1

Filed 9/22/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

YOR XIONG,

Defendant and Appellant.

C079709

(Super. Ct. No. SF120774A)

APPEAL from a judgment of the Superior Court of San Joaquin County, Bernard 

Garber, Judge. Affirmed as modified.

Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and 

Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant 

Attorney General, Julie A. Hokans, John A. Bachman, Deputy Attorneys General, for 

Plaintiff and Respondent.

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts III through VII of the Discussion.
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Defendant Yor Xiong shot the victim multiple times and then led police on a highspeed car chase on surface streets from south to north Stockton ending across the street 

from his house. A jury found defendant guilty of murder in the first degree (count 1),

possession of a firearm by a felon (count 2), and evading an officer with wanton 

disregard (felony evading) (count 3). The jury also found true an enhancement allegation 

in connection with count 1 that defendant personally discharged a firearm causing the 

victim’s death. The jury deadlocked on gang enhancement allegations on counts 1 and 2, 

and thereafter, the trial court granted the prosecution’s motion to strike those allegations. 

Defendant was sentenced to 50 years to life plus two years eight months.

On appeal, defendant asserts that the trial court prejudicially erred in: (1) 

prohibiting him from testifying about his understanding, based on his experiences in Thai 

refugee camps, of a person’s ability to deny allegations made by camp police officers, 

such testimony having been offered to establish that he made a false confession to the 

police in the instant case; (2) instructing the jury, in its CALCRIM No. 358 instruction, 

that the jury should consider with caution defendant’s unrecorded statements because his 

defense was based on the premise that his recorded statements were coerced, false, and 

not credible and the instruction undercut this defense by suggesting the recorded 

statements should not be considered with caution; (3) refusing to hold an Evidence Code 

section 402 hearing regarding the testimony of the prosecution’s gang expert; and (4) 

allowing the gang expert to testify concerning defendant’s booking statements about his 

gang affiliation in violation of People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde). 

Defendant also requests (5) that this court review the sealed transcripts of the in camera 

Pitchess1 hearing to determine if the trial court followed proper procedure and released 

all relevant material. In supplemental briefing, defendant asserts (6) that, following the 

1

 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
3

enactment of Senate Bill No. 620, his case must be remanded for the trial court to 

consider whether to exercise its discretion to strike the firearm enhancement, and (7) that, 

following the enactment of Senate Bill No. 136, his two one-year prior prison term 

enhancements must be struck.

In the published portion of this opinion, we conclude that the trial court erred in 

precluding defendant’s testimony regarding his understanding about what happened to 

people who denied allegations made by police in the Thai refugee camps where he was 

born and stayed as a boy. His cultural experience was relevant to his state of mind in 

interacting with the detectives who interrogated him and tended to prove why he would 

have given a false confession. However, given the other evidence defendant was allowed 

to introduce concerning his confession, we conclude that he was not deprived of his

constitutional right to present a defense by the preclusion of this testimony. We further 

conclude that the erroneous preclusion of this testimony was harmless.

We also conclude that the trial court erred in giving the following bracketed 

sentence from CALCRIM No. 358: “Consider with caution any statement made by the 

defendant tending to show his guilt unless the statement was written or otherwise 

recorded.” Defendant did not want the instruction, even though evidence of oral 

unrecorded inculpatory statements was admitted. The trial court had no sua sponte 

obligation to give the instruction. It is up to a defendant to request the instruction and a 

defendant is entitled to reject it. However, under the circumstances here, we conclude the 

error was harmless.

In the unpublished portion of this opinion, we modify the judgment by striking the 

two one-year prior prison term enhancements imposed pursuant to Penal Code section 

667.5, subdivision (b).2 We remand so the trial court can exercise its discretion whether 

2

 Further undesignated statutory references are to the Penal Code in effect at the time of 

the charged offenses.
4

to dismiss or strike the section 12022.53, subdivision (d), firearm enhancement. As for 

defendant’s other contentions, we conclude they are forfeited, meritless, and/or

nonprejudicial.

As modified, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Charges

Defendant was charged with willful, deliberate, premeditated murder (§ 187, subd. 

(a); count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2); felony 

evasion (Veh. Code, § 2800.2, subd. (a); count 3); and participating in a criminal street 

gang (§ 186.22, subd. (a); count 4).

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 The information further alleged that defendant 

committed counts 1 through 3 for the benefit of, at the direction of, or in association with 

a criminal street gang. (§ 186.22, subd. (b)(1).)4 In connection with the murder count, 

the information alleged defendant personally used a firearm causing great bodily injury or 

death (§ 12022.53, subd. (d)), and that defendant personally used a firearm in the 

commission of a felony. (§ 12022.5, subd. (a).) The information also alleged that 

defendant had served three prior prison terms within the meaning of section 667.5, 

subdivision (b). 

The People’s Case-in-chief

The Shooting

L.C. lived in the vicinity of the shooting. She looked out a window and saw three 

guys talking across the street. One of them was wearing a red hat. After she closed the 

3

 Before the commencement of the jury trial, the trial court granted the prosecution’s 

motion to dismiss count 4 based on insufficient evidence. 

4

 At the jury instruction conference, the trial court struck the gang enhancement 

allegation attached to count 3. 
5

window, L.C. heard four gunshots and then two more. She saw a small black car speed 

away on 12th Street towards Airport Way. 

N.V. heard what she believed to be fireworks. She then heard someone scream. 

She looked outside and saw a dark blue or black car, possibly an Acura, parked on the 

corner of 12th Street and Tiffany Street. She saw a person who looked Hispanic or Asian

“looking like that they were looking down at somebody,” extending his arm downward.

It looked to N.V. like the person was pointing a gun at someone on the ground. N.V. also 

thought she heard the person “saying like ‘F you,’ and then . . . like cuz or blood . . . .” 

N.V. testified that she may have told a detective that the individual said, “Fuck you, cuz, 

that’s for messing with my family” and a detective confirmed that she did. She heard

“another bang,” and then the person jumped into the driver’s side of the car and sped off 

in the direction of Airport Way. N.V. believed that there was a passenger in the front 

passenger seat of the vehicle as well.

M.M. heard gunfire and went to the front of her house. She saw a person lying on 

the ground. She saw another person with a gun in his hand, walking away from the 

victim to a dark blue car, getting into the driver’s seat, and taking off. M.M. described 

the male with the gun as having light skin and dark hair, wearing shorts and a white Tshirt. She believed he was possibly Asian. The car drove onto 12th Street toward Airport 

Way. 

S.W. and D.C. were at home with D.W. when they heard gunshots. S.W. heard 

between three and six gunshots. He looked out his window and saw a small dark blue or 

black car take off westbound on 12th Street towards Airport Way. D.C. and D.W. ran 

outside. D.C. saw a “guy on the ground just bleeding.” Both attempted to keep the 

person alive until an ambulance arrived. 

Officer Edward Webb arrived at the scene at approximately 4:03 p.m. On the 

way, he received an update of a suspect vehicle, a black Acura. Webb saw a vehicle 

similar to that description at a red light, headed north on Airport Way at the intersection 
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of Dr. Martin Luther King, Jr., Boulevard. Webb observed the driver of the vehicle. 

Later, when Webb saw defendant at the hospital, he recognized him as the driver of that 

vehicle. Webb continued to the scene of the shooting. There, Webb observed the victim 

on the ground and noted he had been shot several times and a woman was giving him 

CPR. Police discovered eight cartridge casings at the scene of the shooting. 

The Pursuit, Arrest, and Identification of Defendant

Officer Jimmy Kwan heard the broadcast concerning the shooting and began to 

drive toward the area with his lights and siren on. He heard supplementary reports 

indicating that the persons responsible could be in a dark-colored Honda or Acura. Two 

to three minutes had elapsed since the initial broadcast, and Kwan was close enough to 

Tiffany and 12th Streets to believe that the vehicle could be in the area, so he began 

looking for a vehicle matching the description. Kwan then saw a dark-colored Honda or 

Acura waiting at the red light on Airport Way at the intersection with Dr. Martin Luther 

King, Jr., Boulevard. The vehicle proceeded north on Airport Way, and Kwan let it pass. 

He could see at least two people in the vehicle. Kwan reported the license plate to the 

dispatcher and he began to follow the vehicle with his lights and siren still on. The 

vehicle pulled over towards the side of the road, but did not stop. Kwan observed another 

officer’s patrol vehicle with its lights on traveling south on Airport Way make a U-turn 

and pull behind Kwan’s vehicle. The Acura accelerated and the two patrol cars pursued. 

The Acura was traveling at approximately 50 miles per hour and accelerating, and was 

not stopping for stop signs or traffic lights. Thereafter, the Acura accelerated to 

approximately 80 miles per hour, crossed the cement divider, and continued driving north 

in the southbound lane against oncoming traffic. Kwan testified that the other patrol 

vehicle lost a tire crossing a center divider. After some time, the Acura crossed back onto 

the northbound lanes and continued, and subsequently crossed onto the opposite lanes 

again. The Acura made several turns as Kwan attempted to catch up to it. At some point, 

Kwan lost sight of the Acura. After several seconds, Kwan reacquired the Acura, and 
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saw that the passenger-side door was open and only one person remained in the car. The 

Acura continued driving through a residential area at 50 to 60 miles per hour. At some 

point, the Acura lost a rear tire, and Kwan’s patrol vehicle also lost a tire. Realizing that 

his vehicle was compromised and anticipating the possibility that the Acura and his patrol 

vehicle could collide with other vehicles or pedestrians, Kwan decided to “use vehicle 

intervention to stop him.” Kwan hit the Acura with his patrol vehicle’s bumper a couple 

of times. The impact caused the Acura to swerve to the right, the vehicles’ bumpers 

became locked together and they eventually came to a stop. 

Defendant was apprehended. During the arrest, a canine officer was deployed to 

help subdue defendant. Defendant suffered a dog bite to the buttocks and other injuries.5

Kwan searched defendant and found a glass pipe of the type typically used for 

smoking methamphetamine. Defendant did not have a gun. Kwan learned that defendant 

lived across the street and a few houses down from where the pursuit ended. 

Police brought M.M. to the location for a showup. M.M. testified she told police 

that the person was not the person she had seen. According to Officer Mark Sandberg, 

who transported M.M. to the showup, she thought the person she had seen was lighter 

skinned and she thought he was wearing a different color shirt, so she was unsure. M.M. 

testified that she also observed a car nearby, which she told police was not the car 

because it was not as dark as the car she had seen. However, according to Sandberg, 

upon observing the vehicle, M.M. said “that was the car.” 

N.V. was also brought to a location for a showup. She testified that she told police 

the person they detained was wearing clothes that looked like the person she saw, and 

that the car looked like the car that had sped away following the shooting. However, 

N.V. testified that she did not identify the individual because she had not seen what he 

5

 We discuss additional circumstances of defendant’s arrest in our discussion of his 

Pitchess motion, post.
8

looked like. According to Detective Eduardo Rodriguez, N.V. identified defendant as the 

person she saw earlier and also identified the car as the one she had seen. 

Police Interrogation of Defendant

Detectives Brian Fry and Chuck Harris interrogated defendant following his arrest. 

The interrogation was recorded and the video was played for the jury.6 Early in the 

conversation, Harris asked defendant if he was okay and defendant complained of pain to 

his buttocks. He remarked that he did not know “why they let the dog bit[e] me.” 

Defendant stated he was not running or resisting. Our review of the video recording 

reveals that defendant did not appear to have a hard time sitting throughout the 

interrogation.

Harris explained he wanted to hear defendant’s point of view and asked where he 

was coming from. Defendant said he had been going home from his girlfriend’s house 

near Airport and 10th Streets in the Acura he shared with his brother. Near a park, 

defendant picked up a male Hispanic acquaintance he only knew as “K” and whom he 

had only known a week. They had previously smoked crystal together. Defendant said 

he was on parole,7 had missed a drug court date and had a warrant out for him, so when 

police flashed a light on him, he decided not to stop. Believing that he would be arrested 

anyway, he decided to continue to his house to see his father, who was getting older. He 

also did not want his brother’s car to be towed. At some point, K jumped out of the car 

and took off. As defendant arrived at his house, the officer chasing him ran his car into 

defendant’s car. 

6

 The trial court instructed the jury to “accept the video version rather than what’s on the 

transcript because it’s subject to typographical error.” We have reviewed the recording 

and we have set forth in this opinion what was said based on our own independent review 

and not based on the transcript in the record, which was admitted into evidence. 

7

 Defendant said he had been on parole for auto theft. 
9

When asked by Harris if he had experienced any problems with anyone during the 

course of the day, defendant stated that he had not. When asked if anyone had a problem 

with him, defendant responded that his brother’s car had been vandalized a couple of 

months earlier. All of the windows were broken. Defendant explained that he was “hella 

mad” about that and filed a police report. When asked why he thought the police might 

have decided to stop his car, defendant stated that his license plate tags had expired. 

Asked whether he was in any gang, defendant responded that he was not, but said 

his cousin used to be in a gang. He said he could not recall the name of the gang, but, 

when Harris asked if it could be HNS, defendant responded that it could be. Defendant 

denied having any gang tattoos. 

Earlier in the interrogation, defendant volunteered: “I’m going to be honest with 

you guys. I’ve been doing drugs. I don’t really have [a] good memory.” He said 

sometimes when he uses drugs, he does not remember things he did. 

When later Harris asked defendant if he recalled driving around the area of 

Tiffany and 12th Streets, defendant stated that he did not. Harris then encouraged 

defendant to “think really hard” about it because “something happened over there and . . . 

I need things from your point of view.” Harris said officers had talked to people who saw 

defendant’s brother’s car there. Defendant responded, “My brother’s car was there?” 

Harris then told defendant that the city had brought back city surveillance cameras and

these cameras were all over Stockton. He stated that there were people monitoring the 

cameras, and continued: “they definitely saw what a couple other people saw. They saw 

. . . your car. There in the same area. . . . when some stuff went down. And if there was 

any reason that you would have been over there like maybe you took your friend . . . over 

there . . . to . . . help him pick something up. To drop him off so he could talk to 

somebody . . . it’s really important that I know that. Because that would be a good reason 

as to why your car would even be seen in that area.” Defendant stated that he might have 

driven around the area. Defendant referred to someone his girlfriend knew in the area 
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who would bring drugs. Harris told defendant that it was really important for defendant 

to remember whether he was in that area on that afternoon, and assured defendant he was 

“not here to knock you on the drugs . . . I don’t care.” Defendant stated that he did not 

recall. 

Harris told defendant that he had looked at the surveillance video, saw defendant’s 

car and described it, and saw defendant get in the car and there was another individual in 

the front seat. Harris then told defendant that, while the city cameras record video, they 

do not record audio. He said the camera “doesn’t lie about anything. It just . . . shows 

the picture. But the words are what’s important.” Harris indicated he would have to rely 

on defendant and everybody else to determine what was said and everything that 

happened off camera. Harris went on to state “the reason I’m asking about that place? . . 

. [T]hat intersection. Is because some stuff went down. And . . . things got out of hand 

but I don’t know why they got out of hand.” Harris stated that the video showed 

defendant and his friend getting out of the car and talking to someone. However, with no 

audio, Harris did not know what was said. Harris told defendant “that’s the part that I 

need you to fill in.” He continued, stating that defendant “talked to some guy that was 

pretty much in the front yard.” Defendant responded: “Really?” and “I talked to some 

guy in a front yard?” Harris said: “I don’t know what that whole thing was about” and 

defendant responded, “I don’t recall it. ... let me think.” Harris offered: “I’ll give you as 

much time as you need man. Whatever you need. Because, this is . . . important.” 

Defendant responded: “Can I ask you what happened? Cause I don’t recall it.” Harris 

responded: “Sure. Well . . . like I said I don’t know what was said.” He then explained 

where the camera was located and said: “So, your car is going to be parked somewhere 

over here on the street. In the video I see the guy that you . . . call K and then . . . I see 

you and I see this guy kind of right here. ... So it’s like you guys are kind of standing in a 

triangle. That’s what the video [is] showing me. . . . [S]o it shows you guys get out and 

walk up. And then you guys say something to this guy. Or he says something to you. 
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And then . . . looks like some physical thing kind of breaks out . . . he got the worst of it. 

. . . Which isn’t bad, it’s not a big deal. [B]ut he got the worst of whatever happened. 

But I don’t know what happened. But I don’t know what caused what happened. That’s 

the thing.” Defendant asked: “What happened?” Harris responded: “See that’s what I 

don’t know. [A]ll I know is kind of got . . . the shit beat out of him. Is what it looked 

like.” Defendant responded, “He got beat up?” And Harris said, “Well not really beat up 

but just . . . kind of. I don’t know how to describe it. Kind of like . . . he got the worst 

end of it. [R]emember when I asked you if you? When is the last time you held a gun? 

Or had anything . . . like, went to a shooting range or had a friend that showed you a gun 

or anything like that? Because when we looked at this, we look at this video camera 

because it’s a perfect angle. There’s no trees or anything. And it looks like there’s 

something in your hand. And so that’s why I don’t know if it was . . . you know a 

hammer. If it was a bat. If it was a knife . . . it wasn’t big enough to be a bat though.” 

Harris then stated that “from looking at the camera . . . it looked like it could have been a 

gun. Or a bigger knife. [T]hat’s basically what it looked like to me. All I know is like 

some commotion goes on right here. . . . All of a sudden this guy goes down.”

Harris then told defendant that the guy was in the hospital, and that he was “going 

to be ok” and “[h]e’s going to be fine.” Harris told defendant: “this stuff isn’t a huge 

deal and when he gets better and everything goes to court . . . we’re all going to sit 

around and we’re going to tell . . . what happened. Like . . . your story, his story.” Harris 

encouraged defendant to tell his side of the story to help himself out. Defendant stated:

“I don’t recall that” and continued, “So, now you got to tell me, tell me in detail see if I 

remember?”

Fry then interjected: “Ok Yor, check this out . . . ..[T]his isn’t your first time 

talking to police.” Defendant responded: “I know.” Fry then said: “[M]y partner is I 

believe gone above and beyond . . . staying on the right side of not being disrespectful. 

Treating you with the u[t]most respect, ok. You’ve dealt with some dick head cops. 
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You’ve dealt with some today . . . haven’t you?” Defendant agreed. Fry stated: “They 

didn’t have to go as far as they did? Did they?” Defendant again agreed. Fry told 

defendant, “Ok, they didn’t. . . . [I]f we wanted to we can have you sit there in handcuffs, 

with a dog bite on your butt,” and “Just point our fingers at you and just disrespecting 

you. It’s not the way we do business.” Fry continued: “[Y]ou’re looking probably the 

two most easy going cops you’re going to find.” Fry then stated: “So, what we are trying 

to do in this whole thing and we can go on for hours and hours and hours. Ok. Is give 

you an opportunity, show you some respect by give you an opportunity to tell your side 

of the story. Ok. There are two sides. Two sides to every coin. Two sides to every 

story. We’ve got one. You’re a smart man. You are even more street smart than 

probably we are.” 

Fry then told defendant, “What we don’t want for you is you[’re] sitting there [in a 

courtroom] and you have that guy get up and tell his side of the story about what 

happened. Tell a bunch of lies. And then on a piece of paper that he’s going to write, we 

have a bunch of . . . I don’t know, I can’t remember. And yeah, drugs do crazy things to 

you.” Frye continued: “What you’re trying to do is see what we have. How much we 

know.” Defendant denied that he was doing that and said: “I really don’t remember sir. 

. . . I need to refresh my memory but I don’t recall.” Frye explained that they had done 

their “homework” and told defendant “if we came in here. And gave you everything that 

we know, what’s left for you to tell us? You know what I’m saying?” Defendant 

indicated he understood. Fry continued: “So what we’re doing is . . . we’re seeing if 

you’re going to tell us anything. So far, everything’s been I don’t know.” Frye then 

explained: “if we’re going to walk this journey together, then we need to walk it together 

not us leading you down a path. Something happened.” He explained that whatever

happened could be understandable, but the camera did not “tell us why.” Defendant 

responded: “I understand.” Harris then told defendant, “Only you can tell us why” and 

defendant responded, “I know.” Harris then asked: “So why did this happen? From 
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your point of view. From your words. From your heart.” Defendant responded: “My 

point of view?” 

Defendant then volunteered he did not know who or why someone vandalized his 

car. He said his girlfriend saw who vandalized the car. Defendant emphasized that he 

had proof that his car had been vandalized. He then stated that, when he is at his 

girlfriend’s house, “there’s always people . . . trying to walk up on me . . . and creep up 

on me . . . .” 

Defendant then stated that he went with his girlfriend to buy cigarettes at a market

the previous night, and there he saw the person. Defendant’s stepson was in the car. The 

guy “mean mugged” defendant and “stuck his hand in his pocket like, like he had 

something. Like something, he was going to do something.” But there were “too many 

people” around. Defendant told the detectives: “So what that tells me is is this guy the 

guy who vandalize my car and try to kill me.” Defendant said he thought the guy was 

going to shoot him, but he claimed he wanted to talk to the guy. He continued: “And 

when I confronted him, he told me what you going to do about it? I did what he was

[unintelligible] going to do, but he didn’t finish the job.”

When asked about seeing the victim on the day of the shooting, defendant 

explained he was arguing with his girlfriend in the house when he saw the same guy walk 

by outside looking at his car and looking at the house. Defendant said he felt the guy was 

stalking him. Defendant went outside and the guy was gone, but defendant saw K down 

the street, and talked to him. He knew K would have a gun. Defendant told K he saw the 

guy, and K said he would go with defendant. Defendant and K got in the car. Defendant 

asked K, “You got a strap on you? Let me hold it. Let me get it in case you know . . . in 

case, if he pull, if he start acting stupid and acts like he’s going to pull one, you know.” 

They saw the guy approximately a block and a half from defendant’s girlfriend’s house. 

Defendant said he parked the car “like exactly what you said the camera sees,” and went 

to confront the guy. Defendant, who was holding the gun, asked him “nicely” why he 
14

looked at defendant like he was going to shoot defendant the day before. The guy said, 

“[W]hat you gonna do about it? You catch me slippin’ you ain’t doing nothing?” 

Defendant then said to the detectives: “Ok I’ll do, do my job. You know.” 

Fry asked defendant how many times he fired the gun and defendant replied: “I 

don’t recall it. I’m being honest with you.” He continued: “I’ll be honest with you, I 

don’t recall how many times . . . how many bullets, was in that gun and how many shots 

were fired. I just remember pulling the trigger and my ear was sting . . . ..” Defendant 

told the detectives, “[Y]ou don’t have to believe me. But I have, . . . a vandalize 

everything record,” and he said he had given his parole agent a copy. Fry explained they 

already knew about the vandalism and when they asked earlier if somebody had a beef 

with him or his family, they just wanted to see if defendant would tell them. 

Fry asked if the victim fell down, stood up, or said anything, and defendant 

replied, “I’m going to be, . . . honest with you. I was in shock when I . . . pull the trigger. 

I don’t remember what happened but I know I pulled the trigger.” The next thing 

defendant said he remembered was getting in the car and driving away.

Defendant said he drove away from the scene slowly, “like an old person would 

dr[i]ve,” like nothing happened. When police started following him defendant decided he 

needed to see his father, and he wanted to be sure his brother’s car did not get 

impounded. Defendant said K left the car when one of the car’s tires popped during the 

pursuit. Before leaving the car, K told defendant to give the gun back, saying “I’m not 

going to jail with you.” Defendant believed that K took his gun with him.

Defendant explained that he had woke up on the wrong side of the bed that day. 

And the victim had been causing problems. Defendant further explained that when he 

went looking for the victim, it was his intent to confront him and “if he’s a real man, we 

box.” Fry asked defendant if, when he went looking for K prior to the shooting, he did so 

because he knew K would have a gun. Defendant replied that was not the reason. 
15

Rather, defendant just wanted K to watch his back when he confronted the victim in case 

the victim had a gun, “[s]o he knows it’s actually who, who he is.”

The detectives offered defendant some pizza and left the room. Defendant sat 

there for a short while, put his head in his hands, then looked up and said something to 

himself that sounded like, “Don’t matter [unintelligible].” Our review reveals that 

defendant immediately and clearly said thereafter: “I’d rather be a man and step up to the 

plate than be a punk about it.”8

The detectives brought defendant pizza, and after defendant finished, the

detectives reentered the room and the interrogation resumed. Fry encouraged defendant 

to disclose more information about K, stating that, without K, the detectives were faced 

with a “he said, he said,” situation between defendant’s statements and the victim’s. Fry 

suggested that the victim could recover and refute defendant’s account of the events, 

saying, “What if he says that guy[’]s crazy. I was walking my dog skipping along the 

streets.” Defendant immediately corrected Fry by responding: “[T]here was no dog.” 

When Fry asked defendant if K was involved with a gang, defendant responded: 

“Why was the guy . . . a gang member?” Fry subsequently said, “[Y]ou asked a[n]

interesting question. You said . . . was that guy in a gang? [T]he guy that you got the 

confrontation with.” Fry then asked: “Did you think he was in a gang?” Defendant 

responded: “I don’t know. He was wearing red right?” Defendant then said, “I don’t 

know,” and “If he’s in a gang well, I don’t know. I don’t know what I’ve gotten myself 

into.” Defendant later asked if the guy was a gang member, and the detectives stated that 

they did not know. When Fry asked whether the victim was Hispanic, Asian, or Black, 

8

 In the transcript, the entire conversation defendant had with himself is noted as 

“unintelligible,” and some of what defendant said at this point is hard to understand, but 

we can clearly hear him say, “I’d rather be a man and step up to the plate than be a punk 

about it.”
16

defendant responded that he was Asian, specified that he “looked [Hm]ong,” and then 

stated, “Yeah he’s [Hm]ong because I talked to him in [Hm]ong.” 

Before the detectives left the room, Harris thanked defendant for being honest.

Defendant replied: “Thank you.” He shook both detective’s hands. Immediately after 

the detectives left the room, defendant can be heard to say to himself, “You know I’m 

doing right. At least I’m speaking with the truth. Life is going to hurt.” 

In their trial testimony, both Fry and Harris acknowledged that there were no city 

surveillance cameras at the location of Tiffany and 12th Streets as represented by Harris 

during the interview. Instead, prior to interviewing defendant, Fry and Harris had learned 

information from witnesses and officers at the location of the shooting. Harris 

acknowledged that he intentionally lied to defendant during the interview. Harris used 

this technique because he did not believe defendant was being truthful when defendant 

responded, “My brother’s car was there?” after Harris said people had seen his car in the 

area. 

Autopsy Evidence

The victim sustained six gunshot wounds and no other injuries. Four gunshot 

wounds were to the torso area, including the right arm, right buttocks, right back near 

midline and penis. The gunshot wound to his right arm traveled into his chest lacerating 

major blood vessels close to the heart. The gunshot wound to the right back travelled 

upwards, perforating the right lung and exited out of the right chest. 

Two of the gunshot wounds were to the head. One entered the upper right neck 

near the scalp, traveled downwards through the neck, transected the spinal cord and 

fractured vertebrae. This wound would have resulted in spinal shock causing the victim 

to become immediately unresponsive. The other was a graze wound. A cluster of 

abrasions and lacerations to the scalp and miniscule bullet fragments recovered therefrom 

indicated that the bullet that caused the graze wound impacted a hard surface and 

shattered near the victim’s head and ricocheted back into the victim’s scalp, suggesting
17

the victim’s head may have been close to the concrete when that bullet wound was 

inflicted. 

Gang Expert Testimony

Detective Richard Slater, assigned to the Gang Violence Suppression Unit, 

testified as a gang expert, specializing primarily in Asian gangs. Slater testified that the 

victim was a documented gang member. According to Slater, a tattoo on the victim’s 

back, which read “MOD,” could stand for the gang Masters of Destruction or Menace of 

Destruction. According to Slater, in Stockton, MOD was a primarily Hmong gang which 

“could fall under a Blood gang, they associate with the color red.” At the time he was 

shot, the victim was wearing a red shirt and a red cap. 

Slater testified that MOD and HNS, or Hmong Nation Society, were rival gangs. 

HNS was a criminal street gang and a Crip set associated with the color blue. As of the 

time of trial, HNS had approximately 10 validated members. According to Slater, the 

primary activities of HNS included homicide, firearms violations, assault with a deadly 

weapon, robbery, burglary, and fraud. 

Slater documented defendant as a validated member of HNS based on the facts of 

this case, prior contacts, statements defendant has made to law enforcement, and who he 

was with during an arrest in 2006. Slater further opined that defendant shot the victim for 

the benefit of, at the direction of, or in association with HNS. According to Slater, 

defendant would have been “getting rid of the rival.” 9

Slater explained that, to be “caught slipping” means to be caught without a firearm 

with which to protect one’s self against a rival; “you’re caught out in the open with no 

way to defend yourself.” 

9

 In the unpublished portion of this opinion post, we discuss in more detail Slater’s 

testimony concerning the basis for his opinion about defendant’s gang membership.
18

Slater noted that defendant was purported to have said to the victim, “Fuck you, 

cuz, that’s for fucking with my family.” Slater explained that if a Crip gang member 

calls a Blood gang member “cuz,” that can be a derogatory, disrespectful statement that 

can lead to an altercation. Consequently, he construed defendant’s remark to the victim 

as derogatory and gang-related. (3 RT 890) Slater also testified that “mean mugging” is 

staring at someone in a derogatory manner, and that it is very disrespectful for a gang 

member to “mean mug” a rival gang member. If a gang member “mean mugs” a rival 

gang member, that usually serves as a call for the rival gang member to do something 

about it. 

Asked whether defendant’s statement -- “Well, he was wearing red, right?” -- had 

any relevance to Slater, he responded, “Yes, he knew that he was a gang member.”

Defendant’s Case

Defendant testified. He said he was addicted to methamphetamine and had been 

using for approximately eight or nine years. He had been to rehab programs, but had not 

been successful in quitting. Defendant acknowledged that he had previously been 

convicted of a felony and testified that he was on parole and, on the day he was arrested, 

he knew he had an outstanding warrant for failing to go to drug court. 

Defendant testified that he was in his car with K at the intersection of Dr. Martin 

Luther King, Jr., Boulevard and Airport Way waiting for the traffic signal to change. 

When the light changed, defendant drove through the intersection. A police car then 

came up behind him with its lights and siren on. Defendant drove to the side of the road 

so that the police car could pass him. When the police car remained behind his car,

defendant thought he was going to be arrested for his expired vehicle registration and the 

outstanding warrant, so he drove off. 

Defendant sped up and the police car pursued him. Defendant figured he was 

going to jail regardless. He intended to get home to see his father for a moment before 
19

being taken into custody. He also hoped that if he made it home, his brother’s car would 

not be impounded. 

Defendant acknowledged that when he was fleeing from the police, he was driving 

anywhere between 60 and 80 miles per hour on Stockton surface streets and that he 

disregarded stop signs and red lights. He also acknowledged driving on the wrong side of 

the roadway. Defendant made a turn and briefly lost control of his car. He slowed down 

for a moment, and, at that point, K got out of the car, exiting through the sunroof. The 

pursuit ended when defendant arrived across the street from his house. 

After defendant stopped, officers pointed their guns at him. Kwan ordered him to 

the ground and to place his hands over his head. Defendant testified that he complied

without resistance and Kwan handcuffed him. While being handcuffed, defendant felt an 

impact on his head and shoulders. He then felt a sharp pain on his buttocks and thigh. 

Police then placed him in a police car. Defendant testified about the various injuries he 

sustained during the arrest, including the dog bite. 

Defendant went on testify that, approximately 30 minutes after being given 

Vicodin at the hospital where he was treated for his injuries, he was taken to a police 

building. He told the jury he was feeling “very light and dizzy and tired.” Defendant 

was then interviewed by Fry and Harris. He had not been informed, and did not know, he 

was a suspect in a shooting. He thought detectives wanted to talk to him about why he 

drove away from police. 

Defendant testified that he did not know what Harris was talking about when 

Harris told him that his brother’s car had been seen near Tiffany and 12th Streets. He 

testified that the car had not been at that location that day. Defendant also said he did not 

know what Harris was talking about when Harris said he saw defendant and another 

individual approach a third person, something going down, and the third person getting 

the worst of it. Defendant testified that he and K had not been involved in any 
20

confrontation with anyone at that location. He also testified that he was not in possession 

of a gun and he did not see K with a gun. He denied shooting the victim. 

When asked why he did not tell the detectives that there was a mistake, that it was 

not him at that location, defendant responded: “Because I was afraid of them. I only 

answered and told them that I didn’t remember.” When Fry told defendant that “this 

could go on for hours and hours and hours,” defendant understood that he meant that the 

interview would go on for hours “until [defendant] told them what they wanted to hear.” 

When Fry said “they could be assholes like the cops before and have you in handcuffs 

and sitting on your dog bite,” defendant took this to mean, if he did not do what Fry 

asked, “that he could also do what they did to me.” 

Defendant testified he then began to talk to the detectives about the guy who mean 

mugged him at the store the night before, which had actually happened. However, he 

claimed when he told the detectives that he saw the same person in his girlfriend’s 

neighborhood the next day, that was not true. Nor was it true that defendant went out 

looking for the guy, or that he enlisted K’s assistance in looking for him. Defendant 

testified he did not ask K if he had a gun. Defendant did not see the individual on the 

street, and he did not confront him. Defendant acknowledged telling Fry, who asked 

which hand he held the gun in, that it must have been his right hand because he was righthanded. Defendant testified that this was not true, and that he was making up a story that 

sounded good. Defendant further testified that he did not speak to the victim in Hmong, 

and, in fact, he never spoke to him at all. 

When asked why he said all of these things, defendant responded; “I was afraid. I 

was afraid of them. And they told me a story, so I just added to the story. I added to the 

story because I was afraid of them and I wanted the story to sound good.” When asked 

what he felt after the detectives stopped asking him questions, defendant responded: “I 

felt that after they asked me and I had told them the story that they wanted me to tell 

them, and they said that the victim was not dead, so I thought that when he recovers and 
21

he comes and look at me, he’ll say that it wasn’t me who shot him, it wasn’t me who 

confronted him.”

Defendant gave an explanation for why he responded to the detectives’ question 

about whether the victim was in a gang with, “Well, I don’t know. He was wearing red, 

right?” He said that “[b]ecause in the area where my girlfriend lives, there was a lot of 

gang activities. There’s a lot of gangsters. And most of the gangs consist of blue and 

red. But there was a lot more red, so I mentioned that, because I sort of think that could 

be.” Defendant testified that he did not know whether the victim wore a red hat or a red 

shirt. He said he did not know the victim at all, and had never seen him. 

On cross-examination, defendant testified that the following things he told Harris 

and Fry were lies: that the day he was arrested, he saw the person who had mean mugged 

him the night before; that he got out of his car on 12th and Tiffany, walked up to the guy 

and confronted him about what had happened; that he spoke to the victim in Hmong; that 

the victim said to him, “Well you caught me slippin’. What are you [g]oing to do about 

it”; that he shot the victim; and that he got back into his car and drove away. He said the 

following things he told the detectives were true: that he had had an argument with his 

girlfriend earlier; that he fled from the officers at a high rate of speed; that K jumped out 

of the car; that he had been mean mugged by a guy with a ponytail at the liquor store the 

previous evening; and that his car previously had been vandalized. 

Defendant introduced evidence that no gunshot residue was detected on hand 

samples taken from him. 

Dr. Richard Leo, a Professor of Law at the University of San Francisco, testified 

as an expert in false confessions, interrogation techniques including psychologically 

coercive interview tactics, unreliable statements, and the distinction between interviews 

and interrogations. Dr. Leo reviewed, among other things, the recorded interrogation by 

Harris and Fry.
22

Dr. Leo testified that a danger of confronting a suspect with false evidence during 

an interrogation is that it can increase the risk of eliciting a false confession from

someone who is actually innocent. Three groups of people have been identified as being 

particularly susceptible to making false confessions: juveniles, people with cognitive 

impairments and low IQs, and people with “mental illnesses or what is sometimes called

reality monitoring disorders.” Dr. Leo also testified that there could be other factors that 

may make someone more vulnerable to giving false confessions, including intoxication

and cultural reasons. Cultural reasons include cultural teachings that it is disrespectful to 

disagree with authority or “where people are afraid that because of where they come 

from, if you don’t do what you’re told you will be tortured.” Additionally, some 

individuals simply have very suggestible or compliant personalities. 

Dr. Leo testified that among the materials he reviewed in preparation for his 

testimony was a report by Dr. Daniel Lee, a clinical psychologist. Dr. Lee opined that 

defendant has a “compliant personality.” Dr. Leo explained that compliant personality 

“refers to submissiveness or acquiescence, people who tend to do what they are told, 

follow orders, not resist, not rebel, kind of go along with what people are saying, 

particularly authority figures.”

Dr. Leo also testified that there is a danger related to “contamination” in an 

interrogation or transference of nonpublic information concerning a case. If nonpublic 

case information is communicated to the subject, there is a danger that an innocent person 

who confesses falsely will incorporate the details communicated into their confession, 

rendering their false confession more persuasive and adding a degree of verisimilitude. 

He testified that police are trained not to contaminate suspects with non-public facts, 

rather police “let them supply it.” 

Dr. Leo did not identify an example of contamination in defendant’s recorded 

interrogation. On cross-examination, Dr. Leo acknowledged that the detectives did not 

mention that the victim was wearing red clothes. He also acknowledged that the fact that 
23

defendant knew the ethnicity of the victim might be an indicator of reliability. Dr. Leo

explained that “[i]f somebody possesses personal knowledge of non-public crime facts 

that are not likely guessed by chance, were not fed to them by the police, or they didn’t 

learn from [the] media or community gossip or some other source, and these are truly 

unlikely guessed by chance, that would be indicia that the confession or statement is 

reliable because it reveals personal knowledge. Exactly what the police training manuals 

say.” 

He noted that another way to determine reliability is to look to whether the 

statements fit the “crime facts” and physical evidence. A wrong guess could be indicia of 

unreliability, except when there is a motive for the suspect to get the fact wrong. 

Dr. Leo testified that the incorporation of false evidence and the use of coercive 

interrogation techniques appear in a high percentage of proven false confession cases. 

According to Dr. Leo, one type of false confession is “compliant,” where the individual is 

so worn down and psychologically distressed by interrogation that he or she just wants to 

get out of the interrogation room and end the pressure being exerted. Such individuals 

will make up or agree to a story they know to be false just to put an end to the 

interrogation. 

When defense counsel asked Dr. Leo, based on his review of defendant’s recorded 

interrogation, whether he had an opinion on whether coercive techniques were used 

during defendant’s interrogation, Dr. Leo testified, “I don’t know whether coercive 

techniques were used, but . . . I think that it’s possible that [defendant] felt coerced by the 

interrogation.” He further testified “I didn’t see a lot of classic coercive techniques, but 

the defendant may have experienced, nevertheless, that what did occur, given his 

particular background or perception, as psychologically coercive.” Dr. Leo also 

identified a number of the interrogation techniques used by the detectives here, including:

accusations, challenging defendant’s statements and lack of response, contradicting his 

claims that he did not remember details, confronting him with false evidence, minimizing 
24

his culpability to incentivize admissions, and downplaying the seriousness of his 

involvement and the consequences. But he acknowledged that the “kinds of threats and 

promises that you often see in interrogations that are clearly psychologically coercive 

were not present here.” He testified that the technique that stood out in defendant’s 

interrogation was reference to false evidence, but he also acknowledged that law 

enforcement is permitted to confront suspects with false evidence during an interrogation. 

Dr. Leo also agreed that suspects sometimes ask the officers for information, and 

further acknowledged that defendant asked the detectives for details, although he said 

that “might be a little different than show me your cards.” When asked about defendant’s 

repeated requests that the detectives refresh his memory, Dr. Leo agreed that this conduct 

could fall into the category of “show me your cards, what have you got against me,” but 

also testified, “it could be the person, as you see sometimes in false confession cases, 

can’t confess because they don’t know the details.” 

Dr. Leo conceded that most confessions are probably true. On cross-examination, 

the prosecutor asked, “you . . . agree that specific facts that fit logically and that fit the 

extrinsic evidence of the case would indicate or would be an indication that it’s probably 

true as opposed to a false confession?” Dr. Leo responded, “[A]bsent contamination and 

the degree to which it’s not likely guessed by chance, correct.” 

Verdict and Sentencing

The jury found defendant guilty of murder in the first degree (§§ 187, subd. (a), 

189), and found true the enhancement allegation that, in committing murder, defendant 

personally discharged a firearm causing the victim’s death (§ 12022.53, subd. (d)).

10 The 

jury also found defendant guilty of possession of a firearm by a felon (§ 29800), and 

10

 The jury was apparently not asked to consider the firearm use allegation charged 

under section 12022.5, subdivision (a), and the trial court struck that enhancement on the 

day of sentencing. 
25

felony evasion (Veh. Code, § 2800.2, subd. (a)). The jury deadlocked on the gang 

enhancement allegations, and the trial court granted the prosecution’s motion to strike 

those allegations. 

The trial court sentenced defendant to 50 years to life plus two years eight months, 

calculated as follows: 25 years to life on count 1, murder in the first degree, plus 25 

years to life for the personal use of a firearm causing death enhancement; the upper term 

of three years on count 2, possession of a firearm by a felon, with execution of that 

sentence stayed pursuant to section 654; eight months (one-third midterm), on count 3, 

felony evasion, and two one-year terms for prior prison term enhancements pursuant to 

section 667.5, subdivision (b).

DISCUSSION

I. Defendant’s Cultural Perceptions of Law Enforcement

A. Additional Background and Defendant’s Contentions

Defendant testified that he is Hmong. His parents were from Laos, and he was 

born in a refugee camp in Thailand. He testified that he came to the United States when 

he was seven years old. 

Regarding his experience in the refugee camps, defendant’s trial counsel 

attempted to elicit defendant’s understanding of a person’s ability to deny allegations 

made by police officers in the refugee camps. The following is from direct examination:

“[DEFENSE COUNSEL:] [D]id you ever have any dealings with the [police] 

officers . . . in the refugee camp? 

“[DEFENDANT:] No. Me personally, I have not dealt with them. But I have 

seen them punish other people and attack other people.

“[DEFENSE COUNSEL:] Now in terms of police officers in the refugee camp, 

what was your understanding, if any, about being able to say no or deny an allegation by 

them?” 
26

The prosecution objected and counsel for defendant requested a bench conference. 

The trial court sustained the objection “as calling for a conclusion.” 

Defense counsel proffered: “My client has testified before concerning why he 

didn’t respond or why he did respond the way that he did to the allegations made by the 

officers during the interview, and which he never denied it, but he merely claimed a lack 

of recollection. And I would offer his testimony to establish that that is a cultural thing 

that he learned growing up in the refugee camp.” The trial court again ruled, “I am 

sustaining the objection as calling for a conclusion.” 

It appears that defense counsel’s comment about defendant’s prior testimony 

referenced testimony defendant gave in an Evidence Code section 402 hearing, which 

was held to determine the voluntariness of defendant’s recorded statement. In that 

hearing, defendant testified about how he was injured by officers during the arrest on the 

instant charge and that he feared the police as a result. He testified that instead of 

denying accusations during the interrogation, he repeatedly stated he did not remember 

because he was afraid of the police. He believed that if he refused to answer the 

detectives’ questions, they would “beat [him] again like they did.” He did not, however,

testify about his experience in the refugee camps.

Defendant asserts that the trial court abused its discretion by excluding his

testimony concerning his understanding of a person’s ability to deny accusations leveled 

by police officers in the refugee camps. Defendant asserts that his understanding of 

whether a person could say no to officers in the refugee camp or deny allegations made 

by them was relevant to his contention that admissions he made during the interrogation

with Harris and Fry were false and that he made those statements because he was afraid 

not to go along with the detectives’ narrative. Defendant contends that, contrary to the 

trial court’s determination, this evidence did not call for a conclusion, but rather for his 

understanding and mental state during the interview with the detectives, which were 

informed by his experiences in the refugee camp. According to defendant, this excluded 
27

evidence constituted circumstantial evidence of his fear of police officers and his conduct 

during the interrogation, and it would have supported his credibility as to why he made 

false admissions to the detectives. We agree, but as we shall explain, the refusal to allow 

this testimony was harmless.

B. Relevance Principles

“No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) 

“ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a 

witness or hearsay declarant, having any tendency in reason to prove or disprove any 

disputed fact that is of consequence to the determination of the action.” (Evid. Code, 

§ 210.) “ ‘ “ ‘The test of relevance is whether the evidence tends, “ ‘logically, naturally, 

and by reasonable inference’ to establish material facts.” ’ ” ’ ” (People v. Richardson

(2008) 43 Cal.4th 959, 1001.) “[T]he court or jury may consider in determining the 

credibility of a witness any matter that has any tendency in reason to prove or disprove 

the truthfulness of his testimony . . . .” (Evid. Code, § 780.) An appellate court reviews a 

trial court’s decision to exclude evidence for abuse of discretion. (People v. Peoples

(2016) 62 Cal.4th 718, 745.)

C. Forfeiture

The People assert that defendant forfeited this issue because trial counsel did not 

make a sufficient record or object to the trial court’s ruling on the grounds defendant 

asserts here. We disagree. It is true that “ ‘[T]o preserve an alleged error for appeal an 

offer of proof must inform the trial court of the “purpose, and relevance of the excluded 

evidence . . . .” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 108 (Valdez).) Here, defense 

counsel attempted to elicit testimony from defendant concerning his understanding of 

whether refugee camp residents could say no to officers in the camp or deny allegations 

made by the officers. Defense counsel referenced defendant’s prior Evidence Code 

section 402 hearing testimony and asserted that defendant’s understanding of this matter 

was “a cultural thing that he learned growing up in the refugee camp.” We conclude that 
28

this was sufficient to preserve defendant’s contention for appellate review.11 (See 

generally Valdez, at p. 108.)

11

 Defendant contends he was denied constitutionally effective assistance of counsel 

based on the way counsel handled this issue. We note that defense counsel’s offer of 

proof after the prosecution’s objection to defendant’s testimony may have been more 

persuasive had he explained on the record the specific answer he anticipated defendant 

would give and connected defendant’s answer to Dr. Leo’s proposed testimony 

concerning how cultural experiences might produce false confessions.

 We also note that prior to trial, defendant moved to introduce Dr. Leo’s testimony

concerning “the phenomena of false confessions.” The trial court reviewed the written 

submissions and heard argument, but postponed ruling on that in limine motion until the 

end of defendant’s case-in-chief based on People v. Ramos (2004) 121 Cal.App.4th 1194, 

1207. The court later allowed Dr. Leo’s testimony based on defendant’s trial testimony. 

In his brief in support of the in limine motion, defendant indicated that Dr. Leo reviewed 

Dr. Lee’s report. As part of Dr. Lee’s evaluation of defendant, Dr. Lee “determined the 

following: [Defendant] was born in the Ban Vinai Refugee Camp in Thailand and lived 

in various refugee camps until he reached the age of eight or nine; that [defendant] 

perceived the camp guards as authoritative figures who were not to be questioned and 

with whom a refugee camp resident was not to disagree at the risk of being jailed, beaten 

or disappeared; that [defendant] possessed the same perception and attitude toward 

authoritative figures, police officers in this case, as the residents at the refugee camp.”

(Italics added.) Presumably, the italicized text represented what defendant told Dr. Lee 

and approximates how he would have answered the question posed at trial at issue here. 

Defendant went on to state in his in limine motion that Dr. Leo would testify “why 

certain personality traits increase the risk that someone may give a false confession in 

response to police interrogation techniques.” Based on the fact that the court had not yet 

ruled on whether it would permit Dr. Leo to testify and the court’s ruling on the objection 

to defendant’s testimony as reflected in the record before us, it appears that any further 

argument by trial counsel may have been futile. (See, e.g., People v. Price (1991) 1 

Cal.4th 324, 387 [counsel “does not render ineffective assistance by failing to make 

motions or objections that counsel reasonably determines would be futile”].) In any

event, even if trial counsel should have made a better offer of proof, we conclude post

that defendant suffered no prejudice. Thus, defendant’s alternative contention that he 

was denied constitutionally effective assistance of counsel fails. (Strickland v. 

Washington (1984) 466 U.S. 668, 688, 691-692 [80 L.Ed.2d 674, 693-694, 696]

(Strickland) [to prevail on a claim of constitutionally ineffective assistance of counsel, 

defendant must establish both deficient performance and prejudice]; People v. Ledesma

(1987) 43 Cal.3d 171, 216-218 (Ledesma) [same].) To show prejudice, defendant must 
29

D. Analysis

We have found no published California cases addressing the issue presented here. 

However, we agree with defendant that the trial court erred in excluding the proffered 

testimony. This evidence was relevant to defendant’s state of mind during the 

interrogation, how he perceived the detectives, and his conduct and responses during the 

interrogation, all of which was relevant to defendant’s claim that he made false 

admissions based on fear of the detectives and his desire for the interrogation to end. 

(See generally Evid. Code, § 210 [relevant evidence]; cf. People v. Edwards (2013) 57 

Cal.4th 658, 726 [state of mind evidence must be relevant].) “People learn from their 

experiences. Even when those experiences occurred long ago, the knowledge gained 

from such experiences can be retained and recalled in the future.” (People v. Hendrix

(2013) 214 Cal.App.4th 216, 242, 243 [holding that past experiences may be relevant to 

knowledge a defendant has at the time of the offense for purposes of Evidence Code 

section 1101, subd. (b), and establishing the knowledge element of the charged 

offense].)12 While the answer to the question posed to defendant may have called for a 

show a reasonable probability that he would have received a more favorable result had 

counsel’s performance not been deficient. (Strickland, at pp. 693-694; Ledesma, at pp. 

217-218.) This is essentially the same standard applied in reviewing state evidentiary 

error under People v. Watson (1956) 46 Cal.2d 818 (Watson). (People v. Ocegueda

(2016) 247 Cal.App.4th 1393, 1407, fn. 4.)

12

 We do not imply that such testimony is necessarily relevant in a pretrial suppression 

hearing on the issue of due process voluntariness, where the predicate to a due process 

violation is state action. (Colorado v. Connelly (1986) 479 U.S. 157, 164, 167 [93 

L.Ed.2d 473] [“Absent police conduct causally related to the confession, there is simply 

no basis for concluding that any state actor has deprived a criminal defendant of due 

process of law”].) Thus, absent police exploitation of a suspect’s vulnerabilities, the 

mere existence of a vulnerability does not lead to a due process violation. (See id. at pp. 

164-165 [absent police exploitation of the defendant’s mental illness, there is no due 

process violation]; People v. Hogan (1982) 31 Cal.3d 815, 838, disapproved on other 

grounds in People v. Cooper (1991) 53 Cal.3d 771, 836 [statements were coerced by 

police offering help for defendant’s mental illness, suggesting that defendant committed 
30

conclusion or an opinion, it was defendant’s conclusion based on his life experience, and 

his opinion and perception had a direct bearing on his state of mind during the 

interrogation. Additionally, the jury could properly consider this evidence in determining 

defendant’s credibility concerning his recantation of the interrogation admissions. (Evid. 

Code, §§ 210 [relevant evidence includes evidence relevant to the credibility of a hearsay 

declarant], 780 [in determining the credibility of a witness, jury may consider any matter 

that has any tendency in reason to prove or disprove the truthfulness of the witness’s

testimony].) 

The People argue that under Evidence Code section 800, which pertains to opinion 

testimony offered by a lay witness,

13 “a ‘lay witness generally may not give an opinion 

about another person’s state of mind, but may testify about objective behavior and 

describe behavior as being consistent with a state of mind.” However, the question 

defendant was asked on direct examination did not call for an opinion concerning the 

murder because of mental illness and the mental illness prevented him from remembering 

the crime].) Thus, in a suppression setting, the defendant’s cultural experiences may be 

irrelevant unless the police exploited those experiences. (See People v. Guerra (2006) 37 

Cal.4th 1067, 1098, disapproved on another ground in People v. Rundle (2008) 43 

Cal.4th 76, 151 [in the suppression hearing, trial court properly excluded defense expert 

testimony about how defendant’s experiences in Guatemala affected his understanding of 

the interrogation and defendant’s testimony that he believed he had to submit to police 

questioning because in Guatemala, the police would torture or kill him if he did not 

cooperate; defendant’s proffered testimony would only establish that his pressure “sprang 

from himself” and thus, as a matter of law, this did not involve state coercion and no 

causal link existed between defendant’s internal pressure from his experiences with the 

Guatemalan police and any police activity in this case].) In any event, no state action or 

police exploitation need be proven when a defendant seeks to establish at trial that he was 

coerced or felt coerced in an effort to explain why he gave a false confession and/or why 

his statements were not reliable. 

13

 Evidence Code section 800 provides: “If a witness is not testifying as an expert, his 

testimony in the form of an opinion is limited to such an opinion as is permitted by law, 

including but not limited to an opinion that is: [¶] (a) Rationally based on the 

perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony.”
31

state of mind of any officer in the refugee camp or of any other camp resident concerning 

the officers in the camp; based on the record before us, defendant was going to testify 

concerning his own mental state and state of mind relative to officers in the camp based 

on his own observations and perceptions. When asked if he had personal dealings with 

police officers in the refugee camps, defendant responded, “No. Me personally, I have 

not dealt with them. But I have seen them punish other people and attack other people.” 

He was then asked for his understanding about “being able to say no or deny an 

allegation by them,” and the court sustained the prosecutor’s objection to this question.

“A ‘ “lay witness may offer opinion testimony if it is rationally based on the 

witness’s perception and helpful to a clear understanding of the witness’s testimony.” ’ ” 

(People v. Dalton (2019) 7 Cal.5th 166, 231 [child protective services worker’s opinion 

that the murder victim whose body was never found loved her children and would not 

abandon them was based on the worker’s personal observations of and conversations with 

the victim and was properly admitted].) Contrary to the trial court’s determination, the 

answer to the question calling for defendant’s understanding was not testimony that 

called for an improper opinion or conclusion. Rather, as we have said, this was evidence 

of defendant’s state of mind, which, under the circumstances presented here, was relevant 

to the false confession defense.

We conclude that the preclusion of this testimony was error, but as we next

discuss, the error was harmless.

E. Harmless Error

1. Standard of Review

Defendant asserts that constitutional principles related to his right to present a 

defense and to a fair trial are in play here. He contends that the trial court’s ruling 

deprived him of his right to present a defense, and, accordingly, the potential 

harmlessness of this error must be considered under the standard in Chapman v. 

California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] (Chapman). However, if the error is 
32

simply one of state evidentiary law, then we apply the harmless error standard in Watson, 

supra, 46 Cal.2d 818. (People v. Boyette (2002) 29 Cal.4th 381, 427-428.) Accordingly, 

our harmless error review here requires that we: (1) determine whether a constitutional 

right was violated, and then (2) apply the appropriate harmless error standard depending 

on the answer to the first question. Thus, we first determine whether, as defendant 

asserts, the exclusion of defendant’s understanding regarding refugee camp police 

violated his right to present a defense and thus his due process right to a fair trial. On this 

point, we find instructive Crane v. Kentucky (1986) 476 U.S. 683 [90 L.Ed.2d 636]

(Crane).

In Crane, the United States Supreme Court held that exclusion of testimony at trial

of the circumstances of a defendant’s confession relevant to voluntariness violated the 

defendant’s constitutional right to present a defense. (Crane, supra, 476 U.S. at p. 687.)

The state trial and appellate courts had held that evidence of the circumstances bearing on

the issue of voluntariness was properly excluded from the jury trial because the issue of 

voluntariness had been decided by the trial court pretrial. (Id. at pp. 686-687.) Rejecting 

that conclusion, the high court reasoned that evidence concerning the circumstances 

surrounding the confession bears on the credibility of the confession, and noted that a 

defendant may “challenge the confession’s reliability during the course of the trial.” (Id. 

at p. 688.) In other words, the manner in which the confession is secured is “germane to 

its probative weight, a matter that is exclusively for the jury to assess.” (Ibid.) The court 

further observed, “stripped of the power to describe to the jury the circumstances that 

prompted his confession, the defendant is effectively disabled from answering the one 

question every rational juror needs answered: If the defendant is innocent, why did he 

previously admit his guilt?” (Id. at p. 689.) The court went on to note that the “an 

essential component of procedural fairness” associated with due process “is an 

opportunity to be heard.” (Id. at p. 690.) “That opportunity would be an empty one if the 

State were permitted to exclude competent, reliable evidence bearing on the credibility of 
33

a confession when such evidence is central to the defendant’s claim of innocence.” 

(Ibid.) Acknowledging the “traditional reluctance to impose constitutional restraints on 

ordinary evidentiary rulings by state trial courts” and “the power of States to exclude 

evidence through the application of evidentiary rules that themselves serve the interests 

of fairness and reliability,” the court wrote: “we have little trouble concluding on the 

facts of this case that the blanket exclusion of the proffered testimony about the 

circumstances of petitioner’s confession deprived him of a fair trial.” (Id. at pp. 689-690,

italics added.) The defendant was deprived of “ ‘a meaningful opportunity to present a 

complete defense.’ ” (Id. at p. 690, quoting California v. Trombetta (1984) 467 U.S. 479,

485 [81 L.Ed.2d 413] (Trombetta).) In remanding the matter to the state courts to 

determine whether the error was harmless, the Crane court cited Delaware v. Van Arsdall

(1986) 475 U.S. 673, 680-681 [89 L.Ed.2d 674], which applied the harmless error

standard in Chapman, supra, 386 U.S. at p. 24. (Crane, at p. 691.)

Here, the issue presented is not the circumstances under which a confession or 

admission was obtained. Nevertheless, the excluded evidence was germane to the

probative weight to be given to the confession by the jury. (See generally Crane, supra, 

476 U.S. at p. 688.) Thus, defendant’s right to present a defense as to the credibility of 

the confession was potentially implicated. However, we conclude defendant was not 

deprived of “ ‘a meaningful opportunity to present a complete defense.’ ” (Id. at p. 690.)

In People v. Page (1991) 2 Cal.App.4th 161 (Page), the court applied Crane and

concluded that the exclusion of certain evidence did not deprive the defendant of a 

meaningful opportunity to present a complete defense. There, the trial court excluded 

aspects of an expert’s proposed testimony concerning the reliability of the defendant’s 

confession. (Id. at p. 183.) The proposed testimony fell into three categories: general 

psychological factors that might lead to an unreliable confession; the particular evidence 

in the defendant’s recorded statements which indicated those psychological factors were 

present; and the reliability of the defendant’s confession given the overall method of 
34

interrogation. (Ibid.) The court permitted testimony from the first category, but excluded 

testimony concerning the other two. (Ibid.) Like in many cases involving Crane, 

defendant challenged the constitutionality of the trial court’s ruling, without challenging 

the state evidentiary basis. Addressing the claim that preclusion of the evidence violated 

the defendant’s right to present a defense and his right to fair trial, the Page court found 

no constitutional error. (Id. at pp. 184-185.) It noted that the Crane court had concluded, 

“on the facts before it,” that “ ‘the blanket exclusion of the proffered testimony about the 

circumstances of [the defendant’s] confession deprived him of a fair trial.’ ” (Id. at 

p. 185, quoting Crane, supra, 476 U.S. at p. 690, & Trombetta, supra, 467 U.S. at 

p. 485.) But the Page court determined there were “obvious and important differences”

between the case before it and Crane. (Page, at p. 185.) In Page, the trial court 

permitted the defendant and the prosecutor to thoroughly explore the physical and 

psychological environment in which the confession was obtained. (Ibid.) Additionally, 

the defendant testified and presented his own version of the interrogation, explaining in 

detail how his statement came about. The trial court allowed the expert to testify to the

psychological factors which could lead to a false confession, and defense counsel made 

the connection to those factors in closing argument. (Id. at p. 186.) Thus, the Page court 

concluded that the excluded expert testimony was a “far cry from the ‘blanket exclusion’

of evidence the Supreme Court faced in Crane. Unlike Crane, Page was not ‘stripped of 

the power to describe to the jury the circumstances that prompted his confession,’ ” and 

“that power was, at most, marginally curtailed. Consequently, in our view, the trial 

court’s ruling did not deprive Page of ‘ “a meaningful opportunity to present a complete 

defense.” ’ ” (Page, at p. 186, quoting Crane, at pp. 689, 690, italics added, fn. omitted.) 

The same holds true here. Like Page, defendant was allowed to mount a defense 

challenging the credibility of the confession. Defendant testified that he did not shoot the 

victim. Similar to the defendant in Page, defendant explained how the confession came 

about. He explained that, confronted with Harris’s representations concerning the 
35

fictitious city surveillance camera recording, he did not tell the detectives that there had 

been a mistake and that it had not been him at that location “[b]ecause I was afraid of 

them. I only answered and told them that I didn’t remember.” When Fry told defendant 

that “this could go on for hours and hours and hours,” defendant testified that he 

understood that to mean that the interview would go on for hours “until [defendant] told 

them what they wanted to hear.” When Fry said that “they could be assholes like the 

cops before and have you in handcuffs and sitting on your dog bite,” defendant testified 

that he understood this to mean that, if he did not do what Fry asked, “that he could also 

do what they did to me.” Defendant testified that, in talking with the detectives, he made 

up a story that sounded good. When asked why he said all of the things he told the 

detectives, defendant responded: “I was afraid. I was afraid of them. And they told me a 

story, so I just added to the story. I added to the story because I was afraid of them and I 

wanted the story to sound good.” 

In addition to defendant’s testimony, Dr. Leo’s testimony provided evidence 

supporting defendant’s false confession defense. Although defendant was not able to 

connect his testimony about his experience in Thai refugee camps to Dr. Leo’s testimony 

that cultural experiences might explain why a person would give a false confession, Dr. 

Leo did testify that some individuals simply have very suggestible or compliant 

personalities. He noted that Dr. Lee had diagnosed defendant with compliant personality 

disorder and explained that disorder. He also testified about several factors that might 

lead to false confessions. Trial counsel thoroughly cross-examined both Harris and Fry 

about the interrogation, including some questions about the techniques they employed. 

Some questions were obviously geared toward establishing the false confession defense. 

For example, counsel asked Fry, “in terms of your training, are you ever cautioned about 

using false evidence because you may end up with a false confession,” to which, Fry 

responded, “no.” Trial counsel told the jury in closing argument that it is difficult to 
36

understand why a person would confess to something he did not do and then explained 

why that would happen, referencing Dr. Leo’s testimony. 

While defendant was improperly precluded from testifying concerning his 

understanding of whether a person could say no to officers in the refugee camp or deny 

allegations made by them, there was ample evidence admitted on his contention that he 

falsely confessed because he was afraid of the detectives and essentially felt he had to tell 

them what they wanted to hear to end the interrogation uninjured. Similar to Page, we 

conclude defendant’s right to present a defense was only “marginally curtailed.” (Page, 

supra, 2 Cal.App.4th at p. 186.) Unlike in Crane, defendant here was able to provide an 

answer to the question: “If [he] is innocent, why did he previously admit his guilt?” 

(Crane, supra, 476 U.S. at p. 689.) There was no “blanket exclusion” of a defense and he 

was not deprived of a “ ‘meaningful opportunity to present a complete defense’ ” on this 

point. (Id. at p. 690; see also People v. Fudge (1994) 7 Cal.4th 1075, 1103 [excluding 

defense evidence on a “subsidiary point” does not impair an accused’s due process right 

to present a defense].) 

2. Harmless Error Review

Having concluded there was no constitutional violation resulting from the trial 

court’s error, we employ the standard for harmless error review set forth in Watson,

supra, 46 Cal.2d 818, and inquire whether it is reasonably probable that, but for the error, 

the jury would have reached a result more favorable to defendant. (Id. at p. 836.) “[T]he 

Watson test for harmless error ‘focuses not on what a reasonable jury could do, but what 

such a jury is likely to have done in the absence of the error under consideration. In 

making that evaluation, an appellate court may consider, among other things, whether the 

evidence supporting the existing judgment is so relatively strong, and the evidence 

supporting a different outcome is so comparatively weak, that there is no reasonable 

probability the error of which the defendant complains affected the result.’ ” (People v. 
37

Beltran (2013) 56 Cal.4th 935, 956.) We may also consider the arguments of counsel. 

(People v. Guiton (1993) 4 Cal.4th 1116, 1130 (Guiton).)

The jurors were able to view and scrutinize the video recording of the 

interrogation and evaluate defendant’s credibility during the interrogation and when he 

testified. Our review of the recording reveals that, contrary to defendant’s testimony, he 

did not add to a story fed to him by the police. And defendant’s demeanor as can be seen 

on the video does not appear to be that of a person who was afraid of his interrogators. 

Indeed, at one time he joked about being hungry enough to eat a whole pizza. Moreover, 

there was overwhelming evidence that defendant’s confession was not false and that he 

was the person who shot the victim here. 

As to the false confession defense, we begin with Dr. Leo’s testimony about 

contamination, because the evidence demonstrates that the detectives never told 

defendant that the crime they were investigating was a shooting and never expressly told 

him the victim had been shot.

14 Nor did defendant testify he had learned information 

leading him to believe that the victim had sustained gunshot wounds as opposed to some 

other injury. Yet, defendant confessed that he shot the victim. Even when defendant 

pressed the detectives for detail, they were vague about what the fictitious surveillance 

cameras showed during the altercation. Harris explained, that “at every step [of the 

14

 Defendant testified that he learned some information from radio communications he 

overheard while detained in the patrol car. He testified that he heard mention made of an 

Asian person and the name was a Hmong name, so defendant’s reference to the victim 

being Hmong during the interrogation could theoretically have been contaminated by this 

exposure to the radio communications, if there were any such communications. 

Defendant also testified that he “wasn’t really listening” to the radio and the name of the 

Asian person was the only thing he heard. Harris testified that he did not believe there 

was radio traffic about this case after defendant was apprehended. Harris also testified 

that nobody had informed defendant he was a suspect in a shooting prior to the 

interrogation, and defendant did not testify that anyone had. Also, defendant did not 

testify that he overheard radio communications about a shooting. 
38

interrogation] I’m trying to go a little farther without giving him information because I 

want him to give me original information back.” During the interrogation, Harris 

mentioned a number of possible weapons. Ultimately, Harris told defendant “from 

looking at the camera ... it looked like it could have been a gun. Or a bigger knife. 

[T]hat’s basically what it looked like to me. All I know is like some commotion goes on 

right here. . . . All of a sudden this guy goes down.” (Italics added.) About this statement, 

Harris testified, “I didn’t want to give him any specific information, I wasn’t trying to 

focus him anywhere, I was just still trying to elicit a truthful response from him at that 

point. . . . I threw out anything that could be used as a weapon . . . I didn’t want to tell 

him a story to tell me back, I wanted to give him generalities, and if he chose to tell me 

the truth back at some point, then that’s what I had wanted.” Fry testified, “In fact, 

Detective Harris said it could have been a knife, a hammer, a gun. He didn’t lead him on 

to a story that Mr. Xiong just agreed to.” When faced with the choice of the victim 

having potentially been shot or stabbed or injured with some other weapon, defendant 

explained how and why he shot the victim.

When discussing with defendant the victim’s potential gang membership, 

defendant said, “He was wearing red right?” In his testimony, Harris indicated that he 

did not take this question as an inquiry by defendant. Rather, according to Harris, 

defendant said it, “Like obviously, it’s kind of how I took that. It was like I should know 

and Detective Fry should already know since he is wearing red. He, to me, is inferring 

that he is in a gang.” Our review of the interrogation recording is consistent with Harris’s 

interpretation. The detectives did not tell defendant that the victim was Hmong15 or that 

the victim had his hair pulled back or that he was wearing red. The evidence established 

that the victim was a member of a Hmong gang and wore his hair in a ponytail. He was 

15

 But see footnote 14, ante.
39

wearing a red hat and shirt when defendant shot him. When Fry suggested that the victim 

could recover and refute defendant’s account of the events, saying, “What if he says that 

guys crazy. I was walking my dog skipping along the streets,” defendant immediately 

corrected Fry by responding: “[T]here was no dog.” And he was right; there was no dog. 

Dr. Leo testified that when a confession matches the evidence, the confession is probably 

true, “absent contamination and the degree to which it’s not likely guessed by chance.” 

In his statements to the detectives, defendant admitted to shooting the victim and 

he volunteered his motive for it. After Fry and Harris both continued to encourage 

defendant to tell his side of the story, defendant told them that he did not know why 

someone vandalized his car. He told them that his girlfriend saw who vandalized the car. 

He explained that he had suspected the victim had been the culprit. And although the 

detectives knew about the vandalism, they never mentioned it before defendant did.

Defendant volunteered how he got a gun from K, described finding the victim, 

approaching him, and confronting him about the victim’s purported hostility towards 

defendant. Defendant further described the victim challenging defendant by saying 

“what you gonna do about it? You catch me slippin’ you ain’t doing nothing?” 

Defendant volunteered his thoughts about this challenge: “Ok I’ll do, do my job. You 

know,” and he shot the victim. Defendant then drove away, only to be spotted near the 

scene by Officer Kwan minutes later.

Perhaps the most telling evidence of the truth of defendant’s confession is the two 

conversations defendant had with himself while alone in the interrogation room. While 

the detectives got defendant pizza, defendant said to himself, “Don’t matter 

[unintelligible]. I’d rather be a man and step up to the plate than be a punk about it.” At

the end of the interrogation, after Harris thanked defendant for being truthful, defendant 

responded, “thank you.” Then, immediately after the detectives left the room, defendant 

said to himself, “You know I’m doing right. At least I’m speaking . . . with the truth. 

Life is going to hurt.” 
40

Beyond defendant’s confession and his two conversations with himself, the trial 

evidence established that defendant was the shooter and was largely consistent with 

defendant’s confession. Officer Kwan, who was driving towards Tiffany and 12th 

Streets, spotted defendant in a vehicle matching the description of the vehicle seen 

leaving the scene close to that location within two to three minutes of the dispatch. After 

initially pulling over, defendant suddenly fled and led Kwan and other officers on a highspeed chase through the surface streets of Stockton, going through stop signs and red 

lights, driving on the wrong side of the road and reaching speeds of 80 miles per hour. 

N.V. testified that she told the police that the shooter, while pointing the gun 

downward at the victim, said “Fuck you, cuz, that’s for messing with my family,” and a 

detective confirmed that she made that statement. A jury could reasonably infer this was 

a reference to what defendant suspected the victim had done to his brother’s vehicle or 

the mean mugging confrontation the night before when defendant was with his girlfriend 

and his “stepson.” N.V. viewed defendant in a showup, and, according to Rodriguez, she 

identified defendant as the person she saw at the scene of the shooting and identified 

defendant’s car as the one she saw the shooter leave in immediately after the shooting. 

M.M. was also brought to the location of defendant’s apprehension, and, according to 

Sandberg, while she could not identify the individual displayed in a showup, she said of 

defendant’s vehicle, “that was the car.” 

We conclude that it is not reasonably probable that, had defendant’s testimony 

about his perceptions of police officers in refugee camps been admitted, the jury would 

have reached a more favorable result. (Watson, supra, 46 Cal.2d at p. 836.)

16

16

 Moreover, our conclusion would be the same even trial counsel had explained to the 

trial court in his offer of proof that defendant’s response to the question about his refugee 

camp experience would have been similar to what he apparently told Dr. Lee – that “he 

perceived the camp guards as authoritative figures who were not to be questioned and 

with whom a refugee camp resident was not to disagree at the risk of being jailed, beaten 
41

II. Instruction to Consider Defendant’s Unrecorded Statements with Caution and 

Impact on False Confession Defense Related to his Recorded Statements

A. Additional Background and Defendant’s Contentions

At the jury instruction conference, defense counsel asked the trial court whether it 

was required to give the last sentence of CALCRIM No. 358. That sentence is bracketed 

and states: “Consider with caution any statement made by (the/a) defendant tending to 

show (his/her) guilt unless the statement was written or otherwise recorded.” Defense 

counsel argued that the instruction suggests the recorded statements were “more 

believable.” 

The trial court observed that defendant’s statement was recorded on video, and 

therefore, according to the court, “it’s not a consider with caution situation.” The court 

continued: “Except, we also have testimony by witnesses stating that the defendant made 

certain statements or -- well, they say that the shooter made statements.” The court 

further stated: “By inference, that would be the defendant. Well, it says it’s sua sponte.” 

The court stated that the annotations to the instruction indicated that it is not required 

where a defendant’s incriminating statements are written or tape recorded.17 Defense 

counsel requested that the sentence be struck, arguing that “it gives the jury the wrong 

impression, that if it’s recorded, it should just be accepted on face value.” The prosecutor 

stated: “I think with the two different types of statements, some recorded and some not, I 

mean, I realize he doesn’t want that and he wants it all to be treated equally, but I think 

that gives the impression that the witness statements of what they heard the shooter say 

might be given more credence.” The court stated that it did not think the instruction 

or disappeared; that he possessed the same perception and attitude toward authoritative 

figures, police officers in this case, as the residents at the refugee camp” – and defendant 

testified to that same effect. (See fn. 11, ante.) 

17

 The bench note to which the trial court referred states, in part: “The bracketed 

cautionary instruction is not required when the defendant’s incriminating statements are 

written or tape-recorded.” (Use Note to CALCRIM No. 358.)
42

would be harmful to defendant. The court continued: “It only helps him. And the 

problem is there are statements that the jury could find that the defendant made, oral 

statements,” “[a]nd that would -- clearly the last sentence would apply to that situation.” 

The court elected to give the bracketed last sentence in instructing the jury with 

CALCRIM No. 358. 

The trial court instructed the jury with CALCRIM No. 358 as follows: “You have 

heard evidence that the defendant made oral statements before the trial. You must decide 

whether the defendant made any of these statements in whole or in part. If you decide 

that the defendant made statements, consider the statements, along with all the other 

evidence, in reaching your verdict. It is up to you to decide how much importance to 

give to the statements. [¶] Consider with caution any statement made by the defendant 

tending to show his guilt unless the statement was written or otherwise recorded.” 

(Italics added.)

Defendant asserts that the trial court erred in instructing the jury with the italicized 

language (the bracketed part of the instruction) because it implied that his recorded 

statements need not be subjected to scrutiny. According to defendant, that language gave 

undue weight to the statements defendant made in his recorded interrogation with the 

detectives. He emphasizes the essence of his defense was that his recorded statements in 

his interview with the detectives were false, psychologically induced, and not credible. 

B. Applicable General Principles of Law

“ ‘The trial court has the duty to instruct on general principles of law relevant to 

the issues raised by the evidence [citations] and has the correlative duty “to refrain from 

instructing on principles of law which not only are irrelevant to the issues raised by the 

evidence but also have the effect of confusing the jury or relieving it from making 

findings on relevant issues.” ’ ” (People v. Alexander (2010) 49 Cal.4th 846, 920-921

(Alexander).) 
43

C. Analysis

The purpose of the bracketed language in CALCRIM No. 358 is to aid the jury in 

evaluating whether the defendant actually made the statement. (People v. Diaz (2015) 60 

Cal.4th 1176, 1184 (Diaz).) “The cautionary instruction is concerned with the reliability 

and credibility of the witness who testifies about the defendant’s statements.” (Id. at 

p. 1187.) No such caution is necessary when the statements are recorded.

Prior to our high court’s decision in Diaz, supra, 60 Cal.4th 1176, trial courts had 

a sua sponte duty to provide such cautionary language, first under statute, and following 

the repeal of the statute, based on case law. (Id. at pp. 1188-1190.) However, in Diaz, 

our high court concluded that, “[I]n light of a change in the law that requires the general 

instructions on witness credibility to be given sua sponte in every case, the cautionary 

instruction is not one of the general principles of law upon which a court is required to 

instruct the jury in the absence of a request.” (Id. at p. 1189.) Thus, “the trial court is no 

longer required to give the instruction sua sponte.” (Id. at pp. 1181, 1190.) As defendant 

notes, Diaz was decided on April 6, 2015, 14 days before the instruction conference in 

this case and 16 days before the day the trial court instructed the jury with CALCRIM 

No. 358. Therefore, as defendant correctly asserts, the trial court did not have a sua 

sponte duty to instruct the jury with the bracketed language in CALCRIM No. 358.

The bracketed language may be appropriately given if the subject inculpatory 

statements were oral and were not memorialized in a recording. Statements covered by 

the instruction include unrecorded admissions, preoffense and postoffense statements 

witnesses hear a defendant make, and statements constituting the crime as in Diaz, where 

the statements were oral criminal threats. (Diaz, supra, 60 Cal.4th at pp. 1181, 1185-

1187.) However, the cautionary instruction should not be given “ ‘ “[I]f the oral 

admission was tape-recorded and the tape recording was played for the jury.” ’ ” (People 

v. Linton (2013) 56 Cal.4th 1146, 1197 [discussing cautionary instruction set forth in 
44

CALJIC 2.7018], quoting People v. Williams (2008) 43 Cal.4th 584, 639 [although not 

expressly stated in the opinion, the cautionary instruction was that set forth in CALJIC 

2.70]; see People v. Slaughter (2002) 27 Cal.4th 1187, 1200 (Slaughter) [cautionary 

instruction in CALJIC 2.7119 should not be given if the oral admission was tape-recorded 

and played for the jury].) The court in Diaz recognized that, while “the instruction may 

be useful to the defense in highlighting for the jury the need for care and caution in 

evaluating evidence of the defendant’s statements,” “the defendant may not always want 

the instruction to be given.” (Diaz, at p. 1189.)

Here, evidence pertaining to inculpatory statements attributed to defendant 

included both his recorded interview with Harris and Fry and a statement at the scene of 

the shooting, where the shooter reportedly stated: “Fuck you, cuz, that’s for messing 

with my family,” or something similar. Consequently, evidence concerning extrajudicial

inculpatory statements potentially attributed to defendant included both recorded 

18

 CALJIC No. 2.70 stated: “A confession is a statement made by a defendant in which 

[he] [she] has acknowledged [his] [her] guilt of the crime[s] for which [he] [she] is on 

trial. In order to constitute a confession, the statement must acknowledge participation in 

the crime[s] as well as the required [criminal intent] [state of mind]. [¶] An admission is 

a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] 

guilt of the crime[s] for which the defendant is on trial, but which statement tends to 

prove [his] [her] guilt when considered with the rest of the evidence. [¶] You are the 

exclusive judges as to whether the defendant made a confession [or an admission], and if 

so, whether that statement is true in whole or in part. [¶] [Evidence of [an oral 

confession] [or] [an oral admission] of the defendant not made in court should be viewed 

with caution.]” (Italics added.)

19

 CALJIC No. 2.71 provides: “An admission is a statement made by [a] [the] defendant 

which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the 

defendant is on trial, but which statement tends to prove [his] [her] guilt when considered 

with the rest of the evidence. [¶] You are the exclusive judges as to whether the 

defendant made an admission, and if so, whether that statement is true in whole or in part. 

[¶] [Evidence of an oral admission of [a] [the] defendant not made in court should be 

viewed with caution.]” (Italics added.)
45

statements which were played for the jury and unrecorded statements reported by a 

witness. Thus, the cautionary instruction would have been properly given in relation to 

the unrecorded statements purportedly made by the shooter potentially attributable to 

defendant. However, defendant did not want the instruction and the trial court was not 

required to give it sua sponte. As the Diaz court observed, it “might not be in the 

defendant’s interest” to give the cautionary instruction and “it is more appropriate to 

permit defendants to determine whether to request the instruction.” (Diaz, supra, 60 

Cal.4th at p. 1192.) The trial court erred in giving the cautionary bracketed language

because the defense did not want it.

D. Harmless Error

Given the false confession defense defendant mounted here, the instruction had the 

potential of “ ‘ “confusing the jury.” ’ ” (Alexander, supra, 49 Cal.4th at pp. 920-921.)

However, we conclude that the error was harmless and did not prejudice defendant.

Defendant asserts that the erroneous provision of this instruction deprived him of a 

fair trial because it deprived him of his opportunity to present a defense and lightened the 

prosecution’s burden of proof. Therefore, according to defendant, this error must be 

reviewed under the harmless beyond a reasonable doubt standard of Chapman, supra,

386 U.S. 18. We disagree. “Mere instructional error under state law regarding how the 

jury should consider evidence does not violate the United States Constitution.” (People 

v. Carpenter (1997) 15 Cal.4th 312, 393, superseded by statute on other grounds as 

recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106, citing Estelle v. 

McGuire (1991) 502 U.S. 62, 71-75 [116 L.Ed.2d 385, 398-401].) And as we have seen, 

defendant was not deprived of the opportunity to present a complete defense. (Crane, 

supra, 476 U.S. at p. 690.) Moreover, as the Diaz court noted, “[t]he language of the 

cautionary instruction [in CALCRIM No. 358] does not reference the People’s burden of 

proof or the elements of the offense, or in any other way suggest to jurors that the 

instruction was meant to create an exception to the rule that all elements of the crime 
46

must be proved beyond a reasonable doubt.” (Diaz, supra, 60 Cal.4th at p. 1188.) The 

cautionary instruction, given under the circumstances of this case and considered in the 

context of the instructions as a whole and the trial record, did not “ ‘so infect[] the entire 

trial that the resulting conviction[s] violate[] due process.’ ” (Estelle, at p. 72, quoting 

Cupp v. Naughten (1973) 414 U.S. 145, 147 [38 L.Ed.2d 368, 373-374].) Accordingly, 

we review this claim of instructional error under the standard set forth in Watson, supra,

46 Cal.2d 818, and inquire whether it is reasonably probable that, but for the error, the 

jury would have reached a result more favorable to defendant. (Id. at pp. 835-836; see 

Slaughter, supra, 27 Cal.4th at p. 1201 [concluding that the error in instructing the jury to 

view defendant’s tape-recorded admissions with caution was harmless because it was not 

reasonably probable the jury would have reached a result more favorable to defendant 

had the instruction not been given].)

Neither attorney commented on the instruction during closing argument; thus, no 

jury confusion resulted from anything they said. (See Guiton, supra, 4 Cal.4th at p. 1130 

[prosecutor only “briefly argued” invalid prosecution theory in closing argument and 

instructing on invalid theory was harmless].) For the same reasons we concluded the 

error in precluding defendant’s testimony concerning refugee camp police was harmless, 

and for the additional reason that neither attorney commented on the bracketed language 

of CALCRIM No. 358, we conclude the instructional error here is harmless. Again, we 

“focus[] not on what a reasonable jury could do, but what such a jury is likely to have 

done in the absence of the error under consideration.” (Beltran, supra, 56 Cal.4th at 

p. 956.) On this record, notwithstanding the evidence put on by defendant to the effect 

that the interview with the detectives was coercive and defendant was particularly 

vulnerable to coercive police interrogation tactics based on a variety of factors, we 

conclude it is not reasonably probable that, had the cautionary instruction not been given, 

the jury would have reached a result more favorable to defendant. (Watson, supra, 46 

Cal.2d at pp. 835-836.) 
47

III. Denial of Evidence Code section 402 Hearing Regarding Gang Testimony

A. Additional Background and Defendant’s Contentions

Because Slater’s preliminary hearing testimony was considered by the trial court 

in ruling on defendant’s in limine motion, we summarize it here. 

Slater testified that he was assigned to the Stockton Police Department’s Gang 

Suppression Unit, and that his primary assignment within the unit was Asian gangs in 

Stockton. He testified as a gang expert. Slater testified that Hmong Nation Society, or 

HNS, was a gang that identified with the color blue “as a Crip set here in Stockton.” 

MOD, which stood for Masters of Destruction or Menace of Destruction, was another 

Asian gang in Stockton, and was a rival gang to HNS. MOD identified with the color red 

“as a Blood set . . . .” MOD also identified with the numerical symbol 301. 

Asked about the primary activities of HNS, Slater testified: “I’ve conducted 

investigations of assault with a deadly weapon, attempted homicide, stolen vehicles, 

burglaries, weapons violations.” With regard to HNS predicate offenses, Slater testified 

that Vue Xiong and Lue Vang were both HNS members who had been convicted, 

although he did not specifically testify at the preliminary hearing to the actual nature of 

those convictions. 

Slater testified that he researched defendant’s background and learned that, in 

2006, he was contacted with two HNS members in a vehicle during a traffic stop. A

loaded handgun was found hidden in the dash of the vehicle behind the CD player. Slater 

also testified that, while defendant was housed at an honor farm, he contacted an officer 

stating that he needed to be reassigned because he was having a problem with one or 

more MOD members housed at the honor farm. 

Slater testified that it was his opinion that defendant was a member of HNS. 

Slater acknowledged in his preliminary hearing testimony that he was not one of the 

officers who investigated the shooting of the victim here and further acknowledged that 
48

he was basing his opinion on “the crime reports” as well as “the classification interviews 

and the incident at the Honor Farm.” 

Slater testified that he observed photographs of the victim and saw that he had 

“MOD” tattooed on his back. At the time he was shot, he was wearing a red shirt and a 

red baseball cap. Slater opined that the victim was a MOD member. 

Slater testified that it was his opinion that defendant committed the charged crimes 

to promote, further, or assist a criminal street gang and that this was a gang shooting. 

When asked why, Slater responded: “Because you have two rival gangs. One member 

felt disrespected, confronted a rival gang member who’s dressed all in red at the time, 

either it be for vandalizing his vehicle or a mean mugging incident. Confronts him. 

Makes the statement that witnesses heard ‘Fuck you cuzz, this is for fucking with my 

family.’ And then winds up shooting and fatally wounding [the victim], who was dressed 

in all red.” Slater testified that, in his experience, the term “cuzz” can be used either as a 

greeting between Crip gang members or as a derogatory or confrontational term when

directed from a Crip to a Blood. Slater testified that, when asked if he had a gang 

affiliation, defendant responded that a relative was HNS. When asked if he knew 

whether the victim was a gang member, defendant responded: “[H]e was wearing red, 

correct,” or “red, right.” Slater further testified that the shooting was about respect, 

which, according to Slater, carries a great deal of weight with gangs. He testified that a 

gang member “mean mugging” a rival gang member would be a sign of disrespect. He 

continued: “[T]here was someone else in the vehicle with [defendant]. The officers that 

were in a pursuit, witnesses at the scene stated there was another subject in the vehicle. If 

this person, this unknown person, was another HNS gang member and [defendant] did 

not act when seeing a rival gang member, there could be ramifications within his own 

gang if he does not act.” Slater also testified at the preliminary hearing that defendant 

stated in his classification the day after the shooting that he was “an inactive HNS gang 

member,” which caused Slater to believe defendant had an association with HNS. 
49

In his in limine motions, defendant, relying on, among other things, Evidence 

Code 402, moved to have Slater’s testimony excluded until a proper foundation had been 

established. In a subsequent in limine motion, defendant sought to restrict Slater’s 

testimony on several grounds. Among other grounds, defendant relied on reliability,

foundation, and asserted that much of the information on which Slater relied constituted 

testimonial hearsay in violation of his confrontation clause rights and Crawford v. 

Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). Defendant specifically 

anticipated that the prosecution would “argue that any hearsay from the prosecution gang 

expert will be offered as the basis of opinion and not for the truth of the matter asserted.” 

Defendant urged the court to reject this argument, insisting that such testimony would be 

offered for its truth. Defendant objected to the anticipated expert opinion testimony that 

would not be based on personal knowledge and observations, but on the out-of-court 

statements of others, including statements from other law enforcement officers and 

statements in police reports. 

The defense requested an Evidence Code 402 hearing on the subject of Slater’s 

gang testimony. Trial counsel asserted that there was information to be gleaned from 

Slater which had not come out in his preliminary hearing testimony. Among other things, 

counsel emphasized the instance wherein Slater stated that defendant was in a vehicle 

with gang members and a gun was discovered in the dashboard. Counsel stated that the 

defense had not been provided with police reports related to that incident prior to the 

preliminary hearing. He asserted that, if the individual who possessed the car was the 

only person responsible for the gun, Slater should not be able to rely on that incident in 

concluding that defendant had ties to a gang. Thus, counsel asserted that he should have 

the opportunity to examine Slater on the subject. 

Trial counsel also asserted that any remark by defendant while in custody that a 

gang member had a problem with him does not necessarily mean defendant was a gang 
50

member. Counsel also questioned whether defendant’s classification interview actually 

indicated any gang connection. 

Trial counsel asserted that “what Detective Slater is relying upon is insufficient for 

his opinion that [defendant] is associated or affiliated with a gang and that this particular 

crime was committed pursuant to 186.22(b).” 

The trial court concluded, based on the transcript of the preliminary hearing 

testimony, that there was “ample evidence for Officer Slater to make that opinion.” The 

court relied on Slater’s testimony that defendant was heard to say, “Fuck you, cuz, that’s 

for fucking with my family.” The court noted that the term “cuz” can be a greeting 

between Crip members, and can also be a derogatory or confrontational term when used

by a Crip gang member addressing a Blood gang member. The trial court also stated 

defendant had indicated a relative was an HNS gang member. The trial court also relied 

on defendant’s response, when asked whether the victim was a gang member, that “He 

was wearing red, correct.” Additionally, the trial court noted that the victim had been 

wearing red at the time of the shooting, and that he “clearly was a gang member.” There 

was no dispute that the victim, who had the gang name tattooed on his back, was a gang 

member. The trial court concluded that Slater’s testimony “did have sufficient reasons to 

go to a jury.”

The trial court continued: “So I don’t think it’s necessary to have a[n Evidence 

Code section] 402 hearing. I agree it’s discretionary, but having looked at the testimony 

of [Detective Slater], I don’t think you need it.” The court clarified that the defense could 

call witnesses to challenge Slater’s testimony. According to the court, such evidence 

would address the weight of the evidence, not its admissibility. 

For the most part, Slater’s trial testimony mirrored his testimony at the preliminary 

hearing. The trial court instructed the jury with CALCRIM No. 1403, as follows: “You 

may consider evidence of gang activity only for the limited purpose of deciding whether 

the defendant acted with the intent, purpose, and knowledge that are required to prove the 
51

gang-related enhancements charged, or that the defendant had a motive to commit the 

crimes charged. [¶] You may also consider this evidence when you evaluate the 

credibility or believability of a witness and when you consider the facts and information 

relied on by an expert witness in reaching his opinion. [¶] You may not consider this 

evidence for any other purpose. You may not conclude from this evidence that the 

defendant is a person of bad character or that he has a disposition to commit crime.”

(Italics added.) 

Defendant asserts that the trial court erred in declining the defense request for an 

Evidence Code section 402 hearing and in ruling that Slater could testify that defendant 

was a gang member and that the shooting was gang-related. According to defendant, 

Slater’s opinions lacked an adequate factual foundation, and were based instead on 

speculation and conjecture. He also asserts that Slater’s opinion that he was a gang 

member and that the shooting was gang-related was based on testimonial hearsay. 

Defendant acknowledges that the jury did not find the gang enhancement allegations to 

be true, but asserts that Slater’s testimony prejudiced him with regard to counts 1 and 2 

because it connected defendant to a criminal street gang and would lead jurors to believe 

defendant had a motive to commit the charged homicide, and therefore, he must have 

done so.

In his reply brief, defendant cites our high court’s decision in People v. Sanchez

(2016) 63 Cal.4th 665 (Sanchez), which was decided after his opening brief and the 

respondent’s brief were filed.

20

 Defendant argues Sanchez, which we discuss post,

20

 “ ‘As a matter of normal judicial operation, even a non-retroactive decision [i.e., one 

that cannot serve as a basis for collateral attack on a final judgment] ordinarily governs 

all cases still pending on direct review when the decision is rendered.’ ” (People v. 

Guerra (1984) 37 Cal.3d 385, 400; see also In re Richardson (2011) 196 Cal.App.4th 

647, 663.) Because this case was pending on direct review at the time Sanchez was 

decided, this case is governed by Sanchez. The Attorney General did not request 

supplemental briefing to address Sanchez.
52

“moots respondent’s argument that Slater’s testimony was admissible.” He asserts that 

the bases for Slater’s testimony constituted hearsay, much of which was testimonial 

hearsay and which should not have been admitted at trial. 

B. Standard of Review and Applicable General Principles of Law

“In determining the admissibility of evidence, the trial court has broad discretion.” 

(People v. Williams (1997) 16 Cal.4th 153, 196 (Williams).) The decision to hold an 

Evidence Code section 402 hearing is within the trial court’s discretion. (Evid. Code, 

§ 402, subd. (b) [with exceptions not relevant here, the court may determine the 

admissibility of evidence out of the presence or hearing of the jury]; Williams, at pp. 196-

197.) “A trial court’s ruling on admissibility implies whatever finding of fact is 

prerequisite thereto; a separate or formal finding is, with exceptions not applicable here, 

unnecessary.” (Williams, at p. 196, citing Evid. Code, § 402, subd. (c).) “On appeal, a 

trial court’s decision to admit or not admit evidence, whether made in limine or following 

a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of 

discretion.” (Williams, at p. 197.)

For a defendant to be subject to an enhancement pursuant to section 186.22, 

subdivision (b)(1), where the crime involves a criminal street gang, “ ‘the prosecution 

must prove that the crime for which the defendant was convicted had been “committed 

for the benefit of, at the direction of, or in association with any criminal street gang, with 

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

members.” [Citation.] In addition, the prosecution must prove that the gang (1) is an 

ongoing association of three or more persons with a common name or common 

identifying sign or symbol; (2) has as one of its primary activities the commission of one 

or more of the criminal acts enumerated in the statute; and (3) includes members who 

either individually or collectively have engaged in a “pattern of criminal gang activity”

by committing, attempting to commit, or soliciting two or more of the enumerated 

offenses (the so-called “predicate offenses”) during the statutorily defined period.’ ”
53

(People v. Hernandez (2004) 33 Cal.4th 1040, 1047; see § 186.22, subd. (b)(1).)

“Accordingly, when the prosecution charges the criminal street gang enhancement, it will 

often present evidence that would be inadmissible in a trial limited to the charged 

offense.” (Hernandez, at p. 1044.) However, the Hernandez court also observed that 

“evidence of gang membership is often relevant to, and admissible regarding, the charged 

offense.” (Id. at p. 1049.) The court continued: “[e]vidence of the defendant’s gang 

affiliation—including evidence of the gang’s territory, membership, signs, symbols, 

beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, 

motive, modus operandi, specific intent, means of applying force or fear, or other issues 

pertinent to guilt of the charged crime.” (Ibid.)

C. Denial of Defendant’s Request for an Evidence Code section 402 Hearing

We conclude that the trial court did not abuse its discretion in denying defendant’s 

request for an Evidence Code section 402 hearing regarding Slater’s proffered testimony. 

The decision as to whether to hold such a hearing was well within the trial court’s 

discretion. (Evid. Code, § 402, subd. (b); Williams, supra, 16 Cal.4th at pp. 196-197.) 

The facts upon which Slater relied for his opinions at trial were essentially the same as 

those offered at the preliminary hearing. The trial court reviewed Slater’s preliminary 

hearing testimony in making its determination that Slater could testify at trial concerning 

his opinions that defendant was a member of HNS and that the shooting was gangrelated. On this record, we conclude that the trial court did not abuse its discretion in 

denying defendant’s request for an Evidence Code section 402 hearing.

D. Sanchez

While this appeal was pending, our high court decided Sanchez, supra, 63 Cal.4th 

665. In Sanchez, our high court considered “the degree to which the Crawford rule limits 

an expert witness from relating case-specific hearsay content in explaining the basis for 

his opinion,” and held that “case-specific statements related by the prosecution expert 

concerning defendant’s gang membership constituted inadmissible hearsay under 
54

California law.” (Sanchez, at p. 670.) The Sanchez court further held that “[s]ome of 

those hearsay statements were also testimonial and therefore should have been excluded 

under Crawford.” (Sanchez, at pp. 670-671.) Our high court “adopt[ed] the following 

rule: When any expert relates to the jury case-specific out-of-court statements, and treats 

the content of those statements as true and accurate to support the expert’s opinion, the 

statements are hearsay. It cannot logically be maintained that the statements are not 

being admitted for their truth. If the case is one in which a prosecution expert seeks to 

relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a 

showing of unavailability and (2) the defendant had a prior opportunity for crossexamination, or forfeited that right by wrongdoing.” (Id. at p. 686, fn. omitted.)

The Sanchez court identified a two-step inquiry to address such basis testimony in 

criminal cases. “The first step is a traditional hearsay inquiry: Is the statement one made 

out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a 

hearsay exception? If a hearsay statement is being offered by the prosecution in a 

criminal case, and the Crawford limitations of unavailability, as well as crossexamination or forfeiture, are not satisfied, a second analytical step is required. 

Admission of such a statement violates the right to confrontation if the statement is 

testimonial hearsay, as the high court defines that term.” (Sanchez, supra, 63 Cal.4th at 

p. 680.)

The United States Supreme Court has not provided a clear definition of 

“testimonial.” (E.g., People v. Leon (2015) 61 Cal.4th 569, 603.) However, our high 

court has “discerned two requirements. First, ‘the out-of-court statement must have been 

made with some degree of formality or solemnity.’ [Citation.] Second, the primary 

purpose of the statement must ‘pertain[] in some fashion to a criminal prosecution.’ ” 

(Ibid.; accord, People v. Dungo (2012) 55 Cal.4th 608, 619 [referring to the formality and 

primary purpose criteria as “critical components” instead of “requirements”].) “When the 

People offer statements about a completed crime, made to an investigating officer by a 
55

nontestifying witness, Crawford teaches those hearsay statements are generally 

testimonial unless they are made in the context of an ongoing emergency . . . , or for 

some primary purpose other than preserving facts for use at trial.” (Sanchez, supra, 63 

Cal.4th at pp. 694-695.) Formal police reports may be made with the requisite degree of 

formality or solemnity. (Ibid.)

According to our high court, its opinion in Sanchez “restore[d] the traditional 

distinction between an expert’s testimony regarding background information and casespecific facts.” (Sanchez, supra, 63 Cal.4th at p. 685, italics added.) The court 

distinguished between an expert’s testimony concerning his or her general knowledge 

which, even if technically hearsay, is not subject to exclusion on hearsay grounds on one 

hand, and, on the other, what it denominated “case-specific facts about which the expert 

has no independent knowledge.” (Id. at p. 676.) “Case-specific facts are those relating to 

the particular events and participants alleged to have been involved in the case being 

tried.” (Ibid., italics added.)

In adopting these rules, the Sanchez court disapproved of its pre-Crawford

decisions which held that the matters upon which an expert relied as the bases of the 

expert’s opinion were not offered for their truth, and rejected the notion that a limiting 

instruction coupled with an Evidence Code section 352 balancing analysis was sufficient 

to allay hearsay and confrontation clause concerns. (Sanchez, supra, 63 Cal.4th at p. 686, 

fn. 13.) The court specifically disapproved of People v. Gardeley (1996) 14 Cal.4th 605, 

disapproved by Sanchez, at page 686, footnote 13, to the extent that it suggested that an 

expert may properly testify regarding case-specific out-of-court statements without 

satisfying hearsay rules. (Sanchez, at p. 686, fn. 13.)

E. Hearsay in the Gang Expert’s Testimony

The People assert that defendant has forfeited his contention. We disagree. 

Because defendant timely objected to the admission of Slater’s testimony by in limine 
56

motion raising both hearsay and Sixth Amendment confrontation clause claims, 

defendant did not forfeit his contention. 

Once the confrontation clause objection was made, the prosecution, “as the 

proponent of evidence presumptively barred by the hearsay rule and the Confrontation 

Clause,” bore the burden of establishing the admissibility of the subject evidence by, inter 

alia, establishing that it was not testimonial hearsay. (Idaho v. Wright (1990) 497 U.S. 

805, 816 [111 L.Ed.2d 638, 652-653]; see United States v. Jackson (5th Cir. 2011) 636 

F.3d 687, 695 [the government bears the burden of defeating the defendant’s properly 

raised confrontation clause objection by establishing that its evidence is nontestimonial]; 

People v. Livaditis (1992) 2 Cal.4th 759, 778 [the proponent of hearsay has to alert the 

court to the exception relied upon and has the burden of laying the proper foundation; 

under Evidence Code sections 403 and 405, if a hearsay objection is properly made, the 

burden shifts to the party offering the hearsay to lay a proper foundation for its 

admissibility under an exception to the hearsay rule]; cf. People v. Ochoa (2017) 7 

Cal.App.5th 575, 584-585 [recognizing the prosecution’s burden as the proponent of the 

evidence, but concluding defendant failed to make the objection triggering that burden].)

The parties essentially agree that in his trial testimony, Slater relied on the 

following in concluding that defendant was a member of HNS, and that his shooting of 

the victim was gang-related: (1) the 2006 traffic stop in which defendant was found to be 

in the company of an HNS member and an HNS associate, and a gun was found hidden in 

the car; (2) defendant’s 2009 statement to an officer at the honor farm, indicating that he 

needed to be reassigned to different housing because he might have a problem with an 

MOD member in the same housing unit; (3) defendant’s 2011 booking statements, 

denying gang affiliation; and (4) circumstances involved in the charged homicide, 

including the victim’s red clothing, defendant’s observation that the victim was wearing 

red clothing, the fact that the victim had a MOD tattoo, defendant’s reference to the 

victim acknowledging that he had been caught “slippin’,” the statement attributed to the 
57

shooter, in which he stated, “[f]uck you, cuz, that’s for fucking with my family,” and (5) 

defendant’s booking statement.

We conclude that the 2006 traffic stop, defendant’s 2009 statement at the honor 

farm requesting housing reassignment, defendant’s 2011 booking statement denying gang 

affiliation, and defendant’s booking statement made after his arrest on the instant charges 

all involved case-specific hearsay. Slater’s testimony was based on his review of reports 

and he relied on the truth of these reports in using the information as the bases for his 

opinion. Defendant’s own statements could be regarded as admissions (Evid. Code, 

§ 1220), but they came to the jury through a second layer of hearsay. “[M]ultiple hearsay 

is admissible for its truth only if each hearsay layer separately meets the requirements of 

a hearsay exception.” (People v. Arias (1996) 13 Cal.4th 92, 149; Evid. Code, § 1201.) 

Since the information as to each of these events involved defendant, it was case-specific. 

(Sanchez, supra, 63 Cal.4th at p. 676 [case-specific facts relate to participant alleged to 

have been involved in the case being tried].)

Regarding the confrontation clause, the 2006 traffic stop qualifies as testimonial. 

There was no showing that the hearsay statements were made in the context of an 

ongoing emergency. Rather, the report was clearly made for the purpose of preserving 

facts for a subsequent prosecution. There was no showing of unavailability of the law 

enforcement officer or officers who could have testified as to this event on a non-hearsay 

basis, and there is no showing that defendant had a prior opportunity for crossexamination, or forfeited that right by wrongdoing. (See Sanchez, supra, 63 Cal.4th at 

p. 686.)

In contrast, there is no indication defendant’s 2009 statement at the honor farm, 

and his 2011 and current statements made to booking officers, were made for purposes of 

preserving facts for a prosecution. Rather, it seems clear that the primary purpose of 

those statements was for jail administrative purposes and defendant’s personal safety. 

(See People v. Leon (2016) 243 Cal.App.4th 1003, 1020 [purpose of jail classification 
58

questions was not to create and out-of-court substitute for trial testimony or to otherwise 

contribute to a criminal investigation or prosecution; rather “the primary purpose for the 

gang affiliation questions was to further institutional security objectives, i.e., to ensure 

the safety of inmates and jail personnel”].) We cannot conclude those statements were 

testimonial.

As for the evidence related to the charged offenses upon which Slater relied in 

forming his opinion, no hearsay or confrontation clause objection is cognizable. These 

facts were all related to evidence properly before the jury. Slater merely testified 

concerning his expert opinion as to the meaning of this evidence in the context of this 

case. (See generally Evid. Code, §§ 801, 802, 804.)

F. Prejudice

The erroneous admission of hearsay evidence under state law is reviewed for 

prejudice under the standard articulated in Watson, supra, 46 Cal.2d 818. (People v. 

Duarte (2000) 24 Cal.4th 603, 618-619.) As for the testimonial hearsay concerning the 

2006 traffic stop, the admission of which violated Crawford and defendant’s right to 

confrontation, prejudice must be gauged under Chapman, supra, 386 U.S. at pages 23-24. 

(See Sanchez, supra, 63 Cal.4th at pp. 698-699 [applying the harmless beyond a 

reasonable doubt standard to error in admitting case-specific testimonial hearsay which 

violated defendant’s right to confrontation].)

Because the jury did not reach a finding on the section 186.22 gang enhancement 

allegations, and the trial court granted the prosecution’s motion to strike those 

allegations, we need not address them here. However, defendant asserts that the 

improper introduction of the gang evidence rendered it more likely the jury would 

discount his testimony that his admissions were false, and therefore it was more likely the 

jury would find him guilty of first degree murder rather than a lesser degree of homicide. 

Without the improperly admitted case-specific hearsay and testimonial hearsay, 

the evidence properly before the jury we have already summarized overwhelmingly 
59

established defendant’s guilt. On this record, under any standard, had the jury not heard 

the evidence improperly admitted through Slater, it nonetheless would have concluded on 

the evidence properly before it that defendant shot and killed the victim and was guilty of 

first degree murder.

Defendant asserts that the gang evidence contaminated the trial and made 

defendant out to be a member of a homicidal gang. However, Slater’s testimony was not 

nearly as inflammatory as the facts of this case. (Cf. People v. Eubanks (2011) 53 

Cal.4th 110, 144, [the potential for Evid. Code, § 352 prejudice is decreased when 

testimony describing the defendant’s uncharged acts is no stronger and no more 

inflammatory than the testimony concerning the charged offenses].)

To the extent the improperly admitted gang evidence could be interpreted as 

implying that defendant had a criminal disposition, as stated ante, the trial court 

instructed the jury with CALCRIM No. 1403 on the proper uses for the subject evidence, 

and specifically that the jury “may not conclude from this evidence that the defendant is a 

person of bad character or that he has a disposition to commit crime.”21 “The jurors are 

21

 To the extent that defendant faults the trial court for instructing the jury with 

CALCRIM No. 1403 on the ground that it “suggested the jury could discredit 

[defendant’s] testimony because he was a gang member,” he neither objected to the 

proposed instruction at the conference on jury instructions nor when the court gave the 

instruction. Therefore, he forfeited any contention that this instruction was improper. 

(People v. McPheeters (2013) 218 Cal.App.4th 124, 131-132 [generally, a party forfeits 

any challenge to a jury instruction that was correct in law and responsive to the evidence 

if the party fails to object in the trial court].) As to defendant’s blanket statement that if 

counsel forfeited any contention, he was deprived of the constitutionally effective

assistance of counsel, it did not constitute ineffectiveness for counsel to fail to object to 

an instruction that was correct on the law and which was supported by the evidence 

presented at trial. (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1170 [CALCRIM 

No. 1403 correctly states the law and the evidence justified inclusion of the optional 

motive and witness credibility paragraphs; because there was no error in giving the 

instruction, any objection would have been overruled, there is no reasonable probability 

that an objection would have led to a different result, and the defendant failed to establish 
60

presumed to understand, follow, and apply the instructions to the facts of the case before 

them.” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1229, disapproved on another 

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

We also note that the jury deadlocked on the gang enhancement allegations, 

suggesting that “the jury did not accept the gang evidence . . . uncritically.” (People v. 

Williams (2009) 170 Cal.App.4th 587, 613 [jury acquitted defendant of possession of 

methamphetamine for sale and found him guilty of only simple possession and found not 

true a gang enhancement allegation].) Indeed, this “strongly indicates that the gang 

evidence was not unduly prejudicial . . . .” (People v. Garcia (2008) 168 Cal.App.4th 

261, 278 [jury’s acquittal of a codefendant of murder strongly indicates that the gang 

evidence was not unduly prejudicial].)

Defendant seems to suggest that Slater’s testimony concerning the primary 

activities and predicate offenses of HNS were prejudicial. However, this evidence was 

not case-specific hearsay, nor did its admission violate the confrontation clause. The 

predicate offenses were chapters in the biography of the gang and thus were historical 

background information upon which an expert is entitled to rely and discuss. (People v. 

Bermudez (2019) 40 Cal.App.5th 412, 416, 429, 430, rehg. granted Oct. 25, 2019; People 

v. Meraz (2018) 30 Cal.App.5th 768, 781, review granted March 27, 2019, S253629; 

People v. Vega-Robles (2017) 9 Cal.App.5th 382, 411.) Defendant asserts no objection 

to the predicate offense testimony on appeal other than hearsay and confrontation clause.

Defendant asserts that he was prejudiced by Slater’s improper testimony “even if 

the jury would have concluded without Slater’s testimony that [defendant] shot the 

victim, because the degree of the homicide was in question, and there was evidence that 

[defendant] was on drugs and felt provoked, which was relevant to the issue of 

that counsel’s failure to object to CALCRIM No. 1403 constituted ineffective assistance 

of counsel].)
61

deliberation and premeditation.” As defendant notes, the jury was instructed on murder 

in the first and second degrees, and also with voluntary manslaughter based on sudden 

quarrel or heat of passion.22

We do not see how the objectionable evidence at issue here impacted the 

determination of defendant’s mens rea. None of it was of a nature that would provide an 

inference that defendant committed the homicide with deliberation and premeditation as 

opposed to some other culpable mental state.

Moreover, as set forth more fully ante, the evidence properly before the jury, 

much of which was from defendant’s own statements, established that defendant 

22

 The trial court instructed the jury with CALCRIM No. 570 as follows: “A killing that 

would otherwise be murder is reduced to voluntary manslaughter if the defendant killed 

someone because of a sudden quarrel or in the heat of passion. [¶] The defendant killed 

someone because of a sudden quarrel or in the heat of passion if: [¶] One, the defendant 

was provoked. [¶] Two, as a result of the provocation, the defendant acted rashly and 

under the influence of intense emotion that obscured his reasoning or judgment. [¶] 

And, three, the provocation would have caused a person of average disposition to act 

rashly and without due deliberation, that is, from passion rather than from judgment. [¶] 

Heat of passion does not require anger, rage, or any specific emotion. It can be any 

violent or intense emotion that causes a person to act without due deliberation and 

reflection. [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, 

the defendant must have acted under the direct and immediate influence of provocation as 

I have defined it. While no specific type of provocation is required, slight or remote 

provocation is not sufficient. Sufficient provocation may occur over a short or long 

period of time. It is not enough that the defendant simply was provoked. [¶] The 

defendant is not allowed to set up his own standard of conduct. You must decide whether 

the defendant was provoked and whether the provocation was sufficient. In deciding 

whether the provocation was sufficient, consider whether a person of average disposition, 

in the same situation and knowing the same facts, would have reacted from passion rather 

than from judgment. [¶] If enough time passed between the provocation and the killing 

for a person of average disposition to ‘cool off’ and regain his or her clear reasoning and 

judgment, then the killing is not reduced to voluntary manslaughter on this basis. [¶] 

The People have the burden of proving beyond a reasonable doubt that the defendant did 

not kill as the result of a sudden quarrel or in the heat of passion. If the People have not 

met this burden, you must find the defendant not guilty of murder.”
62

voluntarily sought a confrontation with the victim because the victim had disrespected 

him just the day before. Defendant obtained a gun in preparation for that confrontation

and looked for the victim, whom he suspected of having vandalized his brother’s car and 

who mean mugged him the previous night. Upon finding the victim, defendant exited his 

car and approached him and, when disrespected by the victim’s verbal challenge, he 

“d[id] [his] job” and shot the victim six times, one time in the back. N.V. testified she 

saw the shooter “looking like that they were looking down at somebody,” extending his 

arm downward like he was pointing a gun at someone. She heard the shooter say, “Fuck 

you, cuz, that’s for messing with my family.” And then she heard “another bang,” and 

then the shooter jumped into the driver’s side of a car situated nearby. The autopsy 

revealed a graze wound to the victim’s head, which was inflicted while the victim’s head 

was near concrete, and this appears to be consistent with the last shot N.V. heard. As 

defendant mused to himself during one of the times the detectives left the interrogation 

room, “I’d rather be a man and step up to the plate than be a punk about it.” This 

evidence clearly supported a finding of deliberation and premeditation.

Nor would the absence of the inadmissible evidence result in a voluntary 

manslaughter conviction instead of first degree murder. The provocation suggested by 

defendant through his statements to the detectives included the fact that his car had been 

vandalized a couple of months earlier, the disrespect the victim showed defendant the 

night before the shooting, defendant seeing the victim the day of the shooting outside of 

his girlfriend’s house looking at defendant’s car and looking at his girlfriend’s house, and 

the disrespect the victim showed defendant when defendant confronted him. We 

conclude this was not provocation which “would have caused a person of average 

disposition to act rashly and without due deliberation, that is, from passion rather than 

from judgment.” (CALCRIM No. 570.) Objectively, the victim’s conduct here cannot 

be deemed “sufficiently provocative to cause an ordinary person of average disposition to 

act rashly or without due deliberation and reflection.” (People v. Enraca (2012) 53 
63

Cal.4th 735, 759.) The evidence suggested a gang provocation that supplied a motive to 

kill, not voluntary manslaughter provocation. “The defendant is not allowed to set up his 

own standard of conduct.” (CALCRIM No. 570.) “The standard is not the reaction of a 

‘reasonable gang member.’ ” (Enraca, at p. 759.)

Thus, we conclude that the erroneous admission of portions of Slater’s testimony 

described herein was harmless under any standard. (Chapman, supra, 386 U.S. at p. 24 

[the error is harmless beyond a reasonable doubt]; Watson, supra, 46 Cal.2d at p. 836 [it 

is not reasonably probable that defendant would have obtained a more favorable result in

the absence of the error].)

IV. Elizalde Claim

A. Additional Background and Defendant’s Contentions

Prior to the commencement of the jury trial, as the trial court denied defendant’s 

request for an Evidence Code section 402 hearing on Slater’s gang testimony, the trial 

court stated: “As far as the statement made to the booking officer, [People v. Gomez

(2011) 192 Cal.App.4th 609, disapproved in part by Elizalde, supra, 61 Cal.4th 523] . . . 

says that ‘Statements made during the booking process regarding gang affiliations are 

admissible under the booking question exception to [Miranda v. Arizona (1966) 384 U.S. 

436 [16 L.Ed.2d 694] (Miranda)].’ ”

During his trial testimony, Slater testified that, in 2011, defendant was booked into 

county jail, and, during a classification interview, defendant denied any gang affiliation. 

After he was arrested in this case, when defendant underwent a classification interview, 

he stated that “he was an inactive HNS gang member.” 

Defendant testified that he did not tell a classification officer or anyone else that 

he was an inactive HNS member. He believed that he told the officer that he used to 

have a relative that was part of HNS. 

Defendant asserts that the trial court prejudicially erred in permitting Slater to 

testify regarding defendant’s booking statements about his gang affiliation. Defendant 
64

asserts that, under Elizalde, this was clear error. Although Elizalde was decided after 

defendant’s trial, defendant asserts that it applies to his case because his appeal was not 

yet final at the time Elizalde was decided. He asserts that his contention was not 

forfeited, and that, in the alternative, if it was forfeited, his trial counsel was 

constitutionally ineffective.

In his reply brief, defendant asserts that whether or not the admission of his 

booking statements violated Elizalde, the issue is moot based on Sanchez, supra, 63 

Cal.4th 665. Defendant asserts that, under Sanchez, it was not permissible for Slater to 

testify concerning the booking statements because Slater’s testimony in this regard 

constituted case-specific hearsay. 

B. Elizalde

“In Elizalde, supra, 61 Cal.4th 523, our Supreme Court held routine gang 

affiliation questions asked during the process of booking the defendant into jail amounted 

to ‘interrogation’ for purposes of triggering his rights under Miranda[, supra, 384 U.S. 

436] . . . because such questions were ‘reasonably likely to elicit an incriminating 

response’ in light of California’s ‘comprehensive scheme of penal statutes aimed at 

eradicating criminal activity by street gangs,’ and therefore, the defendant’s unMirandized responses to such questioning were inadmissible against him during the 

prosecution’s case-in-chief.” (People v. Lara (2017) 9 Cal.App.5th 296, 335; see People 

v. Villa-Gomez (2017) 9 Cal.App.5th 527, 536-537.)

C. Analysis

The People assert that defendant forfeited this contention on the ground that it is 

the burden of the appellant to affirmatively demonstrate error (People v. Gamache (2010) 

48 Cal.4th 347, 378), and defendant failed to provide a record on appeal sufficient to 

establish whether he was properly advised pursuant to Miranda before making his 2011
65

booking statement.

23

 The People also assert that defendant’s contention was forfeited in 

the trial court because no objection was offered on the ground that the use of his 2011 

booking statement violated Miranda. The People further assert that defendant cannot 

establish that he was denied the constitutionally effective assistance of counsel because 

he cannot establish that his attorney’s performance fell below an objective standard of 

reasonableness under prevailing professional norms or resulting prejudice. (See 

Strickland, supra, 466 U.S. 668.)

Ultimately, we need not resolve these questions. We agree with defendant that, 

regardless of whether defendant can establish Miranda/Elizalde violations on this record, 

and related issues of preservation and forfeiture, the issue has been rendered moot by our 

determination ante, that the admission of these booking statements was improper under 

Sanchez. Moreover, we have determined that defendant was not prejudiced by the error 

in the admission of this evidence, and need not address the matter further here.

V. Pitchess Review

A. Additional Background

1. The Pitchess Motion

Prior to trial, defendant filed a Pitchess motion seeking review of the personnel 

files for Harris, Fry, and Officer Gregory Dunn.

24

 Defendant asserted that the 

23

 As to defendant’s booking statement made in connection with his booking for the 

instant case, the People assert that defendant “received a Miranda advisement while 

being interrogated prior to being booked. Readvisement was unnecessary since the 

booking was reasonably contemporaneous with the prior knowing and intelligent 

waiver.” For the reasons we explain, we need not determine whether the People are 

correct in this contention, or whether the record is sufficient to establish as much.

24

 Defendant’s motion sought materials relating to the following: lack of credibility; 

excessive force; hostility or aggression; prior wrongful acts involving moral turpitude 

including allegations of planting evidence, fabrication of police reports and probable 

cause, false testimony, and perjury; dishonesty, untruthfulness, veracity, false arrest, 

conduct unbecoming an officer, neglect of duty; false or misleading statements made 
66

information discovered pursuant to his Pitchess motion could be relevant to his claim that 

the interrogation conducted by Harris and Fry was coercive and those detectives had 

previously engaged in a pattern and practice of using coercive and misleading 

interrogation tactics to solicit confessions. He further asserted that the results of the 

Pitchess motion as to Dunn could be relevant to his claim that Dunn illegally commanded 

his canine to attack defendant. Defendant claimed that obtaining materials from the 

officers’ files was the only way to effectively impeach their credibility. Trial counsel 

stated in his supporting declaration that the defense would be that defendant was not 

involved in the shooting, that his confession was false and “the product of coercive 

interrogation techniques” by Harris and Fry, that an expert would “testify concerning the 

coercive nature of the interrogation,” that depending on the outcome of the Pitchess

motion, Harris and Fry had previously engaged in a pattern and practice of using coercive 

and misleading interrogation tactics to solicit confessions, that Dunn illegally 

commanded his canine to attack defendant for the purpose of inflicting unnecessary and 

unjustified pain on defendant, and that Harris and Fry used the encounter with the canine 

to “make veiled threats to coerce” defendant into giving a false confession. Real party in 

interest City of Stockton opposed the motion. 

The trial court heard argument on defendant’s Pitchess motion. The court noted 

the information could be relevant to the issue of voluntariness as to any statements, but 

also stated, “I’m not saying it’s going to come in at trial.” The trial court stated that the 

fact that defendant alleged that Dunn used excessive force, by use of his canine, would 

warrant review for acts of excessive violence, and the inconsistency in his report would 

warrant review for honesty and veracity. The trial court further determined that there was 

evidence that Harris made untrue statements, warranting review of his file for issues of 

during questioning and/or interrogation of victims, witnesses and/or suspects; racial 

discrimination. 
67

honesty and veracity. As to Fry, the trial court stated that there was enough evidence of 

threats to warrant review for acts of excessive violence. 

Thereafter, the trial court conducted the in camera hearing and, upon resuming 

proceedings in open court, stated: “I have ordered some material,” by which it indicated 

that it was ordering certain materials to be disclosed to the defense. The trial court 

ordered the records returned to the city attorney with the direction that the materials be 

maintained to preserve them for appellate review. The trial court also issued a protective 

order. 

Defendant requests us to review the sealed transcripts of the in camera hearing to 

determine if the trial court followed proper procedure and released all relevant Pitchess

materials. Defendant further requests that we determine whether the trial court reviewed 

the relevant files for any evidence subject to disclosure under Brady v. Maryland (1963) 

373 U.S. 83 [10 L.Ed.2d 215] (Brady).

2. Trial Evidence Concerning the Circumstances of Defendant’s Arrest

Kwan testified that after he collided with defendant’s vehicle, Kwan exited his 

vehicle, pointed his gun at defendant and ordered him to put his hands up and step out of 

the car. Defendant got out and Kwan ordered him to the ground. Defendant got down, 

but, when Kwan attempted to grab his arm to handcuff him, defendant tensed up. 

Defendant was not really complying with Kwan’s directions. Kwan tried to get the 

defendant’s right arm behind his back. 

Officer Emiliano Rincon testified that he saw defendant struggling with the 

officers. Rincon characterized the scene as defendant “on the ground and his body 

moving around and struggling and the officers yelling commands. . . . [I]t was not a 

cooperative person being taken into custody.” 

Officer Gregory Dunn testified that when he arrived on the scene, he saw officers 

struggling with defendant. Dunn testified that he could see that defendant was fighting 

with Kwan and other officers to get away. According to Dunn, defendant was trying to 
68

get his knees under him and push up. Dunn could not see defendant’s hands. Dunn 

heard officers telling defendant to stop resisting. Dunn commanded his canine to 

apprehend defendant. The dog grabbed defendant on the upper thigh and then “grabbed 

onto [defendant’s] buttocks.” At some point, defendant attempted to push the dog away. 

According to Dunn, that presented officers with the opportunity to secure defendant’s 

hand which he had been hiding. Kwan managed to handcuff defendant. 

Kwan, however, testified that at the time the canine bit defendant, Kwan had not 

“had any problems with [defendant] other than stiffening up his arm.” Kwan did not 

recall whether defendant attempted to hide his arms, stuck them between his legs, tried to 

roll away from officers, or pushed himself up to his knees to try to get free. 

B. Pitchess Principles

Our courts entertain “what have become known as Pitchess motions, screening 

law enforcement personnel files in camera for evidence that may be relevant to a criminal 

defendant’s defense.” (People v. Mooc (2001) 26 Cal.4th 1216, 1225, fn. omitted 

(Mooc); see Pitchess, supra, 11 Cal.3d 531.) To balance the defendant’s right to 

discovery of records pertinent to his or her defense with the peace officer’s reasonable 

expectation that his or her personnel records will remain confidential, the Legislature has 

adopted a statutory scheme requiring a defendant to meet certain prerequisites before his 

or her request may be considered. (See §§ 832.5, 832.7 & 832.8; Evid. Code, §§ 1043-

1047.) A defendant seeking discovery of a peace officer’s confidential personnel record 

must file a written motion describing the type of records or information sought (Evid. 

Code, § 1043, subds. (a), (b)(2)), and include with the motion an affidavit demonstrating 

“good cause” for the discovery and the materiality of such evidence relative to the 

defense. (Evid. Code, § 1043, subd. (b)(3); Mooc, supra, 26 Cal.4th at p. 1226.) 

“If the trial court concludes the defendant has fulfilled these prerequisites and 

made a showing of good cause, the custodian of records should bring to court all 

documents ‘potentially relevant’ to the defendant’s motion. [Citation.] The trial court 
69

‘shall examine the information in chambers’ [citation], ‘out of the presence and hearing 

of all persons except the person authorized [to possess the records] and such other 

persons [the custodian of records] is willing to have present’ [citations]. Subject to 

statutory exceptions and limitations, discussed below, the trial court should then disclose 

to the defendant ‘such information [that] is relevant to the subject matter involved in the 

pending litigation.’ ” (Mooc, supra, 26 Cal.4th at p. 1226, italics added.)

“A trial court’s ruling on a motion for access to law enforcement personnel 

records is subject to review for abuse of discretion.” (People v. Hughes (2002) 27 

Cal.4th 287, 330.)

C. The In Camera Pitchess Hearing

We granted defendant’s motion to augment the record to include, among other 

things, the proceedings in open court at which the trial court ruled on defendant’s 

Pitchess motion, and the sealed transcript of the in camera Pitchess proceedings. 

Subsequently, on our own motion, we augmented the record to include the material 

presented to the trial court for its consideration in connection with defendant’s Pitchess

motion.

We have reviewed the transcript of the in camera hearing. Present were the trial 

court, the court reporter, Marci Arredondo, Stockton Deputy City Attorney, and Valerie 

Dunphy, the custodian of records for the Stockton Police Department. The custodian 

brought files with her, but the trial court failed to administer the oath to either the 

custodian or the deputy city attorney before it questioned them and heard answers 

concerning the files.

D. Analysis

The trial court must administer the oath to whomever brings the personnel records 

and provides information about the records and the agency search for all records 

potentially relevant. (Mooc, supra, 26 Cal.4th at p. 1229, fn. 4 [criminal defendants are 

protected by the fact that a representative of the custodian of records is placed under oath 
70

before responding to a trial court’s questions during the in camera inspection of records]; 

People v. White (2011) 191 Cal.App.4th 1333, 1335, 1340-1341 (White).) 

“[A]dministering the oath to the custodians of records who testify at Pitchess hearings is 

necessary to establish the accuracy and veracity of the custodians’ representations 

regarding the completeness of the record submitted for the court’s review. [Citation.]

The integrity of the custodian’s testimony in this regard is also necessary to ensure that 

‘the locus of decisionmaking’ at the hearing ‘is to be the trial court, not the prosecution or 

the custodian of records.’ ” (White, at p. 1340, quoting Mooc, at pp. 1229-1230 & fn. 4.)

Furthermore, the trial court did not expressly ask whether the documents the 

custodian produced were potentially relevant to the scope of the discovery for which 

good cause was shown and whether all such documents had been produced. “When a 

trial court concludes a defendant’s Pitchess motion shows good cause for discovery of 

relevant evidence contained in a law enforcement officer’s personnel files, the custodian 

of the records is obligated to bring to the trial court all ‘potentially relevant’ documents 

to permit the trial court to examine them for itself.” (Mooc, supra, 26 Cal.4th at 

pp. 1228-1229, italics added.) “Documents clearly irrelevant to a defendant’s Pitchess

request need not be presented to the trial court for in camera review. But if the custodian 

has any doubt whether a particular document is relevant, he or she should present it to the 

trial court.” (Mooc, at p. 1229.) Instead of inquiring as to potentially relevant material, 

the trial court here asked for an opinion about whether the documents were relevant. 

Asking whether the documents are relevant is different from asking if they are potentially 

relevant, and, by only inquiring as to the former, the trial court abdicated its role as “ ‘the 

locus of decisionmaking’ at the hearing.” (White, supra, 191 Cal.App.4th at p. 1340, 

quoting Mooc, at p. 1229.) The trial court only viewed documents when it was 

affirmatively indicated that the document contained discoverable or relevant (as opposed 

to potentially relevant) information. (Sisson v. Superior Court (2013) 216 Cal.App.4th 

24, 39 (Sisson) [trial court did not examine all potentially responsive documents the 
71

custodians produced; rather, the trial court only examined a document if a custodian 

affirmatively indicated the document contained discoverable information].)

Additionally, “[t]he custodian should be prepared to state in chambers and for the 

record what other documents (or category of documents) not presented to the court were 

included in the complete personnel record, and why those were deemed irrelevant or 

otherwise nonresponsive to the defendant’s Pitchess motion.” (Mooc, supra, 26 Cal.4th 

at p. 1229.) Here, the trial court did not inquire about the agency records or categories of 

records the custodian opted not to produce, and the record reflects nothing about those 

records. (People v. Guevara (2007) 148 Cal.App.4th 62, 69 [if it is not readily apparent 

from the nature of the documents that they are nonresponsive or irrelevant to the 

discovery request, the custodian must explain his or her decision to withhold them; absent 

this information, the court cannot adequately assess the completeness of the custodian’s 

review, nor can it establish the legitimacy of the custodian’s decision to withhold 

documents, a procedure necessary to satisfy the trial court’s role and obligations at a 

Pitchess hearing]; see Sisson, supra, 216 Cal.App.4th at p. 39 [same].)

Under the circumstances of the in camera hearing here, we would normally 

conditionally reverse and remand for the trial court to conduct a new in camera hearing 

using the proper procedures, including administration of the oath. However, we see no 

need to do so here because we conclude any error in discovery relative to other incidents

is harmless here. “To obtain relief . . . a defendant who has established that the trial court 

erred in denying Pitchess discovery must also demonstrate a reasonable probability of a 

different outcome had the evidence been disclosed.” (People v. Gaines (2009) 46 Cal.4th 

172, 182-183 (Gaines).) The reasonable probability standard courts apply in Pitchess

matters is the same standard courts apply to claims that the prosecution improperly 

withheld exculpatory evidence in violation of a defendant’s right to due process under 

Brady, supra, 373 U.S. 83. (Gaines, at p. 183.)
72

Defendant sought Pitchess discovery related to Dunn, who was the handler of the 

canine that bit defendant. As it turned out, Dunn’s testimony regarding the circumstances 

of the arrest was unimportant and added nothing to the overwhelming evidence amassed 

against defendant by other officers involved in the investigation. We are confident in 

concluding that, under the circumstances, any excessive force employed by Dunn in the 

past would not have been relevant and admissible here; but even if it was relevant and 

admissible, there is no reasonable probability it would have produced a different outcome 

(Gaines, supra, 46 Cal.4th at pp. 182-183) given the limited role Dunn played in the case. 

As for Harris and Fry, the relevant contact they had with defendant was video 

recorded. They first met defendant in the interview room where the recording took place. 

Otherwise, there is no indication that they interacted with defendant off-camera except

for the process of fingerprinting and photographing him. Defendant did not testify —

either in the Evidence Code section 402 hearing concerning the voluntariness of his 

statements, or at trial — that the detectives did anything to him outside of the interview 

room that was coercive or otherwise caused him to be in fear of them. Whether the 

detectives had engaged in a pattern of coercive interrogation practices in the past with 

other people would not have been relevant to defendant’s interrogation and admissible at 

trial, because defendant’s interrogation was recorded and, as can be seen, devoid of any 

improper coercion. We conclude, under these circumstances, there is no reasonable 

probability defendant would have obtained a different outcome had discoverable 

information such as he requested regarding Harris and Fry been disclosed. (Gaines, 

supra, 46 Cal.4th at pp. 182-183) 

VI. Senate Bill 620

In addition to finding defendant guilty of murder in the first degree (§§ 187, 189), 

the jury found true the enhancement allegation that, in committing murder, defendant 

personally discharged a firearm causing the victim’s death. (§ 12022.53, subd. (d).) 
73

While his case was pending on appeal, the Governor signed Senate Bill No. 620 

(2017-2018 Reg. Sess.) (Senate Bill 620), effective January 1, 2018. Following the 

enactment of Senate Bill 620, the firearm enhancement in section 12022.53 now includes 

language stating in pertinent part: “The court 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 by this section.” (§ 12022.53, subd. (h).) Prior to the enactment 

of Senate Bill 620, and when defendant was sentenced, the trial court did not have 

discretion to strike or dismiss these enhancements. The former language of section

12022.53 explicitly provided that the courts “shall not strike” enhancement allegations 

under that section. (§ 12022.53, former subd. (h).)

We granted defendant’s request for supplemental briefing on the impact of Senate 

Bill 620. The People concede that the amendment to section 12022.53 should be 

afforded retroactive application to nonfinal judgments and that it should apply to this 

case. However, the People further assert that, because it is clear that the trial court would 

not have exercised its discretion to strike the section 12022.53, subdivision (d), firearm 

enhancement, remand would be futile. In making this argument, the People rely on the 

nature of defendant’s crimes and the fact that the trial court imposed the upper term on 

count 2, although execution of that sentence had to be stayed pursuant to section 654. 

Defendant replies that the trial court offered no indication as to whether it would strike 

the firearm enhancement if it had the discretion to do so, and otherwise did not make any 

statements such as stating that the maximum possible sentence was appropriate. 

Senate Bill 620 applies retroactively. (People v. Woods (2018) 19 Cal.App.5th 

1080, 1090-1091.) Accordingly, we proceed to consider the People’s futility argument.

Remand is required unless the record reveals a clear indication that the trial court 

would not have reduced the sentence even if at the time of sentencing it had the discretion 

to do so. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; People v. McDaniels

(2018) 22 Cal.App.5th 420, 425.) The People are certainly correct that defendant’s 
74

crimes here were “violent and callous,” “vicious and cold-blooded.” But, this will often, 

if not always, be the case when section 12022.53, subdivision (d), enhancement

allegations have been found true.

Based on the record before us, we cannot conclude that the trial court clearly 

indicated it would not have exercised its discretion to strike or dismiss the firearm 

enhancement if it had the discretion to do so, and that therefore remand would serve no 

purpose. Accordingly, we agree with defendant that the matter must be remanded for the 

trial court to consider whether to exercise its discretion to strike or dismiss the section 

12022.53, subdivision (d), enhancement.

VII. Senate Bill No. 136

While this appeal was pending, the Governor also signed Senate Bill No. 136 

(2019-2020 Reg. Sess.) (Stats 2019, ch. 590, § 1) (Senate Bill 136), effective January 1, 

2020. We granted defendant’s request for supplemental briefing on the effect of Senate 

Bill 136 on his two one-year prior prison term enhancements.

At the time of defendant’s sentencing, section 667.5, subdivision (b), required trial 

courts to impose a one-year sentence enhancement for each true finding on an allegation 

that the defendant had served a separate prior prison term unless the defendant had 

remained free of both felony convictions and prison or jail custody during a period of five 

years since the subject prior prison term. (§ 667.5, subd. (b).) Following the enactment 

of Senate Bill 136, only prior prison terms for sexually violent offenses, as defined in 

Welfare and Institutions Code section 6600, subdivision (b), are subject to the one-year 

enhancement pursuant to section 667.5, subdivision (b). (Stats 2019, ch. 590, § 1.)

“By eliminating section 667.5, subdivision (b) enhancements for all prior prison 

terms except those for sexually violent offenses, the Legislature clearly expressed its 

intent in Senate Bill No. 136 . . . to reduce or mitigate the punishment for prior prison 

terms for offenses other than sexually violent offenses. [Citation.] Therefore, we 

conclude, and the parties agree, that under [the rule in In re Estrada (1965) 63 Cal.2d 740 
75

(Estrada)

25], Senate Bill No. 136’s . . . amendment to section 667.5, subdivision (b) 

applies retroactively to all cases not yet final as of its January 1, 2020, effective date.” 

(People v. Jennings (2019) 42 Cal.App.5th 664, 682.)

Because defendant’s case was not final as of January 1, 2020, he is entitled to the 

ameliorative benefit of Senate Bill 136’s amendment to section 667.5, subdivision (b). 

Neither of defendant’s two prior prison terms were for “a sexually violent offense as 

defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.” (Stats 

2019, ch. 590, § 1.) Because these prior prison terms are no longer qualifying prior 

prison terms for the imposition of enhancements pursuant to section 667.5, subdivision 

(b), as amended by Senate Bill 136, we shall strike the two one-year prior prison term 

enhancements imposed.

DISPOSITION

We modify the judgment to strike the two one-year prior prison term 

enhancements imposed pursuant to section 667.5, subdivision (b). We order remand to 

allow the trial court to consider whether to exercise its discretion to strike or dismiss the 

section 12022.53, subdivision (d), enhancement. The trial court shall prepare an 

amended abstract of judgment deleting reference to the section 667.5, subdivision (b), 

prior prison term enhancements. If, in the exercise of discretion, the trial court strikes or 

25

 ‘ “[A]n amendatory statute lessening punishment is presumed to apply in all cases not 

yet reduced to final judgment as of the amendatory statute’s effective date’ [citations], 

unless the enacting body “clearly signals its intent to make the amendment prospective, 

by the inclusion of either an express saving clause or its equivalent” [citations]. This rule 

rests on an inference that when the Legislature has reduced the punishment for an 

offense, it has determined the “former penalty was too severe” [citation] and therefore 

“must have intended that the new statute imposing the new lighter penalty... should 

apply to every case to which it constitutionally could apply.” ’ ” (People v. Martinez

(2019) 31 Cal.App.5th 719, 724-725, citing People v. DeHoyos (2018) 4 Cal.5th 594, 

600, People v. Floyd (2003) 31 Cal.4th 179, 184, People v. Nasalga (1996) 12 Cal.4th 

784, 793, & Estrada, at pp. 744, 745, 747.)
76

dismisses the section 12022.53, subdivision (d), firearm enhancement, the court shall 

omit reference to that on the amended abstract as well. The court is directed to forward a 

certified copy of the abstract to the Department of Corrections and Rehabilitation. We 

otherwise affirm.

 /s/

MURRAY, J.

We concur:

 /s/

RAYE, P. J.

 /s/

RENNER, J.