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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

JESSE SPICER, et al.,

Defendants and Appellants.

B308931

(Los Angeles County

Super. Ct. No. TA148753)

APPEALS from judgments 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 General, Susan Sullivan Pithey, Assistant 
2

Attorney General, Paul M. Roadarmel, Jr., and Michael Katz, 

Deputy Attorneys 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 Gordon1lived at the 

Jordan Downs apartments in Watts. Both were members of the 

Grape Street Crips, and Denzel was known as Poppy.2 The 

Grape Street Crips dominated the area around Jordan Downs. 

1

 We 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, claimed 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 Street 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 restart, so Denzel 

went to get jumper cables. Meanwhile, Isaiah 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 parked 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 statements

Just hours after Denzel died, in the early morning of March 

28, 2019, Isaiah told Detective Peter McCoy what happened: a 

burgundy truck pulled up, “they” said “Bounty Hunters,” and 

they 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 this 

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 detective 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 now 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 

girl named Raja5from the projects, and she and Jesse would post 

videos that Isaiah had seen. Isaiah also said he told a friend6 he 

knew it was Jesse, and his friend found Jesse’s picture on 

Instagram, which he showed to Isaiah. From a photographic sixpack, 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 he had seen the shooter. She 

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 evidence

Video surveillance from the Jordan Downs complex 

captured 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 turned onto another street with the passenger still hanging 

out of the window.

Cartridge casings 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 on the Nissan Rogue, 

and a criminalist matched 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 There 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 phones 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 

bmbgbhrazy, 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 

account messaged Hoddiebhoy_Flocka: “Red want you.”

“Rajaah” also messaged the account, saying “Babe.” On March 

28, 2019, a message was sent to the account, “I hope you ain’t 

doin’ no dumb shit.” Another 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 the 

Instagram account was terminated the day Denzel was shot.

V. The Perkins10 operation

After he was arrested, Spicer was placed in a jail cell with a 

confidential informant11 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 was happening, Detective McCoy was 

surreptitiously watching through video monitors. Spicer had not 

been given Miranda12 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, but 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.” The confidential informant 

asked if “the shit went down” in the day or night, and Spicer said, 

“It was day time.” When 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 people were in the car and asked 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 informant 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?” Apparently in response, the video 

showed Spicer put on his hoodie. 

Under the guise of going to an interview, the confidential 

informant was removed from the cell so that Detective McCoy 

could tell him to drop the name of Spicer’s cousin, Twyman 

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 

there. 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 “Akkeli,” 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.

VII. Gang evidence

The People’s gang expert testified that the Bounty Hunter

gang has 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, making 

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 and 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 was also an active 

member of the Bounty Hunter gang, and his monikers were 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 conviction. Donald Ray Byrd was 

convicted of assault with a firearm, which occurred in December 

2017. He was a member of the Bounty Hunter gang during the 

investigation of that crime.
10

When presented with hypotheticals modeled on the facts of 

this case, the expert 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 instilled fear in the 

community, promoted the gang, and committing the two crimes 

in such a short span of time enhanced the gang’s reputation for 

violence.

VIII. Verdicts and sentences

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, the jury found true personal gun use allegations under

section 12022.53, subdivisions (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 

murders of Neal and Myers and of count 6 for shooting at an 

occupied vehicle.
11

the gun and gang enhancements on each count. On count 5, the 

trial court imposed 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

Both defense counsel moved 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 excluded. 

A. Spicer15

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 knowing 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 were designed to preserve the privilege during a 

police-dominated atmosphere, which can work to undermine a 

person’s will to resist and compel the person to speak when the

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 advantage of a 

suspect’s misplaced trust in someone the 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

boasting 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

found 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 custodial 
13

setting. In essence, Spicer’s argument is his statements were 

involuntary. On this issue, the question is whether his statement 

was 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 circumstance 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 

camera captured the shooting or there were witnesses, whether 

the shooting happened during the day or night, whether Spicer 

was hanging 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, 157, the defendant made incriminating statements 
14

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 his 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 make 

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 did 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. Linton (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 suffered 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. For 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 overcome. 
15

B. Frederick

Focusing on that part of Spicer’s statement identifying him, 

Frederick argues that the statement was hearsay without 

exception.16 We disagree. 

1. Declarations against penal interest

The general hearsay rule is that evidence 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., 

§ 1230; see generally People v. Chhoun (2021) 11 Cal.5th 1, 42–

43.) The rationale underlying this declaration-against-penalinterest exception is that persons who implicate themselves

criminally give reasonable assurance of the veracity 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 declarant’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. Even 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 was not against Spicer’s penal interest because when

Spicer made the statement, Spicer had already incriminated 

himself as the shooter. Therefore, naming Frederick did not 

expose Spicer to any additional or more serious charge 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 admission of any statement or part of a statement that does 

not specifically disserve 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].) The 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 shifted 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 if 
17

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 true. 

(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, 120–121 [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 statement 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, apparently 

with his hoodie on. Although it was reasonable to infer from this 

that Spicer was the shooter, the extent of his involvement and 

level of criminal culpability were not certain. Spicer’s statement 

that Frederick was with him increased Spicer’s level 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 and 
18

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 

might 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 playing lesser role in murder]; see also id. at

p. 717 [statements don’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 (2017) 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 narrative questions

in which they prompted specific answers. (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 him 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 comfort 

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 member whom he 

had no reason to distrust. Frederick also suggests that Spicer 
19

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 incriminating Frederick. Spicer’s statement 

therefore had sufficient indicia of reliability to satisfy the 

exception’s second prong. The trial court did not abuse its 

discretion 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 Frederick’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. 

(People 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. Fayed, 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 objected to the 

Instagram photo, he concedes he did not object to the other 

evidence and that any issue as to that evidence 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. To establish ineffective 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 reasonable 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 did 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 the only identification 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 photograph in the sixpack. It is therefore unclear under what theory the Instagram 

photograph and the witnesses’ statements about it should have 

been excluded.

As for the photographic six-pack, Spicer suggests it was 

unduly suggestive because it amounted to a single person showup. 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 include 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 to 
22

select Spicer or tainted the six-pack. (Cf., People v. Slutts (1968) 

259 Cal.App.2d 886, 889–891 [drawing beard on defendant’s 

photograph improperly suggestive].) Analogizing the six-pack 

here to a single person show-up is inapt, and the identification 

evidence did not 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. 

III. 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. The trial court 

said it would not allow Spicer’s “juvenile probation to come into 

play” but also would 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 greatly 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 

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

“Hell yeah.”

Later, after the two men discussed details of the murder, 

the 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 informant agreed that he too 

“would take a violation. But you—you on juvenile 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.) 

Relevant 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 show 
24

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 than 

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, subds. (b), (c).) Evidence that a defendant was on 

probation or parole may have probative value, and the trial court 

can take measures to reduce the risk of undue prejudice from 

admitting such evidence. (People v. Fuiava (2012) 53 Cal.4th 

622, 667–668 [defendant’s prior convictions and parole status 

admissible to establish that motive for shooting at officers was to 

avoid arrest].)

Although admitting evidence of a defendant’s prior 

criminality could prejudice 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 

under Evidence Code section 1101; instead, the evidence was 

admitted to give context to Spicer’s statements and to show they 

were voluntarily made. While that was certainly the basis for the 

People’s argument why references to probation should not have 

been redacted, it did 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 admitting the references to probation. Reviewing

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 and to Spicer’s statements. The confidential 

informant continually referred to probation in the context of 

advising Spicer to take a probation violation. Specifically, the 

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 erred 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, 659 [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 Spicer 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 fingerprints 

were in that car. And the references to probation were hardly the 

most damning things 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 the 
26

crime scenes. We therefore cannot find that references to Spicer 

being on probation prejudiced him.

For the same reasons, admitting 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 

the 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 credibility.’ ” (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 

the 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 different 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 identifications 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 conviction. (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. 

The gang expert testified that crime victims who are gang 

members often will not snitch because it could put their families

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 shooter, 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, on appeal, we may not 

reweigh evidence; instead, it 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’s
29

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 than 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 commission 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, companionship, and conduct before and 

after the offense. (Ibid.)

The 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 testimony of a single witness may be sufficient to 

support a conviction unless that testimony is physically 

impossible or inherently improbable. (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 

that conclusion. Frederick’s prints were in the stolen car used to 
30

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 cannot 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 evidence 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 were 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 facilitated 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 manner so that Spicer could shoot from 

the window. (See, e.g., In re Jose D. (1990) 219 Cal.App.3d 582, 

585 [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 commenced or, alternatively, 

the trial court should have instructed the jury with CALCRIM 

No. 30618 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 had 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 evidence 

to the other side before trial 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 an 

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, immediately 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 

preclude 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 

comply with its discovery obligations, a trial court may make any 

order necessary to enforce the discovery statutes, including 

informing the 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 a 
33

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 No. 306. First, 

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, interpreted 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 proceedings 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, it 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 that 
34

when the audio was turned over, a “supplemental” (which likely 

is a reference to a report) containing the detective’s observation 

that Spicer pulled up his hood was also turned over. Therefore, 

even before it received the video, the defense 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. 

The video was not exculpatory; it was incriminating. Further, 

the prosecutor did disclose the video, albeit not within 30 days of 

trial. Accordingly, no 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].)

VI. Assembly Bill No. 33319

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 

amendments 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 each 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 committed 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 

qualify. (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 

“criminal 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 

association 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 gang 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. Examples of a common benefit that are more than 

reputational may include, but are not limited to, financial gain or 

motivation, retaliation, targeting a perceived or actual gang rival, 

or intimidation or silencing of a potential current or previous 

witness or informant.” (§ 186.22, subd. (g).) 

Defendants argue that they 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. 333’s amendments to section 

186.22 apply retroactively where, as here, defendants’ convictions

were 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 introduced 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 use 
37

enhancements as to Frederick20 must be reversed and the matter 

remanded to allow the prosecution the option of retrying the 

enhancements and establishing 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. Section 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. (See 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 gang evidence nonetheless 

rendered their trial fundamentally unfair, we reject that 

contention. It 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 violated 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 new 

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 1040, 1049–1050 

[gang evidence often relevant to charged offense].)

VII. Additional ameliorative recently-enacted laws 

Defendants may be entitled to the benefits of other 

recently-enacted ameliorative laws: Assembly Bill No. 518, 

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, as amended, the

section now provides that an act or omission punishable in 

different ways 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, section 1170, 

subdivision (b), now makes the middle term the presumptive 

sentence unless certain circumstances exist. And where 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 Bill No. 333, we agree 

with the parties that the amendments made by Assembly Bill 

Nos. 124 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, 1038–1039 [Senate Bill No. 567 is 

retroactive].)

Because we are remanding for a possible retrial of the gang 

enhancements and a full resentencing (see, e.g., People v. Buycks

(2018) 5 Cal.5th 857, 893), the trial court shall resentence 

appellants in accordance with Assembly Bill Nos. 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 allegations 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 sentences 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 allegations, the 

trial court shall resentence Spicer and Frederick and consider the 

potential applicability of Assembly Bill Nos. 124 and 518 and

Senate Bill No. 567. Any new abstract of judgment should reflect 

that Spicer has 560 actual days of custody credit, and any new 

abstract of judgment shall be forwarded to the Department of 

Corrections and Rehabilitation. In all other respects, the 

judgments 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 Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.