benefit, he does not argue that the jury would have 

been unable to infer the opposite. 

Moreover, Lieutenant Epperson repeatedly testified as to 

how an individual gang member could increase their status and 

respect within the gang. Lieutenant Epperson explained that a 

gang member “could earn respect in a gang . . . through the use 

of violence, successful criminal enterprise, just being a very hard 

individual. You don’t tell on your peers. You’re willing to wade 

in and fight other people for the benefit of the gang. That’s . . . 

how you would earn respect. The measure of a man within a 

white racist gang is his willingness to use violence, and the more 

egregious violence the better.” Lieutenant Epperson testified 

that a PEN1 member who killed a police officer would see a huge 

increase in their status. A gang member could also increase 

their status by providing backup to another member. 

Additionally, Lieutenant Epperson testified that possessing a 

firearm, committing a crime with a gun, being in Pelican Bay 

State Prison, or being falsely accused of a crime but taking “the 

heat for it” would all increase a member’s status within the 

gang. 

Based upon this evidence, a juror could have concluded 

that the predicate offenses were committed to bolster the 

offender’s reputation within the gang, or if committed alongside 

other gang members, that the offense provided the common 

benefit of increased status to each perpetrator. As such, the 

record contains evidence that could rationally lead to a contrary 

finding as to whether the common benefit from an offense was 

more than reputational. 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

75

Although a rational juror may well infer that at least two 

of the predicate offenses were committed for a common benefit

that was more than reputational, there is a lack of evidence as 

to how the specific predicate offenses at issue actually commonly 

benefited the gang to preclude the opposite conclusion. While

Davis’s dissuading a witness offense and Lansdale’s financial 

crimes could in theory have offered a common benefit that was

more than reputational under amended subdivision (g) of 

section 186.22, the record here does not establish that benefit.

20

 

The record does not disclose, for example, any details of Davis’s 

offense, such as information about the witness dissuaded or

whether the preliminary hearing even concerned PEN1, so as to 

demonstrate a more-than-reputational benefit. Nor does the 

record of Lansdale’s convictions for financial crimes prove that 

the gang benefited financially or otherwise in a manner that was 

more than reputational. Similarly, the records of O’Leary’s, 

Mazza’s, or Rizzo’s attempted murder convictions contain no 

information about the victim that would demonstrate the crimes 

were committed for “retaliation, targeting a perceived or actual 

gang rival, or intimidation or silencing of a potential current or 

previous witness or informant” (§ 186.22, subd. (g)), or that 

would otherwise preclude a rational juror from inferring that 

the common benefit to the gang was merely reputational. Nor 

does the fact that some of the predicate offenses were committed 

by high-ranking members change our conclusion, as their status

does not supplement the scant evidence of the circumstances of 

the offenses to provide evidence of a more-than-reputational 

20 Even if the record of Davis’s and Lansdale’s offenses were 

more robust so as to meet the harmlessness standard, we note 

that these offenses did not occur within three years of each other 

as required by section 186.22, subdivision (e)(1). 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

76

common benefit here. (Cf. Cooper, supra, 14 Cal.5th at p. 745 

[“assuming arguendo that senior or well-known gang 

membership could possibly be evidence that predicate offenses 

commonly benefited the gang”].) 

Rather, as in Cooper, the record “does not disclose the 

circumstances surrounding the predicate offenses and the 

prosecution never introduced any evidence about how the gang 

commonly benefited from them.” (Cooper, supra, 14 Cal.5th at 

p. 743.) Without more evidence of how these specific predicate 

offenses commonly benefited the gang in a more than 

reputational manner and given that the record contains 

evidence that PEN1 members committed offenses to increase 

their own reputation within the gang, we conclude that a 

rational juror could have found that the predicate offenses did 

not provide a common benefit that was more than reputational. 

The instructional error is compounded by other changes in 

the law that would affect the jury’s determination. The jury was 

able to rely on case-specific hearsay concerning numerous other 

predicate offenses that were not independently proven by 

competent evidence, which is no longer permitted. (Sanchez, 

supra, 63 Cal.4th at p. 686; Valencia, supra, 11 Cal.5th at 

pp. 838–839.) The jury was instructed that the predicate

offenses need not be gang related, which directly contradicts 

Assembly Bill No. 333’s new requirements. (Cooper, supra, 14 

Cal.5th at p. 744.) The jurors were also “permitted to consider 

the current offenses in determining whether the prosecution 

had proven a pattern of criminal gang activity . . . .” (E.H., 

supra, 75 Cal.App.5th at p. 479.) This makes it more difficult to 

conclude “beyond a reasonable doubt that the error complained 

of did not contribute to the verdict obtained.” (Chapman, supra, 

386 U.S. at p. 24.) 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

77

To be sure, there was substantial evidence that PEN1 was 

a gang, or at least the parties assumed that to be the case under 

the prior version of section 186.22. Indeed, the jury was 

presented with an abundance of evidence of PEN1’s criminal 

activities from which it could rationally infer that the predicate 

offenses were committed for a common benefit that was beyond 

reputational. Were this a question of sufficiency of the evidence, 

the outcome might be different. But determining whether the 

evidence was sufficient to conclude that there was a common 

benefit that was more than reputational is not our task. (Mil, 

supra, 53 Cal.4th at p. 418.) 

Despite the ample gang evidence here and the inferences 

that could have been drawn therefrom, we conclude the absence 

of evidence concerning the circumstances of the predicate 

offenses and the actual common benefit to the gang suggests a 

rational juror could have found the omitted requirements to be 

unsupported. Accordingly, Lamb’s gang convictions, and the 

jury’s true findings on the enhancements and the special 

circumstance allegation must be reversed. Because this was the 

only special circumstance found true by the jury, Lamb’s

judgment of death is vacated. 

G. Lamb’s Claim of Cumulative Prejudice Is 

Without Merit

Lamb contends that, even if independently harmless, the 

cumulative prejudicial impact of the alleged guilt phase errors 

discussed here “rise by accretion to the level of reversible and 

prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) 

Aside from the instructional error and prejudice 

occasioned by the passage of Assembly Bill No. 333 (ante., pt. 

III.F.), we assumed but found harmless error in the admission 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

78

of the Fox videos (ante., pt. III.A.), Rump’s jailhouse statement 

(ante., pt. III.B.), and the conclusions of the nontestifying 

firearms examiner (ante., pt. III.C.). Although Lamb’s 

meritorious Assembly Bill No. 333 claim results in the reversal 

of the gang charges, enhancements, and special circumstance, 

the assumed erroneous admission of this other evidence does not 

compound to warrant reversal of any other charges or 

enhancements. 

IV. PENALTY PHASE RETRIAL

Lamb raises several claims of error relating to the penalty 

phase retrial and to the validity of his death sentence. However, 

we need not reach these claims given our conclusion that the 

changes to section 186.22 made by Assembly Bill No. 333 result, 

inter alia, in the reversal of the sole special circumstance alleged 

and found true by the jury. Therefore, the death judgment must 

be vacated, and Lamb’s penalty phase claims are moot. For the 

same reasons, we need not address Lamb’s claim of cumulative 

penalty phase error, or the Attorney General’s claims of an 

unauthorized sentence and an error on the sentencing minute 

order.

V. DISPOSITION

For the foregoing reasons, we reverse Lamb’s convictions 

for street terrorism and unlawfully carrying a loaded firearm in 

public by an active participant in a criminal street gang, as well 

as the true findings on the gang enhancements and gangmurder special circumstance. In so doing, we vacate Lamb’s 

death judgment and remand the case to the trial court for any 
PEOPLE v. LAMB

Opinion of the Court by Evans, J.

79

retrial of the reversed convictions, enhancements, and special 

circumstance. (Cooper, supra, 14 Cal.5th at pp. 746–747.) In all 

other respects, the judgment is affirmed. 

EVANS, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Lamb

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal XX

Original Proceeding

Review Granted (published) 

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________

Opinion No. S166168

Date Filed: July 11, 2024

__________________________________________________________

Court: Superior

County: Orange

Judge: William R. Froeberg

__________________________________________________________

Counsel:

Kathy R. Moreno, under appointment by the Supreme Court, for 

Defendant and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A. Engler 

and Lance E. Winters, Chief Assistant Attorneys General, Julie L. 

Garland and James W. Bilderback II, Assistant Attorneys General, 

Holly D. Wilkens, Ronald A. Jakob, Michael T. Murphy and Donald W. 

Ostertag, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Kathy R. Moreno

Attorney at Law

P.O. Box 9006

Berkeley, CA 94709

(510) 717-2097

Michael T. Murphy

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9211