Filed 11/30/22 P. v. Gonzalez CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO GONZALEZ et al.,

Defendants and 

Appellants.

 B302834

 (Los Angeles County

 Super. Ct. No. NA100818)

 ORDER MODIFYING

 OPINION AND DENYING

 PETITION FOR

 REHEARING

 CHANGE IN JUDGMENT

THE COURT:

The opinion herein, filed on November 9, 2022, is modified 

as follows:

1. Page 4, last paragraph, second sentence, beginning with 

the word “We”: delete the word “therefore”. Insert the following 

between the word “vacate” and the words “the gang enhancement 

findings”: “the gang-murder special-circumstance enhancement 

finding and” so that it reads:
2

We vacate the gang-murder special-circumstance 

enhancement finding and the gang enhancement 

findings under section 186.22, subdivision (b), and 

the gang firearm enhancement finding under section 

12022.53, subdivision (e)(1) under counts 1, 2, and 4; 

remand for the People to elect to retry those 

allegations under Assembly Bill 333; and direct the 

trial court to correct Escalante’s presentence custody 

credits.

2. Page 76, insert the following before subheading “VIII. 

Section 1190”:

D. Gang-murder specialcircumstance finding must be 

vacated under the law as amended by 

Assembly Bill 333

As discussed, the Attorney General concedes 

that defendants’ current offenses cannot be used to 

establish a pattern of criminal gang activity and that 

the prosecution proved only one predicate gang 

offense, not two offenses as required by section 

186.22 as amended by Assembly Bill 333. The gangmurder special-circumstance finding must be vacated 

for this reason.

3. Page 89: In the first sentence under the heading 

“Disposition” insert the following after the words “For each 

defendant,”: “the gang-murder special-circumstance allegation 

finding and” so that it reads:
3

For each defendant, the gang-murder specialcircumstance allegation finding and the gang 

enhancement allegation findings under section 

186.22, subdivision (b) under counts 1, 2, and 4, and 

the gang-related firearm enhancement findings 

under section 12022.53, subdivision (e)(1) under 

those same counts are vacated.

The modification changes the judgment.

Appellants’ petition for rehearing is denied.

LUI, P. J. CHAVEZ, J. HOFFSTADT, J.
Filed 11/9/22 P. v. Gonzalez CA2/2 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

RICARDO GONZALEZ et al.,

Defendants and 

Appellants.

 B302834

 (Los Angeles County

 Super. Ct. No. NA100818)

APPEAL from judgments of the Superior Court of Los 

Angeles County, Mark C. Kim and Judith L. Meyer, Judges. 

Affirmed in part; vacated in part and remanded with directions.

Susan K. Shaler, under appointment by the Court of 

Appeal, for Defendant and Appellant Ricardo Gonzalez.

Laura S. Kelly, under appointment by the Court of Appeal, 

for Defendant and Appellant Carlos Alexis Escalante.

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

Assistant Attorney General, Susan Sullivan Pithey, Assistant 
2

Attorney General, Steven D. Matthews and Gary A. Lieberman, 

Deputy Attorneys General, for Plaintiff and Respondent.

* * * * * *

Defendants and appellants Ricardo Gonzalez and Carlos 

Alexis Escalante1 were convicted of the murder of Enrique Lopez, 

Jr. (Pen. Code, § 187, subd. (a))2 (count 1), attempted murder of 

David Osuna (§§ 664, 187, subd. (a)) (count 2), and attempted 

murder of Jerry Frazier (§§ 664, 187, subd. (a)) (count 4). As to 

count 1, the jury found true two special circumstance 

allegations—that the murder was perpetrated by means of 

discharging a firearm from a motor vehicle at persons outside the 

vehicle with the intent to cause death (§ 190.2, subd. (a)(21)) and 

that defendants killed Lopez, Jr., while they were active 

participants in a criminal street gang and to further the activities 

of the gang (§ 190.2, subd. (a)(22)). As to counts 1, 2, and 4, the 

jury found true allegations that defendants committed the offense 

for the benefit of a gang (§ 186.22, subd. (b)) and that a principal 

discharged a firearm causing great bodily injury (§ 12022.53, 

subds. (d), (e)(1)). The jury also convicted Gonzalez of 

transportation for sale of a controlled substance (Health & Saf. 

Code, § 11379, subd. (a)) (count 8) and possession of a controlled 

1 Gonzalez and Escalante are referred to collectively as 

defendants.

2 All further statutory references are to the Penal Code 

unless stated otherwise.
3

substance with a firearm (Health & Saf. Code, § 11370.1, subd. 

(a)) (count 9).3

Gonzalez was sentenced to life without parole (LWOP) plus 

55 years to life. Escalante was sentenced to LWOP plus 30 years 

to life.

Defendants appeal from the judgments. They contend the 

trial court erred by (1) improperly admitting into evidence 

statements defendants made to undercover agents during a 

Perkins4 operation; (2) improperly admitting into evidence 

defendants’ hearsay statements implicating each other in the 

crimes; (3) improperly limiting discovery and testimony about the 

Perkins operation; (4) committing prejudicial judicial misconduct 

during jury selection; (5) committing prejudicial judicial 

misconduct during a defense expert witness’s testimony, and then 

3 An amended 14-count information charged defendants with 

offenses arising from three separate shooting incidents and 

certain drug-related offenses. Counts 1 through 5 involved a 

shooting on May 26, 2014, that is the subject of this appeal. 

Counts 6, 7, and 10 involved a shooting on October 23, 2014. 

Counts 8 and 9 involved controlled substance charges. Counts 11 

through 14 charged only Gonzalez and involved a shooting on 

October 17, 2014.

The jury returned a not guilty verdict on count 5 (the 

attempted murder of Juan Cortez, who was present during the 

May 26, 2014 shooting) and deadlocked on count 3 (attempted 

murder of Enrique Lopez, Sr., also present during the May 26, 

2014 shooting) and counts 6, 7, 10, 11, 12, 13 and 14. The trial 

court dismissed counts 6, 7, 10, 11, 12, 13 and 14.

4 In a “Perkins operation,” a suspect is placed in a cell with 

an undercover agent and their conversation is audio recorded. 

(See Illinois v. Perkins (1990) 496 U.S. 292.)
4

improperly presiding over Escalante’s new trial motion; and (6) 

improperly instructing the jury with CALCRIM No. 315, and 

then allowing the prosecutor to make misleading statements 

about that instruction. Defendants further contend (7) the 

prosecution’s proof of the gang predicate offenses violated section 

186.22, as amended by Assembly Bill No. 333 (2021-2022 Reg. 

Sess.) (Assembly Bill 333), as well as the hearsay rule and the 

confrontation clause; (8) section 1109, which became effective on 

January 1, 2022, and allows a defendant to request bifurcation of 

a gang enhancement allegation from the underlying offense, 

applies retroactively and requires a new trial on the murder and 

attempted murder charges; (9) defendants’ LWOP sentences 

violate equal protection, Escalante was denied a proper Franklin5

hearing, and his counsel’s failure to present mitigating evidence 

constituted ineffective assistance of counsel; (10) defendants’ 

LWOP sentences constitute cruel and unusual punishment; (11) 

the driveby shooting special circumstance is unconstitutional; 

(12) the cumulative errors were prejudicial; and (13) Escalante is 

entitled to additional presentence custody credit.

The Attorney General concedes that under Assembly Bill 

333, the gang sentence enhancements under section 186.22, 

subdivision (b) and the gang firearm enhancement under section 

12022.53, subdivision (e)(1) must be vacated and that Escalante 

is entitled to additional presentence custody credit. We therefore 

vacate the gang enhancement findings under section 186.22, 

subdivision (b), and the gang firearm enhancement finding under 

section 12022.53, subdivision (e)(1) under counts 1, 2, and 4;

remand for the People to elect to retry those allegations under 

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

Assembly Bill 333; and direct the trial court to correct Escalante’s 

presentence custody credits. We otherwise affirm the judgments.

FACTUAL BACKGROUND

The shooting

On May 26, 2014, about 12:30 p.m., Lopez, Jr., a Westside 

Longo gang member, was standing near his sister Susanna 

Lopez’s car near the corner of 65th Street and Paramount 

Boulevard in Long Beach. His father, Enrique Lopez, Sr.; 

Susanna’s boyfriend David Osuna; neighbor Jerry Frazier; a 

mechanic named Juan Cortez; and two children were also 

present. 

Frazier saw a blue Honda Civic driving east on 65th Street 

toward Paramount Boulevard. The car slowed as it approached. 

The front passenger had a gun and fired several rounds. When 

Frazier saw the gun, he hid behind a blue dumpster. He heard 

several bullets hit the dumpster. When the shooting began, 

Lopez, Sr., and Cortez ducked and Osuna ran. Osuna suffered a 

bullet wound to the leg. Lopez, Jr., was killed by a single 

gunshot to his upper middle back.

Lopez, Sr., told police that on the morning of the shooting, 

he saw a blue Honda or Toyota drive by. He saw the passenger 

make hand signs. Lopez, Sr., later identified Escalante as the 

passenger in a Facebook photograph provided by detectives. At 

trial, Lopez, Sr., pointed to Escalante, who was seated in the 

courtroom, as the person he identified as the vehicle passenger 

when he was interviewed by detectives.

Three nine-millimeter bullet casings were found in the 

street near the corner of Paramount Boulevard and 65th Street. 

Another nine-millimeter casing was found on 65th Street near 
6

the blue dumpster, which had a bullet hole. The recovered 

casings were fired from the same gun.

Defendants’ arrest

On November 19, 2014, Long Beach Police Officer Andrew 

Fox conducted a traffic stop of a blue Honda Civic. Escalante was 

driving and Gonzalez was the front passenger. Both were 

arrested. Gonzalez was 19 years old at the time. Escalante was 

18 years old but would be 19 the following month.

On the day of their arrest, defendants were questioned 

separately by Detective Robert Gonzalez about a different 

shooting that occurred on October 23, 2014. At the outset of the 

interview, Detective Gonzalez advised defendant Gonzalez of his 

Miranda6 rights. Defendant Gonzalez indicated he understood 

and began talking to the detective. Defendant Gonzalez 

subsequently requested an attorney, and the detective stopped 

questioning him.

Detective Gonzalez also advised Escalante of his Miranda 

rights at the outset of his interview. Escalante indicated that he 

understood and continued speaking with Detective Gonzalez 

until the interview was concluded.

Perkins operations

On November 20, 2014, Detective Sean Irving conducted a 

Perkins operation by placing defendants in separate cells at the 

Long Beach jail with paid agents who posed as fellow inmates. 

An audio recording of the operation was played for the jury. 

Gonzalez

Gonzalez was placed in a cell with two Perkins agents 

(designated in the transcript of the operation as PA1 and PA2). 

6 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
7

PA1 was a Hispanic male in his mid-30’s, approximately six feet 

tall and weighed 300 pounds. PA2 was in his early 30’s, 

approximately five feet 10 inches tall, and weighed 180 pounds. 

PA2 had visible tattoos on his arms.

While the agents were in his cell, Gonzalez told PA1 that 

he was an Unos Sin Verguenzas (USV) gang member known as 

“Glock.” Detective Peter Lackovic subsequently entered the cell 

area and informed Gonzalez that he was being investigated for a 

murder that occurred on 65th Street. Lackovic told Gonzalez, 

“Your boy Rascal’s already here. You already know that.” Before 

leaving the cell area, Lackovic asked Gonzalez, “You all straight?” 

Gonzalez responded, “Cool.” Lackovic said, “If you need 

anything, tell one of the jailers.” Gonzalez said, “All right.”

When Lackovic left the cell area, PA1 asked Gonzalez, 

“What; you, like, the most live homie from the hood or what?” 

Gonzalez replied, “Shit, I didn’t get ‘Glock’ for no reason.” PA1 

said, “I need some youngsters like that on my team, fool.” PA1 

then asked Gonzalez, “who’s the fool that [Lackovic] was talking 

about?” Gonzalez identified him as “the homie” who was arrested 

with him and acknowledged that he was Gonzalez’s “crime 

partner.”

Detective Gonzalez later entered the cell area to obtain a 

DNA sample from defendant Gonzalez. The detective asked 

Gonzalez, “How long you doing?” Gonzalez responded, “Good.” 

Detective Gonzalez then asked, “They treating you all right?” 

Defendant Gonzalez said, “Yeah.”

Defendant Gonzalez told the Perkins agents he was 19 

years old, had been “affiliated” with the USV gang since he was 

13, and started “banging” at age 16. He said the 65th Street 

shooting had occurred during the day and that he had used a 
8

Smith and Wesson firearm. Gonzalez told the agents he was 

driving his mother’s blue Honda Civic when he and Escalante 

passed a group of people, whom they did not know. One member 

of the group had a “Longo” tattoo on the back of his neck. 

Escalante exited the Honda and started “banging” on the group. 

Gonzalez told him to get back into the car because they would 

return later. After switching the Honda’s license plates to dealer 

plates, Gonzalez and Escalante returned to the victims’ location. 

This time, Escalante drove and Gonzalez was the passenger. An 

older gang member known as “Lento” accompanied them. When 

Escalante stopped the Honda at the victims’ location, Gonzalez 

fired nine rounds at the group. Gonzalez saw “four fools down, 

but only one down, down.” Gonzalez also shot at a “big old black 

guy” who hid behind a trash can. The following day, Gonzalez 

sold the gun he had used in the shooting to members of another 

gang. When one of the Perkins agents asked Gonzalez whether 

he felt any remorse about the shooting, Gonzalez responded, “No. 

Hell no.”

Escalante

Escalante was placed in a cell with the same larger Perkins 

agent (PA1) who had been in Gonzalez’s cell. At some point 

during the operation, Escalante made a telephone call. He asked 

the Perkins agent to help him remember some numbers, and the 

agent complied. When he finished the call, Escalante asked the 

agent, “what they got you for?” The agent responded, “got a 

warrant for murder.” Escalante said, “me fucking too.” 

Escalante then asked the agent, “where you from?” and stated 

that he (Escalante) was “USV.” Later, the Perkins agent also 

made a telephone call. During the call, the Perkins agent said, 

“hey do me a favor . . . and try to post my bail. Yeah . . . put the 
9

house. They got me for that shit over there in L.A. . . . Okay. 

Make sure you get it done.”

Detective Lackovic later entered the cell area and told 

Escalante he and “Plato” had been arrested for a murder on 65th 

Street and that Escalante had been identified as the shooter. 

Lackovic said he knew Escalante’s moniker was Rascal and that 

Gonzalez was known as Plato. When Lackovic left, the Perkins 

agent asked Escalante “who’s Plato?” Escalante identified him as 

“[t]he homie” who shot at the victims on 65th Street. Escalante 

stated, “He shot. I drove.” Escalante verified that Plato was also 

known as Glock. Escalante also acknowledged that his moniker 

was Rascal.

Escalante said the shooting had occurred in May during the 

day. He and Gonzalez were driving by when they first saw the 

victims. Gonzalez and Escalante did not know the victims, who 

were “banging” on them, or challenging them. Gonzalez was 

driving at the time, a blue “low key ass car.” Gonzalez, 

Escalante, and an older gang member known as “Gecko” or 

“Gunner” returned to the victims’ location that same day. Before 

doing so, Escalante and Gonzalez switched places. Escalante 

drove because Gonzalez “wanted to bust” on the victims. 

Gonzalez fired eight rounds at the victims. Gonzalez 

subsequently sold the gun he had used in the shooting.

Defendants’ jail conversation

After the Perkins operation, defendants were placed in 

nearby cells with a recording device in the cell between them. An 

audio recording of their conversation was played for the jury. 

Escalante told Gonzalez during their recorded conversation 

that a detective came to see him about the incident “that 

happened on Six-Five.” Escalante said, “I was driving in Six-
10

Five” and “I’ll go down as the driver, . . . but . . . I ain’t gonna be 

the shooter.” Escalante further stated, “I’m trippin about the 

Honda,” and “they got the car.” Gonzalez reassured him that the 

Honda “didn’t have the regular plates” during the shooting. 

Escalante asked, “What happened to those plates?” Gonzalez 

responded that he threw them away.

Gonzalez said, “[N]obody seen us that . . . day. When the 

shots were going off, everybody was gone.” Escalante replied, “I 

was driving dog, I don’t know.” Gonzalez responded, “I could 

see.” When Escalante asked Gonzalez what kind of gun he had 

used, Gonzalez replied, “Smith and Wess. Nina.” Gonzalez and 

Escalante discussed fabricating an alibi and alternate locations 

where they could say they had been at the time of the shooting. 

These included Plaza Mexico, a barbeque, or a cemetery. 

Gonzalez pointed out that the police would attempt to verify the 

time and location of defendants’ proposed alibi and could use 

security camera footage to do so. Gonzalez advised, “Be, like, we 

don’t . . . remember.”

Escalante and Gonzalez discussed their respective 

encounters with the Perkins agents and determined they had 

both been with the same person. Escalante referred to the 

Perkins agent as the “[f]at nigga” and said, “That fool’s cool.”

RELEVANT PROCEDURAL BACKGROUND

Gonzalez filed a motion to exclude his statements made 

during the Perkins operation, arguing they were obtained in 

violation of his constitutional rights to counsel, to remain silent, 

and due process. His motion was supported by the declaration of 

Martin Flores, a gang expert, who opined in relevant part as 

follows:
11

“It is my personal, educational, and 

professional opinion that . . . the confidential 

informants utilized in this operation made their gang 

status and ties to the Mexican Mafia to Mr. Ricardo 

Gonzalez by talking about their crimes and 

knowledge of gang members. They command a 

presence of being very knowledgeable of the gang 

dynamics and the jail politics. [¶] . . . [¶] In my 

extensive experience with Perkins Operations . . . the 

informants are NOT just . . . a very experienced 

inmate that upon immediate contact the target 

realizes that they are being questioned by somebody 

who can impact their jail experience. This tactic 

brings an environment of duress and pressure to 

either fabricate or exaggerate their role in an alleged 

crime.”

The prosecutor opposed the motion.

At a January 4, 2018 hearing, Escalante made an oral 

motion to join Gonzalez’s motion to exclude the Perkins 

statements. Gonzalez’s counsel indicated he intended to offer 

Flores’ testimony, stating:

“He’s an expert in the matter of gangs. He has 

an opinion . . . as to the influence of a Mexican Mafia 

shot caller in a cell . . . with a 19-year-old person who 

is in jail for the first time . . . and as a gang member, 

what his mindset would be . . . .”

The trial court (Hon. Mark C. Kim) stated, “The only one 

that could tell me whether he was coerced or not is the person 

claiming that he was coerced.” The court further stated:

“[I]t does not matter what your expert knows. 

The question is at the time of the conversation was 

[Gonzalez] aware who these individuals were, that 

they were Mexican Mafia members that you allege 

because, if he didn’t know, it’s irrelevant.”
12

Gonzalez testified at the hearing. When his attorney asked 

him who he thought one of the Perkins agents might be, Gonzalez 

replied, “I didn’t know who he was. I just—just another person.” 

Gonzalez further testified he had never been in jail before. He 

stated: “I felt afraid. I felt I had to go along with it, impress—

say whatever I can, whatever I knew about what had happened,

you know, just to feel like I’m on the same page with them.”

On cross-examination, Gonzalez admitted he was laughing 

when he talked to the Perkins agents and that they had also 

talked about girls. He further admitted that the agents never 

said they were members of the Mexican Mafia or verbally 

threatened him. Gonzalez testified that the agents made 

threatening gestures, but when asked to explain further he 

replied, “I couldn’t—I can’t recall.” Gonzalez also testified that 

on the day before the Perkins operation, detectives tried to 

question him about a different attempted murder, and he asked 

for a lawyer.

Gonzalez’s counsel then sought to call Flores as a witness. 

When the trial court asked for a proffer, counsel responded, “The 

proffer is the state of mind of [Gonzalez].” The trial court stated: 

“He can’t testify as to state of mind of Mr. Gonzalez. He’s not an 

expert on state of mind. [H]is designated expertise is gang 

membership, gang crimes.” The following exchange ensued:

“[Gonzalez’s counsel]: My proffer is he would 

testify to being a gang member. What does that 

mean being placed in a cell with older gang members 

who have been to prison, and what would that mean 

to you as being a gang member in the cell, a young 

gang member? How would that affect what or what 

you did not say . . . .
13

“The court: I guess the only problem is the 

person that would have an effect has already 

testified. So how would Mr. Flores add to that?

“[Gonzalez’s counsel]: As I said, he would 

add—as far as . . . fleshing out the circumstances of 

how gang members react to each other.

“The court: But we have the best source, the 

person that just testified. He told us how it affected 

him in that circumstances.” (Boldface omitted.) 

The court ruled Flores’s testimony not relevant.

Detective Lackovic then testified that the Perkins agents 

were Hispanic, in their 30’s, and had tattoos. One of the agents 

was about five feet four inches tall, and the other was around six 

feet fall. Both were “kind of fat.”

After hearing argument from counsel, the trial court denied 

the motion to exclude Gonzalez’s statements. The court found, 

based on Gonzalez’s demeanor and testimony, that Gonzalez 

lacked credibility and that the motion was without merit.

Escalante then testified. He described the Perkins agent in 

his cell as approximately six feet four inches tall and 300 pounds, 

in comparison to Escalante, who was five feet seven inches tall. 

Escalante testified that he thought to himself, “the guy has not 

approached me. Maybe I should stay out of his way.” Escalante 

further testified that the Perkins agent said that he had gotten 

rid of a witness. Escalante said he was afraid. After overhearing 

the Perkins agent’s telephone call in which the agent gave 

instructions to post his bail and “put the house up,” Escalante 

believed the agent had rank in a gang. He thought, “if this guy 

approaches me, I’ll just get on his good side” and say what he 

wants to hear.
14

On cross-examination, Escalante admitted that he initiated 

the conversation with the Perkins agent and that Escalante 

voluntarily disclosed that he had been arrested for murder. 

Escalante further admitted that when he made a telephone call, 

he asked the agent to help him remember a number.

Escalante testified that the agent never “directly” 

threatened him. Escalante explained: “He sent subliminals. He 

would tell me things like, you know, as far as there’s no witness. 

I mean, that means pretty much he did something to the 

witness.”

On January 5, 2018, after hearing argument from counsel, 

the trial court denied the motion to exclude Escalante’s 

statements to the Perkins agent. The court ruled that Miranda 

was not implicated and that, based on the totality of the 

circumstances, there was no coercion.

The case was subsequently reassigned to the Honorable 

Judith L. Meyer, who presided over the trial. Defendants filed 

motions to exclude their Perkins statements, which Judge Meyer 

denied.

TRIAL TESTIMONY

Prosecution gang expert testimony

Los Angeles County Sheriff’s Detective Miguel Fuentes, the 

prosecution’s gang expert, testified that he was familiar with a 

Hispanic gang known as USV. Fuentes opined that members of 

the USV gang, individually and collectively, have engaged in a 

pattern of criminal gang activity, including assault with a deadly 

weapon, attempted murder by use of a firearm, and murder by 

use of a firearm. After being presented with a hypothetical based 
15

on the facts of this case, Fuentes opined the subject crimes were 

committed for the benefit of and in association with a gang.

Fuentes further testified that he was familiar with a 

separate case involving USV gang members Jose Rangel, Enrique 

Hernandez, and Jesus Hernandez, who were convicted on 

August 15, 2014, of the murder of Jonathan Sandoval, a member 

of a rival gang.

Defense evidence

Dr. Kathy Pezdek testified as a defense expert on 

eyewitness identification. She discussed 10 factors that can 

affect the accuracy of eyewitness identification: (1) exposure 

time, (2) distance and obstruction, (3) weapon focus, (4) stress, (5) 

use of a disguise, (6) cross-racial identification, (7) time delay, (8) 

biased identification test, (9) double-blind procedure, and (10) 

bias of in-court identification.

Gairy Jackson, who witnessed the shooting through the 

window of his apartment, also testified as a defense witness. 

Jackson observed a slow-moving black, four-door hatchback 

approach the victims and then heard four to five gunshots. He 

saw Lopez, Jr., fall to the ground. Jackson further testified he 

saw the driver of the car and the passenger, both of whom 

appeared to be African-American males.

DISCUSSION

I. Admission of defendants’ statements during the 

Perkins operation did not violate their constitutional 

rights

A. Miranda

A defendant’s statements made during a custodial 

interrogation are inadmissible against him unless he was advised 
16

of his Miranda rights7 and did not invoke his right to remain 

silent or to be represented by counsel. (People v. Orozco (2019) 32 

Cal.App.5th 802, 811 (Orozco).) This rule protects the privilege 

against self-incrimination guaranteed by the Fifth Amendment. 

(Orozco, at p. 811.) In addition, once a suspect invokes the right 

to counsel, he cannot be subjected to further police interrogation 

on any crime unless counsel is present or the suspect initiates 

further communication with the police. (Edwards v. Arizona 

(1981) 451 U.S. 477, 484-485 (Edwards).)

The Miranda rule has a limit, however—it only applies 

when the suspect was the subject of a “custodial interrogation.” 

(Miranda, supra, 384 U.S. at p. 444; see Orozco, supra, 32 

Cal.App.5th at p. 811.) Miranda does not apply when a suspect is 

unaware that he is speaking to a law enforcement officer and 

gives a voluntary statement. (Perkins, supra, 496 U.S. at p. 294.) 

Statements made to an undercover agent posing as a fellow 

inmate accordingly are not subject to Miranda. (Perkins, at 

p. 296; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 283 

[no Miranda violation when defendant spoke to fellow inmate 

wearing a recording device]; People v. Williams (1988) 44 Cal.3d 

1127, 1141-1142 [Miranda “has never been applied to 

conversations between an inmate and an undercover agent”].)

Gonzalez argues that the use of Perkins agents, following 

the invocation of his right to counsel the preceding day, violated 

7 Miranda requires that a suspect in law enforcement 

custody must be advised of the right to remain silent, that 

anything the suspect says may be used as evidence against him, 

that he has the right to the presence of an attorney, and that an 

attorney will be provided if the suspect cannot afford one. 

(Miranda, supra, 384 U.S. at pp. 444-445, 473-474, 476.)
17

his constitutional rights to remain silent and to counsel. 

Escalante concedes the record does not indicate that he invoked 

his Miranda rights before the Perkins operation but nevertheless 

asserts a Miranda claim.

Escalante’s claim is without merit. As our state high court 

has noted, “the [United States Supreme Court] has held that at 

least where no prior invocation [of Miranda rights] is in effect, 

[‘][c]onversations between suspects and undercover agents do not 

implicate the concerns underlying Miranda. The essential 

ingredients of a “police-dominated atmosphere” and compulsion 

are not present when an incarcerated person speaks freely to 

someone whom he believes to be a fellow inmate.’” (People v. 

Fayed (2020) 9 Cal.5th 147, 165, quoting Perkins, supra, 496 U.S. 

at p. 296.)

Gonzalez’s prior invocation of his Miranda right to counsel 

did not require suppression of his statements to the Perkins 

agents. (Orozco, supra, 32 Cal.App.5th at p. 812.) “[A] suspect 

who has invoked his Miranda right to counsel may not be 

‘subject[ed] to further interrogation by the authorities’ on any 

crime at all unless (1) counsel is present ‘at the time of [any 

further] questioning,’ or (2) the suspect ‘himself initiates further 

communication, exchanges or conversations with the police.’” (Id. 

at p. 813, quoting Edwards, supra, 451 U.S. at pp. 484-485.) 

“[T]here is no ‘interrogation’ when a suspect speaks with someone 

he does not know is an agent of the police.” (Orozco, at p. 814.) 

There is accordingly no reason to apply the restriction on further 

“interrogation” in such circumstances. (Ibid.) Admission of 

Gonzalez’s Perkins statements did not violate his rights under 

Miranda.
18

B. Due process

Defendants contend admission of their statements to the 

Perkins agents violated their due process rights because the 

statements were not made voluntarily. The due process clauses 

of the federal and California Constitutions bar the admission of 

an involuntary confession. (People v. Rodriguez (2019) 40 

Cal.App.5th 194, 199.) To determine the voluntariness of a 

confession, we assess the circumstances to see if the defendant’s 

will was overborne. (Ibid.) A confession may be involuntary “‘if 

extracted by threats or violence, obtained by direct or implied

promises, or secured by the exertion of improper influence.’” 

(People v. Wall (2017) 3 Cal.5th 1048, 1066.)

We independently review a trial court’s determination of 

voluntariness given the circumstances, including the 

characteristics of the accused and the details of the encounter. 

(People v. Richardson (2008) 43 Cal.4th 959, 992-993, abrogated 

on other grounds by statutory repeal as stated in People v. Nieves

(2021) 11 Cal.5th 404, 509.) In doing so, however, we defer to the 

trial court’s factual findings if supported by substantial evidence. 

(Ibid.) We therefore “accept the trial court’s resolution of 

disputed facts and inferences as well as its evaluations of 

credibility if substantially supported, but independently 

determine from undisputed facts and facts found by the trial 

court whether the challenged statement was legally obtained.” 

(People v. Smith (2007) 40 Cal.4th 483, 502.)

Substantial evidence supports the trial court’s 

determination defendants’ statements to the Perkins agents were 

voluntary and that their claims of intimidation and coercion were 

not credible. At the hearing on his motion to suppress, Gonzalez 

admitted laughing with the Perkins agents and talking with 
19

them about girls. Detectives came to Gonzalez’s cell several 

times during the Perkins operation to ask Gonzalez if he was 

alright, if he needed anything, and if his cellmates were treating 

him all right. Gonzalez never indicated that there was any 

problem or that he was afraid of the agents. Gonzalez testified 

that the agents never identified themselves as members of the 

Mexican Mafia and never threatened him verbally. He could not 

recall any threatening gestures by the agents.

Escalante admitted initiating the conversation with the 

Perkins agent and voluntarily disclosing that he had been 

arrested for murder. He asked the Perkins agent for help in 

remembering some numbers while making a phone call. 

Escalante admitted that the agent never threatened him 

verbally. He further admitted that he never told any of the 

detectives who came to his cell during the Perkins operation that 

he was afraid of or felt intimidated by the agent. The record does 

not support Escalante’s claim that the agent questioned him 

“aggressively,” seeking to elicit an admission that he and 

Gonzalez had been looking for enemies on the day of the murder. 

When the Perkins agent twice asked Escalante whether he and 

Gonzalez had been looking for enemies on the day of the shooting, 

Escalante replied, “Nah, we drove by and, like, they, they were,

like, banging on us, you know.”

Defendants’ jailhouse conversation with each other after 

the Perkins operation further undermines the claim that they 

were afraid of the agents. Defendants spoke positively about the 

agents, and Escalante stated that the agent in his cell was “cool.”

The record does not support defendants’ claim that they 

fabricated their involvement in the crimes. Their separate 

statements to the Perkins agents contained corroborating details 
20

about the crimes. Both defendants admitted that the shooting 

occurred in May during the day, that they did not know the 

victims, that Gonzalez was the shooter and Escalante was the 

driver, and that Gonzalez thereafter sold the weapon. 

Defendants made similar admissions in the conversation between 

themselves after the Perkins operation.

Arizona v. Fulminante (1991) 499 U.S. 279, on which 

defendants rely as support for the argument that their 

statements were coerced, is distinguishable. The informant in 

that case told the defendant that he knew the defendant was 

“‘starting to get some tough treatment and whatnot’” from other 

inmates because the defendant had killed a child. (Id. at p. 283.) 

The informant then offered to protect the defendant, stating, 

“‘“You have to tell me about it . . . [f]or me to give you any help.”’” 

(Ibid.) The Supreme Court concluded that the “fear of physical 

violence, absent protection from [the agent]” caused the 

defendant’s will to be “overborne in such a way as to render his 

confession the product of coercion.” (Id. at p. 288.) No such 

circumstances are present here.

Moreover, as the trial court noted, both defendants, though 

young, were experienced gang members. Gonzalez, who was 19 

years old at the time of the Perkins operation, had been 

“affiliated” with a gang from the age of 13 and started “banging” 

when he was 16. Escalante was one month shy of his 19th 

birthday at the time of the Perkins operation and had been a 

gang member since he was 12 or 13 years old.

Cases defendants cite as support for their due process 

claims are inapplicable or inapposite. Gonzalez relies on Justice 

Brennan’s concurrence and Justice Marshall’s dissent in Perkins, 

supra, 496 U.S. 292 and Justice Liu’s dissents from a denial of 
21

review in People v. de Jesus Valencia (Aug. 5, 2019, B283588) 

(nonpub. opn.), review denied Dec. 11, 2019, S258038, and People 

v. Godbolt (Mar. 12, 2021, B302235) (nonpub. opn.), review 

denied Jun. 30, 2021, S268148, as support for his argument that 

use of undercover agents to elicit his statements following his 

request for counsel violated due process.8 Concurring and 

dissenting opinions are not binding precedent (see Rosato v. 

Superior Court (1975) 51 Cal.App.3d 190, 211), and Gonzalez 

cites no authority applying the views expressed in those 

concurring and dissenting opinions. To the contrary, 

“. . . California courts have uniformly come to the conclusion that 

Perkins controls when a suspect invokes his Miranda right to 

counsel but later speaks with someone he does not know is an 

agent of the police.” (Orozco, supra, 32 Cal.App.5th at p. 815; see 

People v. Plyler (1993) 18 Cal.App.4th 535, 544-545; People v. 

Guilmette (1991) 1 Cal.App.4th 1534, 1540-1541.)

8 Justice Brennan expressed a belief that “the deception and 

manipulation practiced on [Perkins] raise[d] a substantial claim 

that the confession was obtained in violation of the Due Process 

Clause.” (Perkins, supra, 496 U.S. at p. 301 (conc. opn. of

Brennan, J.).) Justice Marshall noted that “where the suspect is 

incarcerated, the constant threat of physical danger peculiar to 

the prison environment may make him demonstrate his 

toughness to other inmates by recounting or inventing past 

violent acts.” (Id. at p. 307 (dis. opn. of Marshall, J.).) In his 

dissenting statement to the California Supreme Court’s denial of 

a petition for review, Justice Liu stated “[I]t is difficult to see how 

the use of deceptive schemes by the police to continue questioning 

the suspect can be compatible with ‘“preserv[ing] the integrity of 

accused’s choice to communicate with police only through 

counsel.”’” (People v. de Jesus Valencia, supra, S258038, review 

denied (dis. stmt. of Liu, J.).)
22

Escalante cites no authority to support his argument that 

the tactics employed in this case—placing him with an older and 

much larger agent posing as a gang “shot caller” who questioned 

Escalante “aggressively”—exceeded the bounds of due process. 

Miller v. Fenton (1985) 474 U.S. 104, cited by Escalante, did not 

involve a Perkins operation but addressed whether the 

voluntariness of a confession obtained during a police 

interrogation was a factual or legal question for purposes of 

appellate review. (Id. at pp. 105-106.) That case accordingly is 

inapposite.

The totality of the circumstances leads us to conclude, as 

the trial court did, that defendants’ statements to the Perkins 

agents were voluntary and not the product of coercion or 

psychological pressure.

C. Exclusion of defendants’ gang expert testimony

The trial court properly excluded proposed testimony by 

defendants’ gang expert, Flores, as not relevant to determining 

whether defendants’ Perkins statements were voluntary. The 

trial court has broad discretion to determine the relevance of 

evidence. (People v. Jones (2013) 57 Cal.4th 899, 914.) We will 

not disturb the exercise of that discretion unless the trial court 

acted in an arbitrary, capricious, or patently absurd manner. 

(Ibid.)

The record discloses no abuse of discretion. In a 

declaration attached to a motion to exclude Gonzalez’s Perkins 

statements, gang expert Flores opined that the Perkins agents 

used in this case “made their gang status and ties to the Mexican 

Mafia to” Gonzalez and “command[ed] a presence of being very 

knowledgeable of the gang dynamics and the jail politics.” Flores 

further opined that defendants who encounter such agents 
23

realize “they are being questioned by somebody who can impact 

their jail experience” and that use of this tactic creates “an 

environment of duress and pressure to either fabricate or 

exaggerate their role in an alleged crime.” The trial court ruled 

that Flores’s testimony was not relevant because only defendants 

could testify as to the effect the Perkins agents had on them.

The trial court properly concluded that Flores’s testimony 

was not relevant to determining whether Gonzalez or Escalante 

felt pressured to fabricate their involvement in the crimes. An 

expert may not testify regarding an individual’s subjective 

knowledge or intent. (People v. Killebrew (2002) 103 Cal.App.4th 

644, 647, disapproved on another ground in People v. Vang (2011) 

52 Cal.4th 1038, 1049.) The trial court’s exclusion of Flores’ 

testimony was not an abuse of discretion.

II. Admission of defendants’ Perkins hearsay statements 

against each other under Evidence Code section 1230

The trial court did not abuse its discretion by admitting 

defendants’ Perkins statements implicating each other under the 

hearsay exception provided in Evidence Code section 1230.

A. Proceedings below

At a hearing on a motion by Gonzalez to sever his case from 

Escalante’s, the trial court and counsel for defendants discussed 

whether Escalante’s statements to the Perkins agent were 

admissible as declarations against penal interest. Gonzalez’s 

counsel argued the statements were not against Escalante’s 

interest because Escalante minimized his role and shifted the 

blame for the shootings to Gonzalez. The trial court ruled the 

statements were admissible, noting that while Escalante denied 

being the shooter, “[h]e admitted to everything else . . . .”
24

At trial, Escalante objected on hearsay and due process 

grounds to statements by Gonzalez that implicated Escalante. 

Gonzalez also renewed his objection to statements made by 

Escalante. The trial court overruled the objections.

B. Applicable law and standard of review

Evidence of a statement made other than by a witness 

while testifying and “offered to prove the truth of the matter 

stated” is inadmissible unless it comes within a hearsay 

exception. (Evid. Code, § 1200.) The exception relevant here, set 

forth in Evidence Code section 1230, provides that when the 

“declarant is unavailable as a witness and the statement, when 

made, . . . so far subjected him to the risk of . . . criminal 

liability . . . that a reasonable man in his position would not have 

made the statement unless he believed it were true.” (Evid. 

Code, § 1230.)

“[A] person’s interest against being criminally implicated 

gives reasonable assurance of the veracity of his statement made 

against that interest.” (People v. Spriggs (1964) 60 Cal.2d 868, 

874.) “‘In determining whether a statement is truly against

interest within the meaning of Evidence Code section 1230, and 

hence is sufficiently trustworthy to be admissible, the court may 

take into account not just the words but the circumstances under 

which they were uttered, the possible motivation of the declarant, 

and the declarant’s relationship to the defendant.’” (People v. 

Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) “There is no litmus 

test for the determination of whether a statement is trustworthy 

and falls within the declaration against interest exception.” 

(People v. Greenberger (1997) 58 Cal.App.4th 298, 334 

(Greenberger).) The trial court should “‘look to the totality of the 

circumstances in which the statement was made, whether the 
25

declarant spoke from personal knowledge, the possible 

motivation of the declarant, what was actually said by the 

declarant and anything else relevant to the inquiry.’” (People v. 

Arauz (2012) 210 Cal.App.4th 1394, 1400 (Arauz).)

We review the trial court’s decision to admit evidence under 

Evidence Code section 1230 for abuse of discretion. (Grimes, 

supra, 1 Cal.5th at p. 711.) The decision “‘“‘will not be disturbed 

except on a showing the trial court exercised its discretion in an 

arbitrary, capricious, or patently absurd manner that resulted in 

a manifest miscarriage of justice.’”’” (People v. McCurdy (2014) 

59 Cal.4th 1063, 1108.)

C. No abuse of discretion

The trial court did not abuse its discretion by admitting 

defendants’ respective Perkins statements in their entirety. Our 

Supreme Court has rejected “a rigid or hypertechnical . . . rule 

that would in all cases require exclusion of even those portions of 

a confession that are inextricably intertwined with the 

declarant’s admission of criminal liability.” (Grimes, supra, 1 

Cal.5th at p. 716.) The Supreme Court explained that “the 

nature and purpose of the against-interest exception does not 

require courts to sever and excise any and all portions of an 

otherwise inculpatory statement that do not ‘further incriminate’ 

the declarant.” (Ibid.)

Gonzalez’s and Escalante’s respective statements 

implicating each other in the crimes were inextricably entwined. 

Escalante repeatedly stated that he drove and Gonzalez shot at 

the victims. He told the Perkins agent: “I remember what 

happened that day. We drove around. I was driving. He shot 

again, this nigga. I’m not gonna go down for this nigga like that.” 

Escalante reiterated, “He shot. I drove.” He later stated: “he 
26

[(Gonzalez)] lit them up. And I remember I put the car in 

neutral . . . . Then I put it in drive, and we took off.”

Escalante also indicated that he knew Gonzalez intended to 

shoot the victims. Escalante told the Perkins agent that when 

defendants initially encountered the victims, Gonzalez had been 

driving and Escalante was the passenger. They switched places 

before returning to the victims’ location “[b]ecause [Gonzalez] 

wanted to bust, and I let him . . . . [¶] . . . [¶] . . . He’s like, ‘Let 

me bust.’ So I was, like, all right . . . .’”

Escalante’s statements inculpating both himself and 

Gonzalez in the driveby shootings, were not, as Gonzalez 

contends, purely self-serving. Identifying Gonzalez as the 

shooter and himself as the driver necessarily implicated 

Escalante as an aider and abettor to murder. People v. Gallardo 

(2017) 18 Cal.App.5th 51 (Gallardo), on which Gonzalez relies, is 

distinguishable. The declarant in that case told informants that 

he waited around the corner in a getaway vehicle while two other 

codefendants shot the victims from a separate vehicle. (Id. at 

p. 55.) The court in Gallardo concluded the declarant’s 

statements, which provided conflicting versions of the crime, 

were “too ‘“self-serving and unreliable”’” to qualify as declarations 

against penal interest. (Id. at pp. 74-76.) Here, in contrast, 

Escalante made no attempt to mitigate his role in the crimes. He 

admitted knowing in advance that Gonzalez intended to shoot the 

victims and further admitted to driving the vehicle from which 

the shots were fired. Escalante’s admissions about his 

involvement in the crimes were not conflicting. He consistently 

said that he drove and that Gonzalez shot at the victims.

Gonzalez’s statements implicating Escalante as the driver 

were similarly entwined with admissions that Gonzalez was the 
27

shooter. Gonzalez identified Escalante as his crime partner. 

When the Perkins agent asked “who was with you?” during the 

shooting, Gonzalez responded, “My boy. [¶] . . . [¶] . . . The 

homie’s that right here.” The following exchange then occurred:

“PA 2: Oh, the one you said, Rascal?

“RICARDO GONZALEZ: Yeah.

“PA 2: And he—what—what was he, he was 

the shooter or the driver?

“RICARDO GONZALEZ: He was the 

driver. . . . [¶] . . . [¶]

“PA 1: Oh, so he let you bust? . . .

“RICARDO GONZALEZ: Well, I told him, 

‘Hey, fool, drive.’”

We are unpersuaded by Escalante’s argument that 

Gonzalez’s Perkins statements should have been redacted to 

exclude not only statements implicating Escalante but also those 

portions purportedly irrelevant to the subject crimes, including 

statements about a separate shooting in which Gonzalez was the 

driver and Escalante was the passenger, and Gonzalez’s 

statements about girls. Gonzalez’s conversation with the Perkins 

agents, including those portions challenged by Escalante, were 

relevant to defendants’ arguments that their admissions were 

false or exaggerated because of the Perkins agents’ intimidation. 

The transcript of Gonzalez’s conversation with the agents 

indicates that the conversation was cordial, that Gonzalez 

volunteered information to the agents, and that he often laughed 

and joked with them. The nature and tone of Gonzalez’s 

conversation with the agents are indicia of the reliability and 

inherent trustworthiness of his statements. (See Idaho v. Wright

(1990) 497 U.S. 805, 822-823.)
28

D. No constitutional violation

Defendants’ due process challenge to the admission of their 

statements, premised on their alleged unreliability, fails because 

the statements qualify as declarations against penal interest. 

Such statements “must be genuinely and specifically inculpatory 

of the declarant; this provides the ‘particularized guarantee of 

trustworthiness’ or ‘indicia of reliability’ that permits its 

admission in evidence.” (Greenberger, supra, 58 Cal.App.4th at 

p. 329.)

Admission of defendants’ Perkins statements implicating 

each other did not violate their Sixth Amendment right to 

confront witnesses. The confrontation clause is concerned solely 

with hearsay statements that are testimonial. (Davis v. 

Washington (2006) 547 U.S. 813, 823-825; People v. Cage (2007) 

40 Cal.4th 965, 981.) To be testimonial, the statement must have 

been given “under circumstances that imparted, to some degree, 

the formality and solemnity characteristic of testimony” given by 

witnesses at trial. (Cage, supra, at p. 984.) In addition, “the 

statement must have been given and taken primarily for the 

purpose ascribed to testimony—to establish or prove some past 

fact for possible use in a criminal trial.” (Ibid.) “Although the 

declarant and the interrogator’s perspectives are both relevant to 

determining the ‘primary purpose’ of the statement [citation], it 

is ‘“in the final analysis the declarant’s statements, not the 

interrogator’s questions, that the Confrontation Clause requires 

us to evaluate.” [Citation.]’ [Citation.] The Sixth Amendment 

applies when the statement, rather than the question that 

elicited it, was made ‘“with some degree of formality or 

solemnity.”’” (Gallardo, supra, 18 Cal.App.5th at pp. 67-68.)
29

Applying these principles, California courts have held that 

statements given under similar circumstances as those presented 

here were nontestimonial, and therefore not subject to the Sixth 

Amendment right to confront witnesses. (See, e.g., Gallardo, 

supra, 18 Cal.App.5th at pp. 67-68; Arauz, supra, 210 

Cal.App.4th at p. 1399.) The courts in these cases concluded the 

defendants’ statements to informants were nontestimonial 

because, regardless of the informant’s intent in asking the 

questions, there was no evidence the defendants knew or 

suspected that the informants were agents of the police, or that 

their statements might be used at trial. (Gallardo, at pp. 67-68; 

Arauz, at p. 1399.) California law on this issue is in accord with 

federal court decisions that have found statements made to 

informants under analogous circumstances to be nontestimonial. 

(See U.S. v. Dale (8th Cir. 2010) 614 F.3d 942, 956; U.S. v. 

Watson (7th Cir. 2008) 525 F.3d 583, 589; U.S. v. Udeozor (4th 

Cir. 2008) 515 F.3d 260, 269-270; U.S. v. Underwood (11th Cir. 

2006) 446 F.3d 1340, 1347-1348; U.S. v. Hendricks (3d Cir. 2005) 

395 F.3d 173, 182-184; U.S. v. Saget (2d Cir. 2004) 377 F.3d 223, 

229-230.)

Here there is no evidence that defendants knew they were 

speaking to police informants, or otherwise anticipated their 

statements would be used prosecutorially. Their statements 

accordingly were nontestimonial, and do not implicate the Sixth 

Amendment right to confrontation.

E. No prejudice

Finally, defendants fail to establish prejudice resulting 

from any allegedly erroneous admission of their Perkins 

statements. (See People v. Jennings (2010) 50 Cal.4th 616, 652 

[alleged constitutional error under Crawford v. Washington
30

(2004) 541 U.S. 36 subject to harmless error standard].) 

Defendants’ respective Perkins statements corroborated each 

other in all material respects. (See Idaho v. Wright, supra, 497 

U.S. at p. 823 [corroborating evidence appropriate indicator that 

any error in admitting statement was harmless].) Both admitted 

that Gonzalez was the shooter and Escalante was the driver. 

Both stated that Gonzalez subsequently sold the gun he used in 

the shooting.

Defendants’ Perkins statements were further corroborated 

by their recorded conversation with each other when they were 

subsequently placed in nearby cells. Escalante repeatedly 

confirmed that he was the driver when the crimes were 

committed. Gonzalez reiterated that he had changed the license 

plates on the Honda Civic before the shooting and that he had 

used a Smith and Wesson “Nina,” or nine-caliber firearm.

In light of the evidence, any error was harmless beyond a 

reasonable doubt. (People v. Jennings, supra, 50 Cal.4th at 

p. 652.)

III. Limiting discovery and testimony regarding the 

Perkins operation

Defendants contend the trial court violated their 

constitutional right to present a defense by precluding discovery 

of the identity of the Perkins agents, restricting crossexamination of witnesses regarding the Perkins agents, and 

limiting the testimony of their gang expert. The record discloses 

no abuse of discretion or constitutional violation. Defendants, 

moreover, fail to establish prejudice resulting from any alleged 

error.
31

A. Proceedings below

Gonzalez filed a motion pursuant to section 1054.1 seeking 

discovery of all documents relating to the Perkins operation. At 

the April 25, 2017 hearing on the motion, Judge Kim ruled that 

defendants were not entitled to discover the identity of the 

Perkins agents unless they could demonstrate the agents were 

material witnesses. Judge Kim further ruled, however, that 

defendants were entitled to know whether law enforcement 

officers met with the Perkins agents, what information was 

disclosed to the agents, and the manner in which the Perkins 

operation was held.

Gonzalez’s counsel indicated on July 13, 2017, that he had 

received a report regarding the Perkins operation, but the report 

was insufficient. The trial court advised Gonzalez’s counsel that 

he could file a motion attaching the report, and if cause was 

shown, the court would issue a further order to produce.

Gonzalez filed a second discovery motion, which Escalante 

joined, seeking any reports and notes prepared by the officers 

who conducted the Perkins operation, all case names and 

numbers of other Perkins operations conducted by the agents 

used in defendants’ operation, whether the agents had been 

involved in other operations in which there were allegations of 

coercion, the identity of the officers who briefed the agents and 

where the briefing occurred, and the identity of the officer who 

controlled the audio recording device used during the Perkins 

operation. The motion stated that Gonzalez’s counsel had 

received a report prepared by Detective Lackovic and 

summarized the following information from the report: The 

Perkins operation was conducted under the direction of 

Detectives Lackovic, Cortes, and Irving; the operation lasted for 
32

approximately two and a half hours; the Perkins agents were 

briefed on the pertinent facts of the case, including that the 

murder involved a driveby shooting, Gonzalez’s known gang ties, 

and the victims’ identities and known gang ties; the Perkins 

agents were not told the caliber of the gun or the type of car used; 

the entire operation was audio-recorded, and any breaks in the 

recording were initiated by one of the officers after the Perkins 

agents were removed from the cell; there was no recorded video 

for the operation.

At the October 3, 2017 hearing on the motion, the 

prosecutor represented that defense counsel had been provided 

all reports regarding the Perkins operation. The trial court 

directed the prosecutor to disclose additional information as to 

who was present when the Perkins agents were briefed, where 

the briefing took place, who controlled the recording device, and 

whether detectives listened to the audio as it was being recorded. 

The court otherwise denied the motion.

At trial, during cross-examination of Detective Irving, the 

trial court sustained relevance objections to defense counsel’s 

questions as to whether the larger Perkins agent had previously 

been in custody, whether Detective Irving had used that agent 

previously, whether the agents had been paid more than 

$300,000 in the last four years, whether the agents were known 

as “Puppet” and “Bouncer,” and whether they were former gang 

members.

Also at trial, the prosecutor objected to possible testimony 

by defendants’ gang expert Flores as to whether a gang member 

would be afraid of another other gang member during a Perkins 

operation, and, because of such fear, confess to a crime he did not 

commit. The prosecutor argued that there was no evidence that 
33

defendants had confessed because they were afraid of the Perkins 

agents.

Escalante’s counsel argued that Flores was a gang expert 

who could testify about perceived threats by a young person 

placed in a jail setting with a much larger, heavily tattooed 

inmate. Flores could also testify about a young gang member’s 

mindset in trying to impress such an inmate.

The trial court ruled that Flores could not testify as to the 

fear a person would feel in a jail cell with another gang member 

“because that’s just common sense . . . . You can just argue it.” 

The trial court noted that Flores was not an expert in psychology. 

The court further ruled that Flores could not testify about 

defendants’ positions in any gang hierarchy, because Flores had 

not interviewed defendants. The court indicated that defense 

counsel could have Flores opine based on hypothetical facts, “just 

like a hypothetical was presented to the [prosecution’s] gang 

expert.”

Based on the trial court’s ruling, defendants’ counsel 

decided not to call Flores as a witness.

B. No abuse of discretion or constitutional 

violation

Section 1054.1 requires the prosecution to disclose to the 

defense certain categories of evidence in its possession, including 

“[t]he names and addresses of persons the prosecutor intends to 

call as witnesses at trial,” and “[a]ny exculpatory evidence.” 

(§ 1054.1, subds. (a), (e).) An appellate court generally reviews a 

trial court’s ruling on discovery matters for abuse of discretion. 

(People v. Thompson (2016) 1 Cal.5th 1043, 1105.)
34

1. Identity of Perkins agents

The record discloses no abuse of discretion. The 

prosecution did not intend to call the Perkins agents as witnesses 

at trial, and defendants fail to establish that disclosing the 

identity of the agents or the agents’ participation in other Perkins 

operations would lead to any exculpatory evidence.

Defendants contend the trial court’s rulings impaired their 

ability to challenge the reliability of their inculpatory statements 

to the Perkins agents. Defendants claim they should have been 

allowed to present to the jury the circumstances under which 

defendants’ statements were made. According to defendants, 

relevant circumstances include the larger agent’s exact height, 

the agents’ nonverbal behaviors and demeanor, the agents’ 

understanding of their instructions for the operation, the layout 

of the cells, and the agents’ proximity to defendants during the 

operation.

The trial court’s rulings did not preclude defendants from 

presenting the evidence they claim to have been denied. 

Defendants had the opportunity to elicit testimony concerning 

the Perkins operation by cross-examining Detective Irving, who 

oversaw the operation and testified at trial. Irving testified on 

cross-examination that he watched the entire Perkins operation 

via a live video monitor. Defendants had the opportunity to 

question Irving about the operation, including any instructions 

given to the agents, the agents’ nonverbal behaviors and 

demeanor, the cell layout, and the agents’ proximity to 

defendants. The agents’ names, their participation in previous 

Perkins operations, and whether they were former gang members 

were not relevant to the circumstances in which defendants’ 

statements were made.
35

Defendants were not precluded from presenting evidence 

concerning the larger agents’ height relative to that of 

defendants. The jury heard through Detective Irving’s testimony 

that the larger agent was approximately six feet tall and weighed 

300 pounds. The jurors could also see defendants, who were 

present in court.

Crane v. Kentucky (1986) 476 U.S. 683, on which 

defendants rely, is distinguishable. In that case, which involved 

a police interrogation, not a Perkins operation, the Supreme 

Court held that the trial court erred in precluding the defendant 

from eliciting testimony about the physical circumstances in 

which his confession was obtained. (Id. at p. 691.) These 

circumstances included the defendant’s detention in a windowless 

room for a protracted period of time, surrounded by as many as 

six police officers during the interrogation, and repeatedly being 

denied permission to telephone his mother. (Id. at p. 685.) The 

defendant’s resulting confession encompassed “a host of local 

crimes,” including shooting a police officer, several robberies, and 

murder committed during a robbery. (Id. at p. 684.) The 

defendant’s confession was also full inconsistencies. (Id. at 

p. 685.)

Defendants’ inculpatory statements in this case were not 

obtained during a police interrogation. Defendants were not 

precluded from presenting evidence of the physical circumstances 

in which their statements were made. The evidence defendants 

were precluded from presenting—the identity of the Perkins 

agents—was not relevant to the claim that their statements were 

coerced.
36

2. Limitation of expert testimony

The trial court did not abuse its discretion by limiting 

proposed testimony by defendants’ gang expert, Flores. “‘A 

witness is qualified to testify about a matter calling for an expert 

opinion if his peculiar skill, training, or experience enable him to 

form an opinion that will be useful to the jury.’ (People v. Davis

(1965) 62 Cal.2d 791, 800.) The question becomes whether the 

expert opinion given was helpful to the trier of fact. The 

reception of expert opinion testimony is within the sound 

discretion of the trial court. (People v. Haeussler (1953) 41 Cal.2d 

252, 261, overruled on other grounds in People v. Cahan (1955) 44 

Cal.2d 434.) Even though facts may be within the knowledge or 

understanding of the trier of fact, the conclusions to be drawn 

therefrom may require expert testimony. (Wells Truckways v. 

Cebrian (1954) 122 Cal.App.2d 666, 677; 1 Witkin, Cal. Evidence

(3d ed. 1986) The Opinion Rule, § 474, pp. 445-446.) ‘The decisive 

consideration in determining the admissibility of expert opinion 

evidence is whether the subject of inquiry is one of such common 

knowledge that [persons] of ordinary education could reach a 

conclusion as intelligently as the witness or whether, on the other 

hand, the matter is sufficiently beyond common experience that 

the opinion of an expert would assist the trier of fact.’ [Citation.] 

An expert’s opinion is admissible when ‘[r]elated to a subject that 

is sufficiently beyond common experience that the opinion of an 

expert would assist the trier of fact.’ (Evid. Code, § 801, subd. 

(a).)” (People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227.) 

The trial court’s ruling that a young gang member would be 

intimidated or afraid when placed in a cell with another gang 

member was a matter of “common experience,” obviating the need 

for expert testimony and was not an abuse of discretion. (Ibid.)
37

Defendants’ comparison of Flores’s proposed testimony to 

that of the prosecution’s gang expert, Detective Fuentes, 

underscores the difference between matters of common 

knowledge and those that are “sufficiently beyond common 

experience that the opinion of an expert would assist the trier of 

fact.” (Evid. Code, § 801, subd. (a).) Fuentes testified that a 

Hispanic gang member in county jail would be expected to align 

with “Southsiders.” If he instead aligned with the “paisas,” he 

would be beaten. The dynamics of gang alignments and 

affiliations is a matter sufficiently beyond common experience 

that expert testimony would assist the jury. Fear of another 

gang member in a cell, on the other hand, is not beyond the 

common knowledge of the jury.

3. No prejudice

Defendants fail to establish prejudice resulting from the 

alleged evidentiary errors. (People v. Bacon (2010) 50 Cal.4th 

1082, 1104, fn. 4. [“[O]nly evidentiary error amounting to a 

compete preclusion of a defense violates a defendant’s federal 

constitutional right to present a defense”]; People v. McNeal 

(2009) 46 Cal.4th 1183, 1203 [rejection of some evidence 

concerning a defense reviewed for harmless error under People v.

Watson (1956) 46 Cal.2d 818, 836 (Watson)].)

Defendants were not precluded from presenting evidence 

concerning the gang dynamics in a jail setting. During crossexamination of Detective Irving, defendants elicited testimony 

that gang members do not want to be perceived as a “wimp” in 

jail and that, the more serious their crime, the greater respect 

they garner.

As discussed earlier, defendants’ inculpatory statements 

corroborated each other. Both admitted Gonzalez was the 
38

shooter and Escalante the driver. Defendants’ subsequent 

conversation with each other corroborated their earlier individual 

statements.

In light of the evidence as a whole, defendants fail to 

establish that the trial court’s evidentiary rulings denied them 

the ability to present a defense or constituted prejudicial error.

IV. Alleged judicial misconduct

Defendants’ claims that judicial misconduct undermined 

the credibility of their eyewitness identification expert, and that 

the trial court improperly presided over their motions for a new 

trial fail because they demonstrate no prejudice as the result of 

the alleged misconduct.

A. Proceedings below

Dr. Pezdek testified for the defense as an eyewitness 

identification expert. During Pezdek’s testimony, the trial court 

interrupted, stating, “No. No examples. You’ve answered the 

question.” Later, after overruling an objection, the trial court 

told Pezdek, “But let’s just give a short answer, please.” Pezdek’s 

response to a previous question had been lengthy. After several 

subsequent lengthy responses by Pezdek, the trial court, after 

overruling an objection, stated, “But I would like answers that 

are under five minutes, so let’s move it along, please.” Pezdek 

continued to give lengthy responses. Overruling another 

objection, the trial court told Pezdek, “You have one minute to 

finish your answer.” Later, after Pezdek answered another 

question, the trial court stated, “All right. I’ve heard it twice 

now. Next question, please, and then we’re going to take a 

break.”

During the break, defendants’ attorneys moved for a 

mistrial. Gonzalez’s counsel stated, “The court’s demeanor 
39

comments, rushing . . . the defense witness . . . I believe is really 

exhibiting a sense of impatience and hostility towards the field of 

eyewitness identification and this witness, and . . . I feel it’s being 

conveyed to the jury.” The trial court denied the mistrial motion.

When Pezdek’s testimony resumed, Escalante’s counsel 

asked about the correlation between a witness’s confidence and 

accuracy. The trial court sustained an objection, stating, “I don’t

think that can be given.” Counsel then asked if there was some 

correlation between memory and an expressed level of confidence. 

Following another objection, the trial court said, “All right. One 

moment. Don’t answer that. Excuse me for just a second.”

After a pause in the proceedings, the trial court returned to 

the courtroom and apologized to the jury for the interruption. 

Escalante’s counsel asked to rephrase the last question. The 

court responded: “Well my concern here is that every situation is 

different. I don’t think that there could be a correlation. Every 

fact situation, every scenario is different, so—” The trial court 

then addressed Pezdek: “All right. Are you done shaking your 

head at me, madam witness?” Escalante’s counsel objected, and 

the court responded:

“No. You will not object. She laughed at me 

once, and now she’s shaking her head at me. I 

deserve just as much respect as a doctor deserves, so 

if you want to rephrase your question, you may 

rephrase it, but I don’t deserve to be laughed at from 

someone on the witness stand or have a head shaken 

at.”

The following sidebar discussion then occurred:

“The court: Your witness laughed at me 

earlier, before I got off the bench, which is one of the 

reasons why I got off the bench because she was 

laughing at me in my ruling. I don’t deserve that. [¶] 
40

Just now, when I was making my ruling, I don’t 

deserve her shaking her head at me. I’m sorry it 

reflects badly on her, but too bad.

“[Counsel]: For the record, Your Honor, I was 

looking at Dr. Pezdek. I didn’t see her laughing, nor 

did I observe her shaking her head.”

Defendants made another motion for mistrial, which the 

trial court denied, stating:

“I’m sorry, but your witness reflects on your 

clients’ credibility and your case. If your witness is 

not schooled enough not to laugh at the judge or to 

not agree with one of my answers, that’s on you and 

that’s on her. [¶] As a judge, I demand respect in my 

courtroom. . . . [¶] I’m not going to sit here and be 

offended by your witness in front of my jury. Now, 

your witness has been testifying perfectly fine, but 

for the fact that she repeats her answers three times, 

and this court does have the right to limit testimony 

and move things along. [¶] But I’m sorry, I’m not 

granting a mistrial for something your witness did to 

me.”

Pezdek resumed her testimony after the sidebar discussion. 

After the noon recess, the trial court addressed the jury: “Ladies 

and gentlemen, I’d like to just read to you a couple of things prior 

to starting. I won’t deny this morning that I was suffering from a 

minor health affliction. My patience may have been a tad short, 

so I apologize for that.”

The court then instructed the jurors as follows: “Please do 

not take anything I say or do during the trial as any indication of 

what I think about the facts, the witnesses—I’ll also include the 

attorneys—or what your verdict should be.”

The court then read CALCRIM No. 315, the jury 

instruction on eyewitness identification.
41

After the verdicts but before sentencing, defendants filed a 

motion for a new trial. Escalante also filed a challenge for cause 

under Code of Civil Procedure section 170.1, seeking to recuse 

Judge Meyer from hearing the motion. Judge Meyer ordered the 

cause challenge stricken as untimely and facially insufficient. 

The court also denied the new trial motion.

In its written order, the court stated:

“In this case, the Court has not expressed 

favoritism for or antagonism against any of the 

parties in this case; indeed, as Defendant notes, the 

undersigned expressed regret regarding her short 

patience during witness testimony and made jury 

instructions to that effect. The undersigned believes 

that she can preside over this case with impartiality, 

and she has an ethical obligation to do so, because 

there is no legal reason for her recusal.”

The court also stated under oath, “I am not prejudiced or 

biased against or in favor of any party to this proceeding or their 

counsel.”

B. No prejudice

A defendant seeking reversal due to alleged judicial 

misconduct must establish prejudice. (People v. Abel (2012) 53 

Cal.4th 891, 914.) Prejudice must be determined by considering 

all the surrounding circumstances, not simply a determination 

that “‘“‘the trial judge’s conduct left something to be desired, or 

even [that] some comments would have been better left unsaid. 

Rather, we must determine whether the judge’s behavior was so 

prejudicial that it denied [the defendant] a fair, as opposed to a 

perfect, trial.’”’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1321 

(Seumanu).) Prejudice is established only when it is reasonably 

probable the jury would have reached a different verdict had the 

court refrained from the challenged conduct. (People v. Harris
42

(2005) 37 Cal.4th 310, 350-351, citing Watson, supra, 46 Cal.2d at 

p. 836.) We conclude from our review of the entire record that a 

different verdict was not reasonably probable.

The trial court instructed the jury not to take its words or 

actions as indicating its view of the facts, the witnesses, or the 

attorneys. The court then read the jury instruction on eyewitness 

identification. Jurors are presumed to understand and follow the 

court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)

The crucial and overwhelming evidence against defendants 

was their admissions during the Perkins operation and their 

subsequent jail conversation between themselves. Based on our 

review of the record, we conclude it is not reasonably probable 

that the jury would have reached a different result had the trial 

court not directed its comments toward Dr. Pezdek.

C. Denial of new trial motions

The trial court did not abuse its discretion in denying 

defendants’ motions for a new trial, based on the alleged judicial 

misconduct discussed above. A trial court is vested with 

considerable discretion in ruling on a motion for mistrial, which 

should be granted only if the trial court finds that the defendant’s 

chances of receiving a fair trial have been irreparably damaged. 

(People v. Dement (2011) 53 Cal.4th 1, 39, disapproved on another 

ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) As we 

have already rejected defendants’ claim of judicial misconduct 

and have found no prejudice, we also find no abuse of discretion.

D. Challenge for cause

Denial of a challenge for cause under Code of Civil 

Procedure section 170.1 is reviewable only by writ of mandate. 

(Code Civ. Proc., § 170.3, subd. (d); People v. Freeman (2010) 47 

Cal.4th 993, 1000.) Defendants did not seek a writ of mandate 
43

and therefore forfeited any statutory claim of error. (Freeman, at 

p. 1000.) Their basis for seeking appellate review of the recusal 

motion is the purported denial of the due process right to a fair 

trial. (People v. Peoples (2016) 62 Cal.4th 718, 787 (Peoples) 

[appellate court may review order denying motion to disqualify to 

the extent it concerns constitutional rights to due process].)

“‘[T]he [federal] due process clause operates more narrowly’

than Code of Civil Procedure section 170.1, subdivision 

(a)(6)(A)(iii) and justifies judicial disqualification only under the 

‘“most ‘extreme facts.’”’ [Citations.] To establish a federal due 

process violation, ‘“there must exist ‘“the probability of actual 

bias on the part of the judge.”’”’” (Peoples, supra, 62 Cal.4th at 

p. 787.)

The record here discloses no extreme facts or probability of 

actual bias on the part of Judge Meyer. Judge Meyer 

acknowledged that she had been short on patience and apologized 

to the jury. She instructed the jury not to take her statements or 

conduct as an indication of the court’s views about the facts, the 

witnesses, or the attorneys. At the hearing on the new trial 

motions, Judge Meyer acknowledged that her “testy” behavior 

may not have been appropriate but stated her belief that the 

instructions to the jury had rectified any error. Finally, Judge 

Meyer submitted a statement under oath that she was not biased 

for or against any party. We find no due process violation under 

these circumstances.

V. Trial court’s statements during jury selection

A. Forfeiture

Defendants arguably forfeited their right to challenge the 

trial court’s statements during jury selection by failing to object. 

(Seumanu, supra, 61 Cal.4th at p. 1357 [challenge to trial court’s 
44

comments during voir dire is claimed judicial error, not 

instructional error, forfeited by failure to timely object].) 

Defendants contend, however, the trial court’s comments 

concerning reasonable doubt, the presumption of innocence, and 

the right not to testify misinstructed the jury and can be 

challenged under section 1259. That statute allows an appellate 

court, absent an objection in the trial court, to “review any 

instruction given, refused or modified, even though no objection 

was made thereto in the lower court, if the substantial rights of 

the defendant were affected thereby.” (§ 1259; see People v. 

Brown (2003) 31 Cal.4th 518, 539, fn. 7.) We exercise our 

discretion under section 1259 to address defendants’ arguments.

B. Proceedings below

On May 7, 2018, at the beginning of jury selection, the trial 

court discussed with prospective jurors a criminal defendant’s 

right to a trial, the presumption of innocence, and the right 

against self-incrimination. The court told the first panel of 

prospective jurors that the presumption of innocence “basically 

means . . . a person is absolutely presumed innocent up to and 

until 12 jurors unanimously decide differently that that person is 

guilty.” The court then proceeded to explain what that concept 

meant in the prospective jurors’ “everyday lives.” 

To illustrate the presumption, the trial court told a story 

about a dog that fell out of a friend’s car window onto the 

freeway. After the friend pulled over to the freeway shoulder, a 

CHP officer pulled up behind him. The court then addressed the 

prospective jurors as follows:

“Now, if you had been driving down that 

freeway at the time that you saw my friend’s car on 

the side of the freeway, and then you saw a CHP 

officer on the side of the freeway with lights and 
45

sirens on the side, come on, what’s the first thing 

you’re going to think, ‘Oh, I bet he was speeding.’ 

‘Oh, I bet he was in the carpool lane alone.’”

The trial court continued:

“We think the worst, don’t we? We think, 

‘What did that person do?’ We’re already making 

presumptions that person did something, and 

usually, something bad. [¶] Well, that’s not giving 

my friend the presumption of innocence at all, is it? 

No.”

The trial court then modified its example as a preface to its 

explanation of the right not to testify:

“So let’s just say, for argument’s sake, my 

friend on the side of the road was charged with some 

kind of a charge . . . and he exercises his right to a 

trial. [¶] . . . So the evidence shows, throughout the 

trial, that . . . a dog had . . . fallen out of the car, and 

maybe the charge is animal cruelty.

“But the dog fell out of the car. Even witnesses 

testify, you know, it was an accident or it looked like 

an accident. . . . [¶] At the end of the prosecution’s 

case-in-chief, they say, ‘Thank you, Your Honor. We 

have no more witnesses. We rest.’ And you could be 

thinking . . . to yourselves, at that point: ‘All right. 

There’s no case here. I don’t feel like the 

presumption of evidence has been eroded away—and 

certainly not to the level of proof beyond a reasonable 

doubt.’

“And by the way, the definition of ‘proof beyond 

a reasonable doubt’ is sort of that state of the 

evidence that leaves you with an abiding conviction of 

the truth of that charge. The only other definition 

that I allow in court is the idea that it’s a lasting 
46

belief in the truth of that charge. . . . [¶] . . . So let’s 

just say that’s the state of the evidence.

“Well, if the presumption of innocence is not 

gone, it has not been overcome by this very heavy 

burden called ‘proof beyond a reasonable doubt,’ then 

why on earth should the defendant have to testify to 

anything? It’s almost as if they’ve already testified, 

and they sat up here, and they said, ‘I’m innocent,’ 

and then got right back down.

“So the law is sort of already presuming you’ve 

heard the other side of the story, which is the 

presumption. Now, the presumption can be 

overcome, so please don’t get me wrong. I don’t mean 

to diminish the prosecution at all. . . . [I]t can be 

overcome.

“But the whole point is: if it hasn’t been 

overcome, then we don’t make a defendant actually, 

physically take a witness stand to have to say, ‘I’m 

innocent,’ and then get back down. The law 

essentially does it for you.”

The trial court added:

“So sometimes in criminal trials . . . I hear 

jurors say, ‘Well, I can’t vote because I will not 

necessarily have heard from the defendants.’ . . . [¶]

[I]f they choose not to testify—sometimes I get people 

who feel like, ‘Well, I haven’t heard both sides, so I 

can’t make a decision if I haven’t heard both sides.’ 

But the fact is you have. You have heard both sides. 

The law has given you the other side. And so in that 

respect, we don’t force a person to testify against 

themselves, and that’s part of the reason why we 

have that particular r[u]le.”

The trial court told the second panel of prospective jurors a 

story about her father-in-law, who had Alzheimer’s, to illustrate 
47

the presumption of innocence. The court then explained the right 

against self-incrimination and the presumption of innocence:

“Let’s just say, for argument’s sake, [the 

prosecutor] puts on his case. . . . [W]e have a couple 

of weeks’ worth of evidence, and then he says, ‘I’m all 

done, Your Honor. I rest,’ and I say, ‘Okay.’

“Now, although you’re not deliberating yet as a 

solid jury, you are, individually, maybe thinking to 

yourselves, and you’re allowed to ponder 

individually—‘. . .where was the crime? I don’t know 

that one of these two people did this. I’m still at a 

loss here.

“Let’s just say that’s the state of the evidence, 

and that’s what the defense feels the state of the 

evidence is, as well. So if the state of the evidence is 

that the presumption of innocence has not been 

overcome, then why on earth do you need to hear 

from any of the defendants in a trial because that 

presumption has not been overcome?

“It would be as if it was no different than one of 

them takes the stand, and says, ‘I’m innocent,’ and 

then he goes and sits down again. The law is already 

sort of giving you a little bit of what, theoretically, 

testimony could be, so you are actually hearing both 

sides. It’s just the law gives you the other side, and 

the other side is the presumption. So we do not force 

defendants to have to testify if they don’t want to. 

[¶] . . . [¶]

“But the idea is if the case is not there, and the 

defense feels that in that state of the evidence the 

presumption has not been overcome, you should not 

feel an abiding conviction of the truth of the charge at 

that point in time, then why are we bothering to hear 

from the defendants at all?
48

“In other words, they don’t have to prove their 

innocence. They are already presumed innocent.”

The next day, the trial court told the combined panel of 

prospective jurors about the reasonable doubt standard:

“The law does not require [the prosecutor] to 

prove this case beyond any shadow of a doubt or 

beyond all doubt. The law doesn’t require absolutes. 

The law just requires reasonableness, so proof beyond 

a reasonable doubt. It doesn’t even say ‘all 

reasonable doubt.’ It just says ‘a reasonable doubt.’”

On May 14, 2018, the trial court preinstructed the 

impaneled jurors. The court instructed the jury on the 

presumption of evidence and the burden of proof in accordance 

with CALCRIM No. 220:

“As we discussed during the voir dire, a 

defendant in a criminal case is presumed to be 

innocent, and this presumption requires that the 

People prove the defendant guilty beyond a 

reasonable doubt. [¶] Proof beyond a reasonable 

doubt is proof that leaves you with an abiding 

conviction that the charge is true. The evidence need 

not eliminate all possible doubt because everything in 

life is open to some possible or imaginary doubt.”

On May 24, 2018, after the close of evidence, the trial court 

instructed the jury pursuant to CALCRIM Nos. 220 and 355 on 

the presumption of innocence, the burden of proof beyond a 

reasonable doubt, and the right not to testify.

C. No reasonable likelihood the trial court 

diminished the burden of proof

In assessing defendants’ argument that the trial court’s 

comments diminished the prosecution’s burden of proof, the 

relevant question is whether “‘there is a reasonable likelihood 
49

that the jury understood the instructions [as a whole] to allow 

conviction based on’ insufficient proof.” (People v. Daveggio & 

Michaud (2018) 4 Cal.5th 790, 840 (Daveggio).)

1. Presumption of innocence and reasonable doubt

Defendants claim the trial court undermined the 

presumption of innocence and the reasonable doubt standard by 

suggesting the presumption could be “eroded away” or “overcome” 

by proof beyond a reasonable doubt when the prosecution rested. 

The presumption of innocence remains until a unanimous jury 

verdict finds guilt proven beyond a reasonable doubt. (People v. 

Cowan (2017) 8 Cal.App.5th 1152, 1159.) We find no reversible 

error.

The trial court told the first panel of prospective jurors that 

the presumption of innocence “basically means . . . a person is 

absolutely presumed innocent up to and until 12 jurors 

unanimously decide differently that that person is guilty.” The 

court similarly told the second panel of prospective jurors the 

“presumption lasts up to and until 12 jurors decide that that 

presumption has been overcome.”

Defendants contend the trial court diminished the 

reasonable doubt standard by stating: “The law doesn’t require 

absolutes. The law just requires reasonableness, so proof beyond 

a reasonable doubt. It doesn’t even say ‘all reasonable doubt.’ It 

just says ‘a reasonable doubt.’” Defendants also take issue with 

the trial court’s statements that a “blatant accusation” with “no 

proof” and “no trial” is the antithesis of the presumption of 

innocence; that the presumption of innocence is the equivalent of 

the defendant taking the stand and saying, “I’m innocent”; and 

the court’s request that jurors “give the presumption of innocence 
50

until you have more information” as incorrect statements of the 

law.

We reject defendants’ contentions that there is a reasonable 

likelihood the jury misapplied the law because of the trial court’s 

statements. The trial court’s statements during voir dire were 

“merely a portion of the guidance provided to prospective jurors—

let alone seated jurors—and the balance of the court’s 

instructions made clear that the People bore the burden of proof 

beyond a reasonable doubt.” (People v. Potts (2019) 6 Cal.5th 

1012, 1039.) The impaneled jurors were repeatedly instructed on 

the principles of reasonable doubt and presumption of innocence 

once the trial began. Considering the instructions given and the 

evidence presented at trial, it is not reasonably probable that the 

jury misapplied the law. (People v. Holt (1997) 15 Cal.4th 619, 

662 [trial court’s description of the reasonable doubt standard did 

not “create such an indelible impression on prospective jurors” 

that they were unable to follow specific instructions given when 

case was submitted to the jurors for decision].) “Indeed, even 

instructions during trial that misdescribe the burden of proof 

may, in light of other instructions, leave no reasonable likelihood 

that the jury misunderstood the proof required.” (Daveggio, 

supra, 4 Cal.5th at p. 842.)

Defendants next contend the trial court erred by suggesting 

jurors could individually reach a conclusion about whether the 

presumption of innocence had been overcome when the 

prosecution rested, in violation of their duty not to form an 

opinion about the case until deliberations. We find no error.

Defendants incorrectly equate thinking about the case with 

jury deliberations. “A juror who holds a preliminary view that a 

party’s case is weak does not violate the court’s instructions so 
51

long as his or her mind remains open to a fair consideration of 

the evidence, instructions, and shared opinions expressed during 

deliberations.” (People v. Allen and Johnson (2011) 53 Cal.4th 

60, 73.) As our Supreme Court stated in People v. Ledesma

(2006) 39 Cal.4th 641, 729, “it would be entirely unrealistic to 

expect jurors not to think about the case during the trial and 

when at home.” The high court in that case found no error in the 

trial court’s comments when excusing the jury for the day that 

they could continue to think about the case, but they could not 

communicate their thoughts to anyone until they were together 

again for deliberation. (Ibid.)

The trial court in this case preinstructed the impaneled 

jurors to “keep an open mind throughout the trial” and 

admonished, “[d]o not make up your mind about the verdict or 

any issue until after you have discussed it with your fellow jurors 

and only after deliberations.” We presume the jury followed the 

court’s instructions. (People v. Washington (2017) 15 Cal.App.5th 

19, 26 (Washington).)

2. Right not to testify

Defendants contend the trial court diminished the right not 

to testify by suggesting a defendant need not testify if, at the 

close of the prosecution’s case, guilt had not been proven beyond a 

reasonable doubt. “By negative implication,” defendants argue, 

the trial court suggested that “if the prosecution had provided 

proof of guilt beyond a reasonable doubt when it rested, the 

defendant would need to testify.”

“A defendant challenging an instruction as being subject to 

erroneous interpretation by the jury must demonstrate a 

reasonable likelihood that the jury understood the instruction in 
52

the way asserted by the defendant.” (People v. Cross (2008) 45 

Cal.4th 58, 67-68.) Defendants fail to do so.

The trial court discussed one scenario in which a defendant 

may choose not to testify. The court was not obligated, as 

defendants claim, to present other scenarios and other reasons 

not to testify. The trial court’s comments, moreover, must be 

considered in the context of the trial record as a whole to 

determine whether there is a reasonable likelihood the jury 

misapplied the court’s instructions. (See People v. Houston (2012) 

54 Cal.4th 1186, 1229.) The court also told the prospective jurors 

that under the Fifth Amendment, “we don’t make someone who is 

accused of a crime have to testify against him or herself in a 

trial.” The trial court told the second panel, “we do not force 

defendants to have to testify if they don’t want to.” The court 

also formally instructed the impaneled jurors on the right not to 

testify pursuant to CALCRIM No. 355 before deliberations began. 

As a general rule, courts presume that juries can and will 

dutifully follow instructions they are given. (Washington, supra, 

15 Cal.App.5th at p. 26; see Daveggio, supra, 4 Cal.5th at p. 842 

[comments made during jury selection are less significant than 

instructions at the close of evidence].) The record discloses no 

reversible error.

VI. Alleged instructional and prosecutorial error

Defendants contend the trial court erred by instructing the 

jury pursuant to CALCRIM No. 315 in effect at the time of the 

trial, which contained a “misleading implication” that an 

eyewitness who is more certain of his or her identification is more 

likely to be accurate. Defendants further contend the prosecutor 

exploited this misleading implication during cross-examination of 

defendants’ eyewitness expert.
53

We find no judicial or prosecutorial error.

A. Proceedings below

During Dr. Pezdek’s testimony, the trial court instructed 

the jury with the then operative version of CALCRIM No. 315, 

which asked the jury to consider, among 14 other factors, “how 

certain was the witness when he or she made an identification?”9 

The prosecutor then cross-examined Dr. Pezdek:

“Q. [Y]ou indicated that percentage or 

confidence is only relevant at the initial point of—

right after the crime occurred; is that accurate?

“A. No. . . . Whenever the first identification 

occurs, the first time a witness is shown a

photographic lineup or a field show-up or whatever, 

at that first opportunity to make an identification, 

the expressed confidence of the witness is going to be 

indicative of their likely accuracy.

“Q. Okay. And then if they come—I don’t 

know, a month later—and they identify in court, and 

they say, ‘I’m 100 percent confident,’ you’re saying 

that that has no relevance—you shouldn’t even 

9 The Judicial Council modified CALCRIM No. 315 in 2022. 

The 2022 version states that a trial court should include the 

“How certain was the witness” language in its instructions when 

there is evidence a witness has expressed certainty about an 

identification. (Bench Notes to CALCRIM No. 315 (2022 ed.).) 

When the certainty language is included in the trial court’s 

instructions, the court must also instruct the jury that “[a]

witness’s expression of certainty about an identification, whether 

the identification was made before or at the trial, may not be a 

reliable indicator of accuracy” and recite several factors the jury 

may consider when evaluating the significance of the witness’s 

certainty. (Ibid.)
54

consider the person saying, ‘I’m 100 percent 

confident[?]’

“A. Should not even consider it . . . . If the 

witness initially said, ‘I think that’s him, but I can’t 

really tell,’ and then, in your hypothetical, a month 

later, comes to court and looks at that same person, 

well heavens, a lot of people would figure out, ‘Hey, 

it’s the same person. It must be him. That’s him. 

I’m 100 percent confident.’ So . . . it’s the bias of this 

in-court identification that can be the total cause of 

that high confidence.

“Q. [Y]ou’re familiar with CALCRIM 315; 

correct?

“A. Yes.

“Q. And you’re aware that, in CALCRIM 

315 . . . the law says that you can consider the 

confidence of a witness’s identification of a defendant.

[I]t does say that; correct?

“A. Absolutely . . . . That’s what I’m just saying 

right now. The CALCRIM instruction doesn’t say 

how to consider the confidence, and that’s what I was 

clarifying . . .—how it’s to be considered. [¶] But the 

confidence expressed by . . . a witness who comes into 

court and says, ‘That’s the person. I’m 100 percent 

confident.’ If, in the previous four years, hasn’t ever 

said that, . . . the confidence is not going to be a 

useful indication of whether they’re really 

recognizing the person or not.

“Q. Well, the CACRIM doesn’t say: ‘You can 

only consider the first identification of the witness.’

“[Escalante’s counsel]: Objection; 

argumentative, Your Honor—

“The court: Overruled.
55

“[Escalante’s counsel]: —Also, calls for a 

conclusion.

“The court: . . . Actually, I just read, ladies and 

gentlemen, that exact CALCRIM to you. That’s the 

same item we were reading. So it says what I said it 

says. Go from there sir.”

The prosecutor had no further questions. The trial court 

also gave the then current version of CALCRIM No. 315, which 

included the certainty factor language, in its final jury 

instructions.

B. People v. Lemcke

In People v. Lemcke (2021) 11 Cal.5th 644, 647, 665

(Lemcke), the California Supreme Court acknowledged that 

“[c]ontrary to widespread lay belief, there is now near unanimity 

in the empirical research that ‘eyewitness confidence is generally 

an unreliable indicator of accuracy’” and that “‘jurors . . . tend to 

overvalue the effect of . . . certainty . . . in determining the 

accuracy of eyewitness identifications.’” The high court noted 

that the then current version of CALCRIM No. 315 did not 

correct the common misconception that a witness’s high degree of 

certainty in an identification correlates to accuracy. (Id. at 

pp. 647, 666.) Rather, by “merely directing the jury to consider a 

witness’s level of certainty, without any further caveats, [the 

instruction] effectively operates to reinforce that misconception.” 

(Id. at p. 666.)

The Supreme Court also warned that “[t]he risk of juror 

confusion is heightened by the structure of CALCRIM No. 315, 

which lists witness certainty among numerous other factors the 

jury should consider when assessing the eyewitness testimony. 

As written, the instruction implies that each of these factors have 

a direct, linear bearing on accuracy. For instance, ‘How well 
56

could the witness see the perpetrator’ implicitly prompts the jury 

to believe that if the witness could see the perpetrator well, the 

identification should be given more weight, and vice versa; ‘How 

closely was the witness paying attention,’ ‘Was the witness under 

stress when he or she made the observation,’ ‘Did the witness 

ever fail to identify the defendants,’ all do the same. Hearing the 

certainty instruction in this context increases the risk that the 

jury will infer certainty operates the same way—as having some 

direct relationship with the accuracy of the identification.” 

(Lemcke, supra, 11 Cal.5th at p. 666.)

Despite the risks of allowing a jury to consider the level of 

an eyewitness’s confidence to determine the accuracy of an 

identification, the court in Lemcke noted that inclusion of the 

certainty factor in CALCRIM No. 315 does not, by itself, violate 

due process. (Lemcke, supra, 11 Cal.5th at pp. 646-647, 661.) A 

due process violation occurs only if the jury instruction—“‘“in the 

context of the instructions as a whole and the trial record”’”—

renders the defendant’s trial fundamentally unfair, most often by 

lowering the prosecution’s burden of proof. (Id. at pp. 647, 655, 

661, quoting People v. Foster (2010) 50 Cal.4th 1301, 1335.)

The Lemcke court’s examination of the record before it also 

revealed sufficient safeguards to prevent the jury from 

improperly inferring that a witness’s certainty in making an 

identification ensures its accuracy. The Supreme Court 

concluded, “when considered ‘“in the context of the instructions as 

a whole and the trial record”’ [citation], . . . listing the witness’s 

level of certainty as one of 15 factors the jury should consider 

when evaluating an eyewitness identification did not render 

[defendant’s] trial fundamentally unfair or otherwise amount to a 

due process violation.” (Lemcke, supra, 11 Cal.5th at p. 661.)
57

Despite the absence of a due process violation in the case 

before it, the court in Lemcke nevertheless determined “there is a 

risk that the [then] current version of [CALCRIM No. 315] will 

prompt jurors to infer that an eyewitness’s certainty in an 

identification is generally a reliable indicator of accuracy.” 

(Lemcke, supra, 11 Cal.5th at p. 669.) To avoid that risk, the 

Supreme Court exercised its supervisory powers to direct 

California trial courts to omit the certainty factor language from 

CALCRIM No. 315 until the language might be revised to 

minimize possible juror misdirection. (Lemcke, at pp. 646-648, 

669.)

C. No judicial or prosecutorial error

Defendants do not contend the trial court’s instruction 

pursuant to CALCRIM No. 315 or the prosecution’s crossexamination concerning that instruction deprived them of due 

process. We reject defendants’ alternate claim of prejudicial 

error.

In determining whether instructing the jurors on 

identification certainty was reversible error, we must consider 

the jury instructions as a whole. (Lemcke, supra, 11 Cal.5th at 

p. 658.) The jury here was instructed that defendants were 

presumed innocent and that the prosecutor had the burden of 

proving each element of the offenses beyond a reasonable doubt. 

The jury was also instructed that the prosecutor had the burden 

of proving beyond a reasonable doubt that defendants committed 

the crimes. The jury was further instructed it “alone must judge 

the credibility or believability of the witnesses” and that “[p]eople 

sometimes honestly . . . make mistakes about what they 

remember.” In light of the instructions as a whole, we conclude 

there was no reversible error. (Ibid.)
58

Even assuming any error by the trial court or the 

prosecutor, we see no resulting prejudice. Lopez, Sr., the only 

witness who identified Escalante as one of the perpetrators, did 

not say he was certain about his identification. Defendants 

presented testimony of Dr. Pezdek, an eyewitness identification 

expert, “who explained the limited circumstances when certainty 

and accuracy are positively correlated.” (Lemcke, supra, 11 

Cal.5th at p. 647.) More importantly, the identification was not 

the only—or even strongest—evidence connecting defendants to 

the crimes. Defendants’ admissions to the Perkins agents and 

during their jail conversation with each other were the most 

compelling evidence of guilt. Given this evidence, it is not 

reasonably probable defendants would have obtained a more 

favorable result had the trial court omitted the certainty factor 

language from CALCRIM No. 315 and had the prosecutor not 

cross-examined Dr. Pezdek about that instruction. (People v. 

Sanchez (2016) 63 Cal.4th 411, 463.)

VII. Gang sentencing enhancements

Effective January 1, 2022, the law affecting defendants’ 

sentences changed. Assembly Bill 333 amended the 

requirements for proving the “pattern of criminal gang activity” 

necessary to establish the existence of a criminal street gang. 

(Assem. Bill 333, § 3; People v. Lopez (2021) 73 Cal.App.5th 327, 

345 (Lopez).) As relevant here, Assembly Bill 333 amended 

section 186.22, subdivision (e)(2) to preclude use of a currently 

charged offense as a predicate offense to establish a “pattern of 

criminal gang activity.”

Defendants contend, the Attorney General concedes, and 

we agree that the amended statute applies here, as defendants’ 

judgments are not yet final on appeal. (People v. Delgado (2022) 
59

74 Cal.App.5th 1067, 1087 [Assem. Bill 333 amendments to 

§ 186.22 apply retroactively to defendant whose judgment was 

not yet final]; Lopez, supra, 73 Cal.App.5th at p. 344 [same].)

A. Gang enhancement findings

The Attorney General also concedes that under Assembly 

Bill 333, defendants’ current offenses cannot be used to establish 

a pattern of criminal gang activity and that the prosecution 

proved, at most, only one predicate offense, not two offenses as 

required by section 186.22.10 The Attorney General agrees with 

defendants that the gang enhancement findings (but not the 

gang-murder special circumstance finding) must be vacated.

Defendants further contend their firearm enhancements 

imposed pursuant to section 12022.53, subdivision (e)(1) on 

counts 1, 2, and 4 must also be vacated because they are 

premised on findings that a principal violated section 186.22, 

subdivision (b).11 The Attorney General does not dispute this 

contention.

10 The Attorney General concedes that the prosecution’s 

evidence of the convictions of Jose Rangel, Enrique Hernandez, 

and Jesus Hernandez for murder was evidence of a single 

predicate offense.

11 Although the trial court struck these enhancements at 

sentencing as to Escalante and stayed the enhancements as to 

Gonzalez under section 654, even if the punishment for the 

enhancement was stricken or stayed, the jury’s “enhancement 

finding could impact defendant[s] in a future case: ‘Striking an 

aspect of an enhancement does not “operate to defeat the a 

factual finding of the truth of the [allegation], instead, such act 

merely serves to prohibit a certain purpose for which the 

[allegation] may be used.”’” (People v. Fuentes (2015) 1 Cal.5th

218, 225.)
60

We vacate the gang enhancement findings, including the 

firearm enhancements imposed pursuant to section 12022.53, 

subdivision (e)(1) on counts 1, 2, and 4, and remand the matter to 

give the People the option of retrying those allegations under the 

law as amended by Assembly Bill 333.

12

B. Gang-murder special circumstance finding

Defendants contend the jury’s true finding regarding the 

gang-murder special circumstance allegations (§ 190.2, subd. 

(a)(22)) must also be vacated under the law as amended by 

Assembly Bill 333. The Attorney General disagrees, arguing that 

Assembly Bill 333’s amendment of the gang-murder special 

circumstance is unconstitutional.13 Appellate courts are divided 

on this issue. (Compare People v. Rojas (2022) 80 Cal.App.5th 

542 (Rojas), review granted Oct. 19, 2022, S275835, with People 

v. Lee (2022) 81 Cal.App.5th 232 (Lee), review granted Oct. 19, 

2022, S275449.)

In Rojas, a divided panel in the Fifth Appellate District

held that Assembly Bill 333 is unconstitutional to the extent it 

narrowed the scope of conduct made punishable under section 

12 Because we conclude the gang enhancements were imposed 

in violation of section 186.22, subdivision (e)(2), we do not 

address defendants’ other arguments concerning proof of the 

gang predicate offenses in connection with the gang allegations.

13 The Attorney General initially agreed with defendants that 

the jury’s finding regarding the gang-murder special 

circumstance must also be vacated under Assembly Bill 333. 

However, in a subsequent supplemental brief, the Attorney 

General changed its position and argued that Assembly Bill 333 

unconstitutionally amended the gang-murder special 

circumstance enacted by voters in Proposition 21 (as approved by 

voters, Primary Elec. (Mar. 7, 2000)).
61

190.2, subdivision (a)(22). (Rojas, supra, 80 Cal.App.5th at 

p. 555, review granted.) Section 190.2 sets forth a list of special 

circumstances in which the punishment for first degree murder is 

death or LWOP. (§ 190.2, subd. (a).) Proposition 21, enacted by 

California voters in 2000, added a new special circumstance to 

this list. (Voter Information Guide, Primary Elec. (Mar. 7, 2000) 

text of Prop. 21, § 11, pp. 121-122.) That special circumstance 

applies to murders where “[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.” (Ibid.; § 190.2, subd. (a)(22).)

Assembly Bill 333 amended the definition of a “criminal 

street gang” in section 186.22, subdivision (f) by narrowing that 

definition.14 (Rojas, supra, 80 Cal.App.5th at pp. 552-553, review 

granted.) The Rojas majority concluded that the legislative 

amendment was unconstitutional as applied because California 

14 Assembly Bill 333 narrowed the definition of a criminal 

street gang in section 186.22, subdivision (f) in several ways: (1) 

It excludes from the definition of a criminal street gang those 

associates or groups whose members have individually, but not 

collectively, engaged in a pattern of criminal gang activity. (2) It 

restricts the definition of a “pattern of criminal activity” by 

requiring that prior offenses must have commonly benefitted a 

gang, and the benefit must be more than reputational. It also 

requires that the last of the offenses used to establish a pattern of 

criminal gang activity must have occurred within three years 

before commission of the current offense. (3) It excludes from the 

definition of a criminal street gang groups or associations whose 

primary activities include looting or felony vandalism, but does 

not include the crimes listed in section 186.22, subdivision (e). 

(Rojas, supra, 80 Cal.App.5th at pp. 552-553, review granted.)
62

voters had restricted the Legislature’s ability to amend the 

provisions of Proposition 21 by stating it could only do so with a 

two-thirds vote in each house or by a statute that becomes 

effective only when approved by the voters. (Rojas, supra, at 

p. 553; Voter Information Guide, Primary Elec., supra, text of 

Prop. 21, § 39, p. 131.) Because Assembly Bill 333 did not comply 

with that requirement, and effectively narrowed the scope of 

section 190.2, subdivision (a)(22), the Rojas majority held the 

amendment unconstitutional as applied. (Rojas, at pp. 557-558.)

In Lee, Division Four of this appellate district reached the 

opposite result. The court in Lee rejected the argument that 

Assembly Bill 333 impermissibly narrowed the scope of section 

190.2, subdivision (a)(22) by amending the definition of a 

“criminal street gang” in section 186.22. (Lee, supra, 81 

Cal.App.5th at p. 241, review granted.) Focusing on the voter’s 

intent as expressed in the language of Proposition 21, the court in 

Lee found no indication that voters intended to prohibit any 

future amendment of section 186.22, subdivision (f) from being 

incorporated into the gang-murder special circumstance. (Lee, at 

pp. 241-242.) The court noted that in enacting Proposition 21, 

voters “clearly knew how to express the intent to freeze a 

statutory definition” by changing the “‘“lock-in”’” date for 

determining the existence of qualifying offenses under the “Three 

Strikes” law. (Lee, at p. 243.) “Proposition 21 provided that ‘for 

all offenses committed on or after the effective date of this act, all 

references to existing statutes in [§§ 667, subds. (c)-(g), 1170.125] 

are to those statutes as they existed on the effective date of this 

act, including amendments made to those statutes by this act.’” 

(Ibid.) Given these express time-specific references, the court in 

Lee concluded that “had the voters also intended section 11 of 
63

Proposition 21 to make a time-specific incorporation of section 

186.22, subdivision (f), they would ‘have said so in readily 

understood terms.’” (Ibid.)

We find the court’s reasoning in Lee to be persuasive and 

apply it here. Assembly Bill 333 is not unconstitutional as 

applied to the gang-murder special circumstance. The jury’s true 

finding regarding the gang-murder special circumstance 

allegations under section 190.2, subdivision (a)(22) need not be 

vacated for that reason.

C. Proof of gang predicate offenses

Because we conclude Assembly Bill 333 did not 

unconstitutionally amend section 186.22, subdivision (f) as 

applied to the gang-murder special circumstance, we address 

defendants’ argument that the gang-murder special circumstance 

finding15 must be reversed because the prosecution’s proof of the 

“pattern of criminal gang activity” element of that enhancement 

constituted inadmissible hearsay and violated their Sixth 

Amendment right to confront and cross-examine witnesses. 

Defendants further contend the documentary evidence used to 

establish the date of the predicate offenses was inadmissible 

hearsay and violated their Sixth Amendment right of 

confrontation. Alternatively, defendants argue their trial counsel 

was ineffective for failing to object to admission of that evidence.

15 Defendants make the same argument to vacate the jury’s 

gang enhancement findings. We do not address this challenge to 

the gang enhancement findings because, as discussed in part

VII.A., we conclude the gang enhancements were imposed in 

violation of section 186.22, subdivision (e)(2) and vacate the jury’s 

findings as to those enhancements on that ground.
64

Defendants forfeited their argument concerning the 

documentary evidence used to establish the date of the predicate 

offense by failing to object to that evidence at trial. The record 

discloses no abuse of discretion in the admission of the 

prosecution’s gang expert testimony, no violation of defendants’ 

right of confrontation, and no ineffective assistance by 

defendants’ trial counsel.

1. Proceedings below

During the testimony of Detective Fuentes, the 

prosecution’s gang expert, the prosecutor offered three certified 

court documents to establish the gang predicate offense. Those 

documents indicate that on August 15, 2014, in Los Angeles 

Superior Court case No. TA127879, Jose Rangel, Enrique 

Hernandez, and Jesus Hernandez were convicted of the murder 

of Jonathan Sandoval and that the crime was committed on 

April 12, 2013. The jury in that case found true the allegation 

that Rangel personally discharged a firearm causing death. As to 

Enrique and Jesus,16 the jury found true the allegation that a 

principal discharged a firearm. As to all three defendants, the 

jury found true the allegation that the offense was committed for 

the benefit of a criminal street gang. The certified court 

documents were admitted into evidence without objection.

Fuentes testified on direct examination that he was 

familiar with Rangel, Enrique, and Jesus. He explained that 

when he began training with the sheriff department’s gang unit, 

“this was a case that was brought to my attention.” Fuentes 

opined that Rangel was a gang member at the time of his offense 

16 Because they have the same surname, we refer to Enrique 

Hernandez and Jesus Hernandez by their first names to avoid 

confusion.
65

and that Rangel appeared to be a member of USV 13. Fuentes 

based his opinion on tattoos on Rangel’s body. When the 

prosecutor asked Fuentes if he observed USV tattoos on Rangel’s 

body, Fuentes responded in the affirmative.

Fuentes further opined that Enrique was a USV gang 

member, based on a large tattoo of the word “Compton” across 

Enrique’s chest, his moniker, and his association with Rangel. 

Fuentes also based his opinion on the fact that the murder 

victim, Jonathan Sandoval, was a known member of the East 

Side Paramount gang, USV’s biggest rival.

Fuentes opined that Jesus was also a USV gang member, 

basing his opinion on a “Compton” tattoo on Jesus’s arm, Jesus’s 

association with Rangel and Enrique, and the fact that the 

murder victim was a rival gang member.

On cross-examination, Gonzalez’s counsel asked Fuentes 

how he knew Rangel was a member of USV. Fuentes responded: 

“When I first started my assignment at OSS, this was one of the 

first cases that was brought to my attention, and it was discussed 

amongst the investigators. I know of him. I’d never contacted 

him personally.”

The following exchange ensued:

“Q. Okay. So you heard that he was a member 

of the USV?

“A. I heard, and I saw documentation, yes, sir.

“Q. You saw documentation?

“A. Yes, sir.

“Q. Well, what documentation?

“A. I believe they were—they were either 

booking slips or FIR cards that indicated his 

tattoos . . . [¶] . . . [¶]
66

“Q. . . . You basically knew he was a USV gang 

member because of what you had heard from other 

officers; is that right?

“A. Yes, from known knowledge of other 

investigators.

“Q. So it’s what other investigators had told 

you?

“A. Yes.”

Gonzalez’s counsel then indicated he had a motion to make, 

but asked if he should “hold that in abeyance.” The trial court 

responded, “[h]old it for now.”

Gonzalez’s counsel next cross-examined Fuentes about 

Enrique:

“Q. And did you know Enrique Hernandez, 

personally?

“A. No, sir.

“Q. But you indicated that he was a member of 

USV?

“A. A member or an associate.

“Q. . . . And is that also from what other 

investigators had told you?

“A. Yes.

“Q. And is it the same thing for Jesus 

Hernandez, who was convicted of the same murder in 

2013?

“A. Yes, sir.

“Q. Same—same thing that you heard from 

other investigators?

“A. Correct.”
67

Fuentes further testified on cross-examination that his 

opinion that the victim, Sandoval, was a rival gang member was 

based on what other investigators had told him.

Gonzalez’s counsel also asked Fuentes, “So the predicates 

for Jose Rangel, he was convicted of—of murder on October 15th

of 2014; is that—is that correct?” Fuentes responded, “I believe 

so. I can’t confirm that.” 

On redirect examination, the following exchange between 

the prosecutor and Fuentes occurred:

“Q. You indicated that part of the basis for 

your opinion that [Rangel, Enrique, and Jesus are] 

USV gang members at that time, was that you 

observed booking photographs for each of these 

individuals at the time of their arrest for the murder 

charge; is that right?

“A. I believe I viewed those booking photos 

when I began training at OSS. I don’t know if that 

was around—I believe that was around the same 

time they were convicted.

“Q. No. My question is: You’ve seen booking—

you’ve seen booking photos of those individuals that 

were taken at the time of their arrest?

“A. Yes.

“Q. I believe that your testimony yesterday 

was that part of the basis of your opinion was they 

had tattoos that were consistent, in your opinion, 

with USV; correct?

“A. In my opinion, yes, sir.

“Q. Okay. And that was part of the basis of 

your opinion why they were USV gang members?

“A. Yes, sir.
68

“Q. And the fact that they were associating 

together at that time of the crime?

“A. Correct.

“Q. And you indicated, also, that you had 

learned that the victim of the—that incident was a—

of the murder was an East Side Paramount gang 

member?

“A. Correct.

“Q. And you indicated that that was also the 

basis of your opinion, given that East Side 

Paramount is the main rival to the USV gang?

“A. It’s the main rival to the USV gang that 

belongs to the Paramount clique; correct.”

On recross-examination, Gonzalez’s counsel asked Fuentes 

about the booking photographs:

“Q. [Y]ou indicated that you saw these booking 

photos with the tattoos of Mr. Rangel sometime in 

2014; is that correct?

“A. When I began training in 2014, yes, that’s 

around the time I saw those photos.

“Q. Okay. And you haven’t seen them since?

“A. I have—I believe I have, yeah. [¶] . . . [¶]

“Q. [W]hen have you?

“A. When I found out that I was coming to this 

case.

“Q. [A]nd you took a look at those booking 

photos?

“A. I viewed numerous photos of members from 

USV 13. [¶] . . . [¶]

“Q. Okay. And you viewed this photo of Jose 

Rangel?
69

“A. That was one of them, yes.”

During a subsequent sidebar conference, Gonzalez’s counsel 

moved to strike Fuentes’s testimony about “what he’s heard from 

other investigators.”

The trial court denied the motion, stating

“I was listening for this, specifically, on direct 

because of Sanchez,

[17] and I did hear how he thinks 

that the three people in the predicates were gang 

members was based on him looking at . . . gang 

photos. [¶] That’s how he came to his own opinion, 

and the photos, themselves, are not hearsay. So I’m 

okay with him giving an opinion that they were gang 

members based on those photos.

“Both of you, I believe, elicited from him . . . 

that he also spoke to other officers. So you actually 

elicited the hearsay under Sanchez. [¶] . . . [¶] [S]o 

then to come back and say, ‘Well, I object to the 

answers,’ I think that is inappropriate. [¶] And if 

there was one answer in direct examination that 

elicited hearsay, I think it’s too late. It should have 

been asked . . . on direct.”

The trial court then instructed the jury as follows:

“Ladies and gentlemen, I’m going to caution—

that’s all—about when a witness testifies to 

something they were told by someone else, one should 

be cautious about that. I’m sure many people have 

heard the concept of hearsay. [¶] However, 

testimony in which someone may have personal 

knowledge of things that were directly told to them 

by, perhaps, a perpetrator or suspect or a gang 

17 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
70

member or directly viewed by them, that is less 

cautious.”

2. Applicable law and standard of review

a. Proof of predicate offense

To establish that a group is a criminal street gang for 

purposes of gang sentence enhancements, the prosecutor must 

prove, among other things, that the group’s members engage in 

or have engaged in a pattern of criminal gang activity. (People v. 

Lara (2017) 9 Cal.App.5th 296, 326-327.) At the time of trial in 

this case, a pattern of criminal gang activity meant “‘the 

commission of, attempted commission of, conspiracy to commit, or 

solicitation of, sustained juvenile petition for, or conviction of two 

or more of [enumerated] offenses, provided at least one of these 

offenses occurred after the effective date of this chapter and the 

last of those offenses occurred within three years after a prior 

offense.’” (Lopez, supra, 73 Cal.App.5th at p. 345, quoting former 

§ 186.22, subd. (e).) “Taken together the statutory scheme 

requires proof that gang members committed at least two 

predicate offenses within the statutory timeframe. Such proof 

will generally require evidence of who committed the crime and 

when they did so, as well as evidence of their gang membership 

and the nature of the crimes.” (People v. Valencia (2021) 11 

Cal.5th 818, 829-830.)

To prove that a particular gang meets the statutory 

requirements, the prosecution usually presents a gang expert to 

describe the name or “‘identifying sign[s] or symbol[s]’” of the 

promoted gang; the gang’s “‘primary activities’”; and at least two 

offenses committed by the defendant or his fellow gang members 

to show the gang had engaged in a “‘pattern of criminal gang 

activity.’” (People v. Prunty (2015) 62 Cal.4th 59, 75-85.)
71

b. Experts, hearsay, and Sanchez

Hearsay generally is inadmissible, unless it falls under an 

exception. (Evid. Code, § 1200, subds. (a), (b); Sanchez, supra, 63 

Cal.4th at p. 676.) Although expert witnesses frequently acquire 

knowledge in their field of expertise from hearsay sources, “[t]he 

hearsay rule has traditionally not barred an expert’s testimony 

regarding his general knowledge in his field of expertise.” 

(Sanchez, at p. 676.)

In Sanchez, our Supreme Court explained that “[w]hen 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.” 

(Sanchez, supra, 63 Cal.4th at p. 686.) The high court defined 

“[c]ase-specific facts” as “those relating to the particular events 

and participants alleged to have been involved in the case being 

tried.” (Id. at p. 676.) The court in Sanchez held that an expert’s

recitation of case-specific facts is prohibited if the facts are 

outside the expert’s personal knowledge, do not fall under an 

exception to the hearsay rule, or have not been independently 

established by competent evidence. (Id. at pp. 676-677, 686.) The 

court in Sanchez preserved, however, an expert’s ability to rely on 

and cite background information “regarding his knowledge and 

expertise and premises generally accepted in his field” and to 

“tell the jury in general terms” “the kind and source of the 

‘matter’ upon which his opinion rests.” (Id. at pp. 685-686.) To 

illustrate the distinction between general background 

information and case-specific facts, the court in Sanchez provided 

the following example in a gang-related context: “That an 

associate of the defendant had a diamond tattooed on his arm 

would be a case-specific fact that could be established by a 
72

witness who saw the tattoo, or by an authenticated photograph. 

That the diamond is a symbol adopted by a given street gang 

would be background information about which a gang expert 

could testify. The expert could also be allowed to give an opinion 

that the presence of a diamond tattoo shows the person belongs to 

the gang.” (Id. at p. 677.)

c. Confrontation clause and Crawford

In Crawford, the United States Supreme Court held that 

the admission of “testimonial” hearsay against a criminal 

defendant violates the Sixth Amendment right to confront and 

cross-examine witnesses. (Crawford v. Washington, supra, 541 

U.S. at pp. 53-54.) In light of Crawford, the California Supreme 

Court in Sanchez held that an additional step of analysis is 

required in criminal cases to determine if an expert’s statements 

qualify as “testimonial hearsay.” (Sanchez, supra, 63 Cal.4th at 

p. 686.) After reviewing the relevant case law, the Sanchez court 

concluded hearsay statements are testimonial if they are made 

“primarily to memorialize facts relating to past criminal activity, 

which could be used like trial testimony. Nontestimonial 

statements are those whose primary purpose is to deal with an 

ongoing emergency or some other purpose unrelated to 

preserving facts for later use at trial.” (Id. at p. 689.)

Conviction records are not barred by the Sixth Amendment. 

(U.S. v. Weiland (9th Cir. 2005) 420 F.3d 1062, 1076-1077; People 

v. Morris (2008) 166 Cal.App.4th 363, 370-373.) “Conviction 

records in general are not testimonial in nature because they are 

‘prepared to provide a chronicle of some act or event relating to 

the public employee’s duty’ and are not ‘produced to be used in a 

potential criminal trial or to determine whether criminal charges 

should issue.’” (People v. Thompkins (2020) 50 Cal.App.5th 365, 
73

412, quoting People v. Taulton (2005) 129 Cal.App.4th 1218, 

1225.)

Under state law, conviction records also fall within a 

hearsay exception allowing “admission of qualifying court records 

to prove not only the fact of conviction, but also that the offense 

reflected in the record occurred.” (People v. Duran (2002) 97 

Cal.App.4th 1448, 1460-1461; see Evid. Code, §§ 452.5, subd. 

(b)(1) [court record is admissible “to prove the commission . . . of a 

criminal offense [or] prior conviction”], 1280 [hearsay exception 

for records made by public employees as part of their duties].)

d. Standard of review

We review the trial court’s evidentiary rulings, including 

those concerning the hearsay nature of the evidence, for abuse of 

discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.) An 

abuse of discretion occurs when the trial court makes an error of 

law. (People v. Patterson (2017) 2 Cal.5th 885, 894; see People v. 

Rowland (1992) 4 Cal.4th 238, 266.)

If error is found, any violation of state evidentiary rules is 

reviewed for prejudice under the Watson standard. (Sanchez, 

supra, 63 Cal.4th at pp. 685, 698; People v. Fudge (1994) 7 

Cal.4th 1075, 1102-1103; Watson, supra, 46 Cal.2d at p. 836.) A 

violation of the Sixth Amendment right of confrontation is 

reviewed for harmless error under the Chapman standard. 

(People v. Amezcua and Flores (2019) 6 Cal.5th 886, 912; see 

Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [“before 

a federal constitutional error can be held harmless, the court 

must be able to declare a belief that it was harmless beyond a 

reasonable doubt”].)
74

3. Forfeiture

Defendants forfeited any claim that the records of 

conviction for Rangel, Enrique, and Jesus were not admissible to 

prove the date the predicate offense was committed by failing to 

object to the admission of those documents. (See Seumanu, 

supra, 61 Cal.4th at p. 1362.) Defendants also forfeited their 

claim that admission of the records of conviction to establish the 

date of the predicate offense violated their Sixth Amendment 

right of confrontation by failing to raise any objection on that 

ground in the trial court below. (People v. Demetrulias (2006) 39 

Cal.4th 1, 20.)

Defendants’ alternative argument that their respective 

trial attorneys were ineffective for failing to object to admission of 

the records of conviction is unavailing. “It is particularly difficult 

to prevail on an appellate claim of ineffective assistance. On 

direct appeal, a conviction will be reversed for ineffective 

assistance only if (1) the record affirmatively discloses 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) there simply could be no satisfactory explanation. All 

other claims of ineffective assistance are more appropriately 

resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57 

Cal.4th 986, 1009.)

Defendants fail to sustain their burden of demonstrating 

that counsel was ineffective for failing to object to admission of 

the records of conviction for the purpose of establishing the date 

of the predicate offense. As discussed, under California law, 

conviction records fall within a hearsay exception allowing 

admission of such records to prove that the offense reflected in 

the record occurred. (People v. Duran, supra, 97 Cal.App.4th at 
75

pp. 1460-1461.) Conviction records are not barred by the Sixth 

Amendment. (People v. Thompkins, supra, 50 Cal.App.5th at 

p. 412.)

Defendants’ reliance on People v. Garcia (2020) 46 

Cal.App.5th 123 as support for their position is unavailing. The 

court in Garcia held that the prosecution may use records “to 

show the fact of the prior conviction” (id. at p. 171); however, a 

complaint from a prior case cannot serve as evidence proving the 

date of commission of the predicate offense. (Id. at p. 172 [“the 

only competent evidence proving the date of commission of [a] 

predicate offense was a copy of the complaint”].) The prosecution 

in this case introduced records created by a court employee. 

(Evid. Code, §§ 452.5, 1280.) It did not rely on allegations in a 

criminal complaint—created by the district attorney’s office for 

use at a criminal proceeding—to prove the dates the crimes were 

committed. (See Day v. Sharp (1975) 50 Cal.App.3d 904, 914 

[court may not accept the truth of allegations in pleadings just 

because they are part of a court file].) Garcia is therefore 

inapposite. Trial counsel was not ineffective for failing to object 

to admission of the certified court records of conviction.

4. No abuse of discretion and no prejudicial error

The trial court did not abuse its discretion by denying 

defense counsel’s motion to strike Fuentes’s opinion that Rangel, 

Enrique, and Jesus were USV gang members. The record shows 

that Fuentes based his opinion in part on tattoos he observed on 

Rangel, Enrique, and Jesus in booking photos taken at the time 

of their arrest for the predicate offense; their association with 

each other; and the fact that the victim was a known member of a 

rival gang. These facts constituted general background 

information within Fuentes’s knowledge in his field of expertise. 
76

(Sanchez, supra, 63 Cal.4th at p. 676.) Fuentes’s opinion, based 

on his review of the booking photographs, was admissible expert 

testimony. (Id. at p. 677.)

Any error in denying defense counsel’s motion to strike 

testimony he elicited from Fuentes that the gang expert’s opinion 

was based in part on hearsay statements Fuentes heard from 

other law enforcement officers was harmless under either 

Watson, supra, 46 Cal.2d 818 or Chapman, supra, 386 U.S. 18. 

Fuentes’s opinion that Rangel, Enrique, and Jesus were USV 

gang members, based on tattoos he saw on those individuals in 

their booking photographs, was admissible expert testimony. 

(Sanchez, supra, 63 Cal.4th at p. 676.) After Fuentes’s testimony 

concluded, the trial court gave the jury a cautionary instruction 

concerning witness testimony based on hearsay statements. We 

presume the jury followed this instruction. (People v. Chhoun

(2021) 11 Cal.5th 1, 28.)

VIII. Section 1109

Assembly Bill 333 also enacted section 1109, which took 

effect on January 1, 2022. Section 1109 allows bifurcation of a 

gang enhancement charge under section 186.22, subdivisions (b) 

or (d) from the underlying offense. If requested by a defendant, 

the statute requires the defendant’s guilt of the underlying 

offense to be determined before the enhancement charges are 

tried.18

18 Section 1109 provides:

“(a) If requested by the defense, a case in which 

a gang enhancement is charged under subdivision (b) 

or (d) of Section 186.22 shall be tried in separate 

phases as follows:
77

We reject defendants’ contention that section 1109 applies 

retroactively to afford them a new trial on their murder and 

attempted murder convictions. There is no language in section 

1109 declaring its provisions to be retroactive. “‘“No part of the 

Penal Code ‘is retroactive, unless expressly so declared.’ (§ 3.) 

‘[T]he language of section 3 erects a strong presumption of 

prospective operation, codifying the principle that, “in the 

absence of an express retroactivity provision, a statute will not be 

applied retroactively unless it is very clear from extrinsic sources 

that the [lawmakers] . . . must have intended a retroactive 

application.” [Citations.] Accordingly, “‘a statute that is 

“(1) The question of the defendant’s guilt of the 

underlying offense shall be first determined.

“(2) If the defendant is found guilty of the 

underlying offense and there is an allegation of an 

enhancement under subdivision (b) or (d) of Section 

186.22, there shall be further proceedings to the trier 

of fact on the question of the truth of the 

enhancement. Allegations that the underlying 

offense was committed for the benefit of, at the 

direction of, or in association with, a criminal street 

gang and that the underlying offense was committed 

with the specific intent to promote, further, or assist 

in criminal conduct by gang members shall be proved 

by direct or circumstantial evidence.

“(b) If a defendant is charged with a violation of 

subdivision (a) of Section 186.22, this count shall be 

tried separately from all other counts that do not 

otherwise require gang evidence as an element of the 

crime. This charge may be tried in the same 

proceeding with an allegation of an enhancement 

under subdivision (b) or (d) of Section 186.22.”
78

ambiguous with respect to retroactive application is construed . . . 

to be unambiguously prospective.’”’”’” (People v. Perez (2022) 78 

Cal.App.5th 192, 207 (Perez); accord, People v. Ramirez (2022) 79 

Cal.App.5th 48, 65 (Ramirez).)

A “‘“limited rule of retroactivity”’” applies to newly enacted 

criminal statutes that are intended to ameliorate criminal 

punishment for certain crimes. (Perez, supra, 78 Cal.App.5th at 

p. 207.) In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the 

California Supreme Court “held that amendatory statutes that 

lessen the punishment for criminal conduct are ordinarily 

intended to apply retroactively.” (People v. Frahs (2020) 9 

Cal.5th 618, 627.) The Supreme Court has applied Estrada’s

limited rule of retroactivity to statutes governing penalty 

enhancements, statutes governing substantive offenses, statutes 

expanding a defense to a crime (Frahs, at pp. 628, 629), and 

statutes making reduced punishment possible for a class of 

persons (People v. Wright (2006) 40 Cal.4th 81, 95).

Section 1109 does not reduce punishment for a crime, 

expand defenses to a crime, or make reduced punishment 

possible. Notwithstanding that section 1109 does none of these 

things, and the absence of express statutory language giving it 

retroactive effect, some appellate courts, applying Estrada, have 

held the statute applies retroactively. (See, e.g., People v. 

Montano (2022) 80 Cal.App.5th 82; People v. Ramos (2022) 77 

Cal.App.5th 1116 (Ramos); People v. Burgos (2022) 77 

Cal.App.5th 550 (Burgos), review granted July 13, 2022, 

S274743; People v. Rodriguez (2022) 75 Cal.App.5th 816.)

We disagree with these appellate courts’ expansive 

application of Estrada’s “limited rule of retroactivity” to section 

1109. Instead, we find the courts’ decisions to the contrary in 
79

Ramirez, supra, 79 Cal.App.5th 48, Perez, supra, 78 Cal.App.5th 

192, and Justice Elia’s dissent to the Burgos majority to be 

persuasive. We adopt the analysis in Justice Elia’s dissent in 

Burgos and the courts’ holdings in Perez and Ramirez. The 

Estrada rule of limited retroactivity applies only when a new law 

is ameliorative of criminal liability or punishment. Section 1109 

has no such ameliorative effect. It therefore does not apply 

retroactively.

IX. Defendants’ LWOP sentences do not violate equal 

protection

We reject defendants’ argument that section 3051, 

subdivision (h), which denies youth offender parole hearings to 

18- to 25-year-olds sentenced to LWOP, violates equal protection. 

We also reject Escalante’s claims that he was denied the 

opportunity to make a Franklin presentation at sentencing or, 

alternatively, that his counsel was ineffective for not making an 

adequate presentation.

A. Section 3051

Section 3051 gives certain youth offenders the opportunity 

for parole in their 15th, 20th, or 25th year of incarceration, 

depending on the length of the sentence they are serving for their 

“controlling offense.”19 (§ 3051, subds. (a)(2)(B), (b); see Franklin, 

supra, 63 Cal.4th at p. 277.)

As originally enacted, section 3051 afforded a youth parole 

eligibility hearing to juvenile offenders only, not to young adults. 

(In re Trejo (2017) 10 Cal.App.5th 972, 981 & fn. 6.) The statute 

also excluded juveniles sentenced to LWOP, who were already 

19 “Controlling offense” is the offense or enhancement for 

which the longest term of imprisonment was imposed. (§ 3051, 

subd. (a)(2)(B).)
80

eligible for resentencing under section 1170. (People v. Acosta

(2021) 60 Cal.App.5th 769, 776 (Acosta).) In subsequent years, 

the Legislature expanded eligibility for youth offender parole 

hearings under section 3051, “‘recogniz[ing] that the maturity 

process does not end at 18 and in many cases extends to at least 

25 years of age.’” (Acosta, at p. 776.) The statutory amendments 

recognized that young adults, like juveniles, are not yet fully 

matured and have a lower degree of culpability and an increased 

potential for rehabilitation compared to adult offenders. (In re 

Jones (2019) 42 Cal.App.5th 477, 485.)

The Legislature also amended section 3051 to allow parole 

eligibility hearings for juveniles—but not young adult offenders—

sentenced to LWOP. (§ 3051, subd. (b)(4); Stats. 2017, ch. 684, 

§ 1.5.) The purpose of this amendment was to bring California 

into compliance with federal law articulating the constitutional 

limits on sentencing young offenders. (Sen. Com. on Public 

Safety, Analysis of Sen. Bill No. 394 (2017-2018 Reg. Sess.) 

Mar. 21, 2017, p. 4.) In Miller v. Alabama (2012) 567 U.S. 460 

(Miller), the Supreme Court held mandatory LWOP sentences for 

juveniles unconstitutional.20 In Montgomery v. Louisiana (2016) 

577 U.S. 190 (Montgomery), the Supreme Court made the 

prohibition on mandatory LWOP sentences for juveniles 

retroactive. Montgomery provided, however, that “[a] State may 

20 The Supreme Court in Miller allowed LWOP sentences for 

juvenile defendants who committed homicide, so long as the 

sentence was not mandatory—“that is, only so long as the 

sentencer has discretion to ‘consider the mitigating qualities of 

youth’ and impose a lesser punishment.” (Jones v. Mississippi 

(2021) __ U.S. __ [141 S.Ct. 1307, 1314], quoting Miller, supra, 

567 U.S. at p. 476.)
81

remedy a Miller violation by permitting juvenile homicide 

offenders to be considered for parole, rather than by resentencing 

them.” (Id. at p. 212.) By amending section 3051, the 

Legislature sought “to remedy the now unconstitutional juvenile 

sentences of [LWOP],” without the need for “a resentencing 

hearing, which is time-consuming, expensive, and subject to 

extended appeals.” (Sen. Com. on Public Safety, Analysis of Sen. 

Bill No. 394 (2017-2018 Reg. Sess.) Mar. 21, 2017, p. 3; People v. 

Morales (2021) 67 Cal.App.5th 326, 346-347 (Morales).)

Neither Miller nor Montgomery declared LWOP sentences 

for young adults unconstitutional, and section 3051 continues to 

exclude from the youth offender parole hearing process several 

categories of offenders, including young adults sentenced to 

LWOP. (§ 3051, subd. (h).) The statute “‘permit[s] the 

reevaluation of the fitness to return to society of persons who 

committed serious offenses prior to reaching full cognitive and 

emotional maturity,’ unless the person was ‘between 18 and 25 

years of age when they committed their offense [and] sentenced 

to [LWOP].’ [Citation.] It therefore ‘distinguishes both between 

those who committed their offenses under 18 years of age and 

those between 18 and 25 years of age, and between offenders 18 

to 25 years of age sentenced to prison terms with the possibility 

of parole and those in the same age group who have been 

sentenced to [LWOP].’” (Acosta, supra, 60 Cal.App.5th at p. 777.)

After enactment of section 3051, the California Supreme 

Court decided Franklin, which created a process for offenders 

who qualified for a youth offender parole hearing under section 

3051 to preserve youth-related mitigation evidence. (Franklin, 

supra, 63 Cal.4th at pp. 283-284.) A Franklin proceeding gives 

“‘an opportunity for the parties to make an accurate record of the 
82

juvenile offender’s characteristics and circumstances at the time 

of the offense so that the Board [of Parole Hearings], years later, 

may properly discharge its obligation to “give great weight to” 

youth-related factors (§ 4801, subd. (c)) in determining whether 

the offender is “fit to rejoin society”’” despite having committed a 

serious crime while he was a child in the eyes of the law. (In re 

Cook (2019) 7 Cal.5th 439, 449.)

B. Equal protection

“Both the Fourteenth Amendment to the United States 

Constitution and article I, section 7 of the California Constitution 

guarantee to all persons the equal protection of the laws. The 

right to equal protection of the laws is violated when ‘the 

government . . . treat[s] a [similarly situated] group of people 

unequally without some justification.’ [Citations.] ‘The 

California equal protection clause offers substantially similar 

protection to the federal equal protection clause.’” (People v. 

Jackson (2021) 61 Cal.App.5th 189, 195 (Jackson).)

“To succeed on an equal protection claim, appellants must 

first show that the state has adopted a classification that affects 

two or more similarly situated groups in an unequal manner.” 

(People v. Edwards (2019) 34 Cal.App.5th 183, 195.) This initial 

inquiry is not whether persons are similarly situated for all 

purposes, but whether they are similarly situated for purposes of 

the law challenged. (People v. Morales (2016) 63 Cal.4th 399, 

408.)

If the appellant can establish a class of criminal defendants 

is similarly situated to another class of defendants who are 

sentenced differently, we look to determine whether there is a 

rational basis for the difference. (People v. Edwards, supra, 34 

Cal.App.5th at p. 195.) Under this highly deferential standard, 
83

“equal protection of the law is denied only where there is no 

‘rational relationship between the disparity of treatment and 

some legitimate governmental purpose.’” (People v. Turnage

(2012) 55 Cal.4th 62, 74 (Turnage).)

To raise a successful rational basis challenge, a party must 

negate “‘“every conceivable basis”’ that might support the 

disputed statutory disparity.” (Johnson v. Department of Justice 

(2015) 60 Cal.4th 871, 881.) “It is both the prerogative and the 

duty of the Legislature to define degrees of culpability and

punishment, and to distinguish between crimes in this regard.

[Citation.] Courts routinely decline to intrude upon the ‘broad 

discretion’ such policy judgments entail. [Citation.] Equal 

protection analysis does not entitle the judiciary to second-guess 

the wisdom, fairness, or logic of the law.” (Turnage, supra, 55 

Cal.4th at p. 74.) We independently review defendants’ challenge 

to section 3051. (Jackson, supra, 61 Cal.App.5th at p. 195.)

Defendants’ equal protection claim fails because even if we 

assume they are similarly situated to juvenile offenders 

sentenced to LWOP and to 18- to 25-year-old offenders sentenced 

to “de facto” LWOP, they fail to demonstrate that there is no 

rational basis for treating them differently from those two 

groups. Age is a rational basis for distinguishing juvenile LWOP 

offenders from young adults sentenced to LWOP. Drawing the 

line at age 18 is “‘the point where society draws the line for many 

purposes between childhood and adulthood.’” (People v. Argeta

(2012) 210 Cal.App.4th 1478, 1482; see Roper v. Simmons (2005) 

543 U.S. 551, 574.) In criminal sentencing matters, both the 

United States Supreme Court and the California Supreme Court 

have found the line drawn between juveniles and nonjuveniles to 

be a rational one. (See, e.g., Miller, supra, 567 U.S. at p. 471 
84

[“children are constitutionally different from adults for purposes 

of sentencing”]; Roper v. Simmons, supra, 543 U.S. at p. 574 

[“The age of 18 is the point where society draws the line for many 

purposes between childhood and adulthood.”]; People v. Gutierrez

(2014) 58 Cal.4th 1354, 1380 [the age of 18 “is the line the 

[United States Supreme Court] has drawn in its Eighth 

Amendment jurisprudence”].)

Although section 3051 is not a sentencing statute, it 

impacts the length of sentence served. (In re Murray (2021) 68 

Cal.App.5th 456, 464.) California appellate courts have therefore 

concluded that, for purposes of LWOP offenders, the line drawn 

at 18 is a rational one when distinguishing juvenile LWOP 

offenders from young adult LWOP offenders. (Ibid.; Morales, 

supra, 67 Cal.App.5th at p. 347; Jackson, supra, 61 Cal.App.5th 

at p. 199; Acosta, supra, 60 Cal.App.5th at pp. 779-780; In re 

Jones, supra, 42 Cal.App.5th at p. 482.) We reach the same 

conclusion here. The age threshold is rational and not arbitrary.

Young adult offenders sentenced to LWOP may also be 

treated differently from young adult offenders serving very 

lengthy non-LWOP sentences (the “functional equivalent” of an 

LWOP sentence) because, even assuming the two groups are 

similarly situated, there is a rational basis for distinguishing 

between them—“the severity of the crime committed.” (Acosta, 

supra, 60 Cal.App.5th at p. 780.) Although both groups may 

involve young adult offenders convicted of first degree murder, 

“those sentenced to LWOP have also been found, beyond a 

reasonable doubt, to have committed that first degree murder 

under one . . . of the special circumstances that reflect that the 

particular first degree murder was in some manner aggravated or 

reflected a greater risk of harm to persons other than the 
85

immediate murder victim or victims. [Citations.] As a result, 

[young adult] offenders who have been sentenced to LWOP have 

committed an aggravated form of first degree murder that 

distinguishes them from [young adult] offenders who have 

committed first degree murder but done so in the absence of any 

such aggravating factors.” (Jackson, supra, 61 Cal.App.5th at 

p. 199.)

The law imposes LWOP sentences for “crimes the 

Legislature deems so morally depraved and so injurious as to 

warrant a sentence that carries no hope of release for the 

criminal and no threat of recidivism for society. In excluding 

LWOP inmates from youth offender parole hearings, the 

Legislature reasonably could have decided that youthful 

offenders who have committed such crimes—even with 

diminished culpability and increased potential for 

rehabilitation—are nonetheless still sufficiently culpable and 

sufficiently dangerous to justify lifetime incarceration.” (In re

Williams (2000) 57 Cal.App.5th 427, 436.)

Defendants here were convicted of a special circumstance 

murder. “The Legislature rationally judged this crime to be more 

severe and more deserving of lifetime punishment than 

nonspecial circumstance first degree murder.” (In re Williams, 

supra, 57 Cal.App.5th at p. 436.) “[P]ublic safety, and the desire 

to punish those persons who commit first degree special 

circumstance murder more harshly than persons who commit 

first degree murder without aggravating circumstances, provide a 

plausible basis for our Legislature to treat these two 

classifications differently for purposes of section 3051.” (Jackson, 

supra, 61 Cal.App.5th at p. 200.) Because there is a rational 

basis for distinguishing between a young adult LWOP offender 
86

and a young adult offender serving a non-LWOP sentence—the 

severity of the crime committed—we conclude that no equal 

protection violation arose from denying defendants a section 3051 

parole hearing. (See In re Williams, at pp. 435-436; see also 

Jackson, at pp. 199-200.)

Escalante’s claim that he was improperly denied the 

opportunity to make a Franklin presentation fails because he was 

statutorily ineligible for a Franklin proceeding. Under section 

3051, subdivision (h), Escalante, who was convicted of a first

degree special circumstance murder he committed at age 18, was 

ineligible for a Franklin proceeding. The trial court accordingly 

had no obligation to provide Escalante with notice of the 

opportunity to make a Franklin presentation, and the absence of 

such notice did not result in any error. For the same reason, 

Escalante’s counsel’s failure to make a Franklin presentation did 

not constitute ineffective assistance.

X. Defendants’ LWOP sentences are not cruel and 

unusual punishment

Defendants contend their LWOP sentences constitute cruel 

and unusual punishment in violation of the Eighth Amendment 

and article I, section 17 of the California Constitution. Escalante 

claims his mandatory LWOP sentence is disproportionate to his 

culpability as an 18-year-old adult aider and abettor who was not 

the actual shooter. Gonzalez argues that because the jury’s 

verdict did not include a finding that he was the shooter, his 

culpability must be assessed as if he were not the shooter. 

Neither argument has merit.

A court assessing a claim of cruel and unusual punishment 

must “decide whether the penalty given ‘is so disproportionate to 

the crime for which it is inflicted that it shocks the conscience 
87

and offends fundamental notions of human dignity,’ thereby 

violating the prohibition against cruel and unusual punishment 

of the Eighth Amendment of the federal Constitution or against 

cruel or unusual punishment of article I, section 17 of the 

California Constitution.” (People v. Cunningham (2001) 25 

Cal.4th 926, 1042.) A defendant “‘“attacking his sentence as 

cruel or unusual must demonstrate his punishment is 

disproportionate in light of (1) the nature of the offense and 

defendant’s background, (2) the punishment for more serious 

offenses, or (3) punishment for similar offenses in other 

jurisdictions.”’” (In re Williams, supra, 57 Cal.App.5th at p. 437.)

Escalante concedes his Eighth Amendment claim must be 

rejected under binding United States Supreme Court authority. 

(Roper v. Simmons, supra, 543 U.S. at p. 574 [age 18 is the 

appropriate cutoff for death penalty sentence eligibility].) 

California courts have similarly held that a mandatory LWOP 

sentence imposed on offenders 18 years of age and older does not 

violate article I, section 17 of the California Constitution. (In re 

Williams, supra, 57 Cal.App.5th at pp. 437-439 [LWOP sentence 

not cruel and unusual punishment when imposed on 21-year-old 

convicted of intentional first degree murder]; People v. Edwards, 

supra, 34 Cal.App.5th at pp. 190-192 [functional equivalent of 

LWOP sentences imposed on 19-year-old offenders not cruel and 

unusual under state and federal Constitutions]; People v. Perez 

(2016) 3 Cal.App.5th 612, 617; People v. Abundio (2013) 221 

Cal.App.4th 1211, 1220-1221; People v. Argeta, supra, 210 

Cal.App.4th at p. 1482 [mandatory LWOP imposed on defendant 

who committed first degree murder five months after his 18th 

birthday not cruel and unusual under federal and state 
88

Constitutions].) Defendants provide no persuasive reason for 

deviating from these cases.

Escalante’s LWOP sentence is not grossly disproportionate 

to his culpability. Although Escalante was the driver and not the 

shooter, he admitted knowing in advance that Gonzalez would 

commit the shooting. As the trial court noted at sentencing, 

Escalante was “as culpable as the shooter.”

As to Gonzalez, the jury found true the allegation that a 

principal discharged a firearm for purposes of the gang-related 

firearm enhancement. That finding, together with Gonzalez’s 

admissions, establish that he was the shooter. Gonzalez’s LWOP 

sentence is not grossly disproportionate to his culpability.

XI. Driveby special circumstance

In People v. Rodriguez (1998) 66 Cal.App.4th 157, 164, this 

court rejected the argument defendants raise in this appeal—that 

the driveby shooting special circumstance unconstitutionally fails 

to narrow the pool of individuals eligible for LWOP because it 

duplicates the elements of driveby first degree murder. We 

decline defendants’ request that we reconsider that decision, 

which controls here.

XII. Alleged cumulative error

We reject defendants’ contention that the cumulative effect 

of the claimed errors identified in their appeals deprived them of 

due process of law and a fair trial. Because we have found none 

of the claimed errors to constitute individual errors, they cannot 

as a group constitute cumulative error. (People v. Richardson, 

supra, 43 Cal.4th at p. 1036.)

XIII. Presentence custody credit

The Attorney General concedes Escalante is entitled to 

1,876 days of custody credit rather than the 1,869 days he was 
89

awarded. On remand, the trial court is directed to recalculate 

and award Escalante 1,876 days of presentence custody credit.

DISPOSITION

For each defendant, the gang enhancement allegation 

findings under section 186.22, subdivision (b) under counts 1, 2, 

and 4, and the gang-related firearm enhancement findings under 

section 12022.53, subdivision (e)(1) under those same counts are 

vacated. The matter is remanded to the trial court for retrial of 

the gang allegations on those counts if the People so elect. We 

direct the trial court to recalculate and award Escalante 1,876 

days of custody credit and to prepare an amended abstract of 

judgment reflecting that presentence custody credit award and to 

forward a copy of the amended abstract to the Department of 

Corrections and Rehabilitation. In all other respects, the 

judgments are affirmed.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

HOFFSTADT, J.