Filed 2/4/21 P. v. Babbitt CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MONTAVIOUS DAYTRON 

BABBITT,

Defendant and Appellant.

 B302271

 (Los Angeles County

 Super. Ct. No. BA466562)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Eleanor J. Hunter, Judge. Affirmed and 

remanded with directions.

Leonore De Vita, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 
2

Attorney General, and Rene Judkiewicz, Deputy Attorney 

General, for Plaintiff and Respondent.

____________________

A jury found Montavious Daytron Babbitt guilty of 

attempted murder. He challenges his jury, the testimony of his 

victim, a gang enhancement, and his fines and fees. We affirm

and correct the abstract of judgment. 

Unspecified statutory citations are to the Penal Code.

I

On March 6, 2018 at about 10:00 p.m., Jason Smith went to 

a marijuana dispensary at the corner of Figueroa and Slauson. 

He saw two younger men as well as another man he would later 

learn was Babbitt standing out front. 

One of the younger men asked Smith where he was from. 

Smith replied he was “not gang affiliated,” “no gangbanging.”

Babbitt and the two other men kept asking Smith, “Where you 

from?” Smith repeatedly answered, “I don’t gangbang.” All three 

men warned Smith he was in “Hoover area.” Babbitt told Smith 

Babbitt was “from Hoover.” 

One of Babbitt’s companions pulled a knife. Smith 

responded in kind. Babbitt and the two men ran. Smith began to 

chase them but then left. 

Smith realized he lost his wallet and returned a few 

minutes later to look for it. At least two other people were in the 

area, including a woman who said “He’s back. He came back.”

Smith found his wallet and then saw the three men he had 

chased earlier walking toward him. Babbitt’s two companions 

ran the opposite way. Babbitt pulled a gun and fired four or five 

shots. One of the shots hit Smith in the lower part of his right 

leg. 
3

An information charged Babbitt with one count of 

attempted murder. (§§ 664, 187, subd. (a).) It alleged Babbitt 

committed the attempted murder to benefit a gang (§ 186.22, 

subd. (b)(1)(C)) and he personally used a firearm (§ 12022.53, 

subds. (b), (c), & (d)). The information also alleged the offense 

was a serious felony (§ 1192.7, subd. (c)(8)) and a violent felony 

(§ 667.5, subd. (c)(8)). 

Trial lasted two days and four witnesses testified for the 

prosecution. 

On May 8, 2019, after jury selection and sometime after 

3:00 p.m., the court heard a motion from the People about 

Smith’s unavailability. Smith did not come to court that morning 

as scheduled. An investigator for the Los Angeles District 

Attorney testified about his efforts to locate Smith. We recount 

these efforts in detail later in this opinion. 

The court found that Smith’s failure to appear 

demonstrated he was unwilling to cooperate, the People exercised 

reasonable diligence, and the People demonstrated Smith was 

unavailable. The court would allow the People to introduce 

Smith’s preliminary hearing testimony as a statement by an 

unavailable witness. 

On May 9, 2019, the next day, Smith again failed to arrive 

at court in the morning. After opening statements and testimony 

from one witness, the People introduced Smith’s preliminary 

hearing testimony to the jury. A reader read Smith’s testimony. 

The People and Babbitt’s attorney read their own questions from 

the prior testimony. In this testimony, Smith identified Babbitt 

as the shooter. 

Next, Detective Ryan Bellows testified. He investigated the 

shooting. Bellows obtained surveillance video from the area. 
4

The People played several of those video clips. Bellows was 

familiar with Babbitt and had met Smith in connection with the 

case.

Video matched the account of Smith arriving, leaving, and 

returning. One clip showed a person getting out of a car and 

walking toward the dispensary. The detective identified Babbitt 

on the sidewalk. Two minutes later, the car left. A few minutes 

after that, the car returned and the person got out a second time. 

A minute later, he walked with a limp back to the car. 

In another video clip, a person the detective had identified 

as Babbitt ran with two other people through the parking lot 

near the dispensary. Another clip showed a fourth person 

chasing three people through the lot. One clip showed a person 

who looked like Babbitt raising an object in his hand at the front 

of his body. 

Another video showed a person who looked like Smith 

walking on the sidewalk, bending down, and then looking 

startled. He walked with a limp back to a car and left. 

At trial sometime after 3:00 p.m. on May 9, 2018, the 

People announced Smith had arrived at court. They called Smith 

to testify. Babbitt made no objection. 

Smith explained he did not come to court in the morning 

because he had been stabbed and was at a hospital. He had 

stitches in his hand. 

Smith testified about the shooting. As in his preliminary 

testimony, he identified Babbitt as the shooter. The People 

played a portion of one of the videos for Smith. Smith identified 

himself and Babbitt in the video. 
5

Officer Charles Kumlander testified. On March 21, 2018, 

he arrested Babbitt in front of the marijuana dispensary at 

Figueroa and Slauson. 

Los Angeles Police Officer Matthew Clark testified as a 

gang expert. Clark monitored a gang called the “5-2 or FiveDeuce Hoovers.” He believed Babbitt was in that gang. The 

People offered Clark a hypothetical question about a shooting 

that tracked many of the facts of Babbitt’s case. Clark believed 

the hypothetical shooting would be for the benefit of a gang. We 

provide additional details about Clark’s testimony later in this 

opinion. 

The jury deliberated for fewer than three hours before 

returning a verdict. It found Babbitt guilty of attempted murder 

and found the gang and firearm enhancements to be true. 

After the clerk read the guilty verdict, Babbitt requested 

the court poll the jury. Each juror individually agreed the guilty 

verdict was that juror’s own verdict. 

The court sentenced Babbitt to 42 years to life in prison. 

The sentence was composed of the middle term of seven years for 

attempted murder, plus 10 years due to the gang enhancement 

(§ 186.22, subd. (b)(1)(C)), plus 25 years to life for the firearm 

enhancement (§ 12022.53, subd. (d)). The court imposed but 

stayed additional sentences of 20 years (§ 12022.53, subd. (c)) and 

10 years (§ 12022.53, subd. (b)) for the two other firearm 

enhancements. 

The court ordered Babbitt to pay a $300 fine (§ 1202.4, 

subd. (b)), a $40 court operations assessment (§ 1465.8, subd. 

(a)(1)), and a $30 criminal conviction assessment (Gov. Code, § 

70373). The court imposed a $300 parole restitution fine 
6

(§ 1202.45) but suspended this fine unless a court revoked his 

parole. 

II

Babbitt raises two issues about his jury. Neither warrants

reversal. 

A

Babbitt incorrectly says his conviction must be reversed 

because a member of his jury, Juror No. 9, was unqualified. He 

forfeited this claim by failing to challenge the juror at trial. His 

trial counsel was not ineffective for failing to raise a challenge. 

We provide background about the juror’s voir dire and then 

we address forfeiture and Babbitt’s ineffective assistance of 

counsel claim.

The court asked the jurors nine preliminary questions. The 

first four questions were about the prospective jurors’ area of 

residence, marital status, job, and family. The next five 

questions were about whether they had ever been a juror, crime 

victim, or crime witness; whether they had a close relationship 

with someone in law enforcement or with someone arrested or 

charged with a crime; and whether they had had a negative 

experience with law enforcement. 

Juror No. 9 responded, “Hi. I live in L.A. Married. Selfemployed. No kids. And all answers, no.” The court asked, 

“what kind of business do you have?” Juror No. 9 responded, 

“Online business.” The court asked whether her husband worked 

and she said “Yes.” He was a driver. 

The court asked all the potential jurors another series of 

questions. The final question was, “Is there anything that you’d 

like to tell me as to why you could not sit on this trial or why you 

could not be fair or impartial in this case?” The court and Juror 
7

No. 9, whom the transcript calls “Prospective Juror No. 9,” had 

the following exchange: 

Prospective Juror No. 9: I don’t quite understand all of the 

whole conversation. So like, the terminology, some of the, 

like, criminal or something related that I think I can try.

The Court: You speak English very well.

Prospective Juror No. 9: I can understand, like, the basic, 

whatever you talk later, but the previous, I can’t 

understand, even saying what’s the—what’s the point. I 

didn’t get it. 

The Court: I think you’re—you should give yourself a little 

bit more credit, and I’ll give you what the definitions are of 

certain terms. 

Later, Babbitt’s trial attorney, Marko Zubcic, asked the 

jurors questions. He had the following exchange with Juror No. 

9: 

Mr. Zubcic: We’re also going to hear terms—and I believe, 

Juror No. 9, you mentioned that you’re having a little 

trouble with the terminology. So when the judge 

mentioned “beyond a reasonable doubt,” are you having 

trouble understanding terms like that? 

Prospective Juror No. 9: Like, some—some typical words—

like, I really don’t understand, yeah. 

Mr. Zubcic: Okay. If you get a definition—for instance, the 

judge will later explain what the meaning is. Will that help 

you? 

Prospective Juror No. 9: I think so. 

Mr. Zubcic: Okay. All right. Thank you. 

Babbitt challenged one juror for cause. That juror said 

someone had murdered his son five months ago, so the juror felt 
8

he would be biased. Babbitt exercised eight peremptory 

challenges. The court allowed all of these challenges. 

Babbitt and the People accepted a jury panel that included 

Juror No. 9. 

After the court swore in the jury, Juror No. 9 told the court 

clerk her father had been a police officer in another country. The 

court told Babbitt and the People about this. Babbitt made no 

comment or objection. 

1 

A person without “sufficient knowledge of the English 

language” is not eligible to be a juror (Code Civ. Proc., § 203, 

subd. (a)(6); see also § 1046), but Babbitt did not challenge Juror 

No. 9 for cause nor did he use a peremptory challenge to strike 

her. He therefore forfeited his claim. 

Babbitt incorrectly says forfeiture rules do not apply. A 

defendant’s failure to challenge a juror or otherwise object during 

jury selection forfeits a challenge on appeal. (People v. Rangel

(2016) 62 Cal.4th 1192, 1212 [failure to challenge potentially 

biased juror forfeited the claim].) Specifically, a defendant 

forfeits a challenge to a juror’s qualifications to serve based on 

insufficient understanding of English by not raising the issue at 

trial. (People v. Moreno (2011) 192 Cal.App.4th 692, 705–707 

(Moreno).) 

The Moreno court explained the rule. A contrary approach 

would allow defendants to keep a potentially incompetent juror 

and hope for an acquittal while preserving the argument the 

juror’s presence was reversible error. This forfeiture rule avoids 

mischievous consequences and promotes finality. (Moreno, supra, 

192 Cal.App.4th at p. 706.) 
9

Babbitt’s appellate briefing ignores these holdings from 

Moreno and Rangel. He says Juror No. 9’s presence on the jury 

led to a verdict that was not unanimous. He rests his argument 

on People v. Bailey (2018) 27 Cal.App.5th 376, 385. Bailey is 

different than this case. There, polling of the jury revealed one 

juror did not find the defendant guilty of a certain count. (Id. at 

pp. 383–384.) Polling here showed all jurors agreed. Babbitt 

presents no authorities that say a defendant’s right to a 

unanimous jury is implicated when a potentially unqualified 

juror the defendant failed to challenge at trial remains on the 

jury. 

People v. Szymanski (2003) 109 Cal.App.4th 1126 is 

inapposite. There, an appellate court reversed a judgment due to 

a juror’s insufficient understanding of English. But unlike the 

present case, the defendant, as well as the People, challenged the 

juror for cause. (Id. at pp. 1128–1129.)

Babbitt forfeited his challenge to Juror No. 9. 

2

Babbitt has not demonstrated his trial counsel’s 

decisionmaking about Juror No. 9 amounted to ineffective 

assistance of counsel. 

To establish ineffectiveness, a defendant must show 

counsel’s efforts fell below an objective standard of 

reasonableness. (Strickland v. Washington (1984) 466 U.S. 668, 

688.) In reviewing ineffective assistance claims, we defer to 

counsel’s reasonable tactical decisions and presume counsel acted 

within the wide range of reasonable professional assistance. 

(People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) The use of 

peremptory challenges is “inherently subjective and intuitive,” so 

an appellate record will rarely disclose ineffective assistance of 
10

counsel on this issue. (People v. Montiel (1993) 5 Cal.4th 877, 

911, overruled in part on other grounds in People v. Sanchez 

(2016) 63 Cal.4th 665, 686, fn. 13.)

Typically, claims of ineffective assistance are more 

appropriately raised in a habeas corpus proceeding. (Mai, supra, 

57 Cal.4th at p. 1009.) On direct appeal, we reverse a conviction 

only if (1) the record shows counsel had no rational tactical 

purpose for the challenged act or omission, (2) counsel was asked 

for a reason and failed to provide one, or (3) no satisfactory 

explanation could exist. (Ibid.) 

(Babbitt sets forth ineffectiveness of counsel arguments for 

several issues, which we address throughout our opinion. This 

overview of the law applies to all these sections.) 

Babbitt attacks his trial attorney for failing to ask Juror 

No. 9 more questions and for failing to raise a peremptory or for 

cause challenge against her. 

Babbitt has not demonstrated his trial counsel’s inactions 

had no tactical purpose. Counsel was attentive to Juror No. 9’s 

exchange with the court and followed up on it. Counsel asked 

whether definitions of terms like “beyond a reasonable doubt” 

would help her. Counsel could have fairly believed Juror No. 9’s 

response—“I think so”—resolved concerns about the juror’s 

English proficiency. And counsel may have had other subjective 

and intuitive reasons to want Juror No. 9 on the jury. She lived 

in Los Angeles, was married, was self-employed, and had not 

been a crime witness or victim. Some or all of these and other 

factors may have made counsel believe Juror No. 9 would be a 

good juror for Babbitt. 

Babbitt has not demonstrated his trial counsel was 

ineffective. 
11

B

The jury sent out a note during deliberations. On appeal, 

Babbitt challenges the way the court handled this note. Babbitt 

forfeited this challenge by failing to object. Moreover, Babbitt’s 

counsel’s failure to object was not ineffective assistance of 

counsel. The trial court’s actions were proper, so objections 

would have been futile. 

Before addressing Babbitt’s claims, we explain about the 

jury note. 

During jury deliberations, the jury sent the court a note 

asking for Spanish definitions of “attempted murder” and of 

“attempted manslaughter.” 

Outside the presence of the jury, the trial court formulated 

a plan and shared it with counsel. The court would ask the 

foreperson to “explain the basis of this question.” Depending on 

the outcome of that exchange, the court might question other 

jurors. The court asked whether anyone objected to this proposal.

No one did. 

The foreperson explained “two or three” jurors requested 

the Spanish definitions. The court asked, “Did they indicate they 

couldn’t understand English?” The foreperson answered, “No.” 

The court explained it would be a problem if a juror did not 

understand English and asked again, “So are people back there 

saying they don’t understand English?” The foreperson 

responded, “No, that is not what is happening.” 

The court said, “presumably, everybody understands 

English” and the court could provide further English definitions 

upon request. The court would not provide a Spanish definition.

The court told the foreperson “people have different degrees of 

understanding, but they have to be able to communicate with 
12

you” and advised the foreperson to let the court know if the jury 

needed any further help. 

Babbitt did not object to any portion of the court’s inquiry 

with the foreperson or to the trial court’s response to the jury’s 

request. 

1

As with his challenge to Juror No. 9, Babbitt forfeited the 

jury note challenge by failing to object at trial. 

Babbitt again rests on Bailey to argue forfeiture rules are 

inapplicable. This argument fails for the same reasons we 

already have given. Babbitt cites additional cases about jury 

unanimity but, as with Bailey, none say a defendant’s right to a 

unanimous jury is implicated when a potentially unqualified 

juror the defendant failed to challenge at trial remains on the 

jury. (See Andres v. United States (1948) 333 U.S. 740; Smith v. 

United States (9th Cir. 1931) 47 F.2d 518; United States v. Lopez

(9th Cir. 1978) 581 F.2d 1338; United States v. Smedes (6th Cir. 

1985) 760 F.2d 109.) 

Babbitt says the court had an independent duty to inquire 

about what he calls “jury misconduct,” but the court did inquire. 

This inquiry was not an abuse of discretion. 

The decision whether to investigate the possibility of juror 

bias, incompetence, or misconduct is within the trial court’s 

discretion. (People v. Ray (1996) 13 Cal.4th 313, 343.) 

The court’s inquiry was proper. The court asked the 

foreperson twice about the other jurors’ English proficiency. It 

told the foreperson jurors must understand English and directed 

the foreperson to tell the court if the jury needed more help. The 

court could observe and gauge the jurors’ facility with English. 
13

All the jurors answered the court’s and attorneys’ questions in 

English during voir dire. There was no abuse of discretion. 

2

Babbitt has not established that his counsel was ineffective 

by not objecting to the trial court’s handling of the note and by 

not requesting further inquiry by the court. The record is silent 

as to why Babbitt’s trial counsel decided not to act. As the People 

point out in their appellate briefing, Babbitt’s trial counsel may 

have believed the trial went well for Babbitt and counsel may 

have thought there was a good chance the current panel would 

acquit him. Babbitt has not demonstrated his trial counsel’s 

inactions had no tactical purpose. 

III

Babbitt raises arguments about Smith’s unavailability and 

his trial testimony. Babbitt forfeited these arguments by failing 

to raise any argument or objection at trial. He has not 

demonstrated his counsel was ineffective. 

An investigator for the Los Angeles District Attorney 

testified about his efforts to locate Smith. After an unsuccessful 

attempt to meet Smith in March 2019, the investigator met 

Smith and served him a subpoena at a hospital on April 19, 2019.

Smith was in the hospital because someone had “jumped” him the 

night before and his leg was sore. Smith told the investigator he 

was homeless and “basically bouncing around from park to park.”

Smith used public transportation. 

Smith met the investigator on May 2, 2019 in the building 

where the trial took place. A victim service representative gave 

Smith information about services for victims and an application.

Smith seemed cooperative. 
14

The investigator texted Smith on May 7, 2019 to offer 

Smith a ride to court the next day. The investigator asked Smith 

where he could pick him up. Smith told the investigator he was 

in Victorville and “not to worry because he would be in court” the 

next day. 

On May 8, 2019, the investigator waited for Smith at court 

between 8:30 a.m. and 10:30 a.m. but Smith did not arrive. The 

investigator unsuccessfully tried to contact Smith “[s]everal 

times, by calling and by text.” A body attachment issued that 

morning. 

The investigator contacted four hospitals and one urgent 

care facility. Two of the hospitals and the urgent care facility 

were in Victorville, Smith’s stated location the previous evening. 

The investigator also contacted the hospital where he had met 

Smith previously. 

The investigator did inmate searches for San Bernardino, 

Riverside, and Los Angeles Counties, and in Clark County, 

Nevada. 

The investigator did not locate Smith. 

After the investigator’s testimony, the court asked the 

parties for argument. Babbitt said, “I would submit to the court.”

The court ruled the People exercised reasonable diligence to get 

Smith to court and the People demonstrated Smith’s 

unavailability. 

Babbitt then said, “I would still object to the prelim 

transcript coming in, and that’s regarding the similarity of 

motive of the cross-examination that happened with Mr. Smith.”

Babbitt explained he had an expert enhance a video from the 

incident after the preliminary hearing. He believed the enhanced 
15

video was inconsistent with Smith’s statements and Babbitt 

complained he could not cross-examine Smith on this issue. 

The court said it would allow the People to introduce the 

preliminary hearing transcript. The court explained Babbitt 

could still play the video and point out inconsistencies between it 

and Smith’s testimony.

After the People introduced Smith’s preliminary hearing 

testimony, Smith arrived at court and he testified without 

objection from Babbitt. 

A 

Babbitt did not offer any argument about the prosecution’s 

due diligence at trial. He has forfeited this argument on appeal. 

(People v. Tafoya (2007) 42 Cal.4th 147, 166 [defendant forfeits 

confrontation clause claim by failing to raise it at trial].) Babbitt 

preserved a different argument, one he does not raise on appeal, 

about his motive for cross-examining Smith. 

Babbitt did not object when Smith arrived and testified. 

He did not ask the court to strike the preliminary hearing 

testimony. He therefore forfeited these arguments, too. 

Babbitt incorrectly says the trial court violated its duties 

under Penal Code section 1044. That section requires courts to 

limit the introduction of evidence to “relevant and material 

matters” and to focus on expeditiously obtaining the truth. 

(Ibid.) Babbitt’s argument is that Smith’s preliminary hearing 

testimony was cumulative to Smith’s trial testimony, and 

therefore the court had an independent duty to tell the jury to 

disregard the preliminary hearing testimony entirely. Smith’s 

testimony was relevant and material. The court did not violate 

its duties. 
16

B

Babbitt has not demonstrated his counsel was ineffective 

for failing to argue or object about Smith’s unavailability and for 

failing to move to strike the preliminary hearing testimony. 

The record is silent on counsel’s reasoning. 

There may have been a tactical reason for counsel not to 

object about Smith’s unavailability. Babbitt may have believed 

the prosecution demonstrated reasonable diligence. The 

investigator offered an accounting of efforts to locate and 

maintain contact with Smith. Smith was homeless and moved 

from park to park. He said he would come to court but did not. If 

Smith did not come voluntarily, it could be difficult or impossible 

to locate him. Babbitt may have wanted to avoid a losing 

objection. 

Babbitt’s trial counsel also may have had a tactical reason 

not to ask the court to strike Smith’s preliminary hearing 

testimony. As the People point out, Babbitt’s counsel may have 

believed Smith’s testimony had inconsistencies that he wished to 

exploit. By not striking the preliminary testimony, Babbitt could 

also use that testimony to point to facts in his favor. Indeed, in 

his closing argument, Babbitt cited the preliminary hearing 

testimony. For example, he noted that in the preliminary 

hearing, Smith said he had no long-term complications from the 

shooting. Counsel also cited the preliminary hearing testimony 

to cast doubt on Smith’s actions when he returned to the 

dispensary a second time. 

Babbitt has not shown his counsel was ineffective 

regarding Smith’s testimony. 

IV

Sufficient evidence supported Babbitt’s gang enhancement. 
17

To support a true finding on a section 186.22, subdivision 

(b) gang enhancement, the prosecution must prove (1) the 

defendant committed the crime for the benefit of, at the direction 

of, or in association with a criminal street gang, and (2) the 

defendant intended to promote, further, or assist criminal 

conduct by gang members. (People v. Albillar (2010) 51 Cal.4th 

47, 59 (Albillar).)

We review the record in the light most favorable to the 

judgment to determine whether it contains substantial evidence. 

(Albillar, supra, 51 Cal.4th at pp. 59–60.) We affirm unless no 

substantial evidence supports the verdict on any hypothesis. (See 

People v. Bolin (1998) 18 Cal.4th 297, 331.)

Expert opinion can support a gang enhancement under 

section 186.22, subdivision (b)(1). (People v. Vang (2011) 52 

Cal.4th 1038, 1048 (Vang).) 

The gang expert, Clark, monitored the Five-Deuce Hoovers.

The gang’s primary activities include homicides, assaults with 

deadly weapons, and various types of shootings. 

Clark believed Babbitt was in the Five-Deuce Hoovers 

based on a photograph of Babbitt making a Five-Deuce Hoovers 

hand symbol, taped jail calls in which Babbitt introduced himself 

as being “from Hoover” and said he wanted to talk to someone 

from “five deuce,” and the circumstances of the alleged crime.

The gang’s territory includes the corner of Figueroa and 

Slauson. The marijuana dispensary at that corner was a common 

hangout for members. In Clark’s experience, gang members who 

frequently hang out at a marijuana dispensary are protective or 

territorial about the dispensary. “[T]hey don’t want other people 

to pass through freely, they want to have control over that.” 
18

Clark explained the question “Where you from?” means 

“What gang do you claim?” Gang members use the question to 

identify allies and rivals. If a person says they are not in a gang, 

gang members might still see the person as a “potential target.” 

If a person remains in gang territory after gang members ask 

where the person is from, that could show the person does not 

respect or fear the gang. Pulling a knife and chasing gang 

members would also show disrespect for the gang. 

The People offered a hypothetical tracking many of the 

facts of Babbitt’s case. Clark said the hypothetical scenario 

would benefit the gang for several reasons. 

The violent and public nature of the act would increase the 

gang’s reputation for violence. It would show everyone that the 

gang would defend its territory. People could not travel through 

the area “unchecked.” 

Furthermore, the shooting would intimidate the community 

and deter witnesses from reporting crimes and speaking with 

police, thus giving the gang more latitude for criminal activity.

The shooting would also boost the shooter’s gang status. 

Babbitt’s appellate briefing does not dispute he was a 

member of the gang. 

The testimony of Clark and Smith provided sufficient 

evidence Babbitt’s shooting was for the benefit of his gang and 

that Babbitt intended to benefit his gang. 

Clark’s testimony demonstrated the shooting took place in 

territory the gang claimed. Specifically, it was in front of a 

dispensary gang members frequented. Indeed, the officer who 

arrested Babbitt found him and arrested him outside that 

dispensary two weeks after the shooting. 
19

Babbitt’s statements showed his gang motivated him. 

According to Smith, Babbitt asked, “Where you from?” This 

question was designed to determine whether Smith was a gang 

ally or a potential gang threat. Smith also testified that Babbitt 

and the two other men warned Smith he was in “Hoover area.” 

Babbitt told Smith Babbitt was “from Hoover.” This showed 

Smith’s presence and actions within gang territory motivated 

Babbitt to shoot. 

Smith’s chase and the shooting were in public view. Aside 

from Babbitt and his two companions, others were in the area. 

One remembered Smith’s initial chase, remarking “He’s back. He 

came back” when Smith returned. 

The jury could reasonably infer Smith’s public chase of 

Babbitt in gang territory and his return to that territory 

threatened the reputation of the Five-Deuce Hoovers. It could 

reasonably infer Babbitt’s retaliatory shooting was for the benefit 

of his gang and that Babbitt intended to benefit the gang. 

Babbitt says the prosecution’s hypothetical was based on 

the “prosecutor’s view of the facts,” but the record provides 

factual support for the hypothetical’s propositions. Contrary to 

Babbitt’s claim, the hypothetical did not ask Clark to “assume” 

Babbitt and the two other people acted together to commit 

attempted murder. If anything, the hypothetical favored Babbitt 

because it excluded the shooter’s statement to the victim that the 

shooter was from Hoover, even though Smith testified Babbitt 

said he was from Hoover. 

Sufficient evidence supported the gang enhancement. 

V

Babbitt challenges his $40 court operations assessment and 

his $30 criminal conviction assessment under People v. Dueñas
20

(2019) 30 Cal.App.5th 1157, but he forfeited these challenges by 

failing to object at trial. (People v. Frandsen (2019) 33 

Cal.App.5th 1126, 1153–1155.) He also states his counsel was 

“ineffective for failing to object” but provides no argument on this 

issue, which he thereby forfeits. 

VI

Babbitt’s abstract of judgment incorrectly says he was 

convicted by a plea. We remand with a limited instruction for the 

trial court to correct this error. 

DISPOSITION

We remand with directions for the court to amend the 

abstract of judgment to reflect Babbitt was convicted by a jury 

and to forward a certified copy to the Department of Corrections 

and Rehabilitation. The judgment is otherwise affirmed.

WILEY, J.

We concur: 

BIGELOW, P. J. 

GRIMES, J.