Filed 3/7/22 P. v. Sandoval CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent, 

v.

EDUARDO SANDOVAL,

Defendant and Appellant.

 B304885

 (Los Angeles County

 Super. Ct. No.

NA110719)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Jesus I. Rodriguez, Judge. Affirmed in part, 

reversed in part, and remanded.

Kathy R. Moreno, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Scott A. Taryle, Supervising Deputy 

Attorney General, and Colleen M. Tiedemann, Deputy Attorney 

General, for Plaintiff and Respondent.
2

A jury convicted defendant Eduardo Sandoval (defendant) 

of murdering a fellow member of the Rancho San Pedro criminal 

street gang, albeit one who belonged to a different clique or 

subset of the gang. The jury found true an enhancement alleging 

the killing was gang related. (Pen. Code,1§ 186.22, subd. (b)(1).) 

We consider whether the jury’s gang enhancement finding is

supported by substantial evidence. We are also asked to consider 

several other contentions that would affect the validity of 

defendant’s convictions (not just his sentence): whether 

defendant’s right to confront witnesses was violated when the 

prosecutor was allowed to pose leading questions to a recalcitrant 

witness based on the witness’s prior out-of-court statements to 

police, whether the trial court erred in placing limits on the

testimony of the defense’s video expert and permitting crossexamination of the expert on work he did in another case, and 

whether the court improperly allowed victim impact evidence to 

be presented during trial.

I. BACKGROUND

A. The Murder

At approximately 2:20 a.m. on August 17, 2016, Jorge 

Pereira (Pereira) and Michael Sambrano (Sambrano) were 

walking to a gas station in San Pedro to purchase cigarettes. 

They were friends and had spent the day exercising and partying. 

Both men were members of the Rancho San Pedro (RSP) criminal 

street gang and belonged to RSP’s Santa Cruz clique.

1 Undesignated statutory references that follow are to the 

Penal Code.
3

As Pereira and Sambrano walked near a church on Mesa 

Street, a dark-colored SUV pulled alongside them and stopped. 

Someone from inside the SUV asked where Pereira and 

Sambrano were from and Sambrano said, “What?” Sambrano 

then moved toward the SUV, and defendant got out of the 

vehicle.

Pereira immediately recognized defendant, having seen 

him around the neighborhood for years, and knew him as an RSP

member who went by the name “Rhino.” Although defendant 

belonged to a different clique of the gang, the “Locos,” Pereira 

initially thought there would not be any trouble because both 

defendant and Sambrano were older RSP members. But when 

defendant asked Sambrano what clique he was from and 

Sambrano responded “Santa Cruz,” the two men quickly “got into 

each other’s face” and began “chest bumping.” Seconds later, 

defendant pulled a gun and began shooting. Pereira fled when 

the shooting started and thought Sambrano had escaped 

unharmed.

Pereira was wrong. In response to a 911 call placed by a 

third party, law enforcement found Sambrano’s dead body in a 

parking lot approximately a block and half from the scene of the 

shooting. According to the medical examiner, Sambrano died 

from a single gunshot that perforated his lungs and other organs

before exiting through his chest.

About an hour after the shooting, officers from the Los 

Angeles Police Department (LAPD) stopped a vehicle with 

defendant and another man, Joel Diaz (Diaz) (also a member of 

RSP’s Locos clique and an owner of a Toyota 4-Runner SUV) in 

the back seat. Pereira subsequently identified defendant as the 

shooter in a photographic line up (and later during trial).
4

Defendant was charged in an information with one count of 

murder (§ 187, subd. (a)) and two counts of possession of a 

firearm by a felon (§ 29800, subd. (a)(1)). In connection with the 

murder, the information alleged defendant killed Sambrano for 

the benefit of, in association with, or at the direction of a criminal 

street gang and with the specific intent to promote criminal 

conduct by gang members. (§ 186.22, subd. (b)(1).) The 

information also alleged a gang enhancement in connection with

the felon in possession of a firearm count pertaining to the 

possession that occurred on the day of the murder. Firearm 

enhancements (§ 12022.53, subds. (b)-(e)) were also alleged.

B. Trial

1. Diaz’s refusal to testify

At a hearing outside the presence of the jury, the trial court 

found Diaz to be in contempt of court for willfully refusing to 

answer questions despite being granted immunity.

When the prosecution called Diaz to testify during trial, the 

prosecutor asked Diaz 25 questions. Some of the questions were 

personal in nature, such as whether he was a member of RSP and 

whether he recognized defendant. Other questions concerned his 

movements in the hours prior to the shooting, including whether 

he told detectives he and defendant left a bar approximately half 

an hour before Sambrano was shot. Diaz was also asked about

events after the shooting, including the traffic stop where he was 

found in defendant’s company. Certain questions posed by the 

prosecution were also directly related to the Sambrano’s death. 

For example, Diaz was asked if he told detectives that defendant 

“did what he did on his own rather than . . . planning this out, 

going hunting for a victim.” Similarly, the prosecutor asked Diaz 
5

if he told detectives that if he knew what defendant “was going to 

do that night, step out and start blasting,” he would not have 

used his SUV.

In response to all these questions, Diaz refused to answer. 

During the remainder of the prosecution’s case-in-chief, Diaz was 

recalled to the witness stand more than once and on each 

occasion he reiterated his refusal to testify despite the court’s 

order that he do so.

After Diaz first refused to answer questions, defendant 

moved for a mistrial and argued he had been prevented from

cross-examining Diaz because Diaz did not answer any questions. 

After denying the motion, the trial court instructed the jury as 

follows: “It is imperative that I talk to you about [the questions 

put to Diaz]. [The attorneys’] questions are not evidence. The 

attorneys’ questions are significant only if they help you to 

understand the witness’s answers. Do not—do not assume that 

something is true just because one of the attorneys asked a 

question that suggested it was true.” By a show of hands, the 

court asked if the jurors needed any further instruction on the 

matter; none of the jurors indicated such guidance was necessary.

Following additional discussion with counsel, the court 

further instructed the jurors to “strike the substance of all 

questions that [the prosecutor] asked of Mr. Diaz, 

period. [¶] . . . We are asking you to delete from your minds the 

substance of the questions that [the prosecutor] asked.” Again, 

the court asked for a show of hands if the instruction was 

unclear; none of the jurors raised their hands. Later, after the 

close of evidence, the court instructed the jury again that 

“nothing the attorneys say is evidence” and that they should “not 
6

assume that something is true just because one of the attorneys 

asked a question that suggests it is true.”

Prior to closing arguments, defense counsel preemptively 

objected to the prosecution arguing any inferences that could be 

drawn from Diaz’s refusal to testify. The court overruled the 

objection. During its closing argument, the prosecution argued 

Diaz possessed relevant information about Sambrano’s murder 

but refused to disclose that information “to protect the 

defendant.” The defense again moved for a mistrial and the trial 

court denied the motion.

2. Pereira’s testimony about his police interview

and his reaction to a photograph of Sambrano’s 

body

On direct examination, Pereira admitted he initially denied 

any knowledge of the shooting when he was interviewed by 

police.2 He explained he subsequently decided to be truthful after 

the police showed him a photograph of Sambrano’s body “laying 

on the ground dead, bled out.”

Over a defense objection that the photograph “assumes 

facts not in evidence,” the prosecutor asked Pereira, “When you 

saw the picture, how did you feel?”3 Pereira responded the 

photograph made him “sad” because “nobody was going to do 

anything about it. It was just, like, they left it like that, dead. 

2 Pereira’s testimony regarding his police interview was the 

subject of extensive cross-examination.

3

In ruling on the objection, the trial court did not indicate it 

understood the objection to mean anything other than what 

defense counsel said; the court simply stated, “Overruled.”
7

His family was there. His sisters were crying. And I was 

thinking—you know [¶] . . . [¶] That it’s fucked up.” Pereira 

then explained that thinking about the situation made him want 

“to do something.”

3. Gang expert testimony

The prosecution’s final witness was its gang expert, LAPD

Officer Robert Castruita (Castruita). At the time of the murder, 

Castruita was assigned to a gang suppression detail which 

included the San Pedro area.

Castruita testified that during his tenure with the gang 

unit he had “lots of contact” with RSP members, averaging 20 

custodial and/or consensual contacts per week. As a result of his 

extensive prior contacts with RSP members, Castruita had 

testified previously in other matters as an expert on RSP.

According to Castruita, RSP, which claims the City of San

Pedro as its territory, had approximately 500 members, of which 

150 were active. Castruita testified RSP was composed of several 

male and female cliques or subsets, with two of the male cliques 

being Santa Cruz and Locos. According to Castruita, each RSP 

clique claims a separate subdivision of the overall territory 

claimed by RSP. He did not identify which parts of the city were 

claimed by which cliques or identify which clique claimed the 

area around the site of the murder. Castruita did testify that 

although RSP cliques lay claim to separate areas of the city, the 

members of each clique are “still members of the overall gang, 

Rancho San Pedro.” He did not elaborate.4 Nor did he state 

4 Castruita did not testify about the history or organizational 

structure of RSP or any of its cliques, nor did he specifically 
8

whether every member of RSP belonged to a different clique or 

whether some members claimed allegiance only to the umbrella 

organization.

Castruita testified that RSP’s primary activities were 

murder, attempted murder, shootings, firearm trafficking, 

narcotic trafficking, robberies, vehicle thefts, and vandalism. He

did not offer an opinion on whether some or all of those primary 

activities were shared by all or some of RSP’s constituent cliques.

The prosecution introduced two certified court records 

during Castruita’s testimony to establish the predicate pattern of 

gang crimes that must be proven for the criminal street gang 

enhancement alleged against defendant to be found true. The 

first record revealed Arturo Manzanero (Manzanero) was 

convicted of murder and possession of a firearm for conduct 

occurring in February 2011. The second court certified record 

revealed Edward Benavidez (Benavides) was convicted of murder, 

attempted murder, and possession of a firearm for conduct 

occurring in June 2009. Although Castruita testified he knew 

both Manzanero and Benavides through prior contacts and 

believed each to be RSP members, he did not testify he had 

personal knowledge of the crimes for which Manzanero and 

Benavides were convicted.

5

 In addition, Castruita did not 

identify or explain any of the information upon which he relied in 

reaching his opinions about the activities and operation of RSP 

and its various cliques.

5 Defendant did not object to Castruita’s apparent lack of 

personal knowledge of the predicate crimes. After this case was 

fully briefed, our Supreme Court held in People v. Valencia (2021) 

11 Cal.5th 818 (Valencia)that predicate offenses are case-specific 

facts that cannot be established solely by the testimony of an 
9

identify the RSP cliques, if any, to which Manzanero or 

Benavides belonged.

Turning to defendant himself, Castruita testified defendant 

admitted to him that he was a member of RSP. Castruita also 

opined defendant was a member of RSP’s Locos clique.

The prosecutor presented a hypothetical scenario to 

Castruita that was intended to track the facts of the case, asking 

him to assume, among other things, that two Santa Cruz clique 

members were walking down Mesa Street when an SUV stops 

and the front passenger, a RSP Locos clique member, asks the 

two men for their gang affiliation; when one of the Santa Cruz 

members answers, “Rancho,” the front passenger inquires further 

as to which clique they belong, to which the same Santa Cruz 

member replies, “Santa Cruz”;the front passenger responds by 

exiting the vehicle and drawing a pistol, causing the two Santa 

Cruz members to flee; the front passenger gives chase and opens 

fire, striking the Santa Cruz member who replied to the queries 

in the back with one round; the wounded man continues running 

until he collapses and dies approximately a block and a half from 

the scene of the shooting; the detectives investigating the murder

interview the owner of the SUV who is later called as a witness at 

trial and, despite being instructed by the judge to answer the 

questions put to him by the prosecutor, refuses to do so.

expert who has no personal knowledge of facts necessary to 

satisfy the prosecution’s burden. (Id. at 826, 838-839.) As will 

become clear, we need not consider Valencia’s impact on this 

appeal, nor do we need to consider the impact of Assembly Bill 

No. 333 (2021–2022 Reg. Sess.), which the parties also have not 

briefed (see generally People v. Lopez (2021) 73 Cal.App.5th 327, 

344-346).
10

In response to the hypothetical, Castruita opined the 

shooting was for the benefit of and in association with both RSP

and the Locos clique. According to Castruita, the shooter in the 

hypothetical “was trying to represent the clique that he was from 

when he reacted to the response that was given by the 

victim. [¶] He wanted to show that he was—he was willing to 

demonstrate how violent his clique is; therefore, shooting the 

victim. He knows that that type of conduct will get spread to the 

community and not only through the community [but also] 

through the gang and other gangs; therefore [the shooting] 

promote[d] . . . and elevated his status within the gang.” 

Castruita testified that even though he was unaware of any prior 

incidents of violence between the Locos and Santa Cruz cliques, 

he was aware of violence between other RSP cliques. According 

to Castruita, intra-gang violence, including the murder of 

another gang member, benefits the gang: “[B]y weeding out the

weak or weeding out different members of the gang that don’t fit 

in or don’t go with the rules, it actually makes the group smaller 

but yet stronger because you are eliminating people that they 

don’t believe belong within that group.” Castruita testified

further that for gang members respect or fear through violence 

was paramount: “So if it takes killing another member to 

promote within the gang, then that’s what they do. And that’s 

how the gang forms its hierarchy . . . by promoting its members. 

They don’t get to just promote without doing something for the 

gang. So that’s how these types of crimes occur.”

Castruita additionally testified the murder in the 

hypothetical was carried out in association with a criminal street 

gang because the shooter did not act alone but with another gang 

member, who when called to testify refused to do so. Castruita 
11

explained one of the guiding rules for Hispanic street gangs, 

including RSP, is “you shall not cooperate with the police. You 

shall not snitch.” In view of this “code of silence” and the 

accompanying fear of retribution, Castruita was not surprised 

that a gang member would refuse to testify at another member’s 

trial for murder.

During closing argument, the prosecution argued the 

criminal street gang allegation should be found true because at 

the time of the shooting defendant was with Diaz, “a person 

[defendant] trusts because he is a fellow [RSP] gang member 

from the same clique” and the victim was from “a different clique 

than the defendant’s clique.”

4. Video evidence expert testimony

During its investigation into the murder, police obtained 

surveillance video footage from two cameras positioned on a

church near the site of the shooting; portions of the footage were

played for the jury. During the direct testimony of the detective 

who recovered the video, defense counsel unsuccessfully objected 

to some questions asking the detective to interpret various 

images on the video. Counsel, for instance, objected to the 

detective offering his opinion on the make and model of an SUV 

seen in the surveillance footage minutes before the shooting and 

then again at the time of the shooting. The objection was 

overruled and the detective testified the vehicle was a Toyota 4-

Runner. During closing argument, the prosecution argued the 

vehicle seen in the surveillance video was Diaz’s Toyota 4-

Runner.

The sole witness called by the defense was Michael Jones 

(Jones), a court-appointed video expert. Prior to Jones testifying, 
12

the court held an Evidence Code section 402 hearing to consider 

certain enhancements Jones made to the surveillance footage 

obtained from the church’s cameras.6

Although the court ultimately admitted the enhanced 

videos prepared by Jones and allowed him to testify about the 

enhancements,7it repeatedly cautioned the defense that Jones 

would not be allowed to offer testimony interpreting the videos

because Jones admitted he was not a video identification expert. 

When defense counsel complained this limitation on Jones’s 

proposed testimony was contrary to the latitude given to the 

detective who testified about the videos, the court reaffirmed its 

ruling, stating Jones “doesn’t have the expertise in characterizing 

any person. [¶] . . . [¶] So that’s off the table, so to speak, 

meaning he is not going to be testifying or characterizing any 

movements.”

When Jones testified, the trial court sustained the 

prosecutor’s objections to direct examination questions asking if 

the video showed movement consistent with a person using a 

cellphone, if there was a person in a particular video segment, 

and if there was light reflecting on a car window. During cross6 Among the enhancements were magnification, insertion of 

vector shapes and arrows to highlight images and movements, 

slowing down selected images, “looping” or replaying certain 

images to avoid repeated re-windings of the video, and freezing 

certain images.

7 The trial court sustained the prosecution’s objection to one 

“experimental” video prepared by Jones which displayed images 

from both church cameras side-by-side because the images were 

from different moments in time. On appeal, defendant does not 

challenge this ruling.
13

examination, the prosecutor questioned Jones, over defense 

objection, about his preparation of a video exhibit in another 

criminal matter. In that unrelated proceeding, the defense 

attorney withdrew the exhibit prepared by Jones after another 

trial judge suggested it was misleading. With the trial court’s 

permission, the prosecution quoted portions of the reporter’s 

transcript in the unrelated case in which the trial judge, during 

the colloquy with Jones, asked how his preparation of the video 

could not be misleading.

In his closing argument, defense counsel played Jones’s 

enhanced version of the church surveillance videos and used it to 

argue defendant did not murder Sambrano.

5. Verdict and sentencing

The jury found defendant guilty on all counts charged and

found all alleged gang and firearm enhancements true. The trial 

court sentenced defendant to an aggregate sentence of 78 years to 

life in prison. In addition, the court imposed a $5,000 restitution 

fine, a $5,000 parole revocation fine which was stayed pending 

completion of parole, a court security fee, and a court facilities 

assessment.

II. DISCUSSION

The jury’s gang enhancement true findings are 

unsupported by substantial evidence. The prosecution’s theory 

on the gang enhancement was premised on an organizational or 

associational connection between defendant’s clique, Locos, and 

the umbrella gang, RSP. The sole effort to introduce evidence 

offered in support of that theory came from the prosecution’s 

gang expert, but the expert put forward no testimony or other 

evidence that would explain the relationship between the 
14

umbrella gang and defendant’s clique and permit the requisite 

connection between RSP and Locos.

Defendant’s remaining contentions lack merit.8 

Defendant’s right to confront witnesses was not violated when 

the trial court allowed the prosecution to question Diaz because 

there was independent evidence of defendant’s guilt (Pereira’s 

eyewitness testimony) and the court repeatedly instructed the 

jury to disregard counsel’s questions, even going so far as 

granting a defense motion to inform the jury that the questions 

themselves were stricken and should not be considered. The trial 

court did not abuse its discretion in permitting cross-examination 

of the defense video expert. The court’s evidentiary rulings 

regarding description of video footage by defendant’s expert do 

not merit reversal because they were not erroneous in one respect 

and, even insofar as there was any error, the error was not 

prejudicial: the defense was allowed to present to the jury its 

expert’s enhancements to the video surveillance from the church’s 

cameras and during closing was further allowed to argue without 

constraint that the videos exonerated defendant. Defendant’s 

8 Given the need for resentencing, we decline to reach 

defendant’s argument pursuant to People v. Dueñas (2019) 30 

Cal.App.5th 1157, that the trial court erred by imposing various 

fines and fees without first determining his ability to pay those 

amounts. On remand, defendant—if he should choose to do so—

may argue his inability to pay fines and fees then. (People v. 

Buycks (2018) 5 Cal.5th 857, 893 [“[W]hen part of a sentence is 

stricken on review, on remand for resentencing ‘a full 

resentencing as to all counts is appropriate, so the trial court can 

exercise its sentencing discretion in light of the changed 

circumstances’”].)
15

claim that the trial court erred by allowing Pereira to offer victim 

impact testimony is forfeited because the theory of reversal now 

urged was not raised in the trial court.

A. The Gang Enhancements Fail for Lack of Sufficient 

Evidence

1. Standard of review

In considering a challenge to the sufficiency of the evidence 

to support a criminal street gang enhancement, “[w]e apply a 

deferential standard of review.” (People v. Prunty (2015) 62 

Cal.4th 59, 71 (Prunty).) “[W]e review the entire record in the 

light most favorable to the judgment to determine whether it 

contains substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable 

trier of fact could find the defendant guilty beyond a reasonable 

doubt. [Citation.] We presume every fact in support of the 

judgment the trier of fact could have reasonably deduced from 

the evidence. [Citation.] If the circumstances reasonably justify 

the trier of fact’s findings, reversal of the judgment is not 

warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.]” 

(People v. Albillar (2010) 51 Cal.4th 47, 60.)
16

2. A section 186.22, subdivision (b)(1) 

enhancement requires proof of an 

organizational or associational connection 

between the group that committed the predicate 

acts and the group allegedly associated with or 

benefitted

Section 186.22, subdivision (b)(1) authorizes enhanced 

criminal punishment for “a person who is convicted of a felony 

committed for the benefit of, at the direction of, or in association 

with a criminal street gang, with the specific intent to promote, 

further, or assist in criminal conduct by gang members.” 

(§ 186.22, subd. (b)(1).) A “criminal street gang” is defined as “an 

ongoing, organized association or group of three or more persons, 

whether formal or informal, having as one of its primary 

activities the commission of one or more of [certain enumerated] 

criminal acts[,] . . . having a common name or common 

identifying sign or symbol, and whose members collectively 

engage in, or have engaged in, a pattern of criminal gang 

activity.” (§ 186.22, subd. (f).) A “‘pattern of criminal gang 

activity’ means the commission of . . . or conviction of, two or 

more of [certain enumerated offenses]” that “were committed on 

separate occasions or by two or more members.” (§ 186.22, subd. 

(e)(1).)

In Prunty, our high court considered “what type of showing 

the prosecution must make when its theory of why a criminal 

street gang exists turns on the conduct of one or more gang 

subsets.” (Prunty, supra, 62 Cal.4th at 67.) The court held that 

“where the prosecution’s case positing the existence of a single 

‘criminal street gang’ for purposes of section 186.22(f) turns on 

the existence and conduct of one or more gang subsets, then the 
17

prosecution must show some associational or organizational 

connection uniting those subsets.” (Id. at 71.) “The evidence 

must demonstrate that an organizational or associational 

connection exists in fact, not merely that a local subset has 

represented itself as an affiliate of what the prosecution asserts 

is a larger organization. [Citation.] Although evidence of selfidentification with the larger organization may be relevant, the 

central question remains whether the groups in fact constitute 

the same ‘criminal street gang.’ In making the required showing, 

moreover, the prosecution must do more than simply present 

evidence that various alleged gang subsets are found within the 

same broad geographic area. . . . The prosecution must introduce 

evidence of the alleged subsets’ activities, showing a shared 

identity that warrants treating them as a single group. . . . The 

key is for the prosecution to present evidence supporting a fact 

finder’s reasonable conclusion that multiple subsets are acting as 

a single ‘organization, association, or group.’ (§ 186.22(f).)” (Id. 

at 79-80.) The prosecution, in other words, “must show that the 

group the defendant acted to benefit, the group that committed 

the predicate offenses, and the group whose primary activities 

are introduced, is one and the same.” (Id. at 81; see also id. at 76 

[the prosecution must present evidence from which the jury can 

“reasonably infer that the ‘criminal street gang’ the defendant 

sought to benefit—or which directed or associated with the 

defendant—included the ‘group’ that committed the primary 

activities and predicate offenses”].)

Our Supreme Court reversed the section 186.22, 

subdivision (b) enhancement in Prunty because the testimony 

offered by the prosecution’s gang expert failed to establish an

organizational or associational connection between the umbrella 
18

gang and its subsets. The evidence showed Prunty was a 

member of a particular subset of a larger Sacramento-area gang. 

(Prunty, supra, 62 Cal.4th at 68-69, 91.) “The prosecution’s gang 

expert testified about [the umbrella gang’s] general existence and 

origins, its use of shared signs, symbols, colors, and names, its 

primary activities, and the predicate activities of two local 

neighborhood subsets,” which were different than the subset to 

which Prunty belonged. (Id. at 67.) “The expert did not, 

however, offer any specific testimony contending these subsets’

activities connected them to one another or to the [umbrella 

gang] in general.” (Ibid.; see also id. at 82-83.) Our Supreme 

Court accordingly held the testimony offered by the prosecution’s 

gang expert was “conclusory and essentially of no use to the fact 

finder” because the expert did not “describe any facts tending to 

show an organizational or associational connection among 

the . . . subsets he described,” “articulate any reasons for 

concluding that all such subsets are part of a single criminal 

street gang,” or “describe the material he relied on in reaching his 

conclusions—implicit or otherwise.” (Id. at 85.)

3. There was little evidence of a connection 

between RSP and defendant’s clique, and what 

evidence there was is impermissibly conclusory

as in Prunty

Here, just like Prunty, there was a critical disconnect 

between what the prosecution was required to show and the 

evidence offered by the gang expert. The prosecution sought to 

show that Sambrano’s murder was in association with and 

benefitted both RSP and its Locos clique. This decision dictated 

the type of evidence the prosecution needed to introduce.
19

Castruita, however, did not offer any facts about RSP other 

than a generalized description of the territory it claimed, its size, 

one shared sign, its primary activities, and the two predicate 

crimes. There was no testimony about RSP’s origins, evolution, 

or current organizational structure, especially as it related to its 

asserted cliques. With regard to the Locos clique, Castruita did 

not provide any evidence whatsoever—nothing about the specific 

territory it claimed, its size, history, shared signs, colors, 

principal enemies, primary activities, organizational structure, or 

its purported collaborative connection with the umbrella gang.

Castruita’s testimony was not only devoid of any organizational 

facts about RSP and its Locos clique, but it was also bereft of 

reasons for why the Locos clique should be considered part of 

RSP. Although Castruita testified he had “lots of contact” with 

RSP members, he did not offer any testimony about how much 

contact, if any, he had with members of the Locos clique. Other 

than his tenure on the gang suppression detail, Castruita did not 

provide the jury with any other bases for his expertise regarding

RSP and its asserted cliques. Castruita’s testimony, in short, did 

not provide evidence that the group defendant acted to benefit or 

acted in association with was the same as the group that 

committed the predicate offenses.

Because Castruita’s opinions were conclusory regarding

RSP, the Locos clique, and the purported collaborative connection 

between the two, the jury’s true finding on the gang enhancement 

was not supported by substantial evidence. (Shiffer v. CBS Corp. 

(2015) 240 Cal.App.4th 246, 253 [“An expert’s opinion is only as 

good as the facts on which it is built”]; accord, CALJIC No. 2.80;

compare People v. Garcia (2017) 9 Cal.App.5th 364, 378 

[affirming imposition of gang enhancement because the gang 
20

expert’s testimony was “backed by specific evidence. In 

scholastically reminiscent detail, he recounted the origins of the 

Black P-Stones chapter in Los Angeles, making it clear how and 

why the gang developed to include both the Bittys and the 

Jungles subsets. This was significant evidence of an 

associational connection”], fn. omitted.)

B. The Questioning of Diaz Did Not Violate Defendant’s 

Right to Confrontation

Relying on Douglas v. Alabama (1965) 380 U.S. 415 

(Douglas), and California cases applying Douglas (i.e., People v. 

Perez (2016) 243 Cal.App.4th 863 (Perez); People v. Murillo (2014) 

231 Cal.App.4th 448 (Murillo); and People v. Shipe (1975) 49 

Cal.App.3d 343 (Shipe)), defendant contends the trial court 

violated his federal constitutional right to confrontation by 

allowing the prosecution to pose leading questions to Diaz. 

Defendant’s cases are distinguished from the facts here, however, 

and this case is more akin to precedent that rejects a similar 

argument for reversal.

In Douglas, the defendant and another man, Loyd, were 

charged with assault with intent to murder. (Douglas, supra, 380 

U.S. at 416.) The state tried Loyd first and a jury convicted him. 

(Ibid.) The prosecutor called Loyd as a witness at the defendant’s 

trial, but he asserted a right against self-incrimination and 

refused to answer questions about the incident. (Ibid.) “Under 

the guise of cross-examination to refresh Loyd’s recollection, the 

[prosecutor] purported to read from [a statement Loyd made 

earlier to the police], pausing after every few sentences to ask 

Loyd, in the presence of the jury, ‘Did you make that statement?’ 

Each time, Loyd asserted the privilege and refused to answer, but 
21

the [prosecutor] continued this form of questioning until the 

entire document had been read.” (Id. at 416-417, fn. omitted.) 

The statements the prosecutor read from the document “recited 

in considerable detail the circumstances leading to and 

surrounding the alleged crime; of crucial importance, they named 

the [defendant] as the person who fired the shotgun blast which 

wounded the victim.” (Id. at 417, fn. omitted.) The prosecution 

later “called three law enforcement officers who identified the 

document [from which the prosecutor read] as . . . a confession 

made and signed by Loyd.” (Ibid.)

The United States Supreme Court reversed the defendant’s 

conviction. It held his inability to cross-examine Loyd about the 

alleged confession denied him “the right of cross-examination 

secured by the Confrontation Clause.” (Douglas, supra, 380 U.S. 

at 419.) As the high court explained, “Loyd’s alleged statement 

that the [defendant] fired the shotgun constituted the only direct 

evidence that he had done so; coupled with the description of the 

circumstances surrounding the shooting, this formed a crucial 

link in the proof both of [defendant’s] act and of the requisite 

intent to murder. Although the [prosecutor’s] reading of Loyd’s 

alleged statement, and Loyd’s refusals to answer, were not 

technically testimony, the [prosecutor’s] reading may well have 

been the equivalent in the jury’s mind of testimony that Loyd in 

fact made the statement; and Loyd’s reliance upon the privilege 

created a situation in which the jury might improperly infer both 

that the statement had been made and that it was true.” (Ibid.)

The facts of Douglas and the related California decisions 

upon which defendant relies are different from the facts of this 

case. In those cases, the pertinent questions and answers were

not stricken. (Douglas, supra, 380 U.S. at 416-417; Perez, supra, 
22

243 Cal.App.4th at 884-885; Murillo, supra, 231 Cal.App.4th at 

451-453; Shipe, supra, 49 Cal.App.3d at 346-349.) Here, by

contrast, the trial court struck the substance of the questions 

posed to Diaz and instructed the jury not to consider the 

prosecution’s questions as evidence. That is an important 

distinction because “[t]he assumption that jurors are able to 

follow the court’s instructions fully applies when rights 

guaranteed by the Confrontation Clause are at issue.” (Tennessee 

v. Street (1985) 471 U.S. 409, 415, fn. 6; accord, People v. Smithey

(1999) 20 Cal.4th 936, 962 [distinguishing Douglas and holding 

the defendant was not denied his right to confrontation because 

the jury was instructed to disregard all questions regarding 

defendant’s intent and any answers that may have been given].)

In addition, in Douglas and the other cases upon which 

defendant relies, there was no significant independent evidence 

of guilt other than what was brought out by the challenged 

questioning. (Douglas, supra, 380 U.S. at 419 [“Loyd’s alleged 

statement that the [defendant] fired the shotgun constituted the 

only direct evidence that he had done so”]; Murillo, supra, 231 

Cal.App.4th at 456 [“[T]he independent evidence of Murillo’s guilt 

was not strong”]; Shipe, supra, 49 Cal.App.3d at 355 [“The 

evidence of appellant’s guilt was entirely circumstantial and the 

prosecutor, through the guise of cross-examination, succeeded in 

getting before the jury a vivid picture of what he believed 

actually occurred on the night of the murder. He also succeeded 

in creating the distinct impression that [the recalcitrant 

witnesses] had talked to the authorities, that they described the 

events vividly depicted in the prosecutor’s questions and that 

their statements were true. It stretches the imagination to 

believe that the prosecutor’s questions did not influence the 
23

verdict”].) Here, the jury was presented with better independent 

proof that defendant murdered Sambrano: Pereira testified he 

saw defendant (a person with whom he was previously familiar) 

confront and then shoot Sambrano. He identified defendant as 

the shooter during trial and earlier in a photographic line up. 

Diaz’s testimony, in other words, was not the “crucial link” in the 

proof of defendant’s guilt. (Douglas, supra, at 419.)

Furthermore, the prosecution’s questioning of Diaz was

more circumscribed than the questioning at issue in Douglas or 

the other cases relied on by defendant. Here, the document 

memorializing Diaz’s statement to police was not read to the jury 

by the prosecution and the questions posed to Diaz were 

relatively few in number and did not pertain solely to his 

interview with law enforcement. (Compare Perez, supra, 243 

Cal.App.4th at 884-885 [prosecution asked the recalcitrant 

witness “numerous questions about the statements he had made 

to police”]; Murillo, supra, 231 Cal.App.4th at 456 [the prosecutor 

asked the recalcitrant witness “over 100 leading questions” while 

reading the witness’s police interviews].)

Thus, the facts here are not comparable to the cases on 

which defendant relies, and the circumstances we confront are 

instead closer to those found in People v. Morgain (2009) 177 

Cal.App.4th 454 (Morgain). That case holds a defendant’s right 

to confrontation was not violated by questions posed to a 

recalcitrant witness who was granted use immunity and ordered 

to testify, but refused to answer a handful of questions posed by 

the prosecutor, including whether the defendant told her he shot 

the victim. (Id. at 459-462.) The trial court in Morgain, like the 

trial court here, granted the defense’s motion to strike all of the 

witness’s testimony and instructed the jury not to consider the 
24

prosecution’s questions as evidence, but the court permitted the 

prosecutor to argue to the jury that the witness’s refusal to testify 

was done to protect the defendant. (Id. at 462, 465.) Just as 

here, the questions posed to the recalcitrant witness in Morgain

“were not the ‘only direct evidence’” that the defendant shot the 

victim because other witnesses testified they saw the defendant 

shoot the victim. (Id. at 465-466.) The Morgain court held that 

because the trial court struck the witness’s testimony and 

instructed the jury not to consider the prosecution’s questions as 

evidence, and because there was independent evidence of 

defendant’s guilt, Douglas did not apply and the defendant was 

not denied his right of confrontation. (Id. at 466.) The same 

result should obtain here.

C. The Trial Court’s Rulings Regarding the Defense 

Video Expert Do Not Warrant Reversal

1. Cross-examination of the expert concerning 

proceedings in another case

As already recounted in greater detail, the trial court 

permitted the prosecution to cross-examine the defense video 

expert Jones about his involvement in video exhibit preparation 

in another case that the judge overseeing the case apparently 

thought would be misleading. We review a trial court’s ruling on 

the permissible bounds of cross-examination for abuse of 

discretion (People v. DeHoyos (2013) 57 Cal.4th 79, 122-123 

(DeHoyos)) and hold there was no such abuse here. There is good 

authority that an expert can appropriately be examined on his or 

her work in other cases because that may be relevant to a jury’s 

determination of the expert’s care and reliability. (See, e.g., 

People v. Shazier (2014) 60 Cal.4th 109, 136-137; DeHoyos, supra, 
25

at 123.) That is what occurred here. We are unpersuaded by 

defendant’s contention that the cross-examination was allowed to 

exceed permissible bounds because the jury was effectively told 

that Jones was untruthful in the prior case. There was no such 

finding by the judge in the other case; at most, Jones was 

criticized there for his work with counsel in preparing a video 

exhibit, and that could appropriately have some bearing on 

consideration of how thorough (or objective) his work in this case 

was.

2. Assertedly asymmetric evidentiary rulings

Defendant maintains the trial court violated his due 

process rights by applying the rules of evidence asymmetrically to 

the parties—allowing the detective, but not the defense’s video 

expert,to interpret video surveillance evidence.9 Defendant 

claims the error was prejudicial because the video recordings 

were “critical to the defense theory of the case: [defendant] 

attempted to show with the video clips to which [Jones] testified 

that [defendant] could not have been the shooter.” Defendant’s 

assertion of prejudice is unpersuasive.

The erroneous admission of evidence does not warrant 

reversal unless the error is prejudicial. (Cal. Const., art. VI, § 13; 

Evid. Code, § 353, subd. (b).) To establish prejudice arising from 

9 We reject the Attorney General’s claim that defendant 

forfeited his asymmetrical application challenge. During the 

preliminary hearing on Jones’s testimony, defense counsel 

repeatedly argued Jones should be accorded the same latitude as 

the testifying detective with regard to interpreting the 

surveillance videos.
26

evidence improperly admitted under state evidentiary rules, a 

defendant must show, considering the record as a whole, that “it 

is reasonably probable that a result more favorable to the 

[defendant] would have been reached in the absence of the error.” 

(People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see also 

People v. Benavides (2005) 35 Cal.4th 69, 91 [Watson standard 

ordinarily governs review of errors in applying state evidentiary 

rules].) Where the erroneous admission of evidence amounts to 

federal constitutional error, reversal is required unless the 

reviewing court is convinced the error was “harmless beyond a 

reasonable doubt.” (Chapman v. California (1967) 386 U.S. 18, 

24 (Chapman); see also People v. Sanchez (2016) 63 Cal.4th 665, 

698-699 [applying harmless beyond a reasonable doubt standard 

to admission of case-specific testimonial hearsay].)

Assuming the court’s rulings on the defense objections were 

erroneous, they do not require a reversal of defendant’s 

convictions no matter whether we apply the Watson or Chapman

standard. Jones’s videos were shown to the jury, both during his 

direct examination and later during the defense’s closing 

argument, and defense counsel had free reign when using Jones’s 

video to argue during closing that defendant was not the shooter. 

With the jury as the ultimate judge of what the video footage did 

or did not show when offered by either side, we are confident the 

argument by defense counsel about what was depicted on the 

video and its significance means the absence of some measure of 

largely if not entirely duplicative testimony from Jones did not 

contribute to the verdict obtained—particularly in light of

testimony from Pereira who said he recognized defendant as soon 

as he stepped from the vehicle, having seen him in the 

neighborhood over a period of years.
27

D. Defendant Forfeited His Claim That Pereira’s “Sad” 

Statement Was Improper Victim Impact Testimony

Defendant argues the trial court erred by overruling his 

counsel’s objection to the prosecutor’s question asking Pereira

how the photograph of Sambrano’s body affected him because the 

question sought victim impact testimony. Victim impact evidence 

relates to “the personal characteristics of the victim and the 

emotional impact of the crimes on the victim’s family.” (Payne v. 

Tennessee (1991) 501 U.S. 808, 817; accord, People v. Vance

(2010) 188 Cal.App.4th 1182, 1199.) Such evidence “may include 

the effects on the victim’s friends, coworkers, and the 

community.” (People v. Brady (2010) 50 Cal.4th 547, 578.) A 

prosecutor’s introduction of victim-impact testimony is 

“impermissible” during the guilt phase of a trial. (People v. 

Salcido (2008) 44 Cal.4th 93, 150-151 [holding wife’s testimony 

regarding last time she saw her husband, the victim, was not 

victim-impact evidence because it “scarcely touched upon the 

victim’s family life and did not relate the effect of defendant’s acts 

upon family members”].)

“Evidence Code section 353, subdivision (a) allows a 

judgment to be reversed because of erroneous admission of 

evidence only if an objection to the evidence or a motion to strike 

it was ‘timely made and so stated as to make clear the specific 

ground of the objection.’” (People v. Demetrulias (2006) 39 

Cal.4th 1, 20.) “To satisfy Evidence Code section 353, subdivision 

(a), the objection . . . must be both timely and specific as to its 

ground. An objection to evidence must generally be preserved by 

specific objection at the time the evidence is introduced; the 

opponent cannot make a ‘placeholder’ objection stating general or 
28

incorrect grounds (e.g., ‘relevance’) and revise the objection 

later . . . stating specific or different grounds.” (Id. at 22; see also 

People v. Abel (2012) 53 Cal.4th 891, 924 [“If the court overrules 

the objection, the objecting party may argue on appeal that the 

evidence should have been excluded for the reason asserted at 

trial, but it may not argue on appeal that the court should have 

excluded the evidence for a reason different from the one stated 

at trial”].)

At trial, defense counsel did not object to the question of 

how the photograph of Sambrano’s body affected Pereira on 

relevancy grounds or on grounds it sought unduly prejudicial 

information. Instead, the objection was that the photograph 

shown to the witness “assumed facts not in evidence.” That did 

not reasonably or fairly alert the prosecution or the trial court to 

defendant’s present contention that the question sought 

testimony which would encourage the jurors to “render a decision 

based on sympathy and emotions untethered to the facts of the 

case.” The victim impact evidence argument made now on appeal 

is therefore forfeited.

E. There Is No Cumulative Error Warranting Reversal

Defendant contends that even if the errors at his trial did 

not prejudice him when considered individually, their cumulative 

effect deprived him of due process and a fair trial. We have 

reversed the jury’s true finding on the gang enhancements, but 

that has no bearing on defendant’s other challenges to his 

convictions. And as to those, we have not held there was any 

error—we assumed error as to the evidentiary ruling concerning 

the video footage testimony but held there was no prejudice. 

Defendant’s cumulative error contention is accordingly meritless.
29

(People v. Edwards (2013) 57 Cal.4th 658, 767; accord, People v. 

Woods (2015) 241 Cal.App.4th 461, 489.)

DISPOSITION

The true findings on the section 186.22, subdivision (b)(1) 

enhancements attached to counts 2 and 3 are reversed, 

defendant’s sentence is vacated, and the matter is remanded to 

the trial court for resentencing without any application of those 

enhancements. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.