Filed 3/10/15

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CLYDE WESLEY ANDERSON,

Defendant and Appellant.

 B245674

 (Los Angeles County

 Super. Ct. No. TA118178)

Appeal from a judgment of the Superior Court of Los Angeles County, Kelvin D. 

Filer, Judge. Affirmed.

Gail Harper, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney 

General, James William Bilderback II and Steven E. Mercer, Deputy Attorneys General, 

for Plaintiff and Respondent.

____________________________

*

Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is 

certified for publication with the exception of section II.
2

Clyde Wesley Anderson appeals from his conviction for the murder of Dominique 

McDaniel on three grounds: that he was deprived of representation by competent counsel 

at his preliminary hearing; that there is insufficient evidence to support his murder 

conviction; and that there is insufficient evidence to support the gang enhancements. We 

disagree, and affirm the judgment.

Background

Anderson was charged by amended information with the first degree murder of 

Dominique McDaniel (Pen. Code, § 187, subd. (a)), and the attempted murder of Brandy 

Smallwood (Pen. Code, §§ 187, subd. (a), 664).1 The information alleged as to both 

counts that Anderson personally and intentionally discharged a firearm causing great 

bodily injury and death (§ 12022.53, subds. (d) & (e)(1)); that he personally and 

intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); that he personally 

used a firearm (§ 12022.53, subds. (b) & (e)); and that the offense was committed for the 

benefit of, at the direction of, and in association with a criminal street gang with the 

specific intent to promote, further and assist in criminal conduct by gang members (§ 

186.22, subd. (b)(1)(C)), causing the offense to be classified as a serious felony (§ 

1192.7, subd. (c)(28)). A number of prior juvenile and serious felony convictions were 

alleged. Anderson pleaded not guilty to the charged offenses and denied the special 

allegations. 

A jury acquitted Anderson of the attempted murder of Smallwood, but deadlocked 

(one juror favoring acquittal) on the charged murder of McDaniel. Following a second 

trial for the murder of McDaniel, the jury convicted Anderson of first degree murder and 

found the firearm and gang allegations true. In a bifurcated court trial the court found 

true three prior strike allegations. 

The court sentenced Anderson to 115 years to life in prison: 25 years to life in 

prison for the murder, tripled to 75 years to life under the “Three Strikes” law (§§ 

1 All statutory references are to the Penal Code unless otherwise specified. 
3

1170.12, subds. (a)-(d); 667, subds. (b)-(i)); an additional 25 years for the firearm 

discharge enhancements (§ 12022.53, subds. (d), (e)(1)); and an additional five years, 

consecutive, for each of the three prior serious felony convictions (§ 667, subd. (a)(1)). 

Underlying Events

Late in the morning of Easter Sunday, April 24, 2011, Smallwood and her friend 

McDaniel (who was then 18, about six years younger that Smallwood) left Smallwood’s 

sister’s house, in the Compton area of Los Angeles. Having just fought with her niece, 

Smallwood took with her a knife from her sister’s kitchen, which she gave to McDaniel. 

As Smallwood and McDaniel walked past a group of people standing outside a 

house, a man (later identified as Anderson) approached them, asking “How old is she”—

referring to McDaniel—“smoking a cigarette?” Smallwood replied that “she’s old 

enough,” and Anderson responded, “She looks like she’s 12.” McDaniel, wielding the 

knife, stepped toward Anderson, saying “Blood, I’m BPS,” or “this is BPS.”2“I’m old 

enough,” or “You’re going to be fucked up.” 

Anderson then followed Smallwood and McDaniel as they walked on, and 

McDaniel turned and talked with Anderson, still holding the knife. Smallwood did not 

hear the exchange, but then heard Anderson say and repeat, apparently to someone 

standing nearby, “Cuz, get the burner.” To Smallwood, “Cuz” referred to the Crips gang; 

and “Get the burner” referred to a gun. McDaniel was still angry, but Smallwood pulled 

her away and they continued up the street. When Smallwood turned around after walking 

for a minute or more, Anderson was behind them. McDaniel turned around, spread her

arms, palms up, and asked him, “What you going to do?” Anderson pulled a gun from 

his jacket, put his arm around McDaniel, and with the gun to her chest he fired the gun. 

McDaniel fell, and—according to Smallwood—Anderson then pointed the gun at her, but 

did not shoot. McDaniel died at the scene. 

2

The BPS identification referred to a “Black P-Stone Blood” gang affiliation. 
4

Discussion

I. Anderson Is Not Entitled To Have The Information Set Aside.

Anderson retained Attorney Victor Comstock to represent him, and was 

represented by Comstock at his September 1, 2011 preliminary hearing, at his September

15, 2011 arraignment (at which his not-guilty pleas were entered), and at a pretrial 

conference on October 25, 2011. At the next pretrial conference, on November 23, 2011, 

Comstock withdrew as Anderson’s attorney and was replaced by a member of the office 

of the alternate public defender. On July 1, 2011, however, some months before any of 

these proceedings, Comstock had been placed on inactive status by the State Bar, 

rendering him “Not eligible to practice law.”

3

Anderson moved on February 14, 2012, to set aside the information on the ground 

he had been unrepresented by counsel at the September 1, 2011 preliminary hearing.4

The prosecution expressly conceded that Comstock “was not eligible to practice law” at 

the time of Anderson’s preliminary hearing, but argued that Anderson nevertheless was 

not deprived of a substantial right that would render his commitment illegal. The motion 

was heard, argued (briefly), and denied by the trial court on March 13, 2011, on grounds 

not reflected in the transcript.

5

On appeal, Anderson reiterates that Comstock was ineligible to practice law at 

Anderson’s September 1, 2011 preliminary hearing, constituting a per se deprivation of 

3

The facts showing Comstock’s status are reflected in State Bar records attached 

as exhibits to the People’s opposition to Anderson’s trial court motion, and relied upon in 

this appeal by both Anderson and the People without objection. 

4 On January 13, 2012, Anderson was re-arraigned on an amended information, 

which modified only the alleged prior convictions.

5 Anderson, the People, and the trial court all refer to section 995 as the motion’s 

statutory basis. Section 995 provides for the information to be set aside if “before the 

filing thereof the defendant had not been legally committed by a magistrate,” or if 

probable or reasonable cause for the commitment was lacking. Section 996 provides that 

unless the defendant moves to set aside the information, a defendant may not thereafter 

assert the objections enumerated in section 995.
5

his right to counsel at a critical stage of the proceeding. The People dispute this 

contention, because the reason Comstock had been placed on inactive status was his 

failure to pay his State Bar dues rather than for anything that would demonstrate a lack of 

professional competence to represent Anderson. 

An order denying a motion to set aside the information may be reviewed on appeal 

from the judgment of conviction. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519.) 

However, “failure to move to set aside the information [citing § 995] bars the defense 

from questioning on appeal any irregularity in the preliminary examination [citing § 

996].” (People v. Harris (1967) 67 Cal.2d 866, 870.)

6

A. Anderson Was Deprived Of His Right To Representation By Competent 

Counsel At His Preliminary Hearing And Arraignment.

The right of a criminal defendant to the effective assistance of counsel at all 

critical stages of the prosecution is a substantial right guaranteed by the Sixth 

Amendment to the United States Constitution and by article I, section 15 of the California 

Constitution. The preliminary hearing is a critical stage of the prosecution, which is 

validly conducted only when the defendant is afforded the effective assistance of counsel. 

(Cal. Const., art. I, § 15; Coleman v. Alabama (1970) 399 U.S. 1, 9-10 [90 S.Ct. 1999, 26 

L.Ed.2d 387, 396-397].) If a defendant is denied the effective assistance of counsel at the 

preliminary hearing, a substantial right has been denied. (People v. Coleman (1988) 46 

Cal.3d 749, 772-773.)

A valid preliminary hearing is a prerequisite to the filing of an information. (§ 

738.) Therefore, as the Supreme Court reaffirmed over 50 years ago, “where it appears 

6 Because Anderson’s motion to set aside the information was brought under 

section 995, the question whether the rule stated in section 996 is applicable when the 

motion is brought on non-statutory grounds, as is appropriate when the error alleged by 

the motion is not known at the time of the preliminary hearing and is not reflected in the 

preliminary hearing transcript, does not arise in this case. (Currie v. Superior Court

(1991) 230 Cal.App.3d 83, 90, 91 [motion to set aside information based on matters 

outside preliminary hearing record is nonstatutory motion, not motion under § 995]; see 

Harris v. Superior Court (2014) 225 Cal.App.4th 1129, 1144-1145, and cases referenced 

therein.)
6

that, during the course of the preliminary examination, the defendant has been denied a 

substantial right, the commitment is unlawful within the meaning of section 995, and [the 

information] must be set aside upon timely motion.” (People v. Elliot (1960) 54 Cal.2d 

498, 503; People v. Napthaly (1895) 105 Cal. 641, 644-645.) “[W]here the accused is not 

legally committed within the meaning of section 995 of the Penal Code, the commitment 

is voidable. . . . It is the same as if no preliminary examination at all had been held . . . .

In such event, of course, the information must be quashed.” (People v. Elliot, supra, 54 

Cal.2d at p. 503.)

Anderson was represented by Attorney Comstock at the September 1, 2011 

preliminary hearing, and at his September 15, 2011 arraignment. However, on July 1, 

2011, Comstock had been placed on inactive status by the State Bar, rendering him 

ineligible to practice law. Respondent contends that because Comstock’s inactive status 

resulted from his failure to pay bar membership dues, the record reflects nothing 

indicating his professional incompetence; his ineligibility to practice law therefore did 

not deprive Anderson of his right to representation by competent counsel at the 

preliminary hearing and arraignment. Anderson contends, to the contrary, that the State 

Bar’s determinations do in fact establish Comstock’s professional incompetence, 

compelling the conclusion that Anderson was deprived of his right to representation by 

competent counsel. 

The Supreme Court held in People v. Ngo (1996) 14 Cal.4th 30, that 

“representation of a criminal defendant by an attorney who has been involuntarily 

enrolled [by the State Bar] on inactive status for MCLE noncompliance [or for any other 

reasons that do not necessarily establish professional incompetence or constitutionally 

deficient performance in representation] does not, in itself, amount to the denial of 

counsel.” (Id. at p. 38.)7 “Although the right to counsel clearly entails a right to 

competent representation by a licensed attorney, and although MCLE requirements 

clearly do relate to professional competence . . . , the inference is unwarranted that any 

7

“MCLE” stands for “mandatory continuing legal education.” (People v. Ngo, 

supra, 14 Cal.4th at p. 32.)
7

and all noncompliance with those requirements necessarily establishes an attorney’s 

professional incompetence or constitutionally deficient performance in representation 

following enrollment on inactive status.” (Id. at p. 36; see In re Johnson (1992) 1 Cal.4th 

689 [attorney suspended from practice of law following conviction of crime involving 

moral turpitude is not necessarily professionally incompetent].)

Under the rule of People v. Ngo, supra, Comstock’s inactive status with the State 

Bar at the time of Anderson’s preliminary hearing and arraignment is not alone sufficient 

to establish that Anderson was deprived of his right to representation by competent 

counsel at those stages of the prosecution. A suspension for failure to pay State Bar dues 

does not even reflect on Comstock’s competence, much less does it establish his 

incompetence. (People v. Medler (1986) 177 Cal.App.3d 927, 930 [in the absence of 

evidence of deficient representation, suspension of attorney for failure to pay State Bar 

dues does not show incompetence to represent criminal defendant].)8

However, the record shows far more than Comstock’s suspension to practice law 

at the time of the preliminary hearing and arraignment. It shows also that Comstock had 

stipulated with the State Bar to conduct that subjected him to State Bar discipline. The 

issue therefore is whether the facts established by Comstock’s stipulation demonstrate his 

lack of competence to represent Anderson at the preliminary hearing and arraignment. 

Anderson argues that they do, and we agree.

The State Bar record establishes that on July 1, 2011, Comstock was suspended 

for failure to pay bar member fees. However, it also reflects that additional disciplinary 

proceedings were pending against Comstock at that time, based on charges filed in 

December 2010, arising from acts and omissions during the period from June through 

November 2009. On July 28, 2011, the State Bar and Comstock entered into a stipulated 

disposition of the pending disciplinary charges, resulting in Comstock’s one-year 

suspension, stayed, and his placement on one-year probation with conditions that 

8 Anderson does not contend that the record of Comstock’s performance at the 

preliminary hearing demonstrates any lack of professional competence. 
8

included a requirement that he take and pass the Multistate Professional Responsibility 

Examination within that year. 

The State Bar record summarizes the conduct that led to the stipulated disposition: 

“Comstock stipulated that he failed to perform legal services competently after being 

hired to try to win a new trial for a criminal defendant who was sentenced to 108 years to 

life in prison. Although he filed a timely notice of appeal, he did no work on the appeal 

and took no action to have himself removed as attorney of record. When the appeal was 

dismissed, Comstock did not inform the client to take any steps to reinstate the appeal. [¶] 

Although Comstock filed the notice of appeal solely to preserve the client’s rights, he 

never advised the client that he didn’t intend to represent him or that he needed to hire a 

new lawyer. He did not respond to letters from the California Appellate Project, which 

successfully had the appeal reinstated. [¶] He stipulated that he failed to perform legal 

services competently. He also did not reply to a bar investigator’s inquiries.” Comstock 

stipulated to the facts underlying this summary, and to the conclusions that he thereby 

willfully violated rule 3-700(A)(2) of the Rules of Professional Conduct,9and Business 

and Professions Code section 6068, subdivision (i).10

This record of the conduct that resulted in the disciplinary charges and the 

stipulated suspension was before the trial court when it heard Anderson’s motion to set 

aside the information. It showed that at the time of Anderson’s preliminary hearing, 

Comstock was suspended from the practice of law for reasons that do not themselves 

reflect on his professional competence. But it showed also that he was at that time under 

9 Rule 3-700(A)(2) of the Rules of Professional Conduct provides that “A member 

shall not withdraw from employment until the member has taken reasonable steps to 

avoid reasonably foreseeable prejudice to the rights of the client, including giving due 

notice to the client, allowing time for employment of other counsel, complying with rule 

3-700(D), and complying with applicable laws and rules.” Rule 3-700(D) requires to the 

client of any papers and property, and return to the client of any unearned fee.

10 Business and Professions Code section 6068, subdivision (i) provides that it is 

the duty of an attorney to cooperate and participate in any disciplinary investigation or 

disciplinary proceeding against him.
9

discipline—on probation and subject to a suspension (stayed on condition of his 

probation)—arising from stipulated determinations that he had failed to perform legal 

services competently, and that he had willfully violated the law and professional rules. 

To this must be added Comstock’s failure to perform his professional duties (which were 

also mandatory conditions of his probation) to inform the trial court and his client of his 

suspension during the proceedings, and to seek the court’s permission to withdraw from 

representation of Anderson. (Rules of Prof. Conduct, rule 3-700(A)(2).)

The record thus showed that when Anderson moved in the trial court to set aside 

the information, Comstock was guilty of willful conduct demonstrating his professional

incompetence and resulting harm to a client and to the court. It showed that he was then 

subject to discipline for that conduct. And it showed that he had violated conditions of 

his discipline and the Rules of Professional Conduct.11 

Evidence of Comstock’s guilt of this conduct does not necessarily establish his

incompetence when he represented Anderson at the preliminary hearing and arraignment. 

These facts, if disputed and contradicted, might leave a court with discretion to find that 

Anderson had not been deprived of his right to representation by competent counsel at the 

preliminary hearing and arraignment. But these facts were not disputed or contradicted; 

the trial court had before it no contrary showing. Under the reasoning of People v. Ngo, 

supra, 14 Cal.4th 30, and In re Johnson, supra, 1 Cal.4th 689, the unrebutted inference 

that Comstock was not competent to represent Anderson at the preliminary hearing and 

arraignment stages of the prosecution therefore is conclusive. 

11 Subsequent State Bar records reflect that as of June 13, 2012, Comstock’s 

probation was revoked, the stay of his suspension was lifted, and he was actually 

suspended for one year. He later failed to pass the professional responsibility exam, and 

was placed on inactive status. 
10

B. The Information Need Not Be Set Aside In The Absence Of Any 

Indication Of Prejudice Resulting From Anderson’s Representation By 

Incompetent Counsel At The Preliminary Hearing And Arraignment 

Stages Of The Prosecution.

Anderson contends that his trial court challenge to the denial of his right to 

competent counsel at his preliminary hearing and arraignment—before he was tried and 

convicted—was timely, requiring that the information must be set aside without a 

showing of actual prejudice.12 In People v. Pompa-Ortiz, supra, 27 Cal.3d 519 (Pompa 

Ortiz), our Supreme Court reaffirmed the rule that if the defendant has been denied a 

substantial right at the preliminary hearing, the information must be set aside “upon 

timely motion.” (Id. at p. 529.) But at the same time it narrowed the circumstances 

under which a motion may be found to be “timely” under that rule. 

Until the decision in Pompa-Ortiz, a deprivation of competent counsel at the 

preliminary hearing would render the court without jurisdiction to proceed—therefore

permitting the error to be raised any time, including for the first time on appeal. (PompaOrtiz, supra, 27 Cal.3d at p. 529.) But in Pompa-Ortiz, the court distinguished defects 

that are jurisdictional “in the fundamental sense of legal power to hear and determine a 

cause,” from those that are jurisdictional but only in the sense that they may justify 

issuance of an extraordinary writ before trial. (Ibid.; see Harris v. Superior Court, supra, 

225 Cal.App.4th at pp. 1144-1145.)

The deprivation of counsel at the preliminary hearing is in the latter category, the 

court held: It is a jurisdictional defect that may entitle a defendant to a writ prior to trial, 

but “does not necessarily deprive a trial court of the legal power to try the case if 

prohibition is not sought.” (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) Following 

Pompa-Ortiz, therefore, the right to relief without any showing of resulting prejudice will 

be limited to pretrial challenges, that permit the matter to be “expeditiously returned to 

the magistrate for proceedings free of the charged defects,” by application for 

12 Setting aside the complaint against Anderson would not bar his further 

prosecution for the same offenses. (§§ 999, 1387, subd. (c)(2)(C), 1387.1.) 
11

extraordinary writ. (Ibid.) The Pompa Ortiz rule rests on the belief that a fair trial 

generally renders harmless any preliminary-hearing errors. (Reilly v. Superior Court 

(2013) 57 Cal.4th 641, 653; People v. Hurtado (2002) 28 Cal.4th 1179, 1190.)13 But 

once a defendant has been tried and convicted, “irregularities in the preliminary 

examination procedures which are not jurisdictional in the fundamental sense shall be 

reviewed under the appropriate standard of prejudicial error and shall require reversal 

only if defendant can show that he was deprived of a fair trial or otherwise suffered 

prejudice as a result of the error at the preliminary examination.” (People v. Letner and 

Tobin, supra, 50 Cal.4th at p. 139; People v. Booker (2011) 51 Cal.4th 141, 157 [“the 

need for a showing of prejudice depends on the stage of the proceedings at which a 

defendant raises the claim in a reviewing court, and not simply on whether he or she had 

raised the claim prior to trial”].)14

Here, Anderson raised the issue of his counsel’s incompetence soon after its 

discovery, but he failed to apply for extraordinary writ based on the rule of Pompa-Ortiz 

that relief is available at that stage of the proceedings—before trial and conviction—

without any showing of resulting prejudice. But Anderson has now been tried on the 

charge of the murder while being represented by counsel whom he does not contend was 

in any way incompetent—bringing him outside the Pompa-Ortiz rule that the right to 

relief without any showing of resulting prejudice will be limited to pretrial challenges

that permit the matter’s expeditious return to the magistrate “for proceedings free of the 

charged defects” (Pompa-Ortiz, supra, 27 Cal.3d at p. 529), and that render harmless any 

13 The court held in People v. Letner and Tobin that the rule it announced in 

Pompa Ortiz applies to errors challenged before trial, and not just to errors at the 

preliminary hearing stage of the proceedings. (People v. Letner and Tobin (2010) 50 

Cal.4th 99, 139.)

14 The Pompa-Ortiz rule applies only if the right of which the defendant has been 

deprived is a substantial right (Reilly v. Superior Court, supra, 57 Cal.4th at p. 653), as 

established by a showing that the error, even though not necessarily prejudicial, might 

reasonably have affected the hearing’s outcome. (People v. Standish (2006) 38 Cal.4th 

858, 863, 882-883; People v. Konow (2004) 32 Cal.4th 995, 1024.) 
12

incompetence of counsel at his preliminary hearing. (Reilly v. Superior Court, supra, 57 

Cal.4th at p. 653; People v. Hurtado, supra, 28 Cal.4th at p. 1190.) In the absence of any 

showing of prejudice, he is entitled to no relief.15 

II. Substantial Evidence Supports Anderson’s Conviction.

A. Substantial Evidence Supports The Determination That Anderson Shot 

McDaniel.

Anderson contends that there is “insufficient reliable, credible evidence of solid 

value” to sustain his conviction. His point is that no physical evidence identifies him as 

the shooter; the prosecution’s primary evidence against him was his identification by his 

alleged associate, Hill, and by Smallwood, Milton, and Valdez, three eyewitnesses who 

had not previously seen him; and developments in the science of eyewitness 

identification in recent decades precludes his conviction based on these uncorroborated 

eyewitness identifications, rendering the evidence in this case insufficient to support his 

conviction. 

The applicable standard of review limits our substantial-evidence inquiry to the 

question whether, on review of the entire record in the light most favorable to the 

judgment, a rational trier of fact could have found him guilty of the offense beyond a 

reasonable doubt. (People v. Young (2005) 34 Cal.4th 1149, 1180; People v. Johnson

(1980) 26 Cal.3d 557, 578.) We may not weigh the evidence or evaluate the credibility 

of witnesses. We may only determine whether the evidence, and reasonable inferences 

that can be derived from it, are sufficient to support the verdicts. (People v. Ochoa

(1993) 6 Cal.4th 1199, 1206.) 

That does not mean, however, that we limit our review only to the evidence 

favoring the respondent. “[O]ur task . . . is twofold. First, we must resolve the issue in 

the light of the whole record—i.e., the entire picture of the defendant put before the 

jury—and may not limit our appraisal to isolated bits of evidence selected by the 

15 Anderson has identified nothing indicating he was prejudiced by his pretrial 

representation by Comstock, and our review of the preliminary hearing transcript has 

disclosed no indication of prejudicial error.
13

respondent. Second, we must judge whether the evidence of each of the essential 

elements . . . is substantial; it is not enough for the respondent simply to point to ‘some’ 

evidence supporting the finding, for ‘Not every surface conflict of evidence remains 

substantial in the light of other facts.’” (People v. Bassett (1968) 69 Cal.2d 122, 138, fn.

omitted.) However, “[u]nless it is clearly shown that ‘on no hypothesis whatever is there 

sufficient substantial evidence to support the verdict,’” the conviction must be affirmed. 

(People v. Quintero (2006) 135 Cal.App.4th 1152, 1162.) 

Applying this standard, we must affirm Anderson’s conviction for the first degree 

murder of McDaniel.

In finding Anderson guilty of the charged crime, the jury was presented with the 

question whether Anderson was involved in McDaniel’s killing. No physical evidence 

identified Anderson as the person who shot McDaniel. But a number of witnesses 

testified that they saw Anderson shoot McDaniel, or saw him flee the scene of the 

shooting. 

Smallwood, the surviving victim of the shooting, described the events leading to 

the shooting, and identified Anderson (whom she did not know) as the person she saw 

shoot McDaniel. She saw him shortly before the shooting, when he and McDaniel 

argued briefly and when Anderson said to his colleague “Get the burner, Cuz.” 

Smallwood saw him point the gun, first at McDaniel as he shot her, and then again at 

Smallwood when he threatened to shoot her too. And she saw him then run toward the 

street. At a lineup a week after the shooting Smallwood identified Anderson as the 

shooter, from his face and his voice, although she admittedly had misidentified another, 

rather than Anderson, as the possible shooter when she was shown a six-pack of 

photographs four days after the incident. She was questioned at length about the 

shooter’s physical characteristics, as well as about various factors that could have 

influenced her identification and recollection of Anderson as the shooter. 

Gregory Hill, who had grown up with Anderson, provided testimony (and prior 

recorded statements) that he and Anderson were present at the scene of the shooting; that 
14

McDaniel and Smallwood each had a knife, and had chased Anderson; and that Anderson 

had said, “Get the gun, get the gun.” 

Vanessa Milton testified that she was in her van with her husband, her mother, and 

her children on Easter Sunday, April 24, 2011, when she heard loud arguing and 

shouting, then a gunshot, she saw a young woman run by crying. Milton called 911, then 

exited her van and went to where a young lady (apparently McDaniel) lay bleeding from 

her chest. She testified to having heard Anderson arguing with Smallwood before she 

heard the shot, and she testified that Anderson had run past her—about a car-length from 

her, close enough to see his face—after she heard the shot. She also identified Anderson 

as the man who ran from the scene, from a photo six-pack a few days after the shooting, 

from a live lineup, and during the preliminary hearing and both trials. 

A police detective testified to what Smallwood, and Milton, had told him shortly 

after the incident—including testimony that was not wholly consistent with Smallwood’s 

and other witnesses’ statements and recollections. And the jury saw a video taken by a 

surveillance camera the day of the shooting, showing Anderson leaving his girlfriend’s 

apartment in his tan Chevrolet Suburban, which was later found parked about 500 feet 

from the place where McDaniel was shot.16 The evidence revealed many inconsistencies 

and contradictions, including inconsistencies and contradictions in the accounts of the 

witnesses to the shooting incident.

Based on these observations, Anderson argues correctly that consideration should 

be given to the opportunity the witnesses had to observe the shooter; to the lapse of time 

between the shooting and when they were called upon to make an identification; to the 

extent to which their observations accurately describe the defendant; and to the impact 

that emotions might have had on their ability to accurately perceive and recall the events. 

But the consideration of these factors is in the hands of the jury, once the testimony is 

admitted into evidence. Unless it is simply beyond reasonable belief (and there was no 

16 A few other witnesses were called to describe their observations and 

descriptions of the participants in the incident. None gave a clear identification of 

Anderson, and many discrepancies and inconsistencies were identified. 
15

contention at trial that such was the case here), it is sufficient to justify a jury’s reliance. 

We are not free, as a reviewing court, to reweigh the evidence or to discount the 

testimony of eyewitnesses, particularly those who have given evidence without objection 

to their competence or to the relevance of their testimony. (People v. Bolin (1998) 18 

Cal.4th 297, 333.) As the Legislature has provided, and our Supreme Court has affirmed, 

the evidence of a single witness is sufficient for proof of any fact. (Evid. Code, § 411; 

People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.) When eyewitness identification is 

believed by the trier of fact, after the circumstances surrounding the identification and its 

weight have been explored at length at trial, that determination is binding on the 

reviewing court. (In re Gustavo M. (1989) 214 Cal.App.3d 1485, 1497; see People v. 

Champion (1995) 9 Cal.4th 879, 926-927, questioned on another ground in People v. Ray

(1996) 13 Cal.4th 313, 369, fn. 2 [eyewitness testimony, “although not overwhelming,” 

supports verdict].) 

It is beyond question that testimony based on the accounts of eyewitnesses to 

sudden, traumatic, and far-off events is not infallible, and that many factors can influence 

witnesses to such events to believe they have perceived people and events differently 

than actually occurred. Juries can—and should—be cautioned by courts, by counsel, and 

often by expert witnesses on the psychology of observation, to carefully examine and 

treat such evidence with caution. There undoubtedly is much to be learned about factors 

that influence the credibility of eyewitness testimony; but it is not the role of this court to 

set aside the rules that have long governed appellate review, based only on general 

references to modern theories on the subject.

A reviewing court may not “consider a new approach to assessing sufficiency of 

evidence,” as Anderson suggests we should, nor wholly discount the testimony of 

eyewitnesses. Since our Legislature and our Supreme Court have held that eyewitness 

testimony, when it is determined by a jury to be true—and particularly when it is 

corroborated by other evidence, as it is here—is sufficient to establish the defendant’s 

guilt, we are not free to hold otherwise. (Auto Equity Sales, Inc. v. Superior Court of 

Santa Clara County (1962) 57 Cal.2d 450, 455 [lower courts, including courts of appeal, 
16

are bound by decisions of Supreme Court]; Rotolo v. San Jose Sports & Entertainment, 

LLC (2007) 151 Cal.App.4th 307, 316 [in defining law Court of Appeal defers to 

Legislature and Supreme Court].)

B. Substantial Evidence Supports The Determination That Anderson 

Committed The Shooting For The Benefit Of, At The Direction Of, Or In 

Association With His Gang.

Anderson argues that the evidence is insufficient to support the jury’s “true” 

determination that he committed the shooting for the benefit of, at the direction of, or in 

association with his gang. We do not agree.

The Street Terrorism Enforcement and Prevention Act imposes penal 

consequences when crimes are committed “for the benefit of, at the direction of, or in 

association with any criminal street gang.” (§ 186.22, subd. (b)(1); People v. Gardeley

(1996) 14 Cal.4th 605, 609-610, 615.) In order to come within this provision, the crime 

must have been committed with the specific intent to promote or assist criminal conduct 

by gang members. (§ 186.22, subd. (b)(1); People v. Stallworth (2008) 164 Cal.App.4th 

1079, 1104.) The Act defines a “criminal street gang” as any ongoing association of 

three or more persons that shares a common name or common identifying sign or symbol;

that has as one of its primary activities the commission of specified criminal offenses; 

and that engages through its members in a pattern of criminal gang activity. (§ 186.22, 

subd. (f); People v. Gardeley, supra, at pp. 610, 616.) Like all other elements of a 

criminal offense, the gang enhancement allegations must be proved beyond a reasonable 

doubt. (People v. Nelson (1978) 85 Cal.App.3d 99, 103.)

Anderson argues correctly that the finding that his crime was gang-related—was 

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

gang, with the specific intent to promote, further, or assist in any criminal conduct by 

gang members—cannot rest solely on evidence of his criminal history and gang 

affiliation. But here, there is more. There is evidence (the sufficiency of which 

Anderson does not dispute) that Anderson and Hill were members of the Carver Park 

Compton Crips (CPC or CPCC) gang. There was evidence that they were together in 
17

CPCC territory when they confronted McDaniel about her youth, and they were in turn

confronted by McDaniel’s self-identification as having a Black P-Stone Blood (BPS 

Blood) gang affiliation,

17 and were threatened by McDaniel with a knife or knives. There 

was evidence that Anderson sought a gun from Hill, and inferentially, that Hill—a 

member of Anderson’s gang—supplied him with the gun he used to shoot McDaniel. 

And there was evidence that Anderson then pursued McDaniel and Smallwood, shooting 

McDaniel at close range. Finally, there was evidence that the conduct attributed to 

Anderson and Hill was of benefit to their gang, “by letting people know that they’re 

violent, letting people or letting the victim know they’re not going to be disrespected by a 

Blood gang member in their turf.” 

The jury was free to conclude that Anderson’s retaliation had nothing at all to do 

with Anderson’s and Hill’s gang affiliations, or the rivalry of their gang with the gangaffiliation claimed by McDaniel. It could have disbelieved the expert testimony that it is 

typical of gang culture for a member to look to other members when a gun is needed, 

that Anderson’s request to “get the gun cuz” or “get the burner cuz” was not a gangrelated reference specific to Crips gangs (as the gang expert testified it was, and as 

Smallwood testified she understood it), and that Anderson’s acquisition of the gun did not 

result from his request and association with other present gang members. It could have 

concluded that the incident arose solely from his confrontation by McDaniel, a much 

younger female, without any thought of retaliation for her claim of rival gang affiliation, 

without any concern that he was being disrespected in front of members of his own gang 

and other witnesses, without any gang-related influence on his behavior at all.

But the jury was not compelled to reject the evidence and reasonable inferences of 

gang involvement in the incident. It could reasonably find that Anderson had asked a 

fellow gang member to provide him with a gun, and that in response a gang member had 

handed him the gun with which he shot the victim. It could conclude that the murder was 

17 The expert testified that the Black P-Stone Bloods are not specific rivals with 

the Carver Park Compton Crips, but that the Crips and Bloods are general rivals. 
18

committed for the benefit of and in association with Anderson’s gang. In sum, the jury 

found and we agree that there is sufficient evidence to support the gang enhancement.

Conclusion

Anderson was deprived of competent counsel at the preliminary hearing. Had he 

pursued and perfected relief before he was tried and convicted in a trial free from that 

defect, he would have been entitled to have the information set aside and to have a new 

information, preliminary hearing, and arraignment. But that relief is no longer available 

without a showing that he was somehow prejudiced by the pretrial error, in a manner that 

his conviction following a full and fair trial did not cure—a showing that we believe 

would not be possible even if he had attempted it. 

The primary disputed issue at trial was the accuracy of Anderson’s identification 

by various witnesses as McDaniel’s shooter. Despite the various uncertainties and 

inconsistencies, however, those identifications provided substantial evidence to support 

the jury’s determination on the issue. 

The same reasoning requires our refusal to set aside the jury’s determination that 

the special allegations charging that the murder for which Anderson was convicted was 

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

gang, with the specific intent to promote, further and assist in criminal conduct by gang 

members. There was substantial evidence that Anderson was an admitted gang member, 

and that when taunted by McDaniel, a girl about half his age who expressed her 

affiliation with a rival gang, he obtained a gun from another gang member, pursued her 

when she walked away, and shot her close range—in order, a gang expert opined, to 

preserve the gang’s reputation for violence and control in its home territory. That 

evidence, apparently credited by the jury, is sufficient to support the jury’s true finding 

on the special gang allegations.
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Disposition

The judgment is affirmed.

CERTIFIED FOR PARTIAL PUBLICATION.

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.*

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.