Filed 4/10/23 P. v. Ware CA4/1

OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR WARE et al.,

Defendants and Appellants.

 D072515

 (Super. Ct. No. SCD255884)

 ORDER MODIFYING OPINION

 NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed on March 27, 2023, be modified as 

follows: 

1. In the Disposition on pages 78-79, delete the second paragraph 

and insert the following:

“As to appellant Ware, we reverse his conviction on count 9 (gang 

conspiracy, § 182.5). On counts 1, 10, and 14, we vacate the true 

findings on the gang enhancement allegations (§ 186.22, subd. (b)). 

On count 10, we vacate the gang-related firearm enhancement 

allegations. (§ 12022.53, subds. (b)–(d) & (e)(1)). Ware’s sentence is 

vacated and the matter is remanded to the superior court. On 
2

remand, the court is directed to strike (1) the unpaid balance of the 

$154 criminal justice fee and (2) Ware’s one-year prior prison term 

enhancement under section 667.5, subdivision (b) for a prior prison 

term resulting from drug convictions in violation of Health and 

Safety Code sections 11350, subdivision (a), and 11351.5. The 

People shall decide whether to retry Ware on the gang enhancement 

allegations (§ 186.22, subd. (b)), and gang related firearm 

enhancement allegations (§ 12022.53, subds. (b)–(d) & (e)(1)). Upon 

determination as to the status of these allegations (no retrial, or 

retrial and final resolution) Ware is to be sentenced consistent with 

current law. In all other respects, Ware’s judgment is affirmed.” 

There is no change in the judgment. 

HUFFMAN, Acting P. J.

Copies to: All parties
Filed 4/6/23 P. v. Ware CA4/1 (unmodified opinion)

OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR WARE et al.,

Defendants and Appellants.

 D072515

 (Super. Ct. No. SCD255884)

 ORDER MODIFYING OPINION

 NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed on March 27, 2023, be modified as 

follows: 

2. On page 4, line 1 of the first full paragraph, delete the first 

sentence and replace with the following sentence:

“In an unpublished opinion originally issued on July 21, 

2020,2 we reverse Simpson’s and Hoskins’s gang conspiracy 

convictions, but reject appellants’ remaining arguments 

regarding their convictions.”

2 We subsequently modified the opinion on July 29, 2020, and again

modified the opinion after denial of rehearing on August 12, 2020.
3. In the Disposition on page 79, delete the first paragraph and 

insert the following:

“As to appellant Simpson, we reverse his conviction on count 

6 (gang conspiracy, § 182.5). On counts 1 through 5, we 

vacate the true findings on the gang enhancement 

allegations (§ 186.22, subd. (b)). On counts 2 and 3, we 

vacate the true findings on the gang-related firearm 

enhancement allegations (§ 12022.53, subds. (b)–(d) & 

(e)(1)). Simpson’s sentence is vacated and the matter is 

remanded to the superior court. On remand, the court is 

directed to strike the unpaid balance of the $154 criminal 

justice fee and the People shall decide whether to retry 

Simpson on the gang enhancement allegations (§ 186.22, 

subd. (b)), and gang-related firearm enhancement allegations 

(§ 12022.53, subds. (b)–(d) & (e)(1)). Upon determination as 

to the status of these allegations (no retrial, or retrial and 

final resolution) Simpson is to be sentenced consistent with 

current law. In all other respects, Simpson’s judgment is 

affirmed.”

There is no change in the judgment. 

HUFFMAN, Acting P. J.

Copies to: All Parties
Filed 3/27/23 P. v. Ware CA4/1 (unmodified opinion)

Opinion on remand from Supreme Court

OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR WARE et al.,

Defendants and Appellants.

 D072515

 (Super. Ct. No. SCD255884)

APPEALS from judgments of the Superior Court of San Diego County, 

Leo Valentine, Jr., Judge. Affirmed in part, reversed in part, and remanded 

for resentencing.

Lynda A. Romero, under appointment by the Court of Appeal, for 

Defendant and Appellant Dionte Simpson. 

David L. Polsky, under appointment by the Court of Appeal, for Defendant 

and Appellant Victor Ware.

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

General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina, 
2

Warren J. Williams, and Christine Levingston Bergman, Deputy Attorneys 

General, for Plaintiff and Respondent. 

Dionte Simpson, Victor Ware, and Nicholas Hoskins (collectively 

appellants) are members of 5/9 Brim (Brim), a criminal street gang in San Diego 

that is a set of the Bloods gang. The Neighborhood Crips (NC) and West Coast 

Crips (WCC), (together, the Crips), other criminal street gangs, are the main 

rivals of the Brims. A jury found appellants guilty of the following crimes

related to their gang involvement: 

Count 1 (all appellants): Between January 1, 2012 and 

April 23, 2014, conspired to commit murder (Pen. Code,2

§§ 182, subd. (a), 187) for the benefit of a criminal street 

gang. (§ 186.22, subd. (b)(1).)

Counts 2 and 3 (Simpson): June 14, 2011, attempted 

murder of victims 1 and 2 (§§ 664, 187, subd. (a)) involving 

the personal use of a firearm (§ 12022.53, subds. (b), (c) and 

(e)(1)), and for the benefit of a street gang. (§ 186.22, subd. 

(b)(1).) 

Counts 4 and 5 (Simpson): June 14, 2011, assaulted 

victims 1 and 2 with a firearm (§ 245, subd. (b)) for the 

benefit of a street gang. (§ 186.22, subd. (b)(1).)

Count 6 (Simpson): April 4, 2012, participated in a 

criminal street gang conspiracy (§ 182.5) for the crime of 

premeditated attempted murder committed on or about 

April 4, 2012. (§§ 664, 187, 189.) 

Count 7 (Hoskins): August 27, 2013, participated in a 

criminal street gang conspiracy (§ 182.5) for the crime of 

premeditated attempted murder committed on or about 

August 27, 2013. (§§ 664, 187, 189.) 

2 Undesignated statutory references are to the Penal Code. 
3

Counts 8, 12, and 13 (Ware): January 29, 2014, and April 

23, 2014, possessing a firearm by a felon. (§ 29800, subd. 

(a)(1)). 

Count 9 (Ware): March 25, 2014, participated in a criminal 

street gang conspiracy (§ 182.5) for the crime of 

premeditated attempted murder committed on or about 

March 25, 2014. (§§ 664, 187, 189.) 

Count 10 (Ware): March 25, 2014, first degree attempted 

murder (§§ 664, 187, subd. (a)) involving the personal use 

and discharge of a firearm (§ 12022.53, subds. (b), (c) and 

(e)(1)) for the benefit of a criminal street gang. (§ 186.22, 

subd. (b)(1).) 

Count 14 (Ware): May 6, 2014, assault by means likely to 

produce great bodily injury (§§ 245, subd. (a)(4)) for the 

benefit of a criminal street gang. (§186.22, subd. (b)(1).) 

Ware subsequently admitted a prison prior allegation. (§ 667.5, subd. (b).) 

The court sentenced appellants to prison as follows: (1) Ware, 27 years, plus 40 

years to life; (2) Simpson, 36 years, plus 25 years to life; and (3) Hoskins, 25 

years to life. 

Appellants challenged the sufficiency of the evidence supporting their 

convictions for conspiracy to commit murder (count 1) and criminal street gang 

conspiracy (counts 6, 7, 9). Appellants also challenged the instruction regarding 

coconspirators’ statements. Ware asserted that the trial court erred by failing to 

instruct the jury that it could find multiple conspiracies existed. Simpson, 

joined by Hoskins, asserted that their conspiracy convictions must be reversed 

because the jury was allowed to consider overt acts after the conspiracy 

terminated and overt acts that were not proven. Hoskins, joined by Simpson, 

also contended that their conspiracy convictions violated their right to free 

speech under the First Amendment because the court admitted evidence of their 

social media posts to establish participation in the alleged conspiracy. 
4

Simpson challenged the evidence supporting his convictions for attempted 

murder (counts 2 and 3) and assault with a firearm (counts 4 and 5). Ware 

challenged the sufficiency of the evidence supporting the gang enhancement 

attached to his attempted murder conviction (count 10) and the evidence 

supporting one of his convictions for possessing two handguns found during the 

search of his residence (counts 12 and 13). He also challenged counts 12 and 13 

on statute of limitations grounds. He further asserted that he received 

ineffective assistance when his trial counsel failed to move to suppress the gun 

found during his January 29, 2014, pat down search (count 8), and for conceding 

his guilt on all three firearm possession counts (counts 8, 12, and 13). Finally, 

Ware argued that the trial court incorrectly imposed sentence for both the 

firearm enhancement and the gang enhancement, and improperly imposed 

sentences for both conspiracy to commit murder and attempted murder. Finally, 

Simpson and Ware sought remand to allow the trial court to exercise its 

discretion to strike or impose the section 12022.53 firearm enhancements 

attached to counts 2 and 3. Simpson and Hoskins also claimed cumulative error.

In an unpublished opinion originally issued on July 21, 2020,

3 we reversed

Ware’s and Hoskins’s gang conspiracy convictions, but rejected appellants’

remaining arguments regarding their convictions. We agreed to vacate

Simpson’s and Ware’s sentences and remanded the matter for resentencing.4 

Hoskins petitioned the California Supreme Court for review of his conviction for 

conspiracy to commit murder, the sole remaining conviction against him, 

3 We subsequently modified the opinion on July 29, 2020, and again 

modified the opinion after denial of rehearing on August 12, 2020. 

4 Our conclusion that the trial court did not err renders it unnecessary to 

address Simpson’s cumulative error claim. 
5

arguing insufficient evidence supported his conviction.5 (See People v. Ware

(2022) 14 Cal.5th 151, 156.) The Supreme Court concluded that insufficient 

evidence was presented at trial to show Hoskins had the requisite intent to 

participate in a conspiracy to kill rival gang members, it reversed his judgment, 

and remanded the matter for further proceedings. (Id. at p. 175.) 

We accepted the parties’ stipulation for the issuance of an immediate 

remittitur as to Hoskins.6 Simpson and Ware filed supplemental briefs jointly 

contending: (1) their gang-related enhancements must be reversed in light of 

the changes made to section 186.22 by Assembly Bill No. 333 (2021–2022 Reg. 

Sess.) (Stats. 2021, ch. 699, §§ 1–5) (Assembly Bill 333); (2) Assembly Bill No. 

1869 (2019–2020 Reg. Sess.) (Stats. 2020, ch. 92, § 11; (Assembly Bill 1869), 

requires that any unpaid portion of the criminal justice fee imposed pursuant to 

Government Code section 29550.1 be vacated; and (3) upon resentencing, the 

trial court must apply section 1385, as amended by Senate Bill No. 81 (2021–

2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) (Senate Bill 81), which lists factors 

courts must consider that weigh heavily in favor of striking enhancements. 

Ware also contends that (a) Assembly Bill 333 requires reversal of his gang 

conspiracy conviction (count 9) and (b) pursuant to Senate Bill No. 483 (2021–

2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3) (Senate Bill 483), we must order the 

prior prison term enhancement imposed under section 667.5, subdivision (b) 

stricken. Finally, Simpson asserts that amendments to section 654 require 

reconsideration of his sentence on counts 2 through 4. 

5 The Supreme Court denied petitions for review filed by Simpson and 

Ware. 

6 All arguments made by solely by Hoskins have been deleted except for 

his arguments pertaining to reversal of his gang conspiracy conviction. 
6

The People agree with these contentions except for Ware’s argument that 

Assembly Bill 333 requires reversal of his gang conspiracy conviction. We

conclude that Simpson and Ware are entitled to the ameliorative benefit of these 

new laws. We vacate our August 12, 2020 opinion after denial of rehearing and 

reissue that opinion, addressing these new arguments at the end of this opinion 

in sections IV and V.D-G. We also made changes to the discussion in sections 

I.E., V.A. and V.B., required by the vacation of the true findings on the gang 

enhancement and gang-related firearm enhancements.

FACTUAL BACKGROUND

We limit our summary of the factual background to the expert testimony 

regarding the gangs at issue, the relevant crimes of which the jury found 

appellants guilty, and some of the overt acts pertaining to the conspiracy 

convictions. Viewed in the light most favorable to the judgment, the evidence 

was as follows. 

Prosecution’s Gang Expert

On April 11, 2011, Dereck Peppers, a respected Brim gang member known 

as an “original gangster,” was killed in Brim territory. Police suspected that a 

rival Crips gang member had murdered Peppers. Simpson and Ware knew 

Peppers. Peppers’s murder sparked a gang war between Brim and WCC and 

spiked the number of homicides attributed to African-American gangs. 

Appellants were Brim gang members and members of a Brim subset 

known as Tiny Hit Squad. Young Hit Squad was another Brim subset. At some 

point Tiny Hit Squad and Young Hit Squad merged, creating a commingled 

group known as Hit Squad. A “hit” means to kill someone. Members of the Hit 

Squad included appellants and alleged coconspirators, Lamont Holman, Mykein 

Price, Timothy Hurst, Emanuel Peavy, Damonte Lucas, Clyde Ellis, Rahman 

Taylor, Nino Sanchez, Deondre Cooper, Leron Johnson, Jamon Smith, Edward 
7

Laplanche, Edward Paris, Aaron Hurst, Norman Sanchez, Maurice Chavarry, 

Sherbly Gordon, and Steven Mahaney. Brandin Orchord was also a Brim 

member and a member of Young Hit Squad. Jontae Jones was a member of the 

Hit Squad.

A gang that has been the target of a shooting by a rival gang is expected to 

retaliate or “get back” at the rival gang. A rival gang graffitiing in another 

gang’s territory would also require retaliation. Failure to retaliate would make 

the gang appear weak and invite other gangs to prey on its members. The 

retaliation has to be equal to the insult suffered, but is preferably “one step 

above.”

Blood gangs, including Brim, associate with the color red. Crips gang

members traditionally wear blue. Gang members “put[ ] in work” for a gang by 

going on missions, such as committing burglaries, robberies or shootings. For 

shootings, gang members go into rival gang territory to seek rival gang 

members. A gang member on a mission might target a particular rival gang 

member. If the target cannot be located, the gang member will look for a 

substitute, such as someone dressed in the rival gang’s color. 

Gang members share guns. For example, in one 24-hour period the 

prosecution gang expert saw that one gun had been used by three different gang 

members. When it is time to go on a mission, a gang member will pick up a gun

and pass it off to the person on the mission and then return the gun so that 

other gang members would have access to it. Gang members often store their 

guns at the home of a female who is not on parole or probation.

The gang expert reviewed a large amount of social media evidence 

pertaining to Brim gang members and explained to the jury how social media 

worked. The gang expert believed that gang members in a set knew when other 

gang members in the same set had engaged in or were part of criminal activity 
8

as evidenced by social media posts. Gang membership does not end when an 

individual goes into custody. Gang members in custody still have access to 

cellphones and social media. Gang members also monitor rival gangs on social 

media. 

It is common for Brim gang members to replace the letter “C” with a “K” or 

to place the letter “K” after the letter “C.” The letter “k” after the letter “c”

refers to “Crip Killer.” Blood gang members also replace the letter “c” with the 

letter “b” when writing. For example, the word “cool” becomes “bool.” “Crab,”

“Nap bashing,” “Toasty K,” “wet toast,” or “west toast” are derogatory terms for 

NC or WCC. 

June 14, 2011 - Simpson’s Attempted Murder and Assault with Firearm 

Convictions (Counts 2-5)

On this day a group of five men, including Simpson, Orchord, Paris, and 

Chavarry started arguing with two Crips gang members on a street corner. 

Paris and Orchord began throwing gang signs with their hands. As the two 

Crips started to walk away, Simpson pulled out a gun, someone said “Fuck 

Crabs,” and Simpson fired two or three shots. The two rival gang members fled.

Simpson gave the gun to Orchord, who subsequently hid it in his garage.

After learning that the suspect group might be inside Orchord’s 

apartment, police officers went to the apartment where they eventually 

contacted Orchord and Paris. Officers later found Simpson and Lucas hiding in 

the attic and Chavarry hiding under some clothing. Officers found a loaded 

revolver about a foot from where Simpson had been hiding.

Officers who responded to the scene located two expended .45-caliber shell 

casings in the front yard of a residence, and a bullet further down the street. 

During a search of Orchord’s residence officers found a loaded .45-caliber 

semiautomatic firearm hidden in the garage. Subsequent ballistics tests linked 

this firearm to the shooting.
9

Police placed Simpson and Lucas in the back of a patrol car and the

prosecution played their recorded conversation for the jury. The gang expert 

also interpreted some of the conversation. When Lucas commented that the 

police have not “found the other one,” Simpson told him to shut up and 

explained to him why the police put them in the back of a patrol car together. 

This was an example of an older gang member schooling a younger one on police 

investigations.

When Lucas said, “they found the second one,” Simpson commented, “On 

Brims,” asking Lucas to swear on the gang that police had found both guns. The 

gang expert interpreted Simpson’s reply, “I got life,” as an admission that he 

knew a gun would be linked to a shooting and there may be evidence connecting

him to the shooting. Simpson and Lucas also discussed who would take the 

responsibility for the gun, with Simpson telling Lucas that he should accept the 

charge and take the hit for the gang because he was the youngest. 

The garage contained Brim gang graffiti that included the gang monikers 

for Paris, Johnson, Chavarry, Hoskins, Orchord, Ware, and Peavy. The graffiti 

referenced “CK” meaning “Crip Killing” and “crab” which is a derogatory term 

for a Crips gang member.

January 2012 Shootings (Overt Acts 1-5)

On January 3, 2012, a man with a dark complexion fired shots in WCC 

territory and then escaped in a vehicle. Later that day, a shooting took place in 

Brim territory. Two days later a third shooting took place in Brim territory. 

Bullet casings recovered from that shooting, matched the first shooting, 

suggesting to the expert that these shootings were consistent with “get back.”

April 1, 2012 - Murder of M.B. (Overt Acts 4-6)

On April 1, 2012, M.B. was fatally shot. M.B., who was not a gang 

member, was in Crips territory while wearing all blue clothing. The gang expert 
10

considered this shooting to be a “mission” because an armed Brim gang member 

went to rival gang territory and shot a person without knowing whether that 

person was part of the rival gang. Ballistics testing conducted on cartridge

casings recovered at the scene tied these casings to a nine-millimeter gun used 

during the shooting on April 4, 2012. Police recovered this gun on April 5, 2012,

during a contact with coconspirators Norman Sanchez, Smith, and Lucas. 

April 3, 2012 - Murder of W.L.

On this day, W.L., a nongang member, was fatally shot in the face by a 

Black person driving a stolen vehicle. Police later arrested coconspirator Ellis 

with the murder weapon. 

April 4, 2012 - Attempted Murder of T.L. (Overt Acts 7-11) and Simpson 

Gang Conspiracy (Count 6)

On this day, NC gang member T.L., W.L.’s son, was shot by a memorial 

set up near the location of his father’s shooting. Police recovered ninemillimeter casings from the scene. The casings were from two separate 

firearms, one of which was the same firearm used to kill M.B. three days earlier. 

One of the firearms was also used for return fire during the January 5, 2012 

shooting.

Following their arrest for possessing a firearm, police placed Smith and 

Norman Sanchez in a patrol car together and recorded their conversation. 

Smith stated, “They found that thing,” referring to the gun officers found. Later 

in the recording, Norman Sanchez said, “We did this ride shit for the homie.”

The gang expert explained that a “ride” means going on a mission for the gang. 

“For the homie” meant that the men did the shooting on someone’s behalf, such 

as getting payback for a shooting that occurred in Brim territory. Norman 

Sanchez and Lucas later pleaded guilty to this shooting. 

Police linked the nine-millimeter Beretta handgun recovered during Smith 

and Norman Sanchez’s arrest to the April 1 and April 4, 2012 shootings. The 
11

gang expert opined that this shooting and the April 1 shooting were consistent 

with a gang mission because the gun was used multiple times in rival gang 

territory. Additionally, these shootings were committed at the beginning of the 

week that NC celebrated its gang, which is April 1 through 7.

On April 9, 2012, a social media status update on Hoskins’s account 

stated, “Son was born healthy. Crossys got Hit. All I need is some Dro and my

day is set. LOL. [#]Happy Easter.” The gang expert explained that a “crossy” is 

a rival Crips gang member and that the post referenced the shooting of a Crips 

gang member. 

May 2, 2012 - Arrest of Simpson’s Girlfriend in Possession of Firearm 

Linked to Three Shootings

In the early morning hours on this day, an officer contacted Adrianna P. 

as she walked down the street in violation of curfew. A search of Adrianna’s 

cellphone revealed “Blood” gang terminology in several text messages, some of 

which were attributed to Simpson. The officer recovered a loaded ninemillimeter firearm from Adrianna’s purse. Testing revealed that this gun had 

been used during the January 5, 2012 shooting, the January 7, 2012 shooting, 

and April 4, 2012 shooting.

During a police interview, Adrianna admitted that Simpson fathered her 

child and that he had given her the gun immediately before the officer contacted 

her.7 She stated that everyone looked up to Simpson and that he got all the 

guns. She claimed that he passed guns to lots of people including, 

coconspirators Norman Sanchez, Lucas, and Paris. Adrianna stated that

7 During trial, Adrianna’s story changed. She stated that she found the 

gun and decided to keep it. She admitted dating Simpson, but claimed that 

she did not know who fathered her child. 
12

Simpson called Nino Sanchez “his son,” and that Nino looked to Simpson as a 

father.

May 11, 2012 - Murder of C.T. (Overt Acts 12-14)

On this day, C.T., a nongang member, was in NC territory when a driveby 

shooter shot and killed him. The night before C.T. was killed, a post appeared 

on Hoskins’s social media page stating, “I’m making a lot of stupid decisions but 

[I don’t give a fuck]. Deal with the consequences when they get here. #[you only 

Brim once].”

June 4, 2012 - Recovery of Smith & Wesson Handgun from a Brim Gang 

Member

On this day, police officers arrested Brim member Calvin Hunt for an 

outstanding warrant. After dropping Hunt off at jail for processing, officers 

discovered a loaded Smith & Wesson .40-caliber handgun on the floorboard of 

the backseat of their patrol car. The gun had been used for C.T.’s murder on 

May 11, 2012, and contained Ellis’s DNA. The gang expert concluded that the 

firearm was a gang gun used by multiple Brim gang members.

June 18, 2013 - Attempted Murder of D.S. (Overt Acts 31-34)

On this day Orchord went to D.S.’s residence with a female companion 

under the premise that she had a hair appointment with D.S. When D.S., who 

was not a gang member, opened his door, Orchord stepped out from behind his 

companion, said “What’s up Blood,” and shot D.S. in the chest. 

The next day, Paris posted on his public Facebook page a photograph of 

Orchord, Paris, Price, and Taylor entitled “Crab say the Brims aren’t here, Don’t 

near [nigga]. Won’t war with us.” In the photograph, Orchord was tossing 

“Brim” with one hand and “Crip killer” with the other hand. Paris had a 

revolver pointed at a “W” made with his other hand, which disrespected WCC.

Taylor had a gun in his waistband, and Price was spelling out “Blood” with his 
13

hands. The gang expert interpreted this post as a threat to rival Crips gang 

members, leading to possible retaliation by the Crips.

Officers sought the individuals in the photograph in different Brim 

locations. They located Paris and Orchord, who wore the same clothing depicted 

in the photograph. Simpson, Jones, another Brim member, and some girls were 

with them. One officer observed Jones discard a firearm in a trashcan. The 

gun, a .22-caliber revolver, contained Orchord’s DNA and was the gun used to 

shoot D.S.

Officers placed Simpson and Paris in the back of a patrol car and recorded 

their conversation. In the recording, Simpson sounded very angry and excited. 

Simpson swore loyalty to Brim and referenced Hit Squad multiple times. Police 

took Simpson into custody that day for possessing narcotics for sale and 

recklessly evading a police officer. He has remained in custody since that date. 

August 27, 2013 - Attempted Murder of B.T. (Overt Acts 38-42) and 

Hoskins’s Gang Conspiracy (Count 7)

On this date, B.T., a Lincoln Park gang member, was walking in WCC

territory when a white minivan approached him. A passenger leaned out of the 

minivan’s window and began firing in Taylor’s direction. The shooter was a 

Black male wearing a black T-shirt with a red bandana over his face. The driver 

of the minivan was a Black male wearing a white T-shirt with hair braided in

cornrows. Further investigation revealed that the minivan was registered to 

Brim gang member Timothy Hurst. Hurst was convicted for this shooting. 

The gang expert stated that this shooting was consistent with a hunting 

mission looking for a potential rival, but the person shot at was not a rival. 

Officers collected .40 caliber casings from the scene. This firearm was later used 

in two other shootings: (1) the October 22, 2013 driveby shooting of N.C. inside 

Crips territory; and (2) the October 23, 2013 shooting toward three AfricanAmerican males who were inside a garage at a nearby apartment. An affiliate of 
14

WCC lived in an apartment adjacent to the garage. Police recovered the firearm 

used for this shooting from coconspirators Mahaney and Nino Sanchez. 

Hurst’s cellphone contained Hoskins’s contact information. Hoskins’s

grandmother lived next door to Hurst’s grandmother. Police found Hoskins’s

DNA on the passenger side interior door of the minivan. About six months 

before this shooting, Hoskins’s social media account displayed a photograph of 

Hurst in front of a WCC hangout about a mile from the August 27 shooting. In 

the photograph, Hurst was tossing up Brim and Crips killer hand signs.

On August 27, 2013, Paris’s social media account displayed two 

photographs of Hoskins and Paris in WCC territory, also about a mile or so from 

the shooting location, throwing up gang signs disrespectful to Crips. On 

February 27, 2014, Hoskins’s social media account had a post stating, “I switch 

up on bitckh (N word), fast. I love my bros, but I’m truer to the code shit. I turn 

on TB if he does some gay shit and vice versa. Nothing personal. #one Brims.”

The gang expert explained that Hoskins was accusing Timothy Hurst, aka Tim 

Brim (TB), of snitching and was saying that if somebody snitched on him, he

would go after them because he was truer to the code of no snitching.

December 14, 2013 - Attempted Murder of N.S. and T.W. (Overt Acts 61-63)

On this day, the two victims, a WCC associate and an affiliate of a Brim 

rival, were shot in Brim territory. The gang expert explained that the rival gang 

members were shot because they “trespass[ed]” in Brim territory. He considered 

the shooting to be a proliferation of the war between the two rival gangs. 

Officers recovered 18 expended nine-millimeter casings from two firearms. They 

also found a loaded magazine for a semiautomatic handgun that contained Nino 

Sanchez’s DNA.
15

December 15, 2013 - Attempted Murder (Overt Acts 63-65)

On this day two African-American males approached a residence in WCC

gang territory on foot and fired shots. After the shooting, officers observed a

WCC gang member yelling. The next day, Hoskins’s social media account 

contained a post stating, “I’m tired of grinding, fighting, running, jail, death, 

stress, betrayal, and everything else this game has to offer. But it’s what we 

signed up for. Right?”

Officers recovered one expended .40-caliber casing and 11 expended ninemillimeter casings from the scene. Ballistics testing linked eight of the ninemillimeter casings to the firearm used in shootings that occurred on March 2, 

2014, April 12, 2014, and April 15, 2014.8 Coconspirator Peavy was charged 

with the April shootings and coconspirator Holman was charged with the March 

shooting.

Police later arrested coconspirator Price in possession of a .40 caliber

semiautomatic pistol determined to be the second firearm used in this shooting

and the shooting the day before. Price made a jailhouse call to coconspirator 

Peavy telling Peavy that he had been arrested with the gun and would take the 

blame for the gun.

January 29, 2014 - Ware Arrest for Possessing a Firearm (Count 8)

On this day, officers contacted Ware and found a loaded nine-millimeter 

handgun tucked into his waistband. At trial, the parties stipulated that Ware 

had a prior felony conviction. After his arrest, Ware made a jailhouse call to a 

female and talked about being arrested with a gun. He said that he needed to 

8 The March 2, 2014, shooting occurred in WCC gang territory toward a 

WCC affiliate and his girlfriend. The day before this shooting, the following 

message appeared on Hoskins’s social media account, “I realize why they 

want me off the streets. I’m a loose [cannon]. Unpredictable. Threat to 

society and myself. LOL. [#]fucK it.” 
16

slow down because he was “doing a gang of shit,” and was glad he only got 

locked up for gun possession.

March 25, 2014 - Ware’s Attempted Murder and Gang Conspiracy 

Convictions (Counts 9-10 and Overt Acts 76-81) 

On the afternoon of March 25, 2014, Ware drove his gold Lexus into “the 

most active area” in WCC territory at the time. Based on his experience, a 

detective stated that this WCC territory was “absolutely” a good place to find 

rival WCC gang members. The passenger, a young African-American male with 

cornrows wearing a black hoodie fired several shots at M.W., a WCC gang 

member. One witness then saw the shooter get out of the car and chase M.W., 

while firing his weapon. This witness saw no one else on the street that could 

have been the shooter’s target. Eight minutes after the shooting and about a 

mile from where it occurred, officers found the abandoned Lexus and Ware in 

Brim territory. 

Officers collected nine-millimeter casings, all from the same firearm, from 

the scene. Police did not match these casings to any other shooting. 

Surveillance video obtained from a school showed Ware driving around WCC 

territory before the shooting. The gang expert opined that the shooting was 

gang motivated and that Ware drove around rival gang territory on a mission 

looking for the target rival gang member. 

Inside the Lexus, officers found a letter with the name “Victor Boston” on 

it, which was Ware’s nickname. The letter was addressed to M.H., a Lincoln 

Park gang member. The Lincoln Park gang is an ally of the Brim gang. The 

letter referenced Ware’s purchase of the Lexus. In the letter, Ware states, “I’m 

hella triv out here, squad. I might looking at some [jail] time myself. They 

found two challys of mine and that little sawed-off with my print, bro.” The

gang expert explained that Ware was telling M.H that they found two of his 

guns as well as a sawed-off shotgun with his fingerprint. In the letter, Ware 
17

also wrote, “Gon’ learn one day. CK.” Meaning people will learn about Crip 

killing. Ware also wrote, “I have nothing to talk about. I’ll take it all on the 

chin. Then do it again. Brim gang.” The gang expert opined that this passage 

meant Ware would not snitch, but he would take responsibility for the guns and 

do more shootings or Crip killing. 

A few lines down, he said, “Bro, it’s snitches in the set. I’ll type weird shit, 

but I just wanted you to know I was out here and I got you. Get with me, bro, 

ASAP.” Here, Ware was telling M.H. that things were weird among the gang 

and people in the gang might be cooperating with law enforcement. At the 

bottom of the letter, Ware said, “I’m not on paperwork,” which meant he was not 

on a probation or parole Fourth Amendment waiver status. Ware signed the 

letter “H$” and “THS” which referred to Hit Squad and Tiny Hit Squad. 

April 12, 2014 - Murder of G.B. (Overt Acts 89-94)

On this day two men jumped out of a car and walked up to WCC gang 

member G.B. and his cousin. One of the men asked, “What’s that Brim life

like?” and both opened fire on G.B. G.B. died after being shot nine times. 

Officers recovered 19 expended nine-millimeter casings from the crime 

scene that had been fired from two separate firearms. Testing of these casings 

uncovered the DNA of coconspirators Peavy and Holman. Cellphone records 

revealed communications between Peavy and Holman before the murder.

During the investigation, law enforcement recorded a holding cell conversation 

between Peavy and Holman. The men discussed this murder and the finding of

their DNA on the shell casings from the murder scene. Holman said, “No doubt.

We fucked up, homie.”

April 15, 2014 - Attempted Murder of B.T. (Overt Acts 96-100)

On this day B.T., a WCC associate and two other men were standing in an 

area close to WCC gang territory. A silver Ford Taurus that matched the 
18

vehicle involved in the March 2, 2014 shooting, parked nearby. A man, later 

identified as coconspirator Peavy got out of the driver’s side of the Taurus, 

approached the men and asked, “This is Crip? This is Crip?” B.T. responded, 

“Ain’t nobody on no gangbanging shit out here.” Peavy pulled a gun and fired at 

B.T., with one round hitting B.T. in the foot. Peavy ran back to the Taurus and 

the car sped away. Further investigation revealed that Peavy’s girlfriend had 

rented the Taurus on February 15. 

After this shooting several social media posts appeared on Hoskins’s 

account, including one on the day of the shooting stating, “I ain’t going to 

survive too much longer in Dago. Too much shit going on, and I can’t keep my 

ass out of the mix.” The next day, the following post appeared on Hoskins’s 

account, “The status of an OG . . . isn’t established by age or how long you been 

around. I mean it count but you need the stripes and reputation to match. Big 

homie. LOL.” The gang expert explained that a gang member needs put in to 

work to gain OG or original gangster status. 

On April 17, 2014, the following appeared on Hoskins’s account, “Think 

about it. We all young, dumb, black, and ain’t turning down shit. We all think 

we tough. All of us got too much pride to take a loss. What you think going to 

happen when we butt heads. [Bl59d]. That’s what.” The gang expert explained 

that the author had too much pride to walk away or take a loss, would not turn 

down a fight or gunfight, and would move forward to the end.

On April 20, 2014, a photograph appeared on coconspirator Gordon’s social 

media page showing Gordon tossing up “fuck nappy heads,” and captioned, “The 

Blood, Little Bick Nick.” A status update on this account said, “It’s a new Brim 

and town, and he mash on everybody. Ain’t fucking with the Brims or him.

They call him Little Bick Nick.” The gang expert explained these posts 

announcing that Gordon had received the gang name “Little Bick Nick” and that 
19

he will fight any Brim rival. A comment on this post from Hoskins’s account 

stated, “I’m Big Bick Nick. CKA Baby Mikey. Sherb know what’s bracking.

Brim bidness.” The gang expert explained that Hoskins was “Bick Nick” and 

“Baby Mikey” and that “CKA” was a reference to Crip killing and was used 

instead of putting “aka.” The gang expert further explained that for a young 

gang member to take your name, such as Gordon taking Hoskins’s, there had to 

be a level of respect and it meant the older gang member was working toward 

rider or original gangster status.

DISCUSSION

I. 

SUFFICIENCY OF EVIDENCE

A. General Legal Principles 

Where a defendant challenges the sufficiency of the evidence

supporting a conviction, we examine the whole record in the light most 

favorable to the judgment to determine whether it discloses substantial 

evidence from which a reasonable trier of fact could find the defendant guilty 

beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We 

presume in support of the judgment the existence of every fact the trier of 

fact could reasonably deduce from the evidence. (Ibid.) “The same standard 

applies when the conviction rests primarily on circumstantial evidence. 

[Citation.] Although it is the jury’s duty to acquit a defendant if it finds the 

circumstantial evidence susceptible of two reasonable interpretations, one of 

which suggests guilt and the other innocence, it is the jury, not the appellate 

court[,] that must be convinced of the defendant’s guilt beyond a reasonable 

doubt. [Citation.] ‘ “If the circumstances reasonably justify the trier of fact’s 

findings, the opinion of the reviewing court that the circumstances might also 

reasonably be reconciled with a contrary finding does not warrant a reversal 
20

of the judgment.” ’ ” (Id. at pp. 1053–1054.) Reversal for insufficient 

evidence is warranted only when it appears that under no hypothesis 

whatsoever is there sufficient evidence to support the jury’s verdict. (People 

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

B. Conspiracy to Commit Murder (Count 1)

1. Conspiracy Legal Principles

“The law of conspiracy . . . permit[s] the imposition of criminal sanctions 

for [an] agreement alone, plus an overt act in pursuit of it, regardless of whether 

the crime agreed upon actually is committed.” (United States v. Feola (1975) 420 

U.S. 671, 694.) A conspiracy conviction “requires proof that the defendant and 

another person had the specific intent to agree or conspire to commit an offense, 

as well as the specific intent to commit the elements of that offense, together 

with proof of the commission of an overt act ‘by one or more of the parties to 

such agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20 

Cal.4th 403, 416.) 

“It is seldom possible for the prosecution to offer direct evidence of an 

agreement to commit a crime. The agreement to commit the crime is usually 

made in secrecy. The conspiracy must be inferred by the trier of fact from all 

the circumstances that are proven, and if the inference is a reasonable one it will 

not be disturbed on appeal.” (People v. Chavez (1962) 208 Cal.App.2d 248, 253.) 

“Common design is the essence of a conspiracy and the crime can be committed 

whether the parties comprehend its entire scope, whether they act in separate 

groups or together, by the same or different means known or unknown to them, 

if their actions are consistently leading to the same unlawful result . . . .” 

(People v. Means (1960) 179 Cal.App.2d 72, 80.) Evidence is sufficient to prove 

an agreement “ ‘ “if it supports an inference that the parties positively or tacitly 

came to a mutual understanding to commit a crime. [Citation.] The existence of 
21

a conspiracy may be inferred from the conduct, relationship, interests, and 

activities of the alleged conspirators before and during the alleged

conspiracy.” ’ ” (People v. Maciel (2013) 57 Cal.4th 482, 515–516 (Maciel).) Each 

member of the conspiracy is liable for the acts of other members in carrying out 

the common purpose of the conspiracy. (In re Hardy (2007) 41 Cal.4th 977, 

1025.) 

“While mere association does not prove a criminal conspiracy [citation], 

common gang membership may be part of circumstantial evidence supporting 

the inference of a conspiracy.” (People v. Superior Court (Quinteros) (1993) 13 

Cal.App.4th 12, 20 (Quinteros).) Where “the evidence establishes that a 

particular gang has a specific illegal objective . . . evidence of gang membership 

may help to link gang members to that objective.” (United States v. Garcia (9th 

Cir. 1998) 151 F.3d 1243, 1247 (Garcia).) 

“Other than the agreement, the only act required is an overt act by any of 

the conspirators, not necessarily the defendant, and that overt act need not itself 

be criminal.” (People v. Smith (2014) 60 Cal.4th 603, 616.) “ ‘[A]n overt act is an 

outward act done in pursuance of the crime and in manifestation of an intent or 

design, looking toward the accomplishment of the crime.’ ” (People v. Zamora

(1976) 18 Cal.3d 538, 549, fn. 8.) “The purpose of the overt act is simply to show 

that the agreement has proceeded beyond the meeting of the minds stage to 

some direct or physical act, however innocent in itself, tending toward the 

furtherance of the objective of the conspiracy.” (People v. Saugstad (1962) 203 

Cal.App.2d 536, 549–550.) A conspiracy conviction can rest on a single overt act. 

(People v. Jurado (2006) 38 Cal.4th 72, 122 (Jurado).) 
22

2. Analysis 

a. General introduction

The amended information alleged that appellants conspired, “[o]n or about 

and between January 1, 2012 and April 23, 2014” with each other and other 

unknown persons to commit murder. Police identified 18 other Brim gang 

members, who were also Hit Squad members as coconspirators. The amended 

information alleged the commission of 104 overt acts in furtherance of the 

conspiracy. The object of the conspiracy was to kill suspected rival NC and WCC

gang members. 

The jury convicted appellants of conspiracy to commit murder. It is 

undisputed that the prosecution relied exclusively on circumstantial evidence 

and presented no direct evidence of a conspiracy to commit murder.

Simpson and Ware challenge their convictions, generally contending that 

the prosecution presented insufficient evidence showing they entered into any 

agreement to commit murder, claiming their guilt was based on their gang 

membership and virtually nothing else. Simpson and Ware claim that the 

evidence did not show they possessed the specific intent to commit murder. 

Simpson also asserts that his conspiracy conviction must be reversed because 

the jury was allowed to consider overt acts after the conspiracy terminated, and

overt acts that the prosecution failed to prove. Finally, Simpson argues that his

conspiracy conviction violated his free speech rights under the First Amendment 

and the California Constitution. 

b. Existence of and participation in a conspiracy

We have examined the entire record in the light most favorable to the 

judgment, including the relationship, interests, conduct and activities of the 

alleged conspirators and coconspirators before and during the alleged 

conspiracy. (Maciel, supra, 57 Cal.4th at pp. 515–516.) We conclude that the 
23

record supports the reasonable inference that Simpson and Ware and their 

coconspirators tacitly came to a mutual understanding to murder rival NC and 

WCC gang members and that they participated in the conspiracy. 

The prosecution gang expert was the detective investigating Brim from 

October 2011 through October 2015. At any given time, Brim had between 200 

and 220 members. Simpson and Ware and their coconspirators were Brim gang 

members, and members of a Brim subset known as the Hit Squad. A “hit”

means to kill someone. Some of the primary activities of Brim included murder 

and assaults with firearms. 

The main rivals of the Brims are the Crips, specifically NC and WCC. In 

2011, Peppers’s murder sparked a gang war between Brim and WCC. Simpson 

and Ware knew Peppers. In June 2011, about two months after Peppers’s death, 

Simpson shot at two Crips gang members and was subsequently convicted of two 

counts each of attempted murder and assault with a firearm.9 With Simpson

during the shooting were coconspirators Paris, Chavarry, and Lucas. Paris 

pleaded guilty to aiding and abetting this shooting. 

Simpson argues that the June 2011 shooting cannot be considered as 

evidence of a conspiracy because the prosecution did not allege the shooting as 

an overt act and the shooting preceded the alleged start date for the conspiracy. 

Simpson is wrong. Incidents occurring before the start of the conspiracy may be 

considered as circumstantial evidence supporting the existence of the 

conspiracy. (Maciel, supra, 57 Cal.4th at pp. 515–516.) Notably, sometime 

between the date of the June shooting and February 2012, Simpson got “CK” or 

“Crip Killer” tattoos on his elbows. 

9 As discussed post, the evidence supports these convictions. (Post, pt. 

I.D.) 
24

After Adrianna’s arrest in May 2012, her statements to police provided 

further circumstantial evidence from which the jury could infer the existence of 

a conspiracy to commit murder.10 Namely, she stated that Simpson placed a 

gun in her purse, everybody looked up to Simpson, that he got all the guns and 

passed the guns to lots of people including, coconspirators Norman Sanchez, 

Lucas, and Paris.11 Coconspirators Norman Sanchez and Lucas pleaded guilty 

to the April 4, 2012 attempted murder of NC gang member, T.L. (overt acts nos. 

7-11) Coconspirator Timothy Hurst was convicted of the August 2013 attempted 

murder of B.T., a Lincoln Park gang member who was walking in WCC territory

(overt acts nos. 38-42). Although B.T. was not a rival Crips gang member, the 

gang expert stated that this shooting was consistent with a hunting mission 

looking for a potential rival, but the person shot at was not a rival. The jury 

convicted Ware of attempting to murder a WCC gang member in March 2014 

based on his participation in this shooting (overt acts nos. 76-81). Ware’s 

10 Simpson’s focus on Adrianna’s trial testimony where she recanted her 

earlier statements to police is misplaced because we may not reweigh the 

evidence or substitute our own assessment of the witnesses’ credibility for the 

determination made by the jury. (People v. Snow (2003) 30 Cal.4th 43, 66.) 

11 We reject Simpson’s contention that Adrianna’s testimony regarding 

putting the gun in her purse cannot be considered because it is 

uncorroborated accomplice testimony. The instructions required jurors to 

decide whether Adrianna was an accomplice to the crimes alleged against 

appellants. Assuming the jury found Adrianna was an accomplice, the 

testimony that Simpson put a gun in her purse, evidence that goes to the 

existence of the conspiracy, need not be corroborated. (People v. Cooks (1983) 

141 Cal.App.3d 224, 312 (Cooks); People v. Buono (1961) 191 Cal.App.2d 203, 

215–216, fn. omitted [“[T]he corroboration required by Penal Code section 

1111 does not include the corpus delicti and is confined to the matter of 

connection of the individual defendant with the crime.”].) 
25

moniker, CK (Crip Killer) Vick, evidenced his motive to kill rival Crips gang 

members. 

This evidence amply supported the jury’s finding that Simpson and Ware

and their coconspirators entered into a tacit agreement to murder rival NC or 

WCC gang members. This evidence also established Simpson and Ware’s 

participation in the conspiracy and their attempted murder convictions show 

that they harbored an intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 623–

624 [attempted murder “requires the specific intent to kill and the commission of 

a direct but ineffectual act toward accomplishing the intended killing” and an 

aider and abettor must share the specific intent of the direct perpetrator].) The 

overt act requirement is also satisfied by Simpson’s and Ware’s convictions of 

attempted murder.12 

c. Overt acts after conspiracy ended or not proven

Simpson alleges that his conspiracy convictions must be reversed because 

the court allowed the jury to consider overt acts 15, 44, 103, and 104 which were 

not proved or occurred after the conspiracy terminated. He claims that the jury 

12 Simpson notes that only two of the 104 overt acts named him, and out 

of the remaining 100 overt acts, he was in custody for 69 of them, he was not 

depicted in photographs or involved in any of the social media messages, and 

there was no evidence he knew or was aware of the social media posts. These 

points are not persuasive because a conspirator need not personally 

participate in any of the overt acts as long as he or she conspired to commit 

the crime and a coconspirator committed an overt act. (People v. Morante

(1999) 20 Cal.4th 403, 417.) Moreover, “[a]lthough a defendant’s arrest and 

incarceration may terminate his participation in an alleged conspiracy, his 

arrest does not terminate, or constitute a withdrawal from, the conspiracy as 

a matter of law.” (Cooks, supra, 141 Cal.App.3d at p. 316.) Rather, “[o]nce 

the defendant’s participation in the conspiracy is shown, it will be presumed 

to continue unless he is able to prove, as a matter of defense, that he 

effectively withdrew from the conspiracy.” (Ibid.) Simpson failed to make 

such a showing. 
26

could have based the conspiracy convictions on one of the improperly included 

overt acts because the verdict form did not require that the jury reveal which 

overt act they found had been committed and there was no requirement that the 

jury unanimously agree on the same overt act to support a conspiracy 

conviction. (People v. Valdez (2012) 55 Cal.4th 82, 154, fn. 40.) The People 

argue that any error in presenting these four overt acts was harmless. We agree 

with the People. 

The People alleged that the conspiracy ended “on or about” April 23, 2014. 

Overt acts 103 and 104 contain statements admitted as declarations of a 

coconspirator (Evid. Code, § 1223) that took place in May 2014, after the 

conspiracy allegedly ended.13 A conspiracy usually ends when the substantive 

crime for which the coconspirators are being tried is either attained or defeated. 

(People v. Leach (1975) 15 Cal.3d 419, 431.) Nonetheless, it is a question for the 

fact finder to determine when a charged conspiracy has ended, “considering the 

unique and the nature and purpose of the conspiracy of each case.” (People v. 

Saling (1972) 7 Cal.3d 844, 852.) 

The precise date on which an offense was committed need not be stated in 

an accusatory pleading unless the date is material to the offense. (§ 955.) For 

example, in People v. Peyton (2009) 176 Cal.App.4th 642 (Peyton), the defendant 

had been charged with committing certain sex offenses against a child “ ‘on or 

about October 1, 2005,’ ” but the evidence showed that the offenses occurred in 

the fall of 2004. (Id. at p. 660.) The appellate court upheld the convictions 

13 Overt act 103 alleged, “On or about May 9, 2014, Emanuel Peavy posed 

in a photograph with a firearm wearing a red ‘THS’ (Tiny Hit Squad) shirt 

with ‘Brims,’ and ‘Fuck Crabs’ on the back of the shirt.’ ” Overt act 104 

alleged, “On or about May 10, 2014, the message, ‘Fuck Wet Toast!!!!!!!!! 3-11 

Till My Motherfuckin DEATH,’ was posted to Leron Johnson’s Facebook 

account.”
27

despite this variance, finding that “evidence is not insufficient merely because it 

shows the offense was committed on another date,” the October 1, 2005 date was 

not material to any of the charged offenses, and defendant showed no prejudice. 

(Ibid.) 

Here, the alleged April 23, 2014 end date was not material to the 

conspiracy charge, nor were the jurors instructed on the beginning or end date of 

the conspiracy. Rather, the court instructed the jurors that the crime required 

the commission of one of the 104 alleged overt acts, but did not require all jurors 

to agree on the specific act or acts committed. Additionally, the jurors were 

instructed that they could only consider statements of coconspirators “made 

before or during the time that the defendants were participating in the 

conspiracy.” (CALCRIM No. 418.) Thus, it was up to the jury to determine the 

precise end date of the conspiracy and whether the coconspirators statements 

alleged in overt acts 103 and 104 were part of the conspiracy. 

Simpson next complains that the evidence did not support overt acts 15 

and 44, noting that the prosecution failed to present any evidence to support 

overt act 15.14 Overt act 44 alleged that “on or about October 1, 2013” Simpson 

and Paris posed in a photograph with Simpson displaying Crip Killer hand signs 

and Paris imitating shooting a gun with his hand, but this was inaccurate 

because Simpson was in custody on that date and could not have posed for a 

photograph. 

We fail to discern any prejudice based on the inclusion of overt acts 15 and 

44 in the instructions. The court instructed the jurors that the People were 

14 Overt act 15 alleged, “On or about June 6, 2012, Dionte Simpson posed 

in a video posted onto Youtube displaying Fuck Neighborhood Crips hand 

signs with his right hand in the shape of a gun pointed at Neighborhood 

Crips hand sign.”
28

required to prove the commission of at least one overt act, but that they did not 

need to agree on which specific over act or acts were committed. If the evidence 

did not support overt acts 15 and 44, then none of the jurors could not have 

relied on these two overt acts to support the conspiracy convictions. 

d. Right to free speech

Simpson joined in Hoskins’s argument his conspiracy conviction violated 

his right to free speech under the First Amendment and the California 

constitution because the prosecution presented evidence of his social media 

postings to support the conviction as overt acts 11, 21, and 73. The People 

contend Simpson forfeited this claim by failing to object to the social media 

evidence on this ground post. Even assuming the issue is properly before us, the 

People assert the argument is meritless because Simpson is not being punished 

for his social media posts, but for a conspiracy to commit murder. We decline to 

deem this constitutional challenge forfeited because we easily reject the 

argument on its merits. 

As the People correctly note, Simpson is being punished for his 

participation in a conspiracy, not for his social media posts. Evidence Code 

section 1220 allows evidence of a statement by a declarant that is offered 

against him. Simpson’s social media posts qualify as an admission under this

section and were admissible to prove his participation in the conspiracy. (People 

v. Hardy (1992) 2 Cal.4th 86, 142 [defendants’ statements admissible to prove 

participation in a conspiracy].) The “admission of . . . evidence, relevant to 

actual criminal conduct, does not violate [a defendant’s] constitutional free 

speech rights.” (People v. Smith (2003) 30 Cal.4th 581, 626; People v. 

Quartermain (1997) 16 Cal.4th 600, 629 [“evidence [of racial epithets] was 

relevant to the issues being tried, and thus its use did not violate the First 

Amendment”].) 
29

C. Gang Conspiracy (Counts 6, 7, 9)

Appellants challenge their gang conspiracy convictions under section 182.5 

on different grounds. We start our discussion by reviewing the gang conspiracy 

statute. We then turn to a joint argument made by Simpson and Ware, before 

addressing each appellant separately. 

1. Gang Conspiracy Legal Principles

Enacted by voter initiative, section 182.5 “created a new form of 

conspiracy that is distinct from the traditional understanding of the crime . . . .” 

(People v. Johnson (2013) 57 Cal.4th 250, 261 (Johnson).) The statute provides:

“[A]ny person who actively participates in any criminal 

street gang . . . with knowledge that its members engage in 

or have engaged in a pattern of criminal gang activity . . . 

and who willfully promotes, furthers, assists, or benefits 

from any felonious criminal conduct by members of that 

gang is guilty of conspiracy to commit that felony and may 

be punished as specified in subdivision (a) of Section 182.” 

(§ 182.5, italics added.) 

In Johnson, our high court explained that gang conspiracy under section 

182.5 differs from criminal conspiracy in five ways. (Johnson, supra, 57 Cal.4th 

at pp. 261–262.) First, the defendant “must be an active gang participant with 

knowledge of other members’ pattern of criminal gang activity.” (Id. at p. 262.) 

Second, a gang conspiracy requires the commission or attempted commission of 

felonious criminal conduct. (Ibid.) Third, a gang conspiracy does not require 

any prior agreement among the conspirators to promote, further, or assist in the 

commission of a particular target crime. Accordingly, “an active and knowing 

gang participant who acts with the required intent to promote, further, or assist 

in the commission of a felony by other gang members can violate section 182.5.” 

(Ibid.) Fourth, a gang conspiracy “requires the actual commission of felonious 

criminal conduct as either an attempt or a completed crime.” (Ibid.) Fifth, a 

gang conspiracy includes “not only a gang member who promotes, furthers, or 
30

assists in the commission of a felony, but also an active and knowing participant 

who merely benefits from the crime’s commission, even if he or she did not 

promote, further, or assist in the commission of that particular substantive 

offense.” (Ibid.) The court explained, “[d]ue to the organized nature of gangs, 

active gang participants may benefit from crimes committed by other gang 

members. When such benefits are proven along with the other elements of the 

statute, section 182.5 permits those benefitting gang participants to be convicted 

of conspiracy to commit the specific offense from which they benefitted.” (Ibid.) 

2. Analysis

a. Gang conspiracy to commit attempted murder

Citing People v. Iniguez (2002) 96 Cal.App.4th 75 (Iniguez), Simpson and 

Ware contend that their gang conspiracy convictions must be reversed because 

there is no such crime as conspiracy to commit attempted murder. In Iniguez, 

the appellate court concluded that the crime of conspiracy to commit attempted 

murder does not exist. (Id. at p. 79.) The court explained that “the crime of 

attempted murder requires a specific intent to actually commit the murder, 

while the agreement underlying [a] conspiracy [to commit attempted murder] 

contemplate[s] no more than an ineffectual act. No one can simultaneously 

intend to do and not do the same act, here the actual commission of a murder.” 

(Ibid.) Put differently, “one cannot conspire to try to commit a crime” because 

conspiracy requires an agreement to commit a crime, not an agreement to 

attempt to commit a crime. (Johnson, supra, 57 Cal.4th at p. 264.) 

Simpson and Ware’s reliance on Iniguez is misplaced because traditional 

conspiracy, at issue in Iniguez, requires evidence of an agreement. (Iniguez, 

supra, 96 Cal.App.4th at p. 78.) Gang conspiracy, however, does not require 

evidence of an agreement. Rather, as our high court explained, gang conspiracy 

“does not contemplate an agreement to commit an ineffectual act. . . . Unlike 
31

Iniguez, there is no logical impossibility or absurdity in recognizing the crime of 

conspiracy to actively participate in a gang.” (Johnson, supra, 57 Cal.4th at 

p. 264.) Instead, for gang conspiracy, the “act of assistance or promotion 

replaces the required prior agreement to commit a crime that is ordinarily at the 

heart of a traditional conspiracy.” (Id. at p. 262.) Accordingly, it is possible to 

be guilty of a gang conspiracy to commit an attempted offense. 

b. Ware (Count 9)

The jury found Ware guilty of attempted murder and gang conspiracy 

arising out of the shooting on March 25, 2014, where he drove his car into WCC 

territory and his passenger fired a gun at a WCC gang member. Ware submits 

that to find him liable for gang conspiracy the jury was required to find that his 

passenger, the direct perpetrator of the shooting, was a Brim gang member. He 

claims that his conviction must be reversed because the identity of the shooter 

was never uncovered.15

The People disagree, claiming we should reject Ware’s interpretation that 

a section 182.5 crime must be committed by multiple members of the gang, 

because this interpretation narrows the application of the law when it was 

meant to expand liability. In any event, the People assert that the evidence 

demonstrated that Ware’s accomplice in the driveby shooting was also a Brim 

gang member. As we shall explain, we agree with Ware that the jury was 

required to find that his passenger, the direct perpetrator of the shooting, was a 

member of Brim, but reject his assertion that the evidence did not support this 

finding. 

The statute requires the prosecution prove that the defendant “willfully 

promote[ ], further[ ], assist[ ], . . . any felonious criminal conduct by members of 

15 Simpson joins in Ware’s argument because it supports his argument 

that overt acts 76 to 81 arising out of this shooting were not proven. 
32

that gang. . . .” (§ 182.5, italics added.) Thus, the plain language of the statute 

requires that Ware’s passenger, the shooter, be a Brim gang member. The jury 

instruction for this crime follows this interpretation. For Ware, the trial court 

instructed the jury as follows:

“1. Defendant actively participated in a criminal street 

gang;

“2. When the defendant participated in the gang, he knew 

that the members of the gang engage in or have engaged in 

a pattern of criminal gang activity;

“3. On March 25, 2014 members of the criminal street gang

committed Deliberate and Premeditated Attempted Murder 

in violation of Penal Code Sections 664/187/189;

“AND

“4. Defendant willfully promoted, furthered, assisted or 

benefitted from, the commission of the March 25, 2014 

Deliberate and Premeditated Attempted Murder by 

members of the gang.” (Italics added.)

There is no evidence regarding the shooter, other than he was an AfricanAmerican male with hair in cornrows. Nonetheless, based on the totality of the 

evidence presented during trial the jury could reasonably infer that the shooter, 

Ware’s passenger, was a Brim gang member. 

The gang expert testified that Brim and WCC were in a gang war and that 

Ware was part of a Brim subset known as the Hit (or kill) Squad with a number 

of other Brim gang members. The gang expert testified that gang members put 

in work for the gang by going on missions. Shooting missions involve gang 

members going into rival gang territory seeking a rival gang member or a 

substitute, such as someone dressed in the rival gang’s color. The gang expert 

testified that gang members tend to work with people they trust. 
33

Additionally, gang members work with “ ‘backup’ or ‘someone[ ] [who has] 

your back. No matter what happens out there, somebody, one of your trusted, 

one of your chosen few is going to be behind you. When shots are fired, when 

the fight goes down, no matter what, they’re not going to turn and run and leave 

you hanging by yourself.’ ” The expert noted that gang members in the same set 

are expected to back each other up and that the failure to do so would result in 

some type of disciplinary action because failure to backup another gang member 

makes the set look weak. The gang expert opined that this particular shooting 

was gang motivated and that Ware drove around rival territory on a mission 

looking for a rival gang member. The expert noted that Ware and coconspirator 

Nino Sanchez were arrested together in August 2009 in a stolen car. Ware was 

also arrested in 2010 with coconspirator Holman. 

Brim and Crips gang members were in a gang war. The gang expert 

testified that this particular shooting, targeting a WCC gang member, was a 

gang mission, that gang members take “backup” and these individuals are 

people that the gang member trusts. From this evidence, the jury could 

reasonably infer that Ware drove a trusted Brim gang member into rival gang 

territory to commit the shooting. Accordingly, we reject Ware’s argument that 

the evidence failed to support his gang conspiracy conviction. 

c. Simpson (Count 6)

The jury found Simpson guilty of gang conspiracy arising out of a shooting 

on April 4, 2012, where two individuals shot NC gang member T.L. while he 

stood near a memorial set up for his father, who had been murdered in a driveby 

shooting the day before. Brim gang members Norman Sanchez and Lucas later 

pleaded guilty to this shooting. Simpson argues that his gang conspiracy 

conviction must be reversed for two reasons. First, he contends that the nature 

of Norman Sanchez’s and Lucas’s convictions was not presented to the jury; 
34

thus, there was no prior jury finding that the crime of premeditated and 

deliberate attempted murder was committed on April 4, 2012. Second, he 

argues that there is no evidence he willfully participated, promoted, assisted, or 

benefitted from the April 4, 2012 shooting in any manner.16 He asserts we 

should reject any argument that he benefitted from the shooting without doing 

anything to obtain that benefit because such a finding would condemn him for 

his associations, not for his actions. 

The People ignore Simpson’s first argument, which we conclude is 

dispositive. Accordingly, we need not address whether Simpson willfully 

promoted, furthered, assisted, or benefitted from the April 4, 2012 shooting. 

The prosecution must prove that the defendant “willfully promote[d], 

further[ed], assist[ed], or benefit[ted] from any felonious criminal conduct by 

members of that gang. . . .” (§ 182.5, italics added.) Regarding this element, the 

court instructed the jury that to find Simpson guilty of gang conspiracy it must 

find that “[o]n April 4, 2012, members of the criminal street gang committed 

Deliberate and Premeditated Attempted Murder in violation of . . . Sections 

664/187/189.” The elements of attempted murder are “specific intent to kill and 

the commission of a direct but ineffectual act toward accomplishing the intended 

killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) “[A]ttempted murder and 

premeditated attempted murder are the same offense.” (People v. Sedillo (2015) 

235 Cal.App.4th 1037, 1049.) Premeditation constitutes a penalty provision that 

16 The only evidence of Simpson’s possible involvement in this shooting is 

the fact that Simpson drove a gold colored Lexus, and the statement of a 

witness that he saw a gold car in the area and that the shooters ran in the 

direction of the gold car. This same witness testified that the men got into a 

tan or white 90’s model Ford Crown Victoria. Additionally, about a month 

after this shooting Simpson gave the gun involved in this shooting to his 

girlfriend. The girlfriend stated the Simpson passed guns to lots of people. 
35

prescribes an increase in punishment, but this “ ‘penalty provision is separate 

from the underlying offense and does not set forth elements of the offense or a 

greater degree of the offense charged.’ ” (Ibid.) 

To convict Simpson of gang conspiracy the jury needed to find that the 

April 4, 2012 shooting was an attempted murder committed by a Brim gang 

member. While it is undisputed that Norman Sanchez and Lucas were Brim 

gang members, there is no evidence in the record regarding to what crime these 

individuals pleaded guilty, or whether this crime constituted a felony. It is not 

within the common knowledge of laypersons to be able to determine from the 

testimony to what crime Norman Sanchez and Lucas pleaded guilty, or whether 

that crime constituted a felony. Without any evidence regarding the nature of 

the crimes committed by these Brim gang members the jury is left with 

speculation. “ ‘But speculation is not evidence, less still substantial evidence.’ ” 

(People v. Waidla (2000) 22 Cal.4th 690, 735.) The lack of evidence regarding 

the nature of Norman Sanchez’s and Lucas’s convictions constitutes a failure of 

proof regarding an element of the crime of gang conspiracy. Accordingly, 

Simpson’s gang conspiracy conviction must be reversed. (People v. Diaz (2005) 

125 Cal.App.4th 1484, 1490–1491 [“The prosecution bears the burden of proving 

all elements of the offense, and must persuade the fact finder beyond a 

reasonable doubt of the facts necessary to establish those elements.”].) 

d. Hoskins (Count 7)

i. Additional background

The jury found Hoskins guilty of gang conspiracy arising out of a shooting 

on August 27, 2013, where a white minivan approached B.T., a Lincoln Park 

gang member walking in WCC territory, and the minivan’s passenger, who wore 

a red bandana over his face, fired a gun in B.T.’s direction. Further 
36

investigation revealed that the minivan was registered to Brim gang member 

Timothy Hurst and Hurst was later convicted for this shooting. 

During opening statement, the prosecutor told the jurors that he would 

present Timothy Hurst’s free talk and that Hurst would testify at trial about the 

information he provided in that free talk. He claimed that Timothy Hurst would 

testify that Hoskins instigated the shooting because the Crips had disrespected 

Brim by coming into Brim territory to take photographs, that Nino Sanchez was 

the shooter in the red bandana and Hoskins was a back seat passenger. 

Ultimately, Timothy Hurst refused to testify, was held in contempt, and 

none of the evidence from the free talk was presented at trial. During closing 

argument, the prosecution used social media postings and Hoskins’s contact 

with, B.T., the victim of the shooting after Timothy Hurst’s arrest to support the 

gang conspiracy charge. Specifically, the evidence against Hoskins consists of 

the following:

“About six months before the August 27 shooting, Hoskins 

was in WCC territory, about a mile from where the 

shooting occurred, and he posted on social media a 

photograph of Timothy Hurst tossing up Brim and Crip 

killer hand signs. The morning of August 27 a posting on 

fellow gang member Paris’s social media account showed 

two photographs of Hoskins and Paris in the same location 

making gang-related hand signs, including flipping off 

WCC. 

“The unknown shooter wore a red bandana around his face. 

At some unknown time a photograph was posted on 

Hoskins’s social media account showing Hoskins with a 

bandana over his face captioned, “Rags around our face to 

beat the case in case the N word look 5/9 Brim gang. Nap 

bashing. Toe smashing. 3k, 4k, YH[$].” The gang expert 

interpreted the caption as meaning you should hide your 

face in case another person sees you. Nap bashing means 

bashing in NC. Toe smashing means smashing on WCC. 
37

30k references WCC and 40k represents NC. The YHS 

with the dollar sign means Young Hit Squad.

“The gang expert stated that Timothy Hurst and Hoskins 

grew up next to each other and concluded that the men 

were “extremely close friends.” Hoskins’s DNA was found 

on the passenger side of Hurst’s minivan. After Hurst’s 

arrest, Hoskins and Hurst’s girlfriend discussed the case 

against Hurst that included photographs of witness 

statements by B.T., the shooting victim. 

“Hoskins reached out to B.T., the shooting victim, through 

social media asking him not to testify so that Hurst could 

beat the case. The response from B.T.’s account read, “I’m 

not testifying on Blood what the paperwork say?” The 

expert explained the response as swearing on the gang to 

not testify. This was followed by a series of 

communications between the two accounts culminating 

with the person using the Hoskins account to challenge and 

then threaten the person using B.T.’s account.” 

ii. Analysis

To establish Hoskins’s guilt of gang conspiracy the prosecution was 

required to prove that Hoskins “willfully promote[d], further[ed], assist[ed], or 

benefit[ed] from any felonious criminal conduct by members of that gang. . . .” 

(§ 182.5, italics added.) Regarding this element, the court instructed the jury 

that to find Hoskins guilty of gang conspiracy it must find that “[o]n August 27, 

2013, members of the criminal street gang committed Deliberate and 

Premeditated Attempted Murder in violation of . . . Sections 664/187/189.” 

Although the record established that Timothy Hurst was a Brim gang member, 

we located no evidence in the record of what crime Timothy Hurst pleaded guilty 

regarding this shooting. 

We requested and received supplemental briefing from the parties on: (1) 

whether the jury received any evidence informing them of what crime Timothy 

Hurst pleaded guilty as related to his involvement in the August 27, 2013 
38

shooting; and (2) assuming the jury received no evidence informing them of what 

crime Timothy Hurst pleaded guilty as related to his involvement in the 

August 27, 2013 shooting, whether sufficient evidence supports the jury’s verdict 

against Hoskins on count 7, gang conspiracy. 

All parties agree that the jury received no evidence informing them of 

what crime Timothy Hurst pleaded guilty as related to his involvement in the 

August 27, 2013 shooting. Hoskins claims that this omission requires his gang 

conspiracy conviction be reversed because the evidence fails to show that any 

Brim gang member suffered a felony conviction related to this shooting. We 

agree. (See ante, pt. I.C.3.c.) Based on this failure of proof, we reverse Hoskins’s 

gang conspiracy conviction. 

D. Simpson’s Attempted Murder and Assault Convictions (Counts 2-5)

Simpson challenges the sufficiency of the evidence supporting his 

convictions for attempted murder (counts 2 and 3) and assault with a 

semiautomatic firearm (counts 4 and 5) arising from the June 14, 2011 shooting. 

He claims the evidence does not establish that he was the shooter and intended 

to kill, or that he aided and abetted the shooting. Specifically, he argues that 

T.J., an accomplice and admitted liar, was the only witness to identify him as 

the shooter, claiming that all other witnesses gave differing descriptions of the 

shooter. 

Attempted murder requires the specific intent to kill and the commission 

of a direct but ineffectual act toward accomplishing the intended killing. (People 

v. Ervine (2009) 47 Cal.4th 745, 785.) Attempted murder also requires express 

malice, meaning the assailant desires the victim’s death or knows to a 

substantial certainty that the victim’s death will occur. (People v. Booker (2011) 

51 Cal.4th 141, 178.) “Intent to unlawfully kill and express malice are, in 

essence, ‘one and the same.’ ” (People v. Smith (2005) 37 Cal.4th 733, 739.) 
39

Intent to kill may be inferred from the defendant’s acts and the circumstances of 

the crime. (Id. at p. 741.) “The act of shooting a firearm toward a victim at close 

range in a manner that could have inflicted a mortal wound had the shot been 

on target is sufficient to support an inference of an intent to kill.” (People v. 

Houston (2012) 54 Cal.4th 1186, 1218.) The circumstance that the bullet misses 

its mark or fails to prove lethal is not dispositive. (Smith, at pp. 741–742.) 

Attempted murder does not necessarily require a specific target and an

indiscriminate would-be killer who fires into a crowd is just as culpable as one 

who targets a specific victim. (Houston, at p. 1218.) 

To support a conviction, accomplice testimony must be corroborated by 

independent evidence which, without aid or assistance from the accomplice’s 

testimony, tends to connect the defendant with the crime charged. (People v. 

Szeto (1981) 29 Cal.3d 20, 27.) “ ‘Corroborating evidence may be slight, entirely 

circumstantial, and entitled to little consideration when standing alone. 

[Citations.] It need not be sufficient to establish every element of the charged 

offense or to establish the precise facts to which the accomplice testified. 

[Citations.] It is “sufficient if it tends to connect the defendant with the crime in 

such a way as to satisfy the jury that the accomplice is telling the truth.” ’ ” 

(People v. Manibusan (2013) 58 Cal.4th 40, 95.) “ ‘The trier of fact’s 

determination on the issue of corroboration is binding on the reviewing court 

unless the corroborating evidence should not have been admitted or does not 

reasonably tend to connect the defendant with the commission of the crime.’ ” 

(People v. Romero and Self (2015) 62 Cal.4th 1, 32–33.) 

We are satisfied that substantial evidence supports Simpson’s attempted 

murder and assault convictions. T.J. admitted that on the day of the shooting 

she lied when she told an officer that she had not seen anything. During her 

police interview, which took place three years before she entered witness 
40

protection, T.J. identified Simpson as the shooter. She claimed that Orchord 

was in the bathroom during the shooting and that he ran outside after the 

shooting. During trial, T.J. similarly stated that Simpson was the shooter, that 

Orchord was in the bathroom during the shooting and that he ran outside after 

the shooting. 

Assuming the jury found T.J. was an accomplice, the testimony of other 

witnesses sufficiently corroborated T.J.’s testimony that Simpson was the 

shooter. Brenda, a neighbor who knew Orchord, also testified that Orchord was 

not outside during the initial argument. After the shooting, T.J. saw Simpson 

give the gun to Orchord who then hid the gun inside the garage. Police found a 

firearm in the garage and ballistics testing linked this firearm to the shooting. 

The witnesses who observed the altercation on the street testified 

inconsistently regarding the physical appearance of the shooter. We examined 

this testimony in depth and focused on the consistencies in the testimony, which 

described a person meeting Simpson’s physical description. 

A police officer who was patrolling the area 30 minutes before the shooting 

saw Paris and Simpson hanging out with a group of Brim gang members in front 

of Orchord’s garage. All the men wore blue jeans and T-shirts, including 

Simpson who wore a white T-shirt. The officer stated that Simpson did not have 

a full beard and described him as about 180 to 190 pounds with short black hair. 

Raymond, a school worker, heard the argument. He heard the shooter say “fuck 

that, fuck that” followed by two gunshots. After the shooting and at trial, he 

described the shooter as an African-American man in his 20’s with a muscular 

build. 

Maritza, a neighbor, also heard the argument. She described the shooter 

on the day of the incident as about 5 feet 10 inches tall and weighs 220 pounds 

with a full beard. Police photographed Paris, Orchord, Chavarry, Lucas, and 
41

Simpson after the shooting. While Paris, Orchord, Chavarry, Lucas were 

relatively clean shaven, Simpson had sufficient stubble on his face to be 

construed as a full beard. 

Carlos, a construction worker, heard the argument. He described the 

shooter as about 5 feet 10 inches or 5 feet 11 inches tall and weighing about 220 

to 230 pounds. He did not mention the shooter’s hairstyle to the officer. 

Elizabeth, another school worker, looked outside her second floor window after 

hearing the argument and described the shooter as an African-American man in 

his mid-20’s, with very short hair, about 5 feet 7 inches or 5 feet 8 inches. She 

later described the shooter as being tall. 

On the day of the shooting, Simpson had short hair. One officer who 

observed the Brim gang members after their arrests described Simpson as the 

largest and “[d]efinitely the most muscular” of the group. This officer described 

Lucas, who also had short hair, as about 5 feet 7 inches tall and 160 pounds. He 

described Paris and Orchord as being about the same height as Lucas, with 

Orchord having a medium build, while Paris was thinner than Lucas and had 

his hair in braids. Although police detected no gun shot residue on Simpson 

after his arrest, Simpson had sufficient time to change clothes and thus had 

sufficient time to wash his hands. 

T.J.’s corroborated testimony supported the verdicts against Simpson on 

the attempted murder and assault charges. (In re Frederick G. (1979) 96 

Cal.App.3d 353, 366 [testimony of a single witness may support a judgment, 

“even if it is contradicted by other evidence, inconsistent or false as to other 

portions.”].) Additionally, the testimony of the other eyewitnesses suggests that 

Simpson, the largest man of the group, was the shooter. “Conflicts and even 

testimony which is subject to justifiable suspicion do not justify the reversal of a 

judgment, for it is the exclusive province of the trial judge or jury to determine 
42

the credibility of a witness and the truth or falsity of the facts upon which a 

determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403.)17 

E. Ware’s Gang Enhancement (Count 10)

Ware challenged the sufficiency of the evidence supporting the gang 

enhancement connected to his March 25, 2014, attempted murder conviction 

(count 10). He claimed the evidence did not establish that (1) the shooting was 

directed by, for the benefit of, or in association with, the Brim gang; and (2) 

conducted with the specific intent to further criminal conduct by gang members. 

As we will discuss in section I.V.B.1., we vacate the jury’s true finding on the 

gang enhancement attached to count 10, rendering this argument moot.

F. Ware Gun Possession (Counts 12 and 13)

1. Additional Background

On April 23, 2014, at about 5:00 a.m., officers executed a search warrant 

at Ware’s apartment. SWAT officers used a bullhorn to call out the occupants of 

the apartment. Ware’s mother came out and said that other people were inside, 

but no one else exited the apartment. After 20 minutes of unsuccessfully calling 

out the other occupants, SWAT officers used a “flash bang” to clear the 

17 In a passing argument, Simpson claims the evidence does not support 

the finding that he intended to kill the victims because the shooting did not 

take place from close range. We are not persuaded by this argument. 

One witness described the distance between the two groups as “30 feet 

max.” Another witness described the distance between the shooter and his 

intended targets as 15 to 20 feet. “ ‘The act of firing toward a victim at a 

close, but not point blank, range “in a manner that could have inflicted a 

mortal wound had the bullet been on target is sufficient to support an 

inference of intent to kill . . . .” ’ ” (Smith, supra, 37 Cal.4th at p. 741.) 

“ ‘[T]he crime of attempted murder requires no physical injury to the 

victim. . . .’ ” (People v. Bland (2002) 28 Cal.4th 313, 328–329.) Moreover, 

these same two witnesses described the victims as retreating. “[F]iring at a 

fleeing victim reasonably reflects an intention to kill.” (People v. Bolin (1998) 

18 Cal.4th 297, 319.) 
43

apartment. Ware, his sister, half-brother, and a younger female friend of the 

family then came out of the apartment. 

After entering the apartment, officers found the door to the sister’s

bedroom locked and forced entry into that room. Inside the sister’s bedroom, 

officers found two handguns, a .40 caliber Hi-Point handgun and a Ruger. The 

loaded Hi-Point was hidden between the mattress and box springs. The HiPoint firearm contained Ware’s DNA. Officers found the unloaded Ruger inside 

a dresser drawer. The Ruger was one of the stolen handguns from the 

January 29, 2014, residential burglary involving Nino Sanchez. The DNA 

results from the Ruger handgun were too low for comparison. Neither gun was 

connected to any of the shootings at issue in this case. 

Counts 12 and 13 charged Ware with possession of a firearm by a felon. 

The information and the verdict forms did not designate which gun was 

associated with each count. During trial, defense counsel conceded Ware’s guilt 

on both counts, stating that Ware constructively possessed the guns found in his 

sister’s bedroom. For purposes of analysis, we designate count 12 as pertaining 

to the Ruger firearm and count 13 as pertaining to the Hi-Point firearm. 

2. Gun Possession (Count 12 (Ruger))

Ware contends that the evidence does not support the inference that he 

actually or constructively possessed the Ruger handgun because it was found in 

his sister’s bedroom and did not contain his DNA.18 He notes that the 

prosecution presented no evidence showing he lived at the apartment and that 

he had access, the right to access, or the means to access his sister’s room 

without her assistance and consent. He acknowledges that his counsel conceded 

his guilt to this count during closing argument, but claims this concession does 

18 Simpson joins in this argument because it supports his contention that 

overt acts numbers 70 and 71 were not supported by the evidence. 
44

not bar sufficiency of the evidence review. Assuming this court concludes that 

defense counsel’s concession forfeited the sufficiency of the evidence challenge, 

he contends that his attorney rendered constitutionally ineffective assistance of 

counsel. 

As a preliminary matter, we note that the Attorney General did not 

respond to the sufficiency of the evidence issue as having been forfeited by 

defense counsel’s concession during closing argument. “Two of the most basic 

premises of our criminal justice system” are “the presumption of innocence and 

the duty of the prosecution to prove guilt beyond a reasonable doubt.” (People v. 

Belton (1979) 23 Cal.3d 516, 520.) “Implicit in these principles is the duty of the 

prosecution to prove each element of the crime charged. ‘One of the greatest 

safeguards for the individual under our system of criminal justice is the 

requirement that the prosecution must establish a prima facie case by its own 

evidence before the defendant may be put to his defense.’ ” (Ibid.) Any concession 

by defense counsel during closing argument did not alter this fundamental duty. 

Indeed, a challenge to the sufficiency of evidence is forfeited in the trial court 

only by failure to file a timely notice of appeal. (People v. Rodriguez (1998) 17 

Cal.4th 253, 262.) Accordingly, we turn to the merits of Ware’s contention. 

The elements of the crime of being a felon in possession of a firearm are 

conviction of a felony and ownership or knowing possession, custody, or control 

of a firearm. (§ 29800, subd. (a)(1); CALCRIM No. 2510.) Ware does not dispute 

that he had suffered a prior felony conviction. He challenges his conviction on 

the ground insufficient evidence showed he constructively possessed the Ruger 

firearm found in his sister’s locked bedroom because it did not contain his DNA. 

“Possession may be either actual or constructive as long as it is 

intentional.” (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) “ ‘Constructive 

possession occurs when the accused maintains control or a right to control the 
45

contraband; possession may be imputed when the contraband is found in a place 

which is immediately and exclusively accessible to the accused and subject to his 

dominion and control, or to the joint dominion and control of the accused and 

another. . . . The elements of unlawful possession may be established by 

circumstantial evidence and any reasonable inferences drawn from such 

evidence.’ ” (People v. Busch (2010) 187 Cal.App.4th 150, 162.) “[T]here is no 

single factor or specific combination of factors which unerringly points to 

possession . . . . [T]he question of possession turns on the unique factual 

circumstances of each case.” (People v. Land (1994) 30 Cal.App.4th 220, 228.) 

“Constructive possession means the object is not in the defendant’s 

physical possession, but the defendant knowingly exercises control or the right 

to control the object.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) 

“Dominion and control” cannot be inferred from the defendant’s mere proximity 

or access to the weapon. (People v. Zyduck (1969) 270 Cal.App.2d 334, 336.) 

“[S]omething more must be shown . . . .” (Ibid.) Nonetheless, “the necessary 

additional circumstances may, in some fact contexts, be rather slight.” (Ibid.) 

That slight, something more, exists here. 

Police found Ware in the apartment at 5:00 a.m. with his mother, sister 

and half-brother. From these facts, jurors could reasonably infer that Ware 

resided at the apartment. After officers announced their presence to execute a 

search warrant, Ware’s mother exited the residence while Ware, his sister and 

two others remained inside for 20 minutes knowing that officers were there to 

search the residence for contraband. Before Ware’s sister and the other 

occupants exited the residence someone actively used the lock on the sister’s

bedroom door to exclude officers from this room. 

Ware does not dispute that he constructively possessed the Hi-Point 

firearm found in his sister’s locked bedroom at some point because this firearm 
46

contained his DNA. The lack of Ware’s DNA on the Ruger firearm does not 

necessarily show the opposite; rather, we must examine the unique 

circumstances of this case. The existence of the Hi-Point firearm in his sister’s 

bedroom shows that Ware had access to this room and suggests that he shared 

dominion and control of this room with his sister. (People v. Rushing (1989) 209 

Cal.App.3d 618, 622 [“A defendant does not avoid conviction if his right to 

exercise dominion and control over the place where the contraband was located 

is shared with others.”].) Additionally, the Ruger firearm was one of the stolen 

handguns from the January 29, 2014 residential burglary involving Nino 

Sanchez, Ware’s fellow Hit Squad member. Finally, the gang expert testified 

that gang members store their guns where officers do not have ready access. 

The locked bedroom of a family member counts as such a location. 

We find that sufficient evidence existed from which a rational trier of fact 

could reasonably infer that Ware knowingly exercised control, or the right to 

control the Ruger firearm, and therefore constructively possessed it. 

Accordingly, the evidence supports his conviction for being a felon in possession 

of the Ruger firearm. 

3. Statute of Limitations Defense (Count 13 (Hi-Point))

Ware concedes that the evidence shows he actually possessed the Hi-Point 

handgun at some point because police found his DNA on this weapon. He 

argues, however, that there was no evidence that he possessed the Hi-Point gun 

within the statute of limitations period for this offense. He claims that he did 

not forfeit this issue because it pertains to the sufficiency of the evidence to 

support the charge. Assuming we find this issue forfeited by failure to raise it 

below, Ware submits his defense attorney rendered ineffective assistance by 

failing to raise this issue and by conceding his guilt given the existence of a 

viable defense to the charged possession. 
47

The People argue that Ware forfeited this issue because the information 

was not untimely on its face. Even assuming the issue is not forfeited, the 

People contend that substantial evidence supports a finding that the offense was 

committed within the statute of limitations period. We agree with the People 

that substantial evidence shows that the prosecution of this charge was timely. 

Accordingly, we decline to address the forfeiture argument to avoid Ware’s 

secondary argument that defense counsel was constitutionally ineffective for 

failing to raise this issue, and proceed to the merits. 

“A felony prosecution commences for statute of limitations purposes 

when an indictment or information is filed, or an arrest warrant or bench 

warrant issues . . . .” (People v. Castillo (2008) 168 Cal.App.4th 364, 366.) 

The prosecution bears the burden of proving an offense occurred within the 

applicable statute of limitations period by a preponderance of the evidence. 

(Id. at p. 369.) The crime of illegal firearm possession by a felon is a felony 

subject to a three-year statute of limitations. (§§ 18, 801, 29800, subd. (a)(1).) 

Here, the prosecution commenced upon the filing of the original 

information on December 18, 2014, charging Ware with the possession “[o]n 

or about April 23, 2014.” Accordingly, to meet its burden, the prosecutor 

needed to prove that Ware possessed the Hi-Point handgun at some point 

after December 18, 2011. Ware claims that the prosecutor failed to meet this 

burden because there is no evidence when he physically possessed the HiPoint firearm and deposited his DNA on it, and the prosecution failed to 

establish he had constructive possession of this weapon on April 23, 2014, 

when police found the gun in his sister’s bedroom. As discussed ante

regarding the Ruger firearm, the presence of the Hi-Point firearm on 

April 23, 2014 in his sister’s bedroom, established Ware’s constructive 

possession of this weapon. (Ante, pt. I.F.2.) Accordingly, the evidence 
48

sufficiently showed that Ware’s possession of the Hi-Point handgun occurred 

within the limitations period. 

II. 

ALLEGED INSTRUCTIONAL ERROR

A. CALCRIM No. 418

1. Additional Background

The information identified numerous overt acts which contained 

statements of oral or written expression, or nonverbal conduct. The court 

admitted some of the statements under the admissions of a coconspirator 

exception to the hearsay rule. (Evid. Code, § 1223.) The trial court, without 

objection, instructed with CALCRIM No. 418, which provided: 

“In deciding whether the People have proved that 

the defendants committed the crime charged, you 

may not consider any statement made out of court by

Edward Paris, Leron Johnson, Nicholas Hoskins, Dionte 

Simpson, Victor Ware, Damonte Lucas, Norman Sanchez, 

Emanuel Peavy, Lamont Holman, Maurice Chavarry, 

Sherbly Gordon, Steven Mahaney, Rahman Taylor, 

Deandre Cooper, Jamon Smith, Nino Sanchez, Mykein 

Price, Timothy Hurst, Clyde Ellis, Edward Laplanche, 

Aaron Hurst,[19] or unless the People have proved by a 

preponderance of the evidence that:

“1. Some evidence other than the statement itself 

establishes that a conspiracy to commit a crime existed 

when the statement was made; 

“2. [The co-conspirators] were members of and 

participating in the conspiracy when they made the 

statement; 

“3. [The co-conspirators] made the statement in order 

to further the goal of the conspiracy; [¶] AND

19 We collectively refer to these individuals as “the coconspirators.” 
49

“4. The statement was made before or during the 

time that the defendants were participating in the 

conspiracy.

“A statement means an oral or written expression, or 

nonverbal conduct intended to be a substitute for an oral or 

written expression. [¶] Proof by a preponderance of the 

evidence is a different standard of proof than proof beyond 

a reasonable doubt. A fact is proved by a preponderance of 

the evidence if you conclude that it is more likely than not 

that the fact is true. [¶] You may not consider statements 

made by a person who was not a member of the conspiracy 

even if the statements helped accomplish the goal of the 

conspiracy. [¶] You may not consider statements made 

after the goal of the conspiracy had been accomplished.” 

(Bolding added.) 

2. Analysis

Appellants contention that CALCRIM No. 418 informed the jury that their 

intent and the coconspirator’s statements could be proved by a preponderance of 

the evidence which violated their constitutional right to due process by lessening 

the prosecution’s burden of proof. Simpson asserts that this erroneous 

instruction affected his substantial rights so that we should reach the merits of 

his claim despite defense counsel’s failure to object. The People assert that 

appellants forfeited this claim by failing to object to the instruction at trial. In 

any event, the People claim that the instructions as a whole properly instructed 

the jury on the prosecution’s burden of proof. We consider appellants’

arguments on their merits because “[a]scertaining whether claimed 

instructional error affected the substantial rights of the defendant necessarily 

requires an examination of the merits of the claim . . . .” (People v. Andersen

(1994) 26 Cal.App.4th 1241, 1249.) 

We review a claim of instructional error de novo. (People v. Posey (2004) 

32 Cal.4th 193, 218.) We “first ascertain what the relevant law provides, and 
50

then determine what meaning the instruction given conveys. The test is 

whether there is a reasonable likelihood that the jury understood the instruction 

in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85 

Cal.App.4th 579, 585.) Where the “determination of error depends on the 

meaning communicated by an instruction, we must ascertain how a hypothetical 

‘reasonable juror’ would have, or at least could have, understood the words in 

question.” (People v. Mickey (1991) 54 Cal.3d 612, 670.) “ ‘ “[T]he correctness of 

jury instructions is to be determined from the entire charge of the court, not 

from a consideration of parts of an instruction or from a particular

instruction.” ’ ” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) 

Additionally, we must interpret the instructions at issue to support the 

judgment rather than defeat it, so long as the instructions are reasonably 

susceptible of such an interpretation. (People v. Sy (2014) 223 Cal.App.4th 44, 

59.) 

“Evidence Code section 1223 provides an exception to the hearsay rule as 

to statements made during the existence of a conspiracy that are in furtherance 

of its objective.” (People v. Herrera (2000) 83 Cal.App.4th 46, 59.) CALCRIM 

No. 418 is tied to Evidence Code section 1223 and must be given when a 

coconspirator’s statement has been admitted under Evidence Code section 

1223.20 (Judicial Council of Cal. Crim. Jury Instns. (2018), Bench Notes to 

20 Evidence Code section 1223 states, “Evidence of a statement offered 

against a party is not made inadmissible by the hearsay rule if: (a) The 

statement was made by the declarant while participating in a conspiracy to 

commit a crime or civil wrong and in furtherance of the objective of that 

conspiracy; (b) The statement was made prior to or during the time that the 

party was participating in that conspiracy; and (c) The evidence is offered 

either after admission of evidence sufficient to sustain a finding of the facts 

specified in subdivisions (a) and (b) or, in the court’s discretion as to the order 

of proof, subject to the admission of such evidence.” 
51

CALCRIM No. 418, p. 219.) CALCRIM No. 418 protects criminal defendants by 

instructing the jury not to consider statements made by coconspirators unless 

the People have proven, by a preponderance of the evidence, that there was a 

conspiracy, the declarant was a member of the conspiracy, the declarant made 

the statement to further the goal of the conspiracy, and the statement was made 

before or during the time the defendant was participating in the conspiracy. 

Appellants’ argument is based on a misreading of the instruction. The 

first paragraph of CALCRIM No. 418 clearly informed the jurors that they could 

not consider any coconspirator’s out-of-court statements in deciding the 

conspiracy charges unless the People proved by a preponderance of the evidence 

four requirements for considering the out-of-court statements. CALCRIM No. 

418 did not instruct the jurors regarding what they needed to find to convict 

appellants of conspiracy. On this issue, the court instructed with CALCRIM No. 

563 which provided that the People would have to prove four elements, the 

existence of an agreement, the necessary intent to agree and kill, and the 

commission of an overt act. In turn, CALCRIM No. 220 expressly told the jury, 

“Whenever I tell you the People must prove something, I mean they must prove 

it beyond a reasonable doubt unless I specifically tell you otherwise.” CALCRIM 

No. 418 is not confusing and, when considered with the other instructions 

provided to the jury, did not reduce the prosecution’s burden of proof. 

Accordingly, we reject appellants’ claim of instructional error. 

B. Multiple Conspiracies

The jury found Ware guilty of conspiracy to murder suspected NC and 

WCC gang members (count 1). It also found him guilty of attempted murder 

based on the March 25, 2014 shooting (count 10) where he drove his car into 

WCC territory and his passenger shot at a WCC gang member. To the extent 

the conspiracy had an objective apart from the attempted murder in count 10, 
52

Ware submits that the crimes committed in furtherance of the conspiracy reveal 

not a single overarching conspiracy but many different conspiracies. Citing 

People v. Jasso (2006) 142 Cal.App.4th 1213, 1220 (Jasso), Ware asserts that the 

question whether there were multiple conspiracies, or a single conspiracy, was 

an issue of fact for the jury to decide if evidence existed to support alternative 

findings. He claims that because there were multiple conspiracies, the trial 

court erred in failing to sua sponte instruct the jury that it could find the 

existence of multiple conspiracies.

The People contend that Ware forfeited the purported error by failing to 

ask the court to amplify the instructions provided. Assuming we determine the 

claim is cognizable, the People argue that there is a split of authority whether 

the existence of a single conspiracy, as opposed to multiple conspiracies, is one of 

law for the trial court or one of fact for the jury. Even assuming the question is 

one for the jury to decide, the People assert that a sua sponte duty to instruct on 

multiple conspiracies exists only when there is evidence to support alternative 

findings and the facts here support only one conspiracy. 

In addressing whether a trial court has a sua sponte duty to instruct the 

jury to determine the number of conspiracies committed, another panel of this 

court noted that trial courts are required to give correct jury instructions on the 

general principles of law relevant to issues raised by the evidence, with or 

without a request. (People v. Kopp (2019) 38 Cal.App.5th 47, 84, review granted 

Nov. 13, 2019, S257844 (Kopp)21.) Accordingly, we decline to find the claim 

21 The Supreme Court has limited review in Kopp, supra, 38 Cal.App.5th 

47 to the following questions: “(1) Must a court consider a defendant’s ability 

to pay before imposing or executing fines, fees, and assessments? (2) If so, 

which party bears the burden of proof regarding the defendant’s inability to 

pay?” We may cite Kopp for its persuasive value while review is pending. 

(Cal. Rules of Court, rule 8.1115(e)(1).) 
53

forfeited and turn to the issue whether the existence of a single conspiracy, as 

opposed to multiple conspiracies, is one of law for the trial court or one of fact for 

the jury. On this issue, we follow Kopp and conclude “that the number of 

conspiracies is a question of fact” and that a trial court has a duty “to instruct 

the jury, sua sponte, to determine the number of conspiracies ‘where the 

evidence supports alternative findings.’ ” (Id. at p. 85.) 

For purposes of analysis, we will assume, without deciding, that the 

evidence supported alternative findings regarding the existence of a single, or 

multiple conspiracies. However, we conclude that because the People charged a 

single conspiracy, Ware suffered no prejudice in the court’s failure to instruct 

the jury to determine if there were multiple conspiracies.22 As another court 

explained, “we fail to see how charging defendant with one count of conspiracy, 

instead of multiple counts, could prejudice defendant. Any error would therefore 

be harmless. [¶] Furthermore, assuming there were multiple conspiracies, we 

do not see how the existence of the uncharged conspiracies can result in the 

reversal of a guilty finding in the one conspiracy that was charged. If the 

evidence submitted to the jury supports the guilty finding on the charged 

conspiracy, the fact that the same evidence might also have supported other 

conspiracies, which were not charged, is of no consequence to the issue of 

innocence or guilt on the charged conspiracy.” (People v. Vargas (2001) 91 

Cal.App.4th 506, 553.) We agree with this assessment and conclude that any 

assumed error was harmless. 

22 The cases Ware cites to show prejudicial error involved situations 

where the defendant was convicted of multiple conspiracies and the issue 

presented was whether the trial court erred in not instructing the jury on 

whether a single conspiracy existed. (See People v. Meneses (2008) 165 

Cal.App.4th 1648, 1651, 1671; Jasso, supra, 142 Cal.App.4th at p. 1215; 

Kopp, supra, 38 Cal.App.5th at pp. 55, 88.) 
54

III. 

WARE’S ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

A. General Legal Principles 

A defendant seeking reversal for ineffective assistance of counsel must 

prove both deficient performance and prejudice. (Strickland v. Washington

(1984) 466 U.S. 668, 687 (Strickland).) To demonstrate prejudice, defendant 

must show a reasonable probability that he would have received a more 

favorable result had counsel’s performance not been deficient. (Id. at 

pp. 694–695.) “A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” (Id. at p. 694.) “The likelihood of a 

different result must be substantial, not just conceivable.” (Harrington v. 

Richter (2011) 562 U.S. 86, 112.) 

“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.) Where counsel’s trial tactics “for challenged decisions 

do not appear on the record, we will not find ineffective assistance of counsel 

on appeal unless there could be no conceivable reason for counsel’s acts or 

omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.) 

B. Pat Down Search on January 29, 2014

1. Additional Background

On this date, a gang suppression team officer observed Ware and 

another African-American male walking down the street in an area claimed 

by the Lincoln Park gang. The officer, who had never seen or contacted Ware 
55

before, noticed that Ware wore a black hat with a white “W” on it, leading 

him to suspect that Ware might be affiliated with WCC, a Lincoln Park rival.

The officer stopped the men and let Ware’s companion leave after 

determining that this individual was not involved in gang activity. The 

officer handcuffed Ware and searched him, despite Ware stating that he did 

not want to be searched. During the search, the officer found a loaded gun. 

At trial, the parties stipulated that on the date of this incident Ware 

had a prior felony conviction. In count 8, the jury convicted Ware of being a 

felon in unlawful possession of a firearm based on the discovery of the gun 

during this stop and frisk. 

Before this matter was assigned for trial, Ware requested at least three 

Marsden23 hearings “maybe more.” After being assigned for trial, Ware 

requested three Marsden hearings. At the first hearing, Ware complained 

about the following: (1) pressure to accept a 20-year plea agreement; (2) 

violations of the Fourteenth and Eighth Amendments; (3) excessive bail; (4) 

failure to visit; and (5) failure to provide discovery. After hearing from 

defense counsel, the court denied the motion. 

At the second hearing, Ware raised several issues, including that he 

wanted counsel to challenge “a gang-enhancement issue that had illegal 

search-and-seizure issues.” After hearing Ware’s other complaints, the court 

commented “we’ve had one attorney in this matter file various motions, none 

of which have had any merit. So attorneys shouldn’t file motions that don’t 

have merit, right. You need to fight where you can fight and concede where 

you need to concede. It’s like a—like a smart football game, all right. 

Sometimes you don’t want the guy to get a touchdown, but you don’t care if 

23 People v. Marsden (1970) 2 Cal.3d 118. 
56

he gets five yards, so you concede the five yards. Play smart, all right. I 

mean, that’s the way I look at it. And [your defense counsel is] a good 

tactician that way. He’s been around a long time.”

At a third pretrial Marsden hearing, Ware complained about certain 

motions he wanted filed, a lack of communication, and withholding 

exculpatory evidence. After hearing from defense counsel, the court denied 

the motion, commenting that Ware had “a very good attorney” representing 

him. 

During a posttrial proceeding regarding Ware’s prior convictions, Ware 

requested another Marsden hearing. At this hearing, Ware argued, among 

other things, that counsel improperly admitted his guilt on this possession 

charge because the officer illegally obtained the gun during the search and 

that the gun was “fruit from a poisonous tree.” Defense counsel responded 

that he conceded guilt on the possession charges for tactical reasons, stating

this was “a tactical decision that someone could second-guess.” Counsel also 

noted that he did not file “a search and seizure motion” because he did not 

“believe such a motion was there . . . based on the nature of the search and 

the circumstances surrounding it.” At the end of the hearing, defense counsel 

stated that he and Ware had disagreements about certain legal issues, he 

believed the issues raised were all “tactical decisions that [he] made 

consciously and intentionally based on the state of the facts and the state of 

the law.” 

At a second posttrial Marsden hearing, Ware indicated his desire to 

request a new trial to argue, among other things, ineffective assistance of 

counsel. The court continued the matter to conduct its own research. At the 

subsequent hearing, the court concluded that Ware lacked grounds for the 
57

appointment of counsel to review the record for the possible filing of a new 

trial motion based on ineffective assistance of counsel. 

2. Analysis 

Ware concedes that defense counsel thoroughly cross-examined the 

detaining officer at trial regarding the reason for stopping and searching him. 

He contends, however, that defense counsel provided constitutionally 

ineffective assistance by failing to file a suppression motion because the stop 

and search violated his Fourth Amendment right to be free from unlawful 

searches and seizures.24 Ware submits that the record on appeal is 

sufficiently complete to reveal there could be no rational basis for failing to 

challenge the detention and search. Specifically, he claims that defense 

counsel addressed his reason for not filing a suppression motion at the 

Marsden hearing, but failed to provide a meaningful response. The People 

disagree, arguing that Ware failed to rebut the presumption that defense 

counsel rendered reasonable professional assistance and cannot show that a

motion to suppress the firearm would have been successful. 

Ware has the burden of establishing “that counsel made errors so 

serious that counsel was not functioning as the ‘counsel’ guaranteed the 

defendant by the Sixth Amendment.” (Strickland, supra, 466 U.S. at p. 687.) 

Ware admits that it is “particularly challenging” to show ineffective 

assistance on direct appeal. Ware is correct. This standard is “highly 

demanding” and requires that a defendant prove “gross incompetence.”

(Kimmelman v. Morrison (1986) 477 U.S. 365, 382.) “[A] court must indulge a 

24 Simpson joins in this argument claiming that the failure to move to 

exclude the gun as evidence allowed inadmissible evidence to be admitted to 

prove his conviction of count 1 which denied him due process of law and 

constituted a miscarriage of justice. 
58

strong presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action ‘might be 

considered sound trial strategy.’ ” (Strickland, at p. 689.) 

In People v. Mendoza Tello (1997) 15 Cal.4th 264, the Supreme Court 

unanimously reversed the Court of Appeal’s reversal of the defendant’s 

conviction on the grounds that counsel was ineffective for failing to file a 

suppression motion; the court did so due to gaps in the record: “On this 

record, we do not know what [the deputy] would have said had he been asked 

at a suppression hearing why he did what he did. . . . [P]erhaps he did have a 

reason, of which defense counsel was aware, and which justified counsel’s 

actions. Perhaps there was some other reason not to suppress the evidence.” 

(Id. at p. 267.) “No one gave [the deputy] the opportunity to point to any 

specific and articulable facts justifying his actions. Nor did the prosecution 

have the opportunity to offer some other possible reason not to suppress the 

evidence.” (Ibid.) 

We decline to resolve Ware’s ineffectiveness of counsel claim because 

the record does not “affirmatively disclose[ ]” that Ware’s counsel had no 

rational tactical purpose for his allege omission. (People v. Fosselman (1983) 

33 Cal.3d 572, 581.) Here, the record suggests that counsel made a tactical 

decision to not to file a suppression motion based on “the nature of the search 

and the circumstances surrounding it.” Accordingly, we reject this ineffective 

assistance claim “without prejudice to any rights [Ware] may have to relief by 

way of a petition for writ of habeas corpus.” (People v. Garrido (2005) 127 

Cal.App.4th 359, 367.) 
59

C. Concession of Guilt Firearm Possession (Counts 8, 12, 13)

1. Additional Background

During opening statement, defense counsel conceded Ware’s guilt for 

unlawfully possessing the firearms as alleged in counts 8, 12, and 13 

(collectively the possession charges). Counsel instead focused on why the 

evidence would not establish the other counts against his client. At closing 

argument, defense counsel again addressed the possession charges, stating: 

“Let’s turn to Count 12 and 13, possession of the firearms. 

I told you in opening statements. I’ll tell you again. I’m 

not going to stand up here and argue that because they 

were locked in his sister’s bedroom that they were not his 

at least constructively. Mr. Ware is guilty of those counts. 

Those firearms were found in his house. 

“All of the banter about, well, he didn’t come out fast 

enough. He didn’t do all those things. Doesn’t really 

matter. He’s responsible for those firearms. His sister was 

not packing guns in her bedroom. 

“But on April 23, 2014, . . . two weapons were found . . . . 

There are some important facts to remember about these 

weapons. Neither of these guns was used in any of the 18 

shootings presented in this case. 

“Ware’s prints and DNA were not even on the gun from the 

1-29-14 burglary that was found. No prints or DNA from 

any other person were found on these guns, especially no 

one from the specific conspiracy group that we are here to 

talk about. 

“Turning to Count 8. January 29, 2014. Another news 

flash. He’s guilty. He was carrying that weapon when he 

was stopped on the street. Don’t need to argue about why 

he was stopped. I would point out he wasn’t with anyone 

from this group. And, again, the same points. That gun 

was not involved in any of the 18 shootings. There was no 

DNA or prints from any other person found on that gun.” 
60

When addressing the lack of evidence tying Ware to the charged 

conspiracy, defense counsel acknowledged the two occasions that Ware 

illegally possessed firearms and concentrated on the lack of evidence against 

Ware on the conspiracy charge.

2. Analysis

Ware asserts defense counsel provided constitutionally deficient 

assistance during opening and closing arguments by admitting the possession 

charges. He claims that he had viable defenses to the possession charges; 

namely, grounds existed to suppress the gun found during the January 2014 

pat down search and the evidence did not show he constructively possessed 

the two guns found in his sister’s bedroom.25 The People argue that defense 

counsel made a reasonable tactical decision to concede Ware’s guilt on the 

possession charges. Further, the People assert that Ware failed to 

demonstrate a reasonable probability that, but for counsel’s alleged error, the 

result of the proceedings would have been different. 

“[A] defense attorney’s concession of his client’s guilt, lacking any 

reasonable tactical reason to do so, can constitute ineffectiveness of counsel.” 

(People v. Gurule (2002) 28 Cal.4th 557, 611.) However, defense counsel 

cannot be faulted for adopting “a more realistic approach” based on the 

evidence. (Id. at p. 612.) Partial concessions of culpability are a legitimate 

tactical choice by defense counsel where the incriminating evidence is strong. 

(See, e.g., People v. Hart (1999) 20 Cal.4th 546, 631; People v. Bolin (1998) 18 

Cal.4th 297, 334–335.) 

25 Simpson joins in Ware’s argument claiming that the concession of the 

firearm possession counts allowed inadmissible or defensible evidence to be 

admitted to prove his conviction of count 1. 
61

Here, Ware undisputedly had a firearm on his person during the 

January 2014 pat down search (count 8)26 and possessed the Hi-Point

firearm (count 13) found in his sister’s bedroom at one point because it 

contained his DNA. Defense counsel’s concession on counts 8 and 13 simply 

reflected the reality of the evidence, and the recognition that to argue Ware 

did not possess these firearms would likely damage counsel’s credibility with 

the jury. Thus, it was a reasonable tactical decision. (Gurule, supra, 28 

Cal.4th at p. 612.) For the same reasons, Ware cannot show prejudice from 

defense counsel’s tactical decision on these counts, because it is not 

reasonably probable that in the absence of counsel’s concession, he would 

have received a better verdict. (See Strickland, supra, 466 U.S. at pp. 693–

696.) 

Regarding the Ruger firearm also found in Ware’s sister’s bedroom 

(count 12), defense counsel similarly had a tactical reason for conceding 

Ware’s guilt. Namely, the evidence suggested Ware placed both guns in his 

sister’s bedroom to thwart the officers during the pending search. (Ante, pt. 

I.F.2.) Again, to argue otherwise, would likely damage counsel’s credibility 

with the jury. On the record before us, we cannot conclude that defense 

counsel had no rational tactical purpose for making the concession he did 

regarding count 12. 

Finally, for the first time in his reply brief, Ware cites McCoy v. 

Louisiana (2018) ___U.S.___, 138 S.Ct. 1500 (McCoy) to assert that defense 

counsel’s concessions violated the Sixth Amendment and constitute a 

structural error warranting a new trial. Presumably, Ware tendered this 

26 The question whether defense counsel provided ineffective assistance 

by failing to move to suppress this gun cannot be resolved on this record. 

(See, ante, pt. II.B.2.) 
62

new argument in his reply brief because the Attorney General argued in his 

respondent’s brief that McCoy did not apply. 

In McCoy, defense counsel informed defendant two weeks before trial 

that he intended to concede defendant’s guilt of a triple homicide. (McCoy, 

supra, ___U.S. ___, 138 S.Ct. at p. 1506.) Defendant was “ ‘furious’ ” insisting

he was innocent and had been out of state when the murders occurred. 

(Ibid.) Two days before trial, the court denied defendant’s request to 

terminate his counsel’s representation based on counsel’s intent to concede 

guilt. (Ibid.) During counsel’s opening statement, out of earshot of the jury, 

defendant again informed the court he disagreed with counsel’s concession of 

guilt. (Id. at p. 1507.) Nevertheless, defense counsel told the jury it was 

“ ‘unambiguous’ ” that “ ‘my client committed three murders.’ ” (Ibid.) 

The Supreme Court reversed the conviction, holding that, “[A] 

defendant has the right to insist that counsel refrain from admitting guilt, 

even when counsel’s experienced-based view is that confessing guilt offers the 

defendant the best chance to avoid the death penalty. . . . [I]t is the

defendant’s prerogative, not counsel’s, to decide on the objective of his 

defense . . . .” (McCoy, supra, ___U.S. ___, 138 S.Ct. at p. 1505.) The Court 

stated that defense counsel provides assistance, but some decisions are 

reserved to the client, including whether “the objective of the defense is to 

assert innocence . . . .” (Id. at p. 1508.) 

Having reviewed McCoy, supra, ___U.S. ___, 138 S.Ct. 1500 and its 

progeny, we find no Sixth Amendment violation because the record in the

Marsden hearings make clear that Ware disagreed with defense counsel’s 

tactical decision to concede guilt on the possession charges. Ware never 

objected to the concession claiming factual innocence. 
63

As noted in McCoy, “ ‘[n]o blanket rule demand[s] the defendant’s 

explicit consent’ to implementation of that strategy [of concession].” (McCoy, 

supra, ___U.S. ___, 138 S.Ct. at p. 1505.) Rather, McCoy makes clear that for 

a Sixth Amendment violation to exist, a defendant must make his intention 

to maintain innocence clear to his counsel, and counsel must override that 

objective by conceding guilt. (Id. at p. 1509 [“When a client expressly asserts 

that the objective of ‘his defence’ is to maintain innocence of the charged 

criminal acts, his lawyer must abide by that objective and may not override it 

by conceding guilt” [second italics added].) Here, nothing in the record 

demonstrates Ware’s unambiguous intent to maintain his factual innocence 

of the possession charges. Rather, the record shows that Ware had a gun on 

his person during the January 2014 stop and that one of the guns found 

during the April 2014 search contained his DNA. The issue was not one of 

innocence, but of how to best defend Ware against these charges and the 

third possession charge. No violation of Ware’s constitutional right to counsel 

occurred. 

Ware’s reliance on People v. Eddy (2019) 33 Cal.App.5th 472 (Eddy) is 

misplaced. During a posttrial Marsden hearing, defense counsel in Eddy

admitted knowing defendant’s desire to claim innocence as his defense, but as 

a tactical decision, explained he would concede guilt on the lesser offense at 

closing argument. (Id. at p. 478.) Defendant told the trial court that he 

advised counsel “not to go that route, and he had done it anyway.” (Id. at 

pp. 478–479.) The appellate court, consistent with McCoy, supra, ___U.S. 

___, 138 S.Ct. at p. 1505, “conclude[d] that defendant has established a 

violation of his right to decide the objective of his defense under McCoy, and 

because this violation constitutes structural error,” reversed the murder 

conviction. (Eddy, at p. 483.) 
64

Thus, in Eddy, “the record establishe[d] that defendant instructed his 

counsel to maintain his innocence before the closing argument and that this 

instruction was not honored.” (Eddy, supra, 33 Cal.App.5th at p. 482.) Here, 

however, Ware never argued that he was factually innocent of the possession 

charges. Accordingly, Eddy is not controlling. (Accord, People v. Flores

(2019) 34 Cal.App.5th 270, 280 [“Flores’s objective at both trials was express 

and unambiguous: to maintain his innocence of the acts alleged as the actus 

reus of the charged crimes—i.e., driving the car and possessing the 

weapons—irrespective of the weight of the evidence against him.”].) 

IV.

IMPACT OF ASSEMBLY BILL 333

A. Assembly Bill 333 Amendments to Section 186.22 

“ ‘In 1988, the Legislature enacted the California Street Terrorism 

Enforcement and Prevention Act (STEP Act; § 186.20 et. seq.) to eradicate 

criminal activity by street gangs.’ ” [Citation.] Among other things, the STEP 

Act created ‘a sentencing enhancement for a felony committed “for the benefit of, 

at the direction of, or in association with any criminal street gang” (§ 186.22, 

subd. (b)(1)).’ ” (People v. Tran (2022) 13 Cal.5th 1169, 1205–1206 (Tran).) The 

purpose of the STEP Act was to increase punishment for defendants who commit 

felonies in furtherance of criminal street gang activity. (People v. Fuentes (2016) 

1 Cal.5th 218, 223.)

In 2000, in an initiative measure known as Proposition 21, voters 

amended the STEP Act. (People v. Lopez (2022) 12 Cal.5th 957, 969.) Among 

other things, Proposition 21 added section 182.5 to the Penal Code to create the 

crime of gang conspiracy. (Ibid.)27 Section 182.5 provides, in relevant part, 

27 Proposition 21 also added a list of new special circumstances in which 

the punishment for first degree murder is set at death or life in prison 
65

“[A]ny person who actively participates in any criminal street gang, as defined 

in subdivision (f) of Section 186.22, with knowledge that its members engage in 

or have engaged in a pattern of criminal gang activity, as defined in subdivision 

(e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits 

from any felonious criminal conduct by members of that gang is guilty of 

conspiracy to commit that felony and may be punished as specified in 

subdivision (a) of Section 182.” Thus, section 185.2 expressly incorporates 

specific provisions of section 186.22. “Proposition 21 also amended the existing 

gang enhancement in section 186.22, subdivision (b)(1) to create a new tiered 

system of enhancements with five-year enhancements for individuals convicted 

of serious felonies and 10-year enhancements for individuals convicted of violent 

felonies.” (People v. Lopez, at pp. 969–970.) 

In 2021, the Legislature passed Assembly Bill 333, which became effective 

on January 1, 2022. (Tran, supra, 13 Cal.5th at p. 1206.) Assembly Bill 333 

made several amendments to section 186.22, subdivisions (e) and (f) which are 

integral to the interpretation of gang conspiracy statute and the gang and gangrelated firearm enhancements. When defendants were tried, former section 

186.22 defined a “ ‘criminal street gang’ ” as “any ongoing organization, 

association, or group of three or more persons . . . whose members individually 

or collectively engage in, or have engaged in, a pattern of criminal gang activity.” 

(Former § 186.22, subd. (f), italics added.) Assembly Bill 333 narrowed the 

definition to “an ongoing, organized association or group of three or more 

without the possibility of parole, including a gang murder enhancement 

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.’ (Prop. 21, § 11; see § 190.2, subd. (a)(22).)” 

(People v. Rojas (2022) 80 Cal.App.5th 542, 550 (Rojas) review granted Oct. 

19, 2022, S275835.) 
66

persons . . . whose members collectively engage in, or have engaged in, a pattern 

of criminal gang activity.” (§ 186.22, subd. (f), italics added.) This change 

requires that the People “prove that two or more gang members committed each 

predicate offense.” (People v. Delgado (2022) 74 Cal.App.5th 1067, 1072.) 

Under the former version of section 186.22, the phrase “pattern of criminal 

gang activity” was defined as “the commission of, attempted commission of, 

conspiracy to commit, or solicitation of, sustained juvenile petition for, or 

conviction of, two or more of [specified] 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, and the offenses were 

committed on separate occasions, by two or more persons.” (Former § 186.22, 

subd. (e), italics added.) 

Assembly Bill 333 changed this definition. Now, the predicate offenses 

must have been committed by two or more “members” of the gang (as opposed to 

any persons) and must have “commonly benefited a criminal street gang” and 

“the common benefit of the offense [must be] more than reputational. (§ 186.22, 

subd. (e)(1), italics added.) Additionally, at least one of these predicate offenses 

must occur after the effective date of this chapter, and the last of those offenses 

must have occurred within three years of the prior offense and within three 

years of the date the current offense is alleged to have been committed. (Ibid.) 

The currently charged offense no longer counts as a predicate offense. (§ 186.22, 

subd. (e)(2).) The new law also reduced the number of qualifying offenses that 

can be used to establish a pattern of criminal gang activity, removing vandalism, 

looting and several fraud-related offenses from the list. (§ 186.22, subd. 

(e)(1)(A)-(Z).) 

Assembly Bill 333 requires the prosecution to prove the benefit the gang 

derives from the current offenses is “more than reputational.” (Stats. 2021, ch. 
67

699, § 3 [enacting § 186.22, subd. (g)].) “Examples of a common benefit that are 

more than reputational may include, but are not limited to, financial gain or 

motivation, retaliation, targeting a perceived or actual gang rival, or 

intimidation or silencing of a potential current or previous witness or 

informant.” (§ 186.22, subd. (g).) Finally, Assembly Bill 333 added section 1109 

requiring bifurcation of gang enhancements charged under section 186.22, 

subdivision (b) or (d) to be tried separately from the underlying charges upon 

request from the defense. (Stats. 2021, ch. 699, § 5.) The defendant’s guilt on 

the underlying offense must first be determined, and a trial on the gang 

enhancement is held if the defendant is first found guilty of the underlying 

offense. (§ 1109, subds. (a)(1) & (a)(2).) 

The changes to section 186.22 made by Assembly Bill 333 “affect not only 

the gang enhancement allegations under that statute but other statutes that 

expressly incorporate provisions of section 186.22.” (People v. Lopez (2021) 73 

Cal.App.5th 327, 346.) As we noted above, a gang conspiracy under section 

182.5 incorporates the proof requirements for “criminal street gang” as defined 

in section 186.22. Additionally, the gang-firearm enhancement (§ 12022.53, 

subd. (e)(1)(A)) and gang-murder special circumstance (§ 190.22, subd. (a)(22)) 

incorporate the proof requirements of section 186.22. 

B. Analysis

1. Gang and Gang-Firearm Enhancements

The jury found true that Simpson committed the crimes alleged in counts 

1 through 5 in association with, and to benefit, a gang. (§ 186.22, subd. (b)(1).) 

The jury also found true the allegations that the offenses Ware committed in 

counts 1, 10, and 14 were gang crimes under subdivision (b) of section 186.22. 

All parties agree that Assembly Bill 333 applies retroactively to Simpson and 

Ware, and a remand is required to afford the prosecution an opportunity to 
68

prove the gang and gang-firearm enhancements under the amended law. We 

agree and remand for possible retrial of these enhancements. 

The trial court instructed the jury based on the old requirements of section 

186.22. As relevant here, the jury was instructed that to determine whether a 

“pattern of criminal gang activity” existed, they needed to find the most recent 

predicate offense occurred within three years of one of the earlier crimes and 

that the crimes “need not be gang-related.” The jury was also informed and “if 

you find a defendant guilty of a crime in this case” it may be considered to decide 

the “group’s primary activities.” Also, the jury was not instructed they needed to 

find the predicate offenses benefited the gang or that the benefit was more than 

reputational as required under the amended statute. (§ 186.22, subd. (e)(1).) 

“[T]he absence of instruction on the amended version of section 186.22 

requires reversal unless ‘it appears beyond a reasonable doubt that the error did 

not contribute to th[e] jury’s verdict.’ ” (People v. E.H. (2022) 75 Cal.App.5th 

467, 479.) We cannot conclude that these instructional errors were harmless. 

For example, the prosecution presented evidence of three predicate offenses but 

these convictions cannot qualify as predicates under the new requirements of 

Assembly Bill 333 because there was no testimony about how those crimes 

benefited the Brim gang. (§ 186.22, subd. (e)(1).) The jurors were also permitted 

to consider the current offenses in determining whether the prosecution had 

proven a pattern of criminal gang activity. Accordingly, we vacate the jury’s 

true findings for the section 186.22 gang enhancement allegations and remand 

the matter for the People to determine whether to retry Simpson and Ware

under the amended law. 

The jury also found true gang-related firearm enhancements under section 

12022.53, subdivision (e)(1) (which requires a finding that a person “violated 

subdivision (b) of Section 186.22”), attached to counts 2 and 3 for Simpson and 
69

count 10 for Ware. Because the gang enhancements must be reversed for 

instructional error, these vicarious, gang-related firearm enhancements must

also be stricken since they may be imposed only if the gang enhancement has 

already been found true. (§ 12022.53, subd. (e)(1).) 

In conclusion, the proper remedy is to vacate the section 186.22 gang 

enhancements and the section 12022.53, subdivision (e)(1) gang-related firearm 

enhancements and remand to allow the prosecution an opportunity to retry 

these enhancements and meet its burden of proof pursuant to the new 

requirements in Assembly Bill 333. (See People v. Lopez, supra, 73 Cal.App.5th 

at pp. 346–347.) 

2. Gang Conspiracy

Ware contends that Assembly Bill 333 requires his conviction for actively

participating in a gang conspiracy (§ 182.5, count 9) be reversed. He notes that 

section 182.5 incorporates the proof requirements for “criminal street gang” as 

defined in section 186.22. Because Assembly Bill 333 changed the definition of a

“criminal street gang” he contends that for the same reasons the gang and gangrelated firearm enhancements must be reversed, his gang conspiracy conviction 

must also be reversed.28 In a lengthy argument, the Attorney General disagrees 

that Ware’s gang conspiracy conviction must be reversed. He contends that 

subdivision (c) of article II, section 10 of the California Constitution restricts the 

Legislature from amending “an initiative statute by another statute” unless the 

subsequent statute is “approved by the electors” or “the initiative statute 

permits amendment . . . without the electors’ approval.” Additionally, 

Proposition 21 expressly states, “ ‘The provisions of this measure shall not be 

28 Simpson does not join in this argument because our original opinion 

concluded that insufficient evidence supported his gang conspiracy 

conviction. (See ante, pt. I.C.2.c.) 
70

amended by the Legislature except by a statute passed in each house by rollcall 

vote entered in the journal, two-thirds of the membership of each house 

concurring, or by a statute that becomes effective only when approved by the 

voters.’ ” (People v. Lopez (2022) 82 Cal.App.5th 1, 17–18.) “There is no dispute 

that Assembly Bill 333 ‘was enacted without voter approval, and without the 

requisite two-thirds votes in both houses of the Legislature.’ ” (Id. at p. 18.) 

Thus, the Attorney General asserts Assembly Bill 333 appears to be an 

unconstitutional amendment to the offense of gang conspiracy enacted by the 

voters via Proposition 21. He contends we can invalidate the amendments made 

by Assembly Bill 333 as applied to the gang conspiracy offense, rather than 

severing and invalidating those amendments in their entirety. 

The arguments made by the Attorney General have been addressed by 

several courts in the context of gang conspiracy and the gang-murder special 

circumstance, and their conclusions are split. In Rojas, supra, 80 Cal.App.5th 

542, a divided panel of the Fifth District held Assembly Bill 333 could not alter 

the proof requirements for a “criminal street gang” from those in effect at the 

time the voters enacted Proposition 21. (See Rojas, at pp. 550–558 [because 

Assembly Bill 333 was passed without voter approval and without the requisite 

two-thirds vote in both houses of the state Legislature, it cannot amend section 

190.2, subdivision (a), without violating the constitutional prohibition on 

legislative amendment of a statute adopted by initiative].) In contrast, in People 

v. Lee (2022) 81 Cal.App.5th 232 (Lee), review granted October 19, 2022, 

S275449, the Second District, Division 4 rejected the analysis in Rojas. 

The Lee court reasoned the voters “did not contemplate a time-specific 

incorporation of the then-current version of section 186.22, subdivision (f), into 

the gang-murder special-circumstance statute.” (Lee, supra, 81 Cal.App.5th at 

p. 241.) It explained, “Section 186.22 was originally enacted by the Legislature 
71

in 1987. [Citation.] As part of Proposition 21, in March 2000 the electorate 

amended certain provisions of section 186.22 by increasing the sentences of the 

gang enhancements provided by subdivisions (b), (c), and (d). [Citation.] The 

electorate also updated the list of predicate offenses to be used to determine a 

‘ “pattern of criminal gang activity” ’ in subdivision (e). However, the voters 

reenacted section 186.22, subdivision (f) without substantive change. [Citation.] 

As such, subdivision (f) of section 186.22 cannot be deemed ‘among the 

initiative’s statutory provisions’ made immune from legislative amendment by 

force of article II, section 10 of the state Constitution.” (Lee, at p. 242.) “In 

short, the voters left intact the Legislature’s power to amend the definition of a 

criminal street gang in section 186.22, subdivision (f).” (Lee, at p. 242.)

In People v. Lopez, supra, 82 Cal.App.5th 1, relying on Lee, supra, 81 

Cal.App.5th 232, another panel from the Fifth District court determined there 

was no time-specific provision in Proposition 21 for section 182.5 as there was 

for other provisions of the criminal law. (People v. Lopez, at pp. 23–24.) The 

Lopez court concluded, “[W]e agree with Lee’s conclusion that ‘the electorate 

clearly knew how to express the intent to freeze a statutory definition,’ ” and 

“[t]he absence of such time-specific language in section 182.5 leads to our 

rejection of the People’s claim.” (People v. Lopez, at pp. 24–25.)

Because our high court will resolve this split of authority, we need not 

belabor the Attorney General’s contentions in this appeal. We agree with the 

analysis in Lee, supra, 81 Cal.App.5th 232 and People v. Lopez, supra, 82 

Cal.App.5th 1 and conclude that Assembly Bill 333 applies retroactively to 

section 182.5. The Attorney General does not argue that the prosecution 

presented evidence that would meet the new evidentiary requirements of section 

186.22, subdivisions (e) and (f) as now incorporated into section 182.5. We 

conclude that Ware is entitled to the benefit of the ameliorative changes in the 
72

law made by Assembly Bill 333 for purposes of his criminal gang conspiracy 

conviction. We reverse the gang conspiracy conviction and remand the matter to 

allow the prosecution the opportunity to elect whether to retry this charge under 

current law. 

V.

SENTENCING ISSUES

A. Gun Use Enhancements Under Section 12022.53

The jury found true firearm use allegations attached to counts 2 and 3 for 

Simpson and count 10 for Ware. (§ 12022.53, subds. (b), (c), and (e)(1).) The 

court imposed sentences, of 20 years, and six years eight months for Simpson 

and 20 years for Ware. Effective January 1, 2018, approximately five months 

after the sentencing hearing, Senate Bill No. 620 amended sections 12022.5 and 

12022.53 to provide that trial courts may, “in the interest of justice pursuant to 

Section 1385 and at the time of sentencing, strike or dismiss an enhancement

otherwise required to be imposed . . . .” (§§ 12022.5, subd. (c), 12022.53, subd. 

(h).) The new legislation granted trial courts discretion they did not previously 

possess to strike firearm enhancements. (People v. Woods (2018) 19 Cal.App.5th 

1080, 1090.) 

We vacated the true findings for the section 12022.53 gang-related firearm 

enhancements and remanded the matter to allow the prosecution an opportunity 

to retry these enhancements and meet its burden of proof pursuant to the new 

requirements in Assembly Bill 333. (Ante, pt. IV.B.1.) Should the People retry 

Simpson and Ware and these allegations are again found true, they must be 

sentenced under the current law. 

B. Ware’s Personal Gun Use Enhancement (Count 10)

In count 10 the jury found Ware guilty of attempted premeditated murder 

and found true a gang enhancement allegation under section 186.22, subdivision 
73

(b)(1), and two firearm enhancement allegations under sections 12022.53, 

subdivisions (b) and (e)(1), and 12022.53, subdivisions (c) and (e)(1). At 

sentencing, the trial court set the minimum parole eligibility period for count 10 

at 15 years, pursuant to subdivision (b)(5) of section 186.22. It also imposed and 

stayed a 10-year firearm enhancement under section 12022.53, subdivision (b), 

and imposed a 20-year firearm enhancement under section 12022.53, 

subdivision (c). Ware asserts that the matter must be remanded for 

resentencing because he did not personally use the firearm in count 10; thus, he 

claims that the trial court was statutorily barred from imposing increased 

punishments under both section 186.22 and section 12022.53. The People 

conceded the error. 

We vacated the true findings for the section 12022.53 gang-related firearm 

enhancements and remanded the matter to allow the prosecution an opportunity 

to retry these enhancements and meet its burden of proof pursuant to the new 

requirements in Assembly Bill 333. (Ante, pt. IV.B.1.) Should the People retry 

Ware and this allegation is again found true, he must be sentenced under the 

current law. 

C. Ware’s Sentences for Conspiracy (Count 1) and Attempted Murder (Count 10)

The jury found Ware guilty of conspiracy to murder suspected NC and 

WCC gang members (count 1). It also found him guilty of attempted murder 

based on the March 25, 2014 shooting (count 10) where he drove his car into 

WCC territory and his passenger shot at a WCC gang member. The trial court 

sentenced Ware to 25 years to life in prison for the conspiracy, plus an 

additional enhanced life term for the attempted murder. Ware contends that 

section 654 barred the trial court from imposing sentences for both the

conspiracy and the substantive offense because they shared the same objective. 

The People disagree, arguing that Ware could be punished for both conspiracy 
74

and attempted murder because the conspiracy was not limited to the single 

attempted murder charged in count 10, but extended to an agreement to kill 

rival Crips gang members, spanning several years. We agree with the People. 

“Section 654 bars multiple punishment for separate offenses arising out of 

a single occurrence where all of the offenses were incident to one objective.” 

(People v. Lewis (2008) 43 Cal.4th 415, 519, disapproved on another ground in 

People v. Black (2014) 58 Cal.4th 912, 919–920.) “ ‘Whether a course of criminal 

conduct is divisible and therefore gives rise to more than one act within the 

meaning of section 654 depends on the intent and objective of the actor. If all 

the offenses were incident to one objective, the defendant may be punished for 

any one of such offenses but not for more than one.’ ” (People v. Correa (2012) 54 

Cal.4th 331, 336.) 

“Because of the prohibition against multiple punishment in section 654, a 

defendant may not be sentenced ‘for conspiracy to commit several crimes and for 

each of those crimes where the conspiracy had no objective apart from those 

crimes. If, however, a conspiracy had an objective apart from an offense for 

which the defendant is punished, he may properly be sentenced for the 

conspiracy as well as for that offense.’ [Citations.] Thus, punishment for both 

conspiracy and the underlying substantive offense has been held impermissible 

when the conspiracy contemplated only the act performed in the substantive 

offense [citations], or when the substantive offenses are the means by which the 

conspiracy is carried out [citation]. Punishment for both conspiracy and 

substantive offenses has been upheld when the conspiracy has broader or 

different objectives from the specific substantive offenses.” (People v. Ramirez

(1987) 189 Cal.App.3d 603, 615–616, fn. omitted.) The question whether 

defendant had the same objective in committing more than one offense is a 
75

question of fact for the trial court, and we review the court’s finding under the 

substantial evidence standard. (People v. Osband (1996) 13 Cal.4th 622, 730.) 

In count 10, Ware aided and abetted the attempted murder of WCC gang 

member, M.W., on March 25, 2014. Count 1 alleged that Ware conspired to 

murder suspected NC and WCC gang members with numerous coconspirators. 

The charged conspiracy consisted of 104 overt acts, 13 of which were shootings, 

including the March 25, 2014 shooting. 

The conspiracy charge had a broader objective beyond the attempted 

murder of the specific individual charged in count 10. Where, as here, a 

conspiracy has “an objective apart from an offense for which the defendant is 

punished, [the defendant] may properly be sentenced for the conspiracy as well 

as for that offense.” (In re Cruz (1966) 64 Cal.2d 178, 181; see also, People v. 

Amadio (1971) 22 Cal.App.3d 7, 15 [conspiracy to receive stolen property 

included more than receipt of property in substantive counts]; People v. Collins

(1966) 242 Cal.App.2d 626, 640 [conspiracy went beyond instances of theft for 

which defendant was convicted]; People v. Scott (1964) 224 Cal.App.2d 146, 152 

[conspiracy lasted for months; evidence of numerous incidents other than those 

comprising the substantive offenses].) The fact both count 1 and 10 had a single 

objective, killing a WCC or NC gang member, “does not bar multiple punishment 

for separate crimes.” (People v. Lochmiller (1986) 187 Cal.App.3d 151, 153.) To 

accept Ware’s argument would allow him to escape punishment that is 

commensurate with his culpability. (See People v. Latimer (1993) 5 Cal.4th 

1203, 1211, compare, People v. Cavanaugh (1983) 147 Cal.App.3d 1178, 1182

[multiple punishment is prohibited where the substantive offenses are merely 

the means of achieving the conspiracy’s objective].) Accordingly, the trial court 

did not err when it punished Ware for both the conspiracy and the attempted 

murder. 
76

D. Unpaid Portion of Criminal Justice Fee Must Be Vacated

The court ordered Simpson and Ware to pay a $154 criminal justice fee 

under Government Code section 29550. Assembly Bill 1869 “added section 

1465.9 and Government Code section 6111, which provide that on and after July 

1, 2021, the unpaid balance of such fees imposed by the court ‘shall be 

unenforceable and uncollectible and any portion of a judgment imposing those 

costs shall be vacated.’ (§ 1465.9, subd. (a); Gov. Code, § 6111, subd. (a).)” 

(People v. Pacheco (2022) 75 Cal.App.5th 207, 215.) The parties agree and we 

conclude, that on remand, the trial court must vacate any unpaid portion of the 

criminal justice fee. 

E. Sentencing Discretion Under Amended Section 1385

The jury found true firearm enhancements on counts 2 and 3 for Simpson 

and count 10 for Ware. (§ 12022.53, subds. (b), (c), & (e)(1).) In our prior 

opinion, we remanded for resentencing to allow the trial court to exercise its 

discretion to strike the firearm use enhancements attached to these counts

under section 1385. Effective January 1, 2022, Senate Bill 81 amended section 

1385 “to specify factors that the trial court must consider when deciding 

whether to strike enhancements from a defendant’s sentence in the interest of 

justice.” (People v. Sek (2022) 74 Cal.App.5th 657, 674 (Sek).) Under the 

amended law, unless dismissal is prohibited under an initiative statute, trial 

courts are now required to dismiss an enhancement if it is in the furtherance of 

justice to do so. (§ 1385, subd. (c)(1).) In exercising its discretion, the court must 

“consider and afford great weight to” evidence of the mitigating circumstances 

listed in subparagraphs (A) through (I), “unless the court finds that dismissal of 

the enhancement would endanger public safety.” (§ 1385, subd. (c)(2).) 

Simpson and Ware contend that, on remand for resentencing, the trial 

court must comply with that new provision. The People agree that Simpson and 
77

Ware can raise any claims regarding the changes to section 1385 on remand. 

Because any resentencing in this case will take place after Senate Bill 81 

became effective on January 1, 2022, the trial court must apply the new law in 

any such proceeding. (Sek, supra, 74 Cal.App.5th at p. 674.) 

F. Ware’s Prior Prison Term Enhancement Must Be Stricken

At sentencing, the trial court imposed a one-year enhancement under 

section 667.5, subdivision (b) (section 667.5(b)), for a prior prison term resulting 

from drug convictions in violation of Health and Safety Code sections 11350,

subdivision (a), and 11351.5. Effective January 1, 2020, Senate Bill No. 136 

(2019–2020 Reg. Sess.) (Stats 2019, ch. 590, § 1) (Senate Bill 136), limited prior 

prison term enhancements to those terms served for specified sexually violent

offenses. (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Ware argued that 

this change applied retroactively and requested that the section 667.5, 

subdivision (b) enhancement be stricken. In our prior opinion, we declined to do 

so because we had vacated Ware’s sentence and he could raise the matter at his 

resentencing hearing. Ware contends that, due to another change in the law, we

should reconsider his request. The parties agree and we conclude, that on 

remand, the trial court must strike the prior prison term enhancement imposed 

under section 667.5, subdivision (b). 

In 2021, the Legislature enacted Senate Bill 483 which sought to make the 

changes implemented by Senate Bill 136 retroactive. (Stats. 2021, ch. 728, § 1 

[“it is the intent of the Legislature to retroactively apply . . . Senate Bill 136 of 

the 2019-20 Regular Session to all persons currently serving a term of 

incarceration in jail or prison for these repealed sentence enhancements”].) 

Senate Bill 483 added former section 1171.1, now section 1172.75, to the Penal 

Code. (Stats. 2021, ch. 728, § 3, eff. Jan. 1, 2022; Stats. 2022, ch. 58, § 12, eff. 

June 30, 2022.) Subdivision (a) of section 1172.75 states that “[a]ny sentence 
78

enhancement that was imposed prior to January 1, 2020, pursuant to [section 

667.5, subdivision (b)], except for any enhancement imposed for a prior 

conviction for a sexually violent offense . . . is legally invalid.” 

Because Ware served his prison prior term for drug-related offenses, not a 

sexually violent offense, he is entitled to the benefit of Senate Bills 136 and 483. 

On remand, the trial court is directed to strike Ware’s one-year prior prison 

term enhancement resulting from drug convictions in violation of Health and 

Safety Code sections 11350, subdivision (a) and 11351.5. 

G. Recent Amendment to Section 654 Applies Retroactively to Simpson

Simpson asks us to remand the matter on the ground his sentence fails to 

comply with the ameliorative change to former section 654. The Attorney 

General concedes the new discretion afforded by Assembly Bill 518 applies and 

that a remand is required. The People’s concession is proper. 

At the time of Simpson’s sentencing in 2017, former section 654, 

subdivision (a) required that a defendant who committed an act punishable by 

two or more provisions of law be punished under the provision that provided for 

the longest possible term. (Stats. 1997, ch. 410, § 1.) “As amended by Assembly 

Bill 518, . . . section 654 now provides the trial court with discretion to impose 

and execute the sentence of [any] term, which could result in the trial court 

imposing and executing [a] shorter sentence rather than the longe[st] sentence.” 

(People v. Mani (2022) 74 Cal.App.5th 343, 379.) These amendments apply 

retroactively to Simpson’s nonfinal sentence. (See Ibid.) Simpson’s sentence is 

vacated and the matter remanded for further proceedings, after which the trial 

court may reconsider all sentencing choices. 
79

DISPOSITION

As to appellant Simpson, we reverse his conviction on count 9 (gang 

conspiracy, § 182.5). On counts 1 through 5, we vacate the true findings on the 

gang enhancement allegations (§ 186.22, subd. (b)). On counts 2 and 3, we 

vacate the true findings on the gang-related firearm enhancement allegations 

(§ 12022.53, subds. (b)–(d) & (e)(1)). Simpson’s sentence is vacated and the 

matter is remanded to the superior court. On remand, the court is directed to 

strike the unpaid balance of the $154 criminal justice fee and the People shall 

decide whether to retry Simpson for gang conspiracy, the gang enhancement 

allegations (§ 186.22, subd. (b)), and gang-related firearm enhancement 

allegations (§ 12022.53, subds. (b)–(d) & (e)(1)). Upon determination as to the 

status of count 9 and these allegations (no retrial, or retrial and final resolution)

Simpson is to be sentenced consistent with current law. In all other respects, 

Simpson’s judgment is affirmed. 

As to appellant Ware, on counts 1, 10, and 14, we vacate the true findings 

on the gang enhancement allegations (§ 186.22, subd. (b)). On count 10, we 

vacate the gang-related firearm enhancement allegations. (§ 12022.53, subds. 

(b)–(d) & (e)(1)). Ware’s sentence is vacated and the matter is remanded to the 

superior court. On remand, the court is directed to strike (1) the unpaid balance 

of the $154 criminal justice fee and (2) Ware’s one-year prior prison term 

enhancement under section 667.5, subdivision (b) for a prior prison term 

resulting from drug convictions in violation of Health and Safety Code sections 

11350, subdivision (a), and 11351.5. The People shall decide whether to retry 

Ware on the gang enhancement allegations (§ 186.22, subd. (b)), and gangrelated firearm enhancement allegations (§ 12022.53, subds. (b)–(d) & (e)(1)). 

Upon determination as to the status of these allegations (no retrial, or retrial 
80

and final resolution) Ware is to be sentenced consistent with current law. In all 

other respects, Ware’s judgment is affirmed. 

After sentencing, the clerk of the superior court shall prepare an amended 

abstract of judgment for each appellant reflecting the appropriate modifications, 

as set forth above, and forward it to the California Department of Corrections 

and Rehabilitation.

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.