Filed 5/13/22 P. v. Spicer CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

J ESSE SPICER, et al.,

Defendant s and Appellant s

. B 3 08931

( Los Angeles County Super. Ct. No. TA148753 )

APPEAL S from judgment s of the Superior Court of Los Angeles County, John J. Lonergan

, Judge. Remanded with
directions.
Joanna McKim

, under appointment by the Court of Appeal, for Defendant and Appellant Jesse Spicer

. Joanna Rehm

, under appointment by the Court of Appeal, for Defendant and Appellant Akkeli Frederick

. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney Gene ral, Susan Sullivan Pithey

, Assistant2

Attorney General

, Paul M. Roadarmel, Jr.

, and Michael Katz

, Deputy Attorney s General, for Plaintiff and Respondent.

_________________________ Jesse Spicer and Akkeli Frederick were jointly tried by one jury and found guilty of gang

- related murder and attempted murder. While in jail, Spicer made incriminating statements to a confidential informant masquerading as a fellow inmate, including ones identifying Frederick as his accomplice. On appeal, both defendants contend that Spicer’s statements should
have been excluded . They also contend that there is insufficient evidence to support the judgments, that certain identification evidence and evidence Spicer was on probation were improperly
admitted

, and the trial court should have imposed a discovery sanction on the prosecution. We reject these contentions but because Spicer and Frederick are entitled to the benefit of recently

- enacted ameliorative laws, remand is necessary.

BACKGROUND

I. March 27, 2019: the murder of Denzel Gordon and the attempted murder of Donald Neal

Brothers Isaiah Gordon and Denzel Gordon 1 liv ed at the
Jordan Downs apartments in Watts

. Both were member s of the Grape Street Crips , and Denzel was known as Poppy. 2 The Grape Street Crips dominated the area around Jordan Downs

.

1 W e use first names for members of the Gordon family for clarity.

2 Although Isaiah denied being a gang member, the People’s expert testified that he, as well as family members, were Grape Street Crips.3

Its rival

, Bounty Hunter Bloods, claim ed the area around Nickerson Gardens, also in Watts. On March 27, 2019

, sometime before 7 : 23 p.m. , 3 Isaiah and Denzel were on Grape Street and 101st S treet where their aunt
lived

. Isaiah had driven there in his Camaro, which Denzel
wanted to test drive. When Denzel returned after driving the car
for a bit , he turned it off

. The car wouldn’t re start
, so Denzel went to get jumper cables . Meanwhile, Is aiah was getting something from the car when four gunshots were fired

. Denzel
was shot in the stomach and died later that night. Not long after Denzel was shot and about two miles away,
Donald Neal and his friend Dante Myers were in the area of 104th and Broadway at about 7:50 p.m. While sitting in Neal’s parked Camaro, Neal heard a gunshot. Unsure of where the shot came from, he drove away but lost control of the car and crashed into a gate. The car had a bullet hole in its rear. 4 When the police arrived, they found p arked nearby the car used in both shootings, a red Nissan Rogue that had been reported stolen one week before

. A backpack containing items with Spicer’s name on them, including his school identification card, were in the car.

II. Isaiah’s and Quennisha Gordon’s s tatement s Just hours after Denzel died, i n the early morning of March 28, 2019, Isaiah told Detective P eter McCoy what happened: a burgundy truck pull ed up , “they” said “Bounty Hunters

, ” and
the y shot Denzel. Although Isaiah said he didn’t recognize

3 This is when officers received a report of the shooting.

4 At trial, Neal was unsure whether the damage was from th is shooting or an earlier shooting incident he had been involved in

.4

anyone in the truck, the passenger/shooter “kind of looked like this boy named Jesse” from Nickerson Gardens. Isaiah couldn’t really see the shooter’s face because he “low

- key, covered up his
face with his other arm.” The shooter wore a black hoodie and was hanging out of the window. A few days after this initial interview, the detecti ve again spoke to Isaiah, who said he “really couldn’t see his [the shooter’s] face, so that’s why I’m not fittin’ to just say I seen him,
but” he did catch a glimpse of his face. The shooter was Black

, and Isaiah could see a little hair on top. Isaiah n ow thought it
was the driver who had said

, “ Bounty Hunters

, ” and Isaiah had heard rumors that the driver’s name was Flaca or something like
that. He could not tell if there were more than two people in the

car. Isaiah told the detective that he knew the shooter’s name

was “Jesse” because “some girl” told him, and Isaiah recognized
Jesse from Instagram

. According to Isaiah, Jesse used to date a gi rl named Raja 5 from the projects

, and she and Jesse would post
videos that Isaiah had seen

. Isaiah also said he told a friend 6 he knew it was Jesse, and his friend found Jesse ’s picture on Instagram, which he showed to Isaiah. From a photographic six

p ack, Isaiah identified Spicer as the man he saw hanging out of the car, saying he recognized the side of his face. 7 Denzel and Isaiah’s sister, Quennisha, testified that, after the shooting, Isaiah told her h e had seen the shooter. S he
showed Isaiah an Instagram profile page, and Isaiah said that

5 Raja is spelled different ways in the record.

6 Isaiah refused to identify his friend by his full name.

7 At trial, Isaiah denied recalling any details about the shooting and identifying Spicer.5

the man in it was the shooter. 8 Quennisha showed the photograph, which was of Spicer, to the detective.

III. Surveillance, firearm, and print ev idence
Video surveillance from the Jordan Downs complex capture d some of the events. The video shows a red or burgundy vehicle slow with its passenger , wearing a black sweatshirt, hanging out of the window when Denzel was shot

. The vehicle
then turn ed onto another street with the passenger still hanging

out o f the window

. C artridge c asings recovered from the Gordon and Neal crime scenes were fired from the same gun, likely a Glock

- type firearm. Forty

- two latent prints were found o n the Nissan Rogue

, and a criminalist match ed 33 of them to ten people. Eight prints were Spicer’s, including one from the outside driver’s side front door, two from the inside driver’s side doorjamb, one from the outside passenger side rear window, and another from the outside passenger side front door handle. Frederick ’s thumb print was on the inside passenger side rear door window

, and his palm print was on the hood. 9 T here is no way to tell when any prints were left on the car.
Around the times Denzel was murdered and Neal was shot at, cell p hones linked to Spicer and to Frederick were in the general area of the crime scenes

.

8 Quennisha was vague about how she obtained the Instagram profile page, saying someone showed it to her, and Quennisha photographed it.

9 Prints belonging to Twyman Samocki, Spicer’s cousin , were in the car

.6

IV. Social media evidence

Evidence relating to an Instagram account linked to Spicer
was introduced at trial. The account ’s user name was
bmb g bhrazy, and the account was registered to email address jessespicer01 @icloud.com and to a phone number ending in 8879. In recorded jail calls, Spicer confirmed that was his email
address

, his phone number

, and his user name for his Instagram

account

. The day after Denzel was murdered, 1daprxncess messaged the Instagram account, asking

, “why do you hope im pregnant,” and the response from the account was, “BC idk what can happen
to me so I want [a] part of me to be in this world if I leave.” The

accoun t messaged Hoddiebhoy_Flocka : “Red want you.” “Rajaah” also messaged the account, saying “Babe.” O n March 28, 2019, a message was sent to the account, “I hope you ain’t
doin’ no dumb shit.” Ano ther message sent to the account after
Denzel was murdered said, “He died foo

, ” and bmbgbhrazy said, “Fuck Poppy Bitch.”
When Spicer was arrested on April 23, 2019 , he had a new cell phone with a number different than the one associated with the Instagram account. The number associated with th e Instagram accou nt was terminated the day Denzel was shot.

V. The Perkins 10 operation
After he was arrested, Spicer was placed in a jail cell with a
confidential informant 11 pursuant to a Perkins operation

. As explained to the jury, a Perkins operation is when an arrestee and a confidential informant are placed in a cell in the hopes that

10 Illinois v. Perkins (1990 ) 496 U.S. 292 ( Perkins )

. 11 The agent was not a member of law enforcement and was paid

.7

conversation between them will elicit facts relevant to the investigation. Here, the Perkins operation was audio and video recorded, and while it w as happening, Detective McCoy was surreptitiously watching through video monitors

. Spicer had not been given Miranda 12 advisements.
The confidential informant began by asking where Spicer
was from , and Spicer answered , “Bounty Hunters.” Soon thereafter, Detective McCoy went to the cell and told Spicer he was there because “Poppy got killed.” The detective left, saying
he would return.
The confidential informant proceeded to observe , “It ain’t no probation violation.” Spicer said they had no evidence

, b ut he was about “to get violated,” agreeing with the confidential
informant that it was a “hot one

, ” which refers to murder. Spicer
added they had nothing on him. The detective returned to the cell and told Spicer that they
had the car and his backpack. The detective left, and the
confidential informant asked if the car was the one used in the “get down.” Spicer replied, “Uh

- huh.” T he confidential informant asked if “the shit went down” in the day or nigh t
, and Spicer said, “It was day time.” W hen the confidential informant asked why Spicer left his backpack in the car, Spicer said he had told the
detective he lost it and now “I just gotta stick to my same story.”
The confidential informant wondered if there was a camera showing how many peo ple were in the car and aske d who was with Spicer in the car. Spicer did not answer directly but referred to “my cousin, my blood cousin.” When asked what happened to the gun, Spicer said he got rid of it and that it was a
Glock

.

12 Miranda v. Arizona (1966) 384 U.S. 436 ( Miranda ).8 The confidential inform ant told Spicer that because it happened in daytime, somebody probably “seen you do your shit.” He told Spicer there was a difference between being inside the car or hanging out the window, so “[y]ou better think. Was your
head all out the window?” Appa rently in response, the video
showed Spicer put on his hoodie. Under the guise of going to an interview, t he confidential
informant was removed from the cell so that Detective McCoy could tell him to drop the name of Spicer’s cousin, Twy m an Samocki, whose nickname was Mock. On returning to the cell,
the confidential informant told Spicer that law enforcement had
Mock in custody. Spicer said Mock was his cousin

, but that Mock didn’t know anything about what happened because Mock wasn’t
th ere. The confidential informant said that the police were asking for names, and Mock was saying names, but “I don’t know what your cousin name that went with you.” Spicer responded,
“Red” and “Akkel i, ” his first cousin

. VI. Jail calls

While in jail, Spicer called Raja and said, “They tryin to make it seem like that, like, I told on my crimey

. ” Crimey can refer to a codefendant

. VI I

. Gang evidence
The People’s gang expert testified that the Bounty Hunter

gang ha s about four hundred to five hundred members, and its primary activities include narcotic sales and trafficking, robbery, burglaries , weapons and ammunition possession, grand theft auto, assault with deadly weapons, attempted murder

, and
murder. The Bounty Hunter gang expects its members, especially younger ones, to put in work, i.e., commit crimes.9

Respect is important to gangs , and the most common way to earn it is to promote and further the gang’s criminal activity. Committing crimes also instills fear in the community, m aking the public unwilling to assist the police.
The feud between the Bounty Hunter gang and its main
rival

, the Grape Street Crips

, is a violent one. If Bounty Hunter gang members go into Grape Street Crips’s territory, they are looking to put in work. Denzel was shot in Grape Street Crips’s territory, but Neal was shot at in Broadway Gangster Crips ’s territory, and that gang has a neutral relationship with the Bounty Hunter gang

. The gang expert had several contacts with Spicer

, who was, in the expert’ s opinion

, a Bounty Hunter gang member

. About one week before Denzel was killed, Spicer told a patrol officer during a stop that he was a Bounty Hunter gang member. After
Denzel’s murder, Spicer got a gang tattoo, an ape, signifying
dominance and fear an d that he was evolving as a gang member. Typically, such tattoos need to be earned. BHRAZY is one of Spicer’s monikers , and BH stands for Bounty Hunter. In the expert’s opinion, Frederick wa s also an active member of the Bounty Hunter gang , and his monikers we re Red and Young God. To evidence the predicate crimes, the People introduced evidence that Desean Taylor, a Bounty Hunter, was convicted in
2018 of robbery, and he was a member of the gang during the robbery investigation and convic tion. Donald Ray Byrd was convicted of assault with a firearm, which occurred in December
2017. He wa s a member of the Bounty Hunter gang during the investigation of that crime.10 W hen presented with hypotheticals modeled on the facts of this case, the ex pert opined that such crimes would be committed in association with and for the benefit of the gang. The violent acts benefit the gang because they instill ed fear in the community, promoted the gang, and committing the two crimes in such a short span of t ime enhanced the gang’s reputation for
violence.

VIII. Verdict s and sentence s A jury found Spicer and Frederick guilty of the first degree
murder of Denzel (Pen. Code, 13 § 187, subd. (a); count 1) ; the willful, deliberate and premeditated attempted murder of Isaiah (§§ 664, 187, subd. (a); count 2) ; and shooting from a motor vehicle at Denzel and Isaiah (§ 26100, subd. (c); count 5)

. 14 As to Spicer, t he jury found true personal gun use allegations under
section 12022.53, subd ivision s (b), (c), and (d) , as to counts 1 and
5 and under subdivisions (b) and (c)

, as to count 2. As to Frederick, the jury found true principal gun use allegations under section 12022.53, subdivisions (b), (c), (d) and (e)(1), as to counts 1 and 5 and under subdivisions (b), (c) and (e)(1), as to
count 2. As to all counts and both defendants , the jury found true

gang allegations (§ 186.22, subd. (b)(1)( C )). Spicer was originally sentenced in November 2020, but then, pursuant to a motion for resentencing, was resentenced on February 17, 2021 to 25 years to life on count 1 and to 15 years to
life on count 2. The trial court imposed and stayed sentences for

13 All further undesignated statutory references are to the Penal Code.

14 The jury acquitted Spicer of counts 3 and 4 for the attempted murder s of Neal and Myers and of count 6 for shooting at an occupied vehicle

.11

the gun and gang enhancements on each count. O n count 5 , the
trial court im posed the upper term plus a term for the gang
enhancement and stayed the sentence

. Frederick was also originally sentenced in November 2020,
but was resentenced on April 20, 2021 to 32 years to life composed of 25 years to life on count 1 and the high term of seven

years to life on count 2. The trial court imposed but stayed sentences on the remaining allegations and stayed an upper term
sentence on count 5

. DISCUSSION

I. Admission of Spicer’s jailhouse statement

B oth defense counsel mov ed to exclude Spicer ’s jailhouse statements to the confidential informant, arguing that he made the statements to a proxy for the police and therefore his Fifth
and Sixth Amendment and Miranda rights were violated. The
trial court overruled the objections, and specifically found that Spicer’s statements were not testimonial and his Miranda rights were not violated, under Perkins

, supra , 496 U.S. 292

. Both Spicer and Frederick now contend that Spicer’s statements
should have been ex cluded.

A. Spicer 15
The Fifth Amendment privilege against self

- incrimination prohibits admitting a suspect’s statements made during a custodial interrogation in the absence of advisement of Miranda rights and the suspect ’ s kn o wing and intelligent waiver of them

.

15 Frederick joins Spicer’s arguments. We need not decide the propriety of the joinder as to each argument because we find that Spicer’s statements were properly admitted

.12

( People v. Leon (2020) 8 Cal.5th 831, 842

– 843.) Miranda
advisements w ere designed to preserve the privilege during a police

- dominated atmosphere , which can work to undermine a person’s will to resist and compel the pe rson to speak when t he

person would not otherwise do so freely. ( Perkins

, supra , 496
U.S. at p. 296.) However, conversations “between suspects and undercover agents do not implicate the concerns underlying Miranda .” ( Perkins

, supra , 496 U.S. at p. 296 .) When a suspect speaks freely to someone the suspect believes is merely a fellow inmate, the coercive atmosphere is absent. ( Ibid. ) Miranda forbids
coercion

, not mere strategic deception by taking advan tag e of a suspect’s misplaced trust in someone th e suspect supposes is a fellow prisoner. ( Perkins

, at p. 297.) “Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda ’s concerns.” ( Ibid. ) Miranda does not protect suspects from
boast ing about their criminal activities to persons whom they believe are cellmates. ( Perkins , at pp. 297

– 298.) Spicer acknowledges Miranda ’s limited applicability to his
conversation with a confidential informant. He therefore suggests that we follow Justice Thurgood Marshall’s dissent in
Perkins

, supra , 496 U.S. at pages 303 to 309 , as Justice Marshall
fou nd that the defendant’s statements should have been
excluded . But, as Spicer also acknowledges, we are not at liberty to do so. (See generally Auto Equity Sales, Inc. v. Superior Court ( 1956) 57 Cal.2d 450, 455.) Spicer alternatively argues that the “general rule” in
Perkins should not apply because of the nature of the confidential informant’s questions, Spicer’s age ( 18 years ), and the custodial13

setting. In essence, Spicer’s argument is his statements were involuntary. O n this issu e, t he question is whether his statement

wa s the “ ‘ product of an “ ‘ essentially free and unconstrained
choice ’ ” or whether the defendant’s “ ‘ will has been overborne and his capacity for self

- determination critically impaired ’ ” by coercion.’ ” ( People v. Flores ( 2020 ) 9 Cal.5th 371
, 426.) We
consider the totality of the circumstances to determine whether the prosecution met its burden of establishing by a preponderance of the evidence that defendant’s confession was voluntary, with no single cir cumstance being dispositive. ( Ibid. )
Circumstances to consider include any police coercion, the interrogation’s length

, location

, and continuity, and the
defendant’s maturity, education, and overall health. ( People v. Suarez (2020) 10 Cal.5th 116, 157 .) A confession is essentially

not free when a suspect’s confinement was physically oppressive,

or the suspect’s mental state was visibly compromised. ( People v. Spencer (2018) 5 Cal.5th 642, 672.) A confession also may be involuntary if extracted by threats or violence, obtained by direct

or implied promises, or secured by the exertion of improper
influence. ( People v. Benson (1990) 52 Cal.3d 754, 778

. ) Spicer argues that his statements were coerced because the conversation was not “free flowing.” The informant posed questions to him, asking, for example, whether it was possible a

cam e ra captured the shooting or there were witnesses, whether the shooting happened during the day or night, whether Spicer was hangi ng out of the car window, what happened to the gun, and who else was in the car with him. However, Spicer cites no authority to show these questions were inappropriate, especially given Perkins . To the contrary, in People v. Fayed (2020) 9 Cal.5th 147, 1 57, the defendant made incriminating statements14

to his cellmate, who, unbeknownst to the defendant, was an informant for law enforcement. Even though the informant asked leading questions, ingratiated himself to the defendant by expressing sympathy for hi s actions, and was much more than a passive listener, the court did not find that such tactics were likely to procure an untrue statement, improper, or coercive. ( Id. at p. 166.) Similarly here, even if the informant was not a passive listener, he did not threaten or intimidate Spicer or ma k e improper promises, and the circumstances of Spicer’s
confinement were not oppressive. At all times, the informant acted as a friendly confidante or as an older figure familiar with gang and prison life , which d id not create a coercive environment

. ( See, e.g., People v. Rodriguez (2019) 40 Cal.App.5th 194, 198

– 199 [rejecting contention that defendant was coerced because
informant posed as an older, well

- connected gang member]; People v. Linto n (2013) 56 Cal.4th 1146, 1178 [questioners did not

use aggressive, hostile, or threatening tone; interrogation not coercive] .) Further, while Spicer was young, just 18 years old

, he was nonetheless legally an adult

, and the record gives no reason to suspect he suffer ed from any physical or mental disability, or that his mental acuity was lacking. To the contrary, Spicer had

some familiarity with the juvenile criminal justice system, and things he said during the Perkins operation showed some level of sophistication. F or example, Spicer said he would stick to his story regarding how his backpack ended up in the car and he
understood the limits of what the police knew. We therefore do

not agree that Spicer’s youth alone is enough to show that his
will was over come

.15 B. F rederick

F ocusing on that part of Spicer’s statement identifying him,
F rederick argues that the statement was hearsay without exception. 16 We disagree.

1. Declarations against penal interest
The general hearsay rule is that e vidence of a statement
made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated is
inadmissible

. (Evid. Code, § 1200, subds. (a)

, (b).) An exception
is for a statement against the declarant’ s penal interests. ( Id.

, § 12 30 ; see generally People v. Chhoun (2021) 11 Cal.5th 1, 42

– 43 .) The rationale underlying th is declaration

- against

- penal

interest exception is that person s who implicate themsel ves criminally give reasonable assurance of the v eracity of their

statements . ( People v. Grimes (2016) 1 Cal.5th 698, 711 ( Grimes ) .) For the exception to apply, the declarant must be unavailable, the declaration must be against the declaran t’ s penal interest when made

, and the declaration must be sufficiently reliable to warrant admission . ( Ibid. ) To determine the statement’s trustworthiness, the court may consider the
circumstances in which it was made

, the declarant’s possible
motive , and the declarant’s relationship to the defendant . ( Ibid. ) We review a trial court’s ruling under Evidence Code section 1230 for abuse of discretion. ( Grimes

, supra , 1 Cal.5th at pp. 711

– 712.)

16 The People argue that Frederick did not object to the statement on this ground. Ev en if he did not, we would address the issue as it affects his substantial rights. ( § 1259.)16 Frederick argues that Spicer’s statement incriminating
Frederick w as not against Spicer’s penal interest because when Spicer made th e statement, Spicer had already incriminated himself as the shooter. Therefore, naming Frederick did not expose Spicer to any additional or more serious c harge or punishment than Spicer already faced. In making this assertion, Spicer relies on the rule established in People v. Leach (1975) 15 Cal.3d 419, 441, that Evidence Code section 1230 does not permit
the admi ssion of any statement or part of a statement that does not specifically disserv e the declarant’s interests. Our Supreme Court in Grimes

, supra , 1 Cal.5th at pages 713 to 714, clarified the Leach rule , noting it usually applies so as to exclude statements made when a declarant inculpates others to shift the blame or to curry favor

. (See also Williamson v.
United States (1994) 512 U.S. 594, 600 [exception does not authorize admitting portion of third party’s out

- of

- court confession tending to shift blame to defendant].) T he Leach rule cannot be applied by rote but instead requires a contextual approach. Grimes , at page 715, thus observed it had applied the
Leach rule to bar admission of a third party’s self

- serving
confession that shift ed responsibility to others but had also applied it to allow admission of “portions of a confession that, though not independently disserving of the declarant’s penal interests, also are not merely ‘self

- serving,’ but ‘inextricably tied to and part of a specific statement against penal interest.’ ” ( Grimes , at p. 715.) In sum, the exception’s nature and purpose “does not require courts to sever and excise any and all portions of an otherwise inculpatory statement that do not ‘further incriminate’ the declarant. Ultimately, courts must consider each statement in context” to answer whether the statement, even if17

not independently inculpatory of the declarant, is nevertheless against the declarant’s interest such that a reasonable person in the declarant’s position would not have said it unless tru e. ( Grimes , at p. 716.) Applying this contextual approach here, Spicer’s statement identifying Frederick was against Spicer’s penal interest. The

statement was not self

- serving , did not minimize Spicer’s role in the crimes, and did not shift blame. ( See, e.g., People v. Samuels (2005) 36 Cal.4th 96, 1 20

– 1 21 [declarant’s statement that defendant paid him to kill victim admissible because it was not exculpatory, self

- serving or collateral] ; People v. Cortez (2016) 63 Cal. 4th 101, 128 [declarant’s statem ent did not suggest he was trying to improve his situation with police] .) Rather, the

statement incriminated Frederick and Spicer. (See, e.g., People v. Greenberger (1997) 58 Cal.App.4th 298, 335 [statement inculpating declarant as shooter and defendant as driver admissible].) Nor was the statement collateral. Instead, it was inextricably tied to the rest of Spicer’s statement. That is, Spicer
had given some bare details of the crime : he admitted being involved in a “hot one” (a murder) and the “get down” ; he got rid of the gun ; and he was hanging out of the window, ap parently
with his hoodie on. Although i t was reasonable to infer from this that Spicer was the shooter

, the extent of his involvement and
level of criminal culpability w ere not certain. Spicer’s statement that Frederick was with him increased Spicer’s le vel of criminal culpability because Frederick was also a Bounty Hunter gang member and the murder victim was a rival gang member

. Therefore, although Spicer might not have been intimately familiar with the intricacies of the gang enhancement statute and18

that his admission increased the chances of its applicability, it is
reasonable to infer that Spicer would have understood that committing a gang

- related crime with a fellow gang member

m ight lead to more adverse consequences and punishment . ( See
Grimes

, supra , 1 Cal.5th at p. 718 [declarant’s unfamiliarity with intricacies of death penalty law did not negate inference he understood committing murder on his own would be punished more severely than play ing lesser role in murder ] ; see also id. at p. 717 [ statement s d on’t have to significantly enhance personal liability to be admissible ] .) Spicer’s admission that he committed the crimes with a fellow gang member was therefore against his penal interests. For these reasons, People v. Gallardo (201 7) 18 Cal. App. 5th 52, cited by Frederick

, is distinguishable. The court in that case
found the declarant’s statement unreliable because he had made conflicting statements about his involvement in the crimes, he
had repeatedly tried to mitigate his own blameworthiness, and the undercover informants asked leading or na rrative questions
in which th ey prompted specific answer s

. ( Id. at pp. 74

– 75.) In
contrast, there was no conflict in Spicer’s story, he did not try to mitigate his blameworthiness, and the informant did not exert any untoward pressure on Spicer to get hi m to name Frederick or suggest to Spicer that Frederick was involved

. Frederick , however, argues that even if the statement was against Spicer’s penal interests, the statement was unreliable. We do not agree. Although Spicer wasn’t speaking in the comf ort of his home to a close friend, Spicer did not know he was speaking to a confidential informant . As far as he knew, he was talking to an older

, experienced fellow gang membe r who m he
had no reason to distrust. Frederick also suggests that Spicer19

implicated him because Spicer wanted to exculpate his other cousin, Mock. It is unclear why Spicer would want to incriminate one family member over another but, in any event, Spicer had no
motive to lie to a person he would have perceived to be a friendly
fellow inmate. If Spicer wanted to exculpate Mock, he could have
done so without in criminating Frederick. Spicer’s statement therefore had sufficient indicia of reliability to satisfy the exception’s second prong. The trial court did not abuse its
disc retion in admitting the evidence. For the same reasons, we reject Frederick’s argument that the trial court abused its discretion by not excluding the
statement under Evidence Code section 352. Spicer’s statements were highly probative

, and the resulting prejudice was simply that the statements were damaging. However, prejudicial in this context is not synonymous with damaging. ( People v. Karis (1988) 46 Cal.3d 612, 638.)

2. Bruton
Frederick also contends that admitting Spicer’s statement
violated Freder ick’s Sixth Amendment right to confront witnesses
under Bruton v. United States (1968) 391 U.S. 123, 127. Broadly stated, Bruton applies when a facially incriminating statement of a nontestifying codefendant is introduced at their joint trial. (See generally People v. Gallardo

, supra , 18 Cal. App. 5th at p. 68.) However, Bruton applies only to testimonial hearsay statements. ( Peop le v. Cortez

, supra , 63 Cal.4th at p. 129.) Spicer’s
statements to the confidential informant were not testimonial. ( Davis v. Washington (2006) 547 U.S. 813, 825 [statements unwittingly made to government informant not testimonial]; accord, People v. Fay ed

, supra , 9 Cal.5th at p. 169.) Therefore, as Frederick acknowledges

, Cortez forecloses his claim

.20

II. Admission of Isaiah’s identification of Spicer
Spicer contends that the trial court prejudicially erred in admitting evidence that Isaiah identified him as the shooter. Spicer thus appears to argue that Quennisha’s testimony about the Instagram profile page, Detective McCoy’s testimony about
his conversation with Quennisha , and all of Isaiah ’s statements to the detective about the shooting should have been excluded
because they culminated in a suggestive identification procedure

. As an initial response to this, while Spicer object ed to the Instagram photo

, he concedes he did not object to the other
evidence and that any issue as to that evid ence has not been preserved for appellate review. But because Spicer also argues
that his counsel’s failure to object to the evidence constituted ineffective assistance of counsel, he urges us to analyze the
matter in that context. T o establish ineffecti ve assistance of counsel, a defendant must show that counsel ’ s representation fell below an objective standard of reasonableness under prevailing professional norms and that counsel ’ s deficient performance resulted in prejudice, that is, there is a reasona ble probability
that but for counsel ’ s failings defendant would have achieved a
more favorable result. ( People v. Bell (2019) 7 Cal.5th 70, 125 ; Strickland v. Washington (1984) 466 U.S. 668, 687

– 688 .) Spicer fails on the first prong because his counsel di d not

err by failing to object to the identification evidence

. Spicer ’s specific claim of error appears to be that “the identification procedure” was unduly suggestive

, and Isaiah ’s identification of Spicer as the shooter was unreliable. To “ determine whether the
admission of identification evidence violates a defendant ’ s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so,21

(2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness ’ s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the
identification.” ( People v. Cunningham (2001) 25 Cal.4th 926, 989.)
What Spicer means by “identification procedure” is unclear. Spicer seems to lump all identification evidence

— e.g., the Instagram photograph and Quennisha’s and Isaiah’s statements
that “Jesse” was the shooter

— under the misnomer of “identification procedure.” But t he only id entification procedure instigated by law enforcement was the photographic six

- pack Detective McCoy showed to Isaiah. The Instagram photograph and Isaiah’s and Quennisha’s statements to the detective were
what led the detective to include Spicer’s photogra ph in the six

pack. It is therefore unclear under what theory the Instagram photograph and the witnesses’ statements about it should have
been excluded.
As for th e photographic six

- pack, Spicer suggests it was unduly suggestive because it amounted to a single person show

up. That is, Isaiah had already identified Spicer from the Instagram photo, so of course Spicer stood out in the photographic six

- pack. But , as we have said, what led the police
to incl ude Spicer in that six

- pack was evidence

— including
Isaiah’s own statements

— that Spicer was involved in Denzel’s
murder. It is wholly unclear how evidence Isaiah provided to the police that Spicer was the shooter unduly suggested to Isaiah to22

select Spicer or tainted the six

- pack

. ( Cf., People v. Slutts (1968) 259 Cal.App.2d 8 86 , 889

– 891 [draw ing beard on defendant’s photograph improperly suggest ive ] .) Analogizing the six

- pack here to a single person show

- up is inapt , and t he identification
evidence did n ot render the photographic six

- pack unduly suggestive. Rather, the jury was able to evaluate how Spicer ended up in the photographic six

- pack and could have, but apparently did not, discount that evidence

. I II

. Admission of evidence Spicer was on probation
Spicer contends that references made during the Perkins operation that he was on probation violated his right to a fair
trial. We disagree.

A. Additional background
Before trial, Spicer’s counsel objected to any references
made during the Perkins operation about Spicer being on probation. The prosecutor argued that the references provided context, showing how the confidential informant built rapport with Spicer, and that Spicer was not interrogated. Th e trial court
said it would not allow Spicer ’s “ juvenile probation to come into play” but also w ould not require the People to “take out this word and that word.” “I think in the big picture he was in fact on probation in some way. I’m not going to allow the People to get
into the details of what he was on probation for as a juvenile or what that juvenile sustained petition was about.

. . . [¶] But when I’m looking at this and trying to do . . . [a] 352 analysis, I think the probative value of the transcript, the statements in [their] entirety gr eatly outweigh [ ] any prejudicial effect.” The Perkins operation was played for the jury, and during it, the confidential informant first raised the notion of probation.23

After Detective McCoy came into the cell and said he would return in a few minutes to talk about Poppy getting killed, the confidential informant observed that Spicer was there for “no probation violation.” When Spicer said the police had no evidence, the confidential informant said, “You never know,” because people talk. Spicer replied, “Man shit. I aint going out like that. Shit. About to get violated though. ” When the

c onfidential informant asked, “ What, on a hot one? ” Spicer said,

“ Hell yeah.” Later, after the two men discussed details of the murder,

t he confidential informant told Spicer he “wouldn’t even give a
fuck about a violation

, ” that Spicer should take a violation and “run with it,” and Spicer should tell the police he had weed in his backpack and somebody snatched it

— “You just got to use your head, but you have to take a violation or a case.” Spicer replied, “Violation,” and the confidential informa nt agreed that he too “would take a violation. But you

— you on juven ile probation” and, “Fuck that. You on

— you now on probation. Just say you
catch a violation.” The confidential informant then explained that by the time Spicer got processed on a violation he could be released, and then “you’re off the juvenile shit.” The confidential informant exhorted that it was better to deal with probation, to “run along with that probation violation shit, and be happy.”

B. The trial court did not abuse its discretion.
Only relevant evidence is admissible. ( Evid. Code, § 350.)
Relev ant evidence is “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.” ( Id.

, § 210.) Generally, evidence of prior criminal acts is inadmissible to show24

a defendant ’ s disposition to commit such acts. ( Id. , § 1101,
subd. (a).) However, evidence that a person committed an uncharged crime may be admitted to prove something other tha n the defendant ’ s character, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, as well as to attack or support the credibility of a witness. ( Id.

, § 1101, subd s. (b)

, (c) .) Evidence that a defendant was o n probation or parole may have probative value, and the trial court can take measures to reduce the risk of undue prejudice from
admi tting such evidence. ( People v. Fuiava (2012) 53 Cal.4th 622, 667

– 668 [defendant ’ s prior convictions and parole status
adm issible to establish that motive for shooting at officers was to avoid arrest].) Although admitting evidence of a defendant ’ s prior criminality could prejudic e the defendant ’ s case and render suspect the outcome of the trial , whether to admit such evidence
rests in the trial court’s sound discretion. ( People v. Harris (1994) 22 Cal.App.4th 1575, 1580

– 1581 ; see, e.g., People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 .) Here, the People argue the evidence was not admitted

u nder Evidence Code section 1101; instead, the evidence was admitted to give context to Spicer’s statements and to show they
were voluntar ily made

. While that wa s certainly the basis for the People ’s argu ment why references to probation should not have
be e n redacted, it d id not eliminate the danger that references to probation could suggest Spicer had committed a prior crime. Notwithstanding that danger, the trial court acted within its
discretion in admit ting the references to probation. Re viewing the Perkins operation as a whole, it is clear why the trial court did not agree that all references to probation should be redacted.25

As the People argued, the references did give context to the Perkins operation an d to Spicer’s statements. T he confidential informant continually referred to probation in the context of advising Spicer to take a probation violation

. Specifically, t he confidential informant told Spicer to say he had been selling weed and somebody took his backpack containing the weed , apparently to explain how the backpack ended up in the car

. The confidential informant thus was building rapport with Spicer and suggesting what Spicer could do to limit his criminal liability

. Even if the trial court er red in admitting references to Spicer’s probationary status, any error was harmless because it is not reasonably probable a result more favorable to him would have resulted in the absence of any error. ( People v. Mullens (2004) 119 Cal.App.4th 648, 652, 6 59 [admission of evidence prohibited by Evid. Code, §§ 352

, 1101 reviewed under harmless
error standard of People v. Watson (1956) 46 Cal.2d 818, 835

– 836 ].) Isaiah thought the shooter looked like a boy he knew named Jesse. When shown a photograph of Spic er from Instagram and the photographic six

- pack

, Isaiah said he was the shooter. Independent of all this, items belonging to Spicer

— including his identification

— were in the car used in Denzel’s murder and the attempted murder of Neal. Spicer’s fingerprin ts were in that car. And the references to probation were hardly the most damning thing s said during the Perkins operation

. Spicer
admitted he was involved in Denzel’s murder and that he personally got rid of the gun . Spicer also confirmed details about the crimes a participant would know: the shooting was committed during the daytime , and the gun used was a Glock

, which aligned with forensic analysis of cartridges found at the26

crime scenes. We therefore cannot find that referenc es to Spicer being on probation prejudiced him.
F or the same reasons, admi tting the evidence did not
render Spicer’s trial fundamentally unfair. (See generally Estelle
v. McGuire (1991) 502 U.S. 62, 70; People v. Partida (2005) 37 Cal.4th 428, 439 [ even incorrect evidentiary ruling denies a defendant due process of law only if it makes trial fundamentally unfair].)

IV. Sufficiency of the evidence

Both defendants contend that the evidence was insufficient to support the jury’s verdicts. We disagree.
This contention requires us to “ ‘review the entire record in the light most favorable to the judgment to determine whether it
contains substantial evidence

— that is, evidence that is reasonable, credible, and of solid value

— from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation]. We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from
the evidence. [Citation]. If the circumstances reasonably justify
th e trier of fact ’ s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a
witness’s credib ility. ’ ” ( People v. Covarrubias (2016) 1 Cal.5th 838, 890.) Under this standard of review, we now explain why the evidence was sufficient to support Spicer’s and Frederick’s
convictions.27 A. Spicer
Spicer was convicted of murder, attempted murder, and shooting from an occupied vehicle

. Murder is the unlawful killing of a person with malice aforethought

. (§ 187, subd. (a)

. ) Attempted murder “requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing
th e intended killing.” 17 ( People v. Lee (2003) 31 Cal.4th 613, 623.) Finally, any “person who willfully and maliciously discharges a firearm from a motor vehicle at another person other than an occupant of a motor vehicle is guilty of a felony.” (§ 26100,
subd. (c).) The evidence was more than sufficient to support Spicer’s convictions of these crimes. Isaiah identified Spicer as the shooter, saying he recognized Spicer because Spicer had dated a girl, Raja, from the projects. Instagram messages confirmed Spicer had dated Raja , lending credibility to Isaiah’s
identification . Spicer made incriminating statements to the
confidential informant that he was involved in a “ hot one ” and provided accurate details about the crime

, i.e., the murder occurred during the daytime and the gun used was a Glock. Spicer said he got rid of the gun; in fact, the police never recovered the gun. Spicer’s fingerprints and items with his name
on them (including his school identification) were in the car used to commit the crimes. A cell phone linked to Spicer was in the area the crimes were committed around the time they were
committed. When Spicer was arrested

, he had a new cell phone
with a differe nt number than the one he had, and he had

17 Spicer does not address the sufficiency of the evidence to support the premeditation finding.28

terminated the account associated with his old cell phone , which shows he was trying to get rid of anything tying him to the
crimes

. Spicer , however, points out that at trial Isaiah recanted his prior identificatio ns and statements, saying he did not remember telling the detective anything. However, a witness’s out

- of

- court identification that the witness later recants at trial may still support a convicti on . ( People v. Cuevas (1995) 12 Cal.4th 252,
275

– 277 .) And there was an explanation for Isaiah’s failure to remember any of his prior statements to the detective: the Gordon family, including Isaiah and Denzel, were gang members

. T he gang expert testified that crime victims who are gang
members often will not s nitch because it could put their famil ies in danger. (See, e.g., id. at p. 268 [fear or intimidation may explain witness’s recantation of prior statement].) Spicer points to other supposed weaknesses in the evidence.
Isaiah said his back was to the shoot er, the shooter “kind of” looked like a boy named Jesse, Isaiah couldn’t really see the
shooter’s face , he only caught a glimpse of the shooter’s face, and both Isaiah and Quennisha were guarded about who first showed them Spicer’s Instagram photograph. And

, although Spicer’s fingerprints and backpack were in the car, it is impossible to tell when they were put there. However, o n appeal, we may not reweigh evidence; instead, i t was the trier of fact’s job to evaluate and weigh it

. (See generally People v. Covarrubias

, supra , 1 Cal.5th at p. 890; Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67

– 68 [jury may weave cloth of truth from evidence].) Although Spicer also argues that there was insufficient evidence to support his conviction for the crimes as an aider and abettor, he was not prosecuted as such. Rather, the prosecution ’s29

theory was Spicer was the shooter, and the jury found personal gun use allegations true as to him and principal gun use allegations true as to Frederick. Spicer’s conviction therefore was
not based on an aider and abettor theory of liability, but even if it were, the above

- cited evidence would be more th an sufficient
evidence of it as well.

B. Frederick
The prosecution’s theory as to Frederick was that he drove the car, and so he was prosecuted as an aider and abettor. A person aids and abets the commission of a crime when the person, acting with (1) knowledge of the perpetrator’s unlawful

purpose , and (2) the intent or purpose of committing, encouraging, or facilitating the co mmission of the offense

, (3) by act or advice aids, promotes, encourages, or instigates, commission of the crime. ( People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) Factors relevant to aiding and abetting are presence at the scene of the crime, companionsh ip, and conduct before and after the offense. ( Ibid. )
T he key piece of evidence that Frederick aided and abetted these crimes came from Spicer, and, as we have said, Spicer’s statements were admissible against Frederick. When the
informant asked the name of Spicer’s cousin that “went with you,” Spicer responded, “Red” and “Akkeli.” Red is Frederick’s
moniker. Such t estimony of a single witness may be sufficient to support a conviction unless that testimony is physically impossible or inherently improbab le. ( People v. Young (2005) 34 Cal.4th 1149, 1181 .) The remaining evidence against Frederick might not have been sufficient by itself to show he was with Spicer , but when combined with Spicer’s statement it buttressed
th at conclusion . Frederick’s prints were in the stolen car used to30

commit the crimes , and so were Spicer’s prints

. Frederick’s cell phone was in the general area of the crime scenes when the crimes were committed, and so was Spicer’s cell phone. Frederick was a Bounty Hunter gang member, and so was Spicer. That Frederick’s prints were not found in the driver’s area
and that it c annot be ascertained when his prints were left in the

car were matters for the jury to consider in evaluating the
evidence. (See generally People v. Covarrubias

, supra , 1 Cal.5th at p. 890.) Similarly, it was the jury’s task to evaluate the strength of e vidence that the cell phone that was in the general area of the crimes when they were committed belonged to
Frederick. Also, even though Isaiah could not tell how many people were in the car, the jury could reasonably infer it was just two because Spicer identified only Frederick as being in the car with him that day. The evidence being sufficient that Frederick was present during the commission of the crimes, it was also sufficient to establish the elements of aiding and abetting. Frederick and Spicer we re members of the same gang. Their gang membership, coupled with the gang expert’s testimony, showed that they were putting in work, i.e., committing crimes for their gang ; hence, Frederick knew of Spicer’s unlawful purpose

. As the driver,
Frederick faci litated and promoted that unlawful purpose. Frederick not only drove Spicer into rival gang territory, but the video shows the car slowing down as Spicer hangs out the
window to shoot at Denzel and Isaiah

. Frederick therefore
maneuvered the car in a mann er so that Spicer could shoot from
the window. (See, e.g., In re Jose D. (1990) 219 Cal.App. 3d 582,
5 8 5 [defendant aided and abetted crime by maneuvering car so accomplice could shoot victim].)31 Also, in one of his statements, Isaiah said the driver called out, “Bounty Hunters.” Calling out his gang’s name just before Spicer shot Denzel evidences Frederick’s intent to aid the crime. Frederick then drove Spicer several miles away, to where Neal was parked, so that Spicer could again shoot at someone

. That two crimes were committed just miles and about 30 minutes apart from each other severely undercuts the notion that
Frederick was merely dozing in the car’s back seat or busy smoking dope, as he suggests. Instead, the evidence shows that
Frederick actively aided and abetted his cousin and fellow gang
member to commit the crimes.

V. Late discovery
Spicer contends that the video

— not the audio

— of the Perkins operation should have been excluded because the video was not produced until after trial comme nced or, alternatively, the trial court should have instructed the jury with CALCRIM
No. 306 18 on late discovery. We disagree

. A. Additional background
Spicer’s defense counsel objected under section 1054 to the video of the Perkins operation because she ha d not been told of its existence until after trial began and it had not been turned

18 The instruction states that parties must disclose their evidenc e to the other side before tri a l within the time limits set by law

, and failure to do so may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. The instruction goes on to state that a n attorney failed to timely disclose evidence, so in “evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.” (CALCRIM No. 306.)32

over until the end of the first day of witness testimony. The prosecutor represented that she learned about the video’s existence the Friday before starting trial, immedia tely let defense counsel know about the video, and turned it over a week later, on receiving it herself. She further explained that Detective McCoy
had not known about the video either. The trial court overruled the objection, saying it would not preclud e the People from playing the video although it might consider other sanctions. The video was played for the jury. Thereafter, defense counsel asked that the video not be admitted into evidence and that the trial court instruct the jury
with CALCRIM No. 306. The trial court found that the defense was not disadvantaged by the late discovery and declined to give
CALCRIM No. 306.

B. No discovery violation occurred.

Before trial, the prosecution must disclose to the defense categories of evidence in the prosecution’s possession or known to be in the possession of investigating agencies. (§ 1054.1.)
Evidence that must be disclosed includes a defendant’s
statements and all “ relevant real evidence ” obtained as part of the investigation. ( Id. , subds. (b), (c).) If the prosecution fails to compl y with its discovery obligations, a trial court may make any order necessary to enforce the discovery statutes, including informing th e jury of any untimely disclosure. ( People v. Verdugo (2010) 50 Cal.4th 263, 279

– 280.) Disclosures shall be made at least 30 days prior to trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. (§ 1054.7.)
“If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a33

disclosure should be denied, restricted, or deferred.” ( Ibid. ) We
review a trial court’s ruling on whether to impose a discovery sanction for abuse of discretion. ( People v. Ayala (2000) 23 Cal.4th 225, 299

. ) The trial court did not abuse its discretion either by refusing to exclude the video or to give CALCRIM N o . 306. Firs t, the prosecutor and the investigating officer did not know the video existed until just before trial. Immediately on receiving it, the prosecutor gave it to the defense. On appeal, Spicer incorrectly interprets statements the prosecutor made as stating
she turned it over one week after getting it, but that interpretation is incorrect , and nobody below , including defense
counsel

, interpret ed her comments that way. Thus, the prosecutor complied with section 1054.7, because she told defense
counsel about the video when she discovered its existence and turned it over to them as soon as she got it. (See People v. Verdugo

, supra , 50 Cal.4th at p . 287 [prosecutor produced notes
when he learned about them during trial; no discovery violation found].) Second, to prevail on a claim alleging a violation of discovery statutes, the appellant must show a reasonable probability the result of the proceedin gs would have been different had the evidence been timely disclosed. ( People v. Mora and Rangel (2018) 5 Cal.5th 442, 467.) Spicer argues that the late disclosure prevented him from developing a defense. However, i t is unclear why that would be so. The defense had the audio of the Perkins operation long before trial. A crucial
difference between the audio and the video was the latter showed Spicer pulling his hoodie over his head, suggesting he covered his
face when he shot Denzel. Yet, the prosecutor represented that34

when the audio was turned over, a “supplemental” (which likely is a reference to a report) contain ing the detective ’s observation that Spicer pulled up his hood was also turned over . Therefore, even before it received the video, the defe nse knew that Spicer
had covered his head

. (Cf. People v. Filson (1994) 22 Cal.App.4th 1841, 1848

– 1852 [failure to disclose defendant’s recorded
statement reversible error because relevant to defense he was too intoxicated to form specific intent necessary to commit the crime ], disapproved on another ground by People v . Martinez (1995) 11 Cal.4th 434, 452

. ) Finally Spicer cites Brady v. Maryland (1963) 373 U.S. 83, which requires the prosecution to disclose to the defense all exculpatory , material evidence known to the prosecution team

. T he video was not exculpatory ; it was incriminating. Further, the prosecutor did disclose the video, albeit not within 30 days of
trial

. Accordingly, n o Brady violation occurred. (See, e.g., People v. Verdugo

, supra , 50 Cal.4th at p. 287 [no Brady error where
evidence not favorable to defense and was disclosed at trial].)

V I

. Assembly Bill No. 333 19
As we have said, the jury found gang allegations true against both defendants as to all counts

. However, Assembly Bill No. 333, which took effect on January 1, 2022, made significant

ame ndments to the gang statute, section 186.22. The legislation redefined “pattern of criminal gang activity” in five respects. (1) Previously, the predicate offenses had to have been committed, or convictions had to have occurred, within three years of ea ch other. Now, additionally, the last offense must have

19 The parties submitted supplemental letter briefs on Assembly Bill No. 333 and other recently

- enacted laws.35

occurred within three years of the date the current offense is alleged to have been committed. (§ 186.22, subd. (e)(1).) (2) The amended law now states that the predicate crimes must have
been com mitted by “members,” not simply “persons,” as the law had formerly stated. ( Ibid. ) (3) The amendments impose a new requirement that the predicate offenses “commonly benefited a criminal street gang, and the common benefit of the offense is
more than reputational[.]” ( Ibid. ) (4) Looting, felony vandalism, felony theft of an access card or account, and other identity fraud crimes no longer qualify as predicates, while other offenses (kidnapping, mayhem, torture, and felony extortion) now do so qualif y. ( Ibid. ) (5) The currently charged offense may not be used to establish the pattern of criminal gang activity. ( Id. at subd. (e)(2); see People v. Lopez (2021) 73 Cal.App.5th 327, 345 ( Lopez ).) Assembly Bill No. 333 also modified the definition of
“c riminal street gang.” Previously, section 186.22 stated that a criminal street gang was “any ongoing organization, association, or group” of three or more persons, whether formal or informal. That language has been changed to “an ongoing organized
associ ation or group of three or more persons, whether formal or informal.” (§ 186.22, subd. (f), italics added.) The previous definition required that the gang’s “members individually or collectively engage in, or have engaged in,” the pattern of criminal gan g activity. (Former § 186.22, subd. (f), italics added

. ) Now, the word “individually” has been excised and the gang’s members must “collectively” engage in, or have engaged in

, the pattern of criminal gang activity. (§ 186.22, subd. (f).) The
amendment also added a new subdivision that clarifies what it means to benefit the gang: “As used in this chapter, to benefit,36

promote, further or assist means to provide a common benefit to members of a gang where the common benefit is more than reputational. Ex amples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival,
or intimidati on or silencing of a potential current or previous
witness o r informant.” (§ 186.22, subd. (g).)
Defendants argue that t he y are entitled to the ameliorative
benefits of the amendments to section 186.22 , and the People

agree . Courts of Appeal that have considered the issue have concluded that Assembly Bill No. 33 3’s amendments to section 186.22 apply retroactively where, as here, defendants ’ conviction s

w ere not final before the amendments took effect. (See, e.g., Lopez, supra, 73 Cal.App.5th at pp. 343

– 344; People v. E.H. ( 2022 ) 75 Cal.App.5th 467, 478 ; People v. Sek ( 2022 ) 74 Cal.App.5th 657, 667 ; People v. Vasquez ( 2022 ) 74 Cal.App.5th 1021, 1032 ; see generally In re Estrada (1965) 63 Cal.2d 740, 745 [ absent contrary evidence, an amendment reducing punishment applies retroactively to nonfinal judgments ]

. ) Under this authority, Assembly Bill No. 333 retroactively applies to Spicer’s and Frederick’s case, which was not final when the amendments took effect. And, as the People further concede,
the evidence did not establish the new statutory requirements of section 186.22. There was no evidence, for example, that the two predicate offenses introduce d at trial benefited a criminal street gang in a way that was more than reputational. (§ 186.22,
subd. (e)(1).) Indeed, the jury was instructed, in accordance with the law in effect at the time, that the predicate offenses did not have to be gang

- related

. Given this evidentiary deficit, the true findings on the gang enhancements and the gang

- related gun use37

enhancements as to Frederick 20 must be reversed and the matter remanded to allow the prosecution the option of retrying the
enhancements and establis hing all elements required by Assembly Bill No. 333. 21
Defendants , however, also argue that section 1109, which was added by Assembly Bill No. 333 , applies. S ection 1109

, subdivision (a), provides, inter alia, that if requested by the defense, a charged section 186.22, subdivision (b) or (d) enhancement “shall be tried in separate phases,” with the question of guilt of the underlying offense to be determined first and the truth of the gang enhancement tried thereafter. The People’s concession regarding retroactivity does not extend to
section 1109 , and we need not decide whether it is retroactive
because remand will give defendants an opportunity to try the gang allegations separately

. (S ee generally People v. Perez (2022) __ Cal.App.5th __, __ [2022 WL 1302282] [section 1109 is not retroactive]; but see People v. Burgos (2022) 77 Cal.App.5th 550 [section 1109 is retroactive].) But to the extent defendants contend that admission of the ga ng evidence nonetheless rendered their trial fundamentally unfair, we reject that
contention. I t is not reasonably probable that defendants were prejudiced by any failure to bifurcate the gang allegations. (See,

20 As we have said, the jury found true gun use enhancements as to Frederick under section 12022.53, subdivision (e)(1), which applies to any principal in the commission of an offense if “(A) The person violat ed subdivision (b) of Section 186.22. (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d).”

21 As remand for a potential retrial of the gang enhancements is required, we need not decide whether any of the other n ew elements of section 186.22 were met.38

e.g., People v. E. H

. , supra , 75 Cal.App.5th at p. 480 .) The gang evidence was inextricably tied to and relevant to prove the underlying charges , and in particular, motive and intent . (See generally People v. Hernandez (2004) 33 Cal.4th 1 040, 1049

– 1050 [gang evidence often relevant to charged offense].)

VI I

. A dditional ameliorative recently

- enacted laws
Defendants may be entitled to the benefits of other recently

- enacted ameliorative laws: Assembly Bill No. 5 18
, Senate Bill No. 567, and Assembly Bill No. 124.
When defendants were sentenced, section 654 provided that a criminal act punishable in different ways by different provisions of law must be punished under the provision providing
the longest potential term of imprisonment. Our legislature has since passed Assembly Bill No. 518 (Stats.2021, ch. 441), effective January 1, 2022. It amended section 654 , and, a s amended, the section now provides that an act or omission punishable in
different wa ys by two different provisions of law, as in this case, may be punished under either provision. Hence, the longest term of imprisonment is no longer mandatory. Also effective January 1, 2022 are amendments to section 1170 made by Senate Bill No. 567 (2021

– 2022 Reg. Sess.) (Stats.2021, ch. 731) and Assembly Bill No. 124 (2021

– 2022 Reg. Sess.) (Stats.2021, ch. 695 )

. As relevant here, s ection 1170, subdivision (b), now makes the middle term the presumptive
sentence unless certain circumstances exist. And wh ere the defendant was a youth, meaning under the age of 26, the low term shall be imposed unless the trial court finds that aggravating circumstances outweigh mitigating ones such that imposing the low term would be contrary to the interests of justice. ( § 1170, subd. (b)(6).)39 The People concede that these changes in law also are retroactive and that they potentially confer ameliorative benefits to Spicer and/or Frederick

. 22 For the reasons we have discussed in regard to the retroactivity of Assembly Bil l No. 333, we agree with the parties that the amendments made by Assembly Bill
No s

. 12 4 and 518 and Senate Bill No. 567 also apply retroactively. (See generally People v. Sek

, supra , 74 Cal.App.5th at p. 673 [Assembly Bill No. 518 is retroactive]; People v. Flores (2022) 73 Cal.App.5th 1032, 10 38

– 1039 [Senate Bill No. 567 is
retroactive ].)
Because w e are remanding for a possible retrial of the gang enhancements and a full resentencing ( s ee , e.g., People v. Bu ycks (2018) 5 Cal.5th 857, 893)

, the trial court shall resentence appellants in accordance with Assembly Bill No s

. 124 and 518
and Senate Bill No. 567 should they be relevant to any potential

sentence on remand

. VIII. Spicer’s custody credits.
Spicer was arrested on April 23, 2019 and originally sentenced on November 2, 2020. The trial court awarded him 551 days of actual custody credits but, as the People concede, he was entitled to 560 days.

DISPOSITION
The true findings on the gang allega tions are reversed as to Spicer and Frederick, the true findings on the principal gun use allegations are reversed as to Frederick, and Spicer’s and Frederick’s sentence s are vacated. The matter is remanded with

22 Frederick was over the age of 26 when he committed the crimes and therefore is not entitled to any benefit under newly

- enacted section 1170, subdivision (b)(6).40

the direction to the trial court to provide the People an opportunity to retry the section 186.22, subdivision (b), gang allegations under the law as amended by Assembly Bill No. 333. At the conclusion of any retrial on the gang allegations or on remand if the People elect not to retry the gang al legations, the
trial court shall resentence Spicer and Frederick and consider the potential applicability of Assembly Bill No s

. 124 and 518 and Senate Bill No. 567

. Any new abstract of judgment should reflect that Spicer has 560 actual days of custody cre dit, and any new abstract of judgment shall be forward ed to the Department of Corrections and Rehabilitation. In all other respects, the judgment s are affirmed. NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

EGERTON , J.

KIM, J. *

* Judge of the Los Angeles County Superior Cou rt, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.