Filed 8/17/23 P. v. Young CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

GALE JOSEPH YOUNG,

Defendant and Appellant.

 A161098

 (Contra Costa County

 Super. Ct. No. 05-192328-3)

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRANCE WEBB,

Defendant and Appellant.

 A161100

 (Contra Costa County

 Super. Ct. No. 05-192328-3)

THE COURT:

It is ordered that the opinion filed herein on July 25, 2023, be modified 

as follows:

1. On page 38, after the first phrase in the first full sentence on the 

page, beginning “Notwithstanding that defendants apparently failed to raise

this argument in the trial court,” add as footnote 27, the following footnote, 

which will require the renumbering of all subsequent footnotes: 

27 In a petition for rehearing, Young’s counsel 

asserts this theory was in fact presented to the trial 
2

court. He cites to a motion in limine filed by Webb’s 

counsel which advances this theory, but that motion in 

limine was not cited in his briefing on appeal. In any 

event, our observation that the argument apparently

was not raised in the trial court is of no consequence 

because we rejected the theory of admissibility on the 

merits.

There is no change in the judgment. 

Appellant Gale Joseph Young’s petition for rehearing is denied.

Dated: 

____________________________

HUMES, P.J.
Filed 7/25/23 P. v. Young CA1/1 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

GALE JOSEPH YOUNG,

Defendant and Appellant.

 A161098

 (Contra Costa County

 Super. Ct. No. 05-192328-3)

THE PEOPLE,

Plaintiff and Respondent,

v.

TERRANCE WEBB,

Defendant and Appellant.

 A161100

 (Contra Costa County

 Super. Ct. No. 05-192328-3)

In a joint trial, a jury convicted defendants Gale Joseph Young and 

Terrance Webb of first degree murder, conspiracy to commit murder, and 

active participation in a criminal street gang. The jury also made true 

findings on firearm and gang enhancements. The trial court sentenced 

defendants to life without the possibility of parole. 

On appeal, Webb contends the trial court violated his constitutional 

rights by seating jurors around the courtroom for social distancing purposes 

during the COVID-19 pandemic, and erred in admitting certain case-specific 
2

hearsay evidence through an expert witness in violation of People v. Sanchez 

(2016) 63 Cal.4th 665 (Sanchez). Young challenges the prosecution’s use of a 

peremptory challenge against an African-American juror and argues the trial 

court prejudicially erred in excluding certain third party culpability evidence. 

He also contends the judgment must be reversed in its entirety in light of 

Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333), which 

amended Penal Code1 section 186.22 to require proof of additional elements 

to establish an active participation offense or a gang-related enhancement. 

Young further asserts (1) insufficient evidence supported the lying-in-wait 

special circumstance finding, (2) the trial court committed various sentencing 

errors, and (3) the cumulative effect of multiple errors during trial requires 

reversal. Webb joins in all of Young’s arguments on appeal.2

We agree with both defendants that their convictions for active

participation in a criminal street gang and related enhancements must be 

reversed and vacated, and on remand the trial court must reduce their 

conspiracy to commit murder sentences to 25 years to life. On remand, the 

trial court must also exercise its discretion whether to stay defendants’ 

sentences on their murder or conspiracy terms pursuant to section 654. The 

judgments are otherwise affirmed. 

I. FACTUAL AND PROCEDURAL BACKGROUND

We summarize only those facts necessary to resolve the issues raised

on appeal. Additional relevant facts are included in the discussion below. 

1 All undesignated statutory references are to the Penal Code. 

2 Victoria Collins, Webb’s girlfriend, was charged in the same 

information and was tried with both defendants. Collins was convicted, 

however, only of possession of ammunition and did not appeal. 
3

A. Big Block Harbor Road Gang

In 2018, defendants Gale Joseph “Red Bone” Young and Terrance Webb 

were members of Big Block Harbor Road (Big Block), a criminal street gang

in San Francisco. Both men had been involved with the gang since they were 

young. Some other members of Big Block relevant to this case included 

Matthew Higginbotham, his brother, Michael,

3 and Charles “Buba/Prezi” 

Gardner. 

B. Shooting of Matthew Higginbotham

On July 24, 2018, Matthew was shot to death in Big Block territory. 

Matthew’s murder was captured on security camera footage. The video 

showed two individuals “sort of hanging around” who left and returned in a 

car. One of the two got out of the car, and walked up to Matthew, who was 

sitting in another car. The individual appeared to reach in and shake

Matthew’s hand, then with the other hand pointed a gun and shot him 

multiple times. The other person in the car also fired shots as they drove 

away. 

Webb and Matthew were close friends. Two days after Matthew’s 

murder, Michael and Webb spoke by telephone on a recorded jail call. 

Michael told Webb about his anguish over his brother’s death and shared his 

suspicion that someone knew something about it in advance. Webb told 

Michael that he knew “the actual story” of Matthew’s murder, including who 

was responsible, because he had seen it “on camera.” Webb told Michael he 

knew who the shooter and driver were. 

Beginning the day after Matthew’s murder and over the course of 

approximately 10 days, Webb received photographs and videos of Anthony 

3 We will refer to the Higginbotham brothers by their first names for 

clarity. 
4

Singh and Trevon Richardson from Young and others on his cell phone, 

accompanied by text message exchanges apparently seeking to confirm their 

identities. On August 3, Young sent Webb an image of Singh with the 

message, “ ‘This round I am point man.’ ” Webb responded, “ ‘We go try 

again?’ ” Police discovered additional text exchanges tracking Singh’s 

activities; at trial, a police detective opined that Webb was gathering 

intelligence and trying to find Singh and Richardson in an effort to find 

Matthew’s killer. Among those messages were numerous texts between 

Webb and Lovell Bronson (codefendant Collins’s son) in the days after 

Matthew’s murder. In the messages, Bronson sent Webb photos and videos of 

Singh and information about his location and whether he was armed.4

C. Shooting of Singh and Richardson

On August 18, 2018, Webb went to Young’s home in Oakland for a few 

minutes around 8:50 p.m.5 Then Webb drove to San Francisco, arriving in 

Bayview-Hunters Point around 9:25 p.m. Shortly after that, Webb went to 

downtown San Francisco where the City Nights nightclub (City Nights) is 

located. Webb was at City Nights from approximately 9:45 p.m. to 12:30 a.m. 

the next morning. At 10:18 p.m., Young texted Webb asking, “ ‘We on it 

tonight, or you acting like a weirdo?’ ” Around 12:30 a.m., Young called Webb 

and they spoke by phone for approximately 15 minutes. Webb returned to 

Oakland, picked up Young, and drove back to City Nights. 

4 It appears Bronson knew Singh—in one text to Webb, he reported a 

conversation in which Singh told Bronson about his gun and said he wanted 

to “ ‘line some up.’ ” 

5 Defendants’ and the victims’ locations at specific points on August 18 

and 19, 2018 were determined primarily from cell phone tower data, a 

tracking device on Singh’s vehicle, a police license plate reader system, and 

video footage from the City Nights nightclub in San Francisco, a Valero gas 

station, a tire business, and a Bay Area Rapid Transit (BART) station. 
5

Meanwhile, Singh and Richardson left Richardson’s home in Antioch in 

Singh’s pink Infiniti SUV just before 10:00 p.m. and drove to San Francisco.6 

Around 10:45 p.m., they parked near City Nights, and then entered City 

Nights. 

Bronson was also at City Nights that night with a friend, Trevon 

Dickerson. In a text message, Dickerson told Bronson he had seen someone

on the stairs. Bronson told Dickerson to “ ‘keep an eye on’ ” him. 

At approximately 1:20 a.m. (August 19), Webb and Young arrived near

City Nights. Bronson left City Nights at 1:37 a.m. A few minutes later, 

Bronson, Webb, and Young all met at the location where Singh’s car was 

parked near City Nights. 

Shortly after 2:15 a.m., Singh and Richardson left City Nights and 

traveled from San Francisco to Antioch. Webb and Young followed Singh’s 

car towards Antioch, a few minutes behind. Taken together, the cell phone 

data, license plate reader data, and video evidence appear to show Webb and 

Young were traveling closely together in separate cars; Webb was driving a 

Dodge Charger, while Young was in a Honda. 

Just before 3:00 a.m., Singh’s Infiniti stopped at a Chevron gas station

in Pleasant Hill. Young and Webb did not stop at the Chevron station but 

continued east to the Mira Vista Hills apartment complex (Mira Vista 

apartments), where Richardson lived. Young remained at the apartments, 

but Webb drove back in the direction they had come in the Dodge Charger. 

The Charger pulled into a Valero gas station at 2101 Somersville Road in 

Antioch. Webb put $40 on a gas pump and started pumping gas into his 

vehicle. 

6 The San Francisco Police Department had placed a GPS tracking 

device on Singh’s car. 
6

Singh’s car passed by the Valero station headed in the direction of the 

Mira Vista apartments. Webb ducked down and returned the nozzle to the 

pump, leaving approximately $23 on the pump and not collecting the balance 

due on the transaction. He got back into his vehicle, turned his headlights 

off, and drove out of the Valero station, following Singh’s car. 

Around 3:25 a.m., Singh parked his car in a carport at the Mira Vista 

apartments. Before he turned off the engine, he was shot at least four times 

in the neck and shoulder. Richardson was shot three times in the legs. A 

resident at the apartments heard gunshots, then saw a Dodge Charger

speeding away shortly after the shots were fired. Another resident told police 

he also heard gunshots and believed he saw two or three vehicles leave the 

scene. Young and Webb drove west on Highway 4, away from the murder 

scene. 

Richardson called 911. He told the 911 operator that he did not know 

or see who shot him.

7 When police officers arrived on the scene, they found 

Singh dead in the driver’s seat of the Infinity. The car was running and the 

headlights were on. Officers followed a trail of blood from the passenger door 

of the SUV and found Richardson lying on the ground on the opposite side of 

a nearby apartment building. He was on a video phone call when officers 

found him. 

Around 4:00 a.m., Webb and Young arrived at Young’s home in 

Oakland. At 4:07 a.m., Webb and Young talked by phone. At 4:16 a.m., 

Young texted Webb and Gardner, “ ‘Just when you thought you didn’t need 

Bone [(Young)].’ ”

7 Richardson did not testify at trial.
7

D. Procedural Background

On May 27, 2020, the Contra Costa County District Attorney filed a 

first amended information charging defendants with first degree murder of 

Anthony Singh (§ 187, subd. (a); count 1); attempted premeditated murder of 

Trevon Richardson (§§ 187, subd. (a), 664; count 2); conspiracy to commit 

murder (§ 182, subd. (a)(1); count 3); active participation in a criminal street 

gang (§ 186.22, subd. (a); count 4); and criminal street gang conspiracy 

(§ 182.5; count 5).8 Special circumstances (lying in wait, gang murder) were 

alleged as the first degree murder charge, firearm enhancements were 

charged as to counts 1 and 2, and gang enhancements were charged for 

counts 1, 2, and 3. 

The prosecution presented testimony from gang expert San Francisco 

Police Sergeant Daniel Manning in support of its theory that Young and 

Webb murdered Singh in retaliation for his killing of Matthew. The 

prosecution also presented extensive evidence regarding (1) surveillance 

video footage captured from America’s Tire Company in Antioch, the Valero 

gas station in Antioch, a BART station in Antioch, and City Nights in San 

Francisco; (2) data from a police license plate reader system; (3) an expert on 

cellular analysis who testified to the locations of Webb’s, Young’s, and 

Bronson’s phones and mapped them to GPS tracking data from Singh’s car; 

(4) iCloud account data9 and call detail records; and (5) the contents of 

recorded telephone calls from San Francisco County jail.

Neither Webb nor Young testified at trial. The defense presented an 

expert in GPS tracking, cell tower antenna function, and cell phone tracking 

8 Count 5 was dismissed prior to submission of the case to the jury. 

9 iCloud account data can include photos, videos, messaging data, 

location data, and e-mails. 
8

technologies who opined that Young was not at the Valero gas station and 

that if his cellphone was in the vicinity of the Mira Vista apartments, it 

would have connected to a different cell tower, suggesting that Young was not 

at the scene of the murder. 

The jury convicted defendants of first degree murder, conspiracy to 

commit murder, and active participation in a criminal street gang (counts 1, 

3, and 4), and acquitted them of attempted murder (count 2). As to count 1, 

the jury found true the lying-in-wait special circumstance, but not the gang 

murder special circumstance. The jury further found true that the murder 

and conspiracy were committed for the benefit of a criminal street gang, and 

with respect to the murder, that a principal discharged a firearm causing 

injury. 

On October 1, 2020, Webb and Young were both sentenced to two 

consecutive terms of life without the possibility of parole for murder and 

conspiracy to commit murder, plus 25 years for the gun use enhancement. 

The court imposed an additional concurrent term of two years for active 

participation in a criminal street gang. Defendants timely appealed. We 

granted a motion to consolidate the appeals. 

II. DISCUSSION

A. Seating of Jurors

Webb first contends he was deprived of his constitutional rights to due 

process and a fair trial when the trial court seated jurors throughout the 

courtroom for social distancing purposes due to the COVID-19 pandemic.10

Webb asserts that because of the seating arrangement, jurors in the gallery 

“would have been unable to properly observe” him, and he and his counsel 

10 Young did not join this argument, nor Webb’s argument regarding 

Sanchez violations discussed below. 
9

were not able to observe the jurors seated in the audience, all of which 

violated his constitutional rights. 

Webb’s trial took place at the beginning of the COVID-19 pandemic, 

from February to June 2020. In order to maintain social distancing, the trial 

court seated five jurors in the jury box and seated the other seven around the 

courtroom in the first few rows of the gallery. The court considered, but 

rejected, the possibility of holding the trial in a different courthouse, and 

observed that even if it were held in a different location, not all jurors could 

be seated in the jury box. 

As an initial matter, we reject Webb’s claim because it is unsupported 

by the record. Although he contends he was not able to see the jurors and 

they were unable to see him, none of his citations to the record support that 

assertion. 

To the contrary, the record reflects that the trial court made every 

effort to ensure the jurors could see defendants and vice versa. The day 

before opening statements, the court stated: “And you’ll notice that we’ve 

tried to place all of the defendants in the situation so they can see the jury 

and the jury can see them.” A little later, the court stated: “I wanted to 

make sure that none of the defendants had their backs to the jurors, that 

they could be seen. But really also, they want to be able to see the jury. I’m 

sure they want to be able to see reactions and other things and then have 

discussions with their attorneys about those sorts of things. [¶] So that’s why 

the Court made sure to turn folks in such a way that they could get a good 

view of everything in the courtroom.” 

Immediately after the court made this record, Young’s attorney 

objected, stating, “I’ll object to this seating suggestion where jurors are 

around the courtroom, some of whom are going to be behind me and oblique 
10

to my client.” Webb’s counsel joined the objection, but did not state any 

additional facts with respect to his client’s view of the jurors. 

The description of “some” jurors being seated behind Young’s counsel 

and “oblique” to Young says nothing about the jurors’ relationship to where 

Webb and his counsel were seated in the courtroom. There is no basis in the 

record to infer Webb was unable to see any juror he wanted to see or that any 

jurors could not see him. 

Moreover, the record suggests that no matter what configuration the 

trial court implemented, some accommodations would be necessary to comply 

with social distancing protocols, which at the time required all witnesses, 

jurors, parties, attorneys, and attendees to be seated at least six feet apart. 

As the trial court explained, even if the trial were held in a different 

courtroom, not all jurors could be placed in the jury box and some would need 

to be seated in the gallery. The logistics were no doubt further complicated 

by the fact that the court had to accommodate three defendants and their 

counsel. Webb does not suggest any alternative to the trial court’s 

dilemma.

11

11 Although Webb’s counsel suggested at oral argument that the trial 

court made a hasty decision regarding seating arrangements in the 

courtroom and failed to consult with all parties to find the best configuration, 

the record reflects the opposite is true. The transcript contains multiple 

lengthy discussions of COVID protocols, including discussions about seating 

arrangements for jurors, defendants, counsel, experts, and members of the 

public. Further, with specific reference to concerns about seating, the court 

told counsel: “I’m open to suggestion. As we go, if you come up with ideas, 

I’m happy to entertain them.” At another point, the court’s comments on the 

record reflect the court listened patiently to concerns from all counsel then 

stated, “Okay. I’ll consider all of those requests that I’ve heard here on these 

issues. I’m going to think about it a little bit.” Webb’s counsel’s suggestion at 

oral argument that the court paid little attention to seating is belied by the 

trial court’s careful efforts and thoughtful consideration. 
11

In any event, even if the jury was not able to observe Webb the entire 

trial and he and his counsel had to turn around to see some jurors, he has not 

shown a violation of his constitutional rights. California appellate courts

have repeatedly rejected claims of constitutional violations with regard to 

safety precautions taken by trial courts during the COVID-19 pandemic. 

(See, e.g., People v. Edwards (2022) 76 Cal.App.5th 523, 525–527 [mask 

requirement did not violate confrontation rights]; People v. Lopez (2022) 

75 Cal.App.5th 227, 232–236 [same]; People v. Alvarez (2022) 75 Cal.App.5th 

28, 34–39 [same].) As those courts (and many others) have recognized, 

following public health mandates during the pandemic “served an important 

state interest in protecting the public from a contagious, and too often, lethal 

disease” (Alvarez, at p. 36), and courts retain “inherent authority . . . to 

promulgate procedures best suited for their particular courtrooms as they 

confront the challenges presented by the global pandemic” (Lopez, at p. 236). 

We find People v. Kocontes (2022) 86 Cal.App.5th 787 particularly apt 

here. In Kocontes, the court rejected several arguments that the courtroom 

configuration during the defendant’s criminal trial in the early COVID-19 

pandemic violated his federal constitutional rights. (Id. at pp. 866–880.) In 

that case, jurors were seated in a similar configuration as in this case—four 

in the jury box, one in the well, and 11 in the audience throughout the 

courtroom, pursuant to social distancing guidelines. (Id. at pp. 868, 880.) 

The defendant moved for a mistrial, arguing in part that the social distancing 

requirements disadvantaged the defense. (Id. at p. 869.) As the Kocontes 

court explained in rejecting the defendant’s claim that the configuration

violated his right to due process and a fair trial: “The unprecedented global 

health crisis required the trial court to balance Kocontes’s constitutional 

rights, the jurors’ health, and preserving judicial resources. Judicial officers 
12

at all levels undergo extensive training beginning shortly after they are

sworn in. But no training prepared this court, and courts across the United 

States, with the unique challenges COVID-19 presented. The record reflects 

the court remained appropriately focused on these compelling interests.” (Id.

at p. 880.) On review of the record in this case, the trial court here similarly 

engaged in extensive efforts to accommodate these rights and interests.12 

Webb’s constitutional rights were not violated. 

B. Expert Gang Testimony

Webb next contends the trial court erred in admitting improper expert 

witness testimony from San Francisco Police Sergeant Daniel Manning that 

lacked foundation, relied on hearsay in violation of Sanchez, and purported to 

opine on Webb’s state of mind or intent. He also contends the improperly 

admitted evidence violated his confrontation rights. 

Under Evidence Code section 1200, hearsay evidence—evidence of an 

out-of-court statement offered to prove the truth of the matter stated—is 

generally inadmissible unless it falls under a hearsay exception. (Sanchez, 

supra, 63 Cal.4th at p. 674.) In Sanchez, applying the hearsay rule to expert 

12 Webb cites a statement from Justice Kennedy’s concurring opinion in 

Riggins v. Nevada (1992) 504 U.S. 127, that “[a]t all stages of the 

proceedings, the defendant’s behavior, facial expressions, and emotional 

responses combine to make an overall impression on the trier of fact, an 

impression that can have a powerful influence on the outcome of trial.” (Id. 

at p. 142 (conc. opn. of Kennedy, J.).) Riggins did not consider or decide 

whether accommodations to seating arrangements for jurors mandated by 

public health guidelines in the middle of a global public health emergency 

would impermissibly interfere with a defendant’s constitutional rights. (See 

id. at p. 138 (maj. opn. of O’Connor, J.) [trial prejudice may be justified by an 

essential state interest].) In any event, the record here reflects that the 

defendants’ ability to see the jurors and vice versa were among the key

concerns the trial court sought to accommodate in implementing the 

courtroom configuration used at trial. 
13

testimony, our Supreme Court explained, “When any expert relates to the 

jury case-specific out-of-court statements, and treats the content of those 

statements as true and accurate to support the expert’s opinion, the 

statements are hearsay.” (Sanchez, at p. 686.) Although “[a]ny expert may 

still rely on hearsay in forming an opinion, and may tell the jury in general 

terms that he did so[,] . . . [¶] [w]hat an expert cannot do is relate as true 

case-specific facts asserted in hearsay statements, unless they are 

independently proven by competent evidence or are covered by a hearsay 

exception.” (Id. at pp. 685–686.) “Case-specific facts are those relating to the 

particular events and participants alleged to have been involved in the case 

being tried.” (Id. at p. 676.) Thus, under Sanchez, hearsay statements 

containing case-specific facts are admissible only if they fall under a hearsay 

exception or are independently proven. (Id. at p. 686.) 

Nonetheless, to challenge inadmissible evidence, an objection must be 

timely and specific, and the failure to make an appropriate objection forfeits 

the right to appellate review unless an objection would have been futile. (See 

Evid. Code, § 353, subd. (a); People v. Clark (1992) 3 Cal.4th 41, 125–126.) 

“This [rule] applies to claims based on statutory violations, as well as claims 

based on violations of fundamental constitutional rights.” (In re Seaton 

(2004) 34 Cal.4th 193, 198.) Here, we conclude Webb forfeited his 

contentions by failing to object to Manning’s testimony in the trial court. 

In a footnote, Webb asserts that “[t]o the extent objections were 

articulated by defense counsel” for his codefendants, the trial court assumed 

objections were joined by all parties.13 The only record citation he provides 

for that assertion, however, refers to a discussion among court and counsel 

13 We observe “[f]ootnotes are not the appropriate vehicle for stating 

contentions on appeal.” (Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947.) 
14

regarding members of the Singh family wearing face masks with his picture 

on them. That exchange does not suggest that the trial court assumed all 

defendants joined in all evidentiary objections, particularly given that the 

parties regularly expressly joined in each other’s arguments and the trial 

court often asked whether parties joined in a particular objection. Indeed, 

the trial court specifically denied a request by codefendant Collins’s counsel 

to “lodge a standing Sanchez objection for the duration of the [gang] expert’s 

testimony on these issues,”14 telling her, “You’ll need to make your objections 

to the questions as they come. I won’t accept a standing objection.” Webb’s 

suggestion that the court understood he was objecting on Sanchez grounds 

even when his counsel did not assert such an objection is unpersuasive. 

Even if Webb preserved objections to the testimony he challenges on 

appeal, however, his claims would lack merit.15

First, Webb argues that Manning impermissibly relayed out-of-court 

statements of nontestifying declarants in violation of Sanchez. Webb asserts

that Manning testified “in a number of instances” to opinions that were based 

on information from unidentified “informants.” The record citations he 

provides for that claim, however, are two instances in which Manning’s 

testimony was based in part on information from informants.16 Further, 

14 It appears “these issues” referred to Manning’s testimony regarding 

specific prior convictions of an alleged gang member (or possibly multiple 

gang members). 

15 Webb also argues that to the extent his counsel failed to object, he

rendered ineffective assistance. We address his claims on the merits in part 

to resolve this alternative claim. 

16 Manning based his opinion that one individual was a gang member 

on “his criminal history, his tattoos, my observations of him in Big Block 

gang territory. Informant information.” As to another individual, Manning 
15

Manning testified generally that he relied on information from informants, 

not the content of their statements. This is entirely permissible.17 (Sanchez, 

supra, 63 Cal.4th at p. 685 [an expert “may still rely on hearsay in forming an 

opinion and tell the jury in general terms that he did so”].)

Next, Webb contends that Manning was permitted to testify about his 

opinion that Big Block members were embarrassed by Matthew’s killing and 

felt they had been tricked because his killer(s) pretended to be associated 

with an affiliated gang. When asked how Big Block members would have 

reacted to the circumstances of Matthew’s murder, Manning testified: “I was 

told they were embarrassed. I was told—obviously, they were very upset. 

You can hear it in Michael’s voice in the call. So I know that’s true. [¶] It was 

a slap in the face that Matthew was killed right there where he was killed 

and how he was killed.” (Italics added.) When the prosecutor asked how 

rivals would have reacted to the circumstances of the murder, Manning 

testified: “It was embarrassing for Harbor, I was told.” (Italics added.)

Manning also said that he “heard . . . from informants” that Matthew’s killers 

“were pretending they were from Kirkwood [(an allied gang)].” (Italics 

added.) Webb asserts all of this testimony was inadmissible case-specific

hearsay. 

testified he “arrested him after receiving information from an informant in

Marin County.” 

17 Webb also asserts broadly that “Manning offered expert testimony 

that relied upon, and related to the jury as true, information compiled during 

investigation of crimes.” In support of this assertion, he cites to 27 pages of 

the reporter’s transcript without identifying or discussing any particular 

testimony. Needless to say, we will not wade through the record to make an 

argument for him. (See DeNike v. Mathew Enterprise, Inc. (2022) 

76 Cal.App.5th 371, 388, fn. 11 [appellate court will not examine undeveloped 

claims or make arguments for parties].) 
16

We disagree with Webb’s assertion the latter statement violated 

Sanchez, because it was independently established by other admissible 

evidence introduced at trial. (Sanchez, supra, 63 Cal.4th at p. 686; People v. 

Camacho (2022) 14 Cal.5th 77, 129–130.) Manning’s comment that he heard 

from informants that Matthew’s killers pretended to be from another gang

was offered as part of a longer response to a question about the meaning of 

the recorded jail phone call between Michael and Webb. On crossexamination, defense counsel asked Manning, specifically with reference to 

Webb’s use of the term “movement”18 during that phone call: “Now with 

regard to the way in which Mr. Webb uses it, he’s essentially saying that 

the—well, based upon what you’ve heard and read and seen in the phone call, 

essentially what’s being said is that these two individuals that were 

responsible for killing Matthew were pretending like they were down with 

the movement; is that correct?” Manning responded: “That’s correct. And I 

had heard that from informants, too, that they were pretending they were 

from Kirkwood.” (Italics added.) In response to further questions regarding 

the contents of the phone call, Manning explained that Webb and Michael 

discussed that Singh and Richardson pretended “to know people in 

Kirkwood.” Thus, the hearsay from unspecified informants merely reiterated 

what Webb and Michael discussed in the recorded jail phone call, the 

admissibility of which Webb does not challenge. 

Similarly, with respect to the testimony that gang members were 

“embarrassed” by the circumstances of Matthew’s murder, it is clear from 

Manning’s testimony that he was relying not only on comments he heard 

18 Manning testified he had heard about the “movement” since he was 

assigned to the gang task force in 2007 or 2008, and it referred to the 

“purpose of the gang” or a “type of, you know, calling to be in this gang 

activity.”
17

from unidentified informants, but on the contents of the recorded phone call 

with Michael and what he knew from his own experience as a member of the 

gang unit in interpreting the conversation between Webb and Michael. 

Manning testified he could “hear it in Michael’s voice in the call. . . . [¶] It 

was a slap in the face that Matthew was killed right there where he was 

killed and how he was killed.” Manning also testified without objection that,

“One of their gang members was killed. Obviously, it’s been my experience to 

retaliate and to get your pound of flesh from the people who did that.” He 

further explained that “there was obviously some confusion within the gang 

of what happened and how it was allowed to happen.” In addition, in earlier 

testimony about Matthew’s murder, Manning explained that “it was not a 

fair way he was murdered. . . . you were ambushed, didn’t get a chance, or 

someone set you up to be murdered. It wasn’t like a gang battle and you died 

an honorable death.” Because Manning’s opinion regarding the gang’s 

reaction to the circumstances of Matthew’s murder was based both on the 

content of Michael and Webb’s phone call and Manning’s background 

knowledge and experience, there was no Sanchez violation.19 

Webb also contends that Manning’s testimony exceeded the proper 

scope of expert testimony because he testified to Webb’s subjective mental 

state and intent, and thus, invaded the province of the jury by offering an 

opinion as to the ultimate question of his guilt. Specifically, Webb points to 

Manning’s testimony that (1) Big Block members were embarrassed about 

Matthew’s shooting; (2) Webb and others believed Singh and Richardson had 

pretended to be from Kirkwood; and (3) a comment on social media stating,

19 Further, as the Attorney General points out, had Webb objected to 

Manning’s testimony as hearsay, Manning would have had an opportunity to 

give similar testimony without referring to hearsay and elaborate on how his 

experience informed his opinion. 
18

“ ‘My heart is heavy right now. Rest up, little bro. We got it from here,’ ” was 

a statement by Webb intending to reassure Michael that he would avenge 

Matthew’s death and demonstrated his “leadership role” in the gang. 20 

First, Webb has again forfeited his objections to all of this testimony as 

he failed to object on these grounds in the trial court. (Evid. Code, § 353, 

subd. (a).) In any event, they lack merit. 

In making this argument, Webb relies on People v. Killebrew (2002) 

103 Cal.App.4th 644 (Killebrew), in which the appellate court reversed a 

conviction for possession of firearms because a gang expert impermissibly 

testified as to the defendant’s subjective knowledge and intent to possess a 

handgun. While testimony regarding the expectations, culture, and habits of 

a gang would have been permissible, the court held the expert could not 

testify to the knowledge and intent of an individual defendant because such 

issues were reserved to the trier of fact.

21 (Killebrew, at pp. 654–658.) 

Here, Manning did not offer an opinion about Webb’s knowledge and 

intent when he committed the crime against Singh—he testified to the 

reaction of the gang in general to the circumstances of Matthew’s murder. 

That brief testimony, that Big Block members generally were “embarrassed”

because they had been “snaked” (i.e., tricked) by two individuals pretending 

to be with the Kirkwood gang, was about the gang’s culture and expectations,

not an inference Manning had drawn about Webb’s intent or state of mind at 

20 As the Attorney General correctly observes, Manning testified his 

opinion that Webb held a leadership role in Big Block was based on Webb’s 

recorded conversations with Michael, not the comment on social media. 

21 Our Supreme Court disapproved of Killebrew to the extent it 

concluded an expert could not express an opinion based on hypothetical 

questions that tracked the evidence as to whether an assault would have 

been committed for a gang purpose. (People v. Vang (2011) 52 Cal.4th 1038, 

1048–1049.) 
19

the time of the murder. Further, as explained above, Manning’s opinion 

about Big Block’s reaction to Matthew’s death was supported by other 

evidence, including the contents of Webb and Michael’s phone call, the 

admissibility of which Webb does not challenge on appeal. 

In any event, even if some of Manning’s testimony was inadmissible, 

any error was harmless beyond a reasonable doubt. There was overwhelming 

evidence that Webb was a Big Block member who participated in the 

conspiracy to kill Singh. Manning had known Webb for many years and 

knew he was a Big Block member based on photographs, his posts to social 

media, his tattoos, and admissions in a prior federal case. Manning also 

provided extensive background on Big Block’s history as a gang and gave his 

expert opinion that Young, Michael, and others involved in the conspiracy 

were gang members based on his personal knowledge, photographs, videos, 

and posts on social media. Further, while the gang evidence tended to 

establish a motive for Singh’s murder, that same motive would have been 

apparent notwithstanding the hearsay statements based on the contents of 

the recorded phone call between Webb and Michael and Manning’s other 

testimony about retaliation. In addition, other properly admitted evidence 

showed additional motives: that Webb was very close to Matthew and 

Michael, and felt an obligation to Michael and his mother to avenge 

Matthew’s murder. Thus, Webb had a strong motive regardless of the gang 

evidence. 

And even without the evidence regarding motive, the murder and 

conspiracy to commit murder were proven by the incriminating text 

messages, phone calls, GPS tracking data, video footage, and cell tower data 

showing defendants followed the victims from San Francisco to Antioch and 

were at the murder scene when Singh was killed. Thus, the impact of any 
20

improper gang evidence on the murder and conspiracy charges was harmless 

beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24

(Chapman).) 

C. Batson/Wheeler Error

Both defendants22 contend the trial court erred in failing to find a 

prima facie case of racial discrimination based on the prosecutor’s use of a 

peremptory challenge to strike an African-American juror in violation of 

Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 

22 Cal.3d 258 (Wheeler). 

1. Background Facts

Before voir dire, prospective jurors completed questionnaires, though 

none of the questionnaires or responses have been included in the appellate 

record. 

During voir dire, the trial court questioned Prospective Juror B., who 

told the court that he had brothers and a nephew who had been through the 

criminal court system in Contra Costa County. Prospective Juror B. did not 

recall the specific details of their cases. When the court asked if there was 

anything about how they had been treated by law enforcement or the courts 

that left Prospective Juror B. feeling like his relatives had been treated 

unfairly, he responded, “Not really, I guess.” He also denied feeling like their 

lawyers did not do their jobs and said he did not know anything about who 

prosecuted the cases. 

Prospective Juror B. told the court he had been court-martialed in 

1980. When the court asked if there was anything that “lingers with you”

22 This argument and the remaining arguments addressed in this 

opinion were briefed on appeal by Young. Webb filed a joinder in all of 

Young’s arguments. 
21

from that experience that would “creep into this case,” Prospective Juror B. 

said simply, “No.” He also confirmed that he was trained in firearms because 

of his background in military service and his work in security. When asked 

by the court, Prospective Juror B. confirmed that he would be able to follow 

the law as it relates to firearms or ammunition, even if he did not agree with 

it. 

The court next asked Prospective Juror B. about a situation where he 

“spent time for a traffic violation and a DUI,” and asked whether he would 

characterize that as a negative experience.23 Prospective Juror B. confirmed 

he would. The court asked, “Can you tell me about that a little bit?” and he

responded, “Not really.” He told the court those experiences were in the 

“90’s, maybe,” and said he thought they were in Alameda County. 

Prospective Juror B. denied those experiences would cause him to assess the 

testimony of a police officer differently than testimony by others. He

confirmed he could be fair to both sides. The court then asked, “Is there 

anything else? I feel like you’re waiting to add something there,” to which he

responded, “No. I don’t want to add nothing.” 

Later in voir dire, the prosecutor questioned Prospective Juror B. 

Prospective Juror B. told the prosecutor that he had nine brothers, and 

confirmed that he communicated with them frequently. When asked if he 

had talked with them about their cases, Prospective Juror B. responded, 

“Probably have.” The prosecutor asked if he had a sense of what their cases 

involved and he said, “It’s a little bit of everything.” Prospective Juror B. said 

it had “been . . . . [o]ver a decade” since his brothers’ cases. He confirmed he 

had attended court during his brothers’ cases and that they went to trial. He 

23 It is unclear from the record whether the traffic violation and DUI 

were separate incidents. 
22

did not know how many cases went to trial. One of his brothers was tried for 

murder and served time. That brother was out of custody and Prospective 

Juror B. denied that anything about the trial or conversations with his 

brother “stay[ed] with” him. He could not remember details about trials for 

any of his other brothers. 

Prospective Juror B.’s nephew, who had recently been released, served 

time for robbery or burglary. Asked if he had talked with his nephew about 

his case, he responded, “Probably have.” 

Regarding his court-martial in the early 1980’s, Prospective Juror B. 

said, “The whole thing was unfair. I was young. I didn’t have representation, 

I guess.” He then added, “But that was decades ago, so I’m over it.” He was 

discharged from the army after his court-martial. 

Prospective Juror B. told the prosecutor that he believed his DUI was 

in the 1990’s and he served 30 days in jail. When the prosecutor asked if he 

was satisfied with his legal representation in that case, he responded, “I 

guess back then it was either pay or sit,” so he “sat.” Asked if he thought 

that was unfair at the time, he said, “No. Yeah. Because it’s the way of 

writing tickets out for no reasons. So yeah.” The prosecutor asked if he still 

felt strongly about that, but Prospective Juror B. said, “That was back then. 

It’s a new time.” 

Counsel for Young and Webb asked Prospective Juror B. general 

questions about whether he could carry out his duties as a juror and follow

the law. They did not ask about his DUI, court-martial, or relatives in the 

criminal justice system. 

The prosecutor used her third peremptory strike to remove Prospective 

Juror B. from the jury. Codefendant Collins’s counsel brought a 

Batson/Wheeler motion, arguing that Prospective Juror B. appeared to be an 
23

African-American juror who had not “given any answers to give rise to 

excusal.” Young’s counsel joined the objection, stating that “maybe one or 

two” other African-American jurors were seated in the venire. Webb’s 

counsel also joined in the objection, noting for the record that all of the 

defendants are African-American. 

The court first stated that Prospective Juror B. was “a member of a 

cognizable group as he is African American,” but ruled the defense had not 

made a prima facie case showing “just because [he] is in a cognizable group.” 

The court stated there were “race neutral reasons why a prosecutor would 

excuse” Prospective Juror B., noting he “has many family members who have 

been through the court system.” The court further observed that Prospective 

Juror B. had been “evasive” in his responses to the prosecutor and the court 

on voir dire. The court gave the prosecutor an opportunity to state a response 

on the record. The prosecutor agreed there had been an inadequate showing 

because he was the “first apparently African American juror who I’ve 

exercised a peremptory against,” and asserted there was “no established 

pattern of kicking members from that cognizable class.” 

2. Analysis

Although a prosecutor may exercise a peremptory challenge to strike a 

prospective juror “ ‘for any reason, or no reason at all’ ” (People v. Scott (2015) 

61 Cal.4th 363, 387 (Scott)), he or she may not use a peremptory challenge to 

“ ‘strike prospective jurors on the basis of group bias—that is, bias against 

“members of an identifiable group distinguished on racial, religious, ethnic, 

or similar grounds” ’ ” (People v. Bell (2007) 40 Cal.4th 582, 596 (Bell), 

disapproved on another ground in Sanchez, supra, 63 Cal.4th at p. 686, 

fn. 13). Doing so violates a defendant’s federal right to equal protection set 

forth in Batson, supra, 476 U.S. at pages 88 to 89, and his or her state right 
24

to a trial by a jury drawn from a representative cross-section of the 

community under article I, section 16 of the California Constitution set forth 

in Wheeler, supra, 22 Cal.3d at pages 276 to 277. (Accord, People v. Gutierrez 

(2017) 2 Cal.5th 1150, 1157.) As our Supreme Court explained in Scott, “The 

Batson/Wheeler framework is designed to enforce the constitutional 

prohibition on exclusion of persons from jury service on account of their 

membership in a cognizable group. It is also designed to otherwise preserve 

the historical privilege of peremptory challenges free of judicial control, which 

‘traditionally have been viewed as one means of assuring the selection of a 

qualified and unbiased jury.’ ” (Scott, at p. 387.) 

A defendant bears the ultimate burden of showing a constitutional 

violation (People v. Lenix (2008) 44 Cal.4th 602, 612–613 (Lenix)), but courts 

employ a three-step, burden-shifting mechanism in assessing whether a 

Batson/Wheeler violation has occurred. The defendant must first “make out 

a prima facie case by showing that the totality of the relevant facts gives rise 

to an inference of discriminatory purpose in the exercise of peremptory 

challenges.” (Scott, supra, 61 Cal.4th at p. 383.) If the trial court finds the 

defendant has established this prima facie case, the prosecutor must then 

“explain adequately the basis for excusing the juror by offering permissible, 

nondiscriminatory justifications.” (Ibid.) Lastly, the court must make a 

“ ‘sincere and reasoned effort to evaluate the nondiscriminatory 

justifications’ ” (People v. Williams (2013) 56 Cal.4th 630, 650) and decide 

whether the prosecutor’s proffered reasons are subjectively genuine or 

instead a pretext for discrimination (Scott, at p. 383; People v. Duff (2014) 

58 Cal.4th 527, 548). 

Here, the trial court denied defendants’ Batson/Wheeler motion at the 

first step, finding there had not been a prima facie showing of discrimination. 
25

We apply the deferential substantial evidence standard of review to the trial 

court’s ruling. (People v. Battle (2021) 11 Cal.5th 749, 772 (Battle); People v. 

Silas (2021) 68 Cal.App.5th 1057, 1095.) We examine the entire record before 

the trial court at the time of the motion to determine whether it supports an 

inference of group bias. (Battle, at p. 773.) 

While proof of a prima facie case may be established by any information 

in the record, our Supreme Court has identified “[c]ertain types of evidence 

[that] are especially relevant to this inquiry, including whether the 

prosecutor has struck most or all of the members of the venire from an 

identified group, whether a party has used a disproportionate number of 

strikes against members of that group, whether the party has engaged 

prospective jurors of that group in only desultory voir dire, whether the 

defendant is a member of that group, and whether the victim is a member of 

the group in which the majority of the remaining jurors belong.” (Battle, 

supra, 11 Cal.5th at p. 773; Scott, supra, 61 Cal.4th at p. 384.) A court may 

also consider nondiscriminatory reasons for a peremptory challenge that are 

clearly established in the record and that necessarily dispel any inference of 

bias. (Battle, at p. 773; Scott, at p. 384.) However, “a reviewing court may 

not rely on a prosecutor’s statement of reasons to support a trial court’s 

finding that the defendant failed to make out a prima facie case of 

discrimination . . . . [T]he fact that the prosecutor volunteered one or more 

nondiscriminatory reasons for excusing the juror is of no relevance at the first 

stage.” (Scott, at p. 390.) 

First, while no prospective juror may be struck on improper grounds, 

our Supreme Court has explained that “ ‘[a]s a practical matter, . . . the 

challenge of one or two jurors can rarely suggest a pattern of impermissible 

exclusion.’ ” (Bell, supra, 40 Cal.4th at p. 598; accord, People v. Garcia (2011)
26

52 Cal.4th 706, 747; People v. Bonilla (2007) 41 Cal.4th 313, 343 (Bonilla).) 

“ ‘Although circumstances may be imagined in which a prima facie case could 

be shown on the basis of a single excusal, in the ordinary case . . . to make a 

prima facie case after the excusal of only one or two members of a group is 

very difficult.’ ” (Battle, supra, 11 Cal.5th at p. 776; see People v. Taylor 

(2010) 48 Cal.4th 574, 614 [defense counsel failed to establish prima facie 

case based on fact that single excused juror was African-American]; Bonilla, 

at p. 343 [“ ‘the small absolute size of this sample makes drawing an 

inference of discrimination from this fact alone impossible’ ”].)

Here, there is evidence only that the prosecution used one peremptory 

strike against one African-American juror. The weakness of the record in 

this regard is compounded because defendants have failed to show how many 

of the prospective jurors were African-American or whether any AfricanAmerican jurors were impaneled.24 (Cf. Battle, supra, 11 Cal.5th at p. 774 

[jury’s composition served as “standalone evidence to inform [the Supreme 

Court’s] step-one analysis” and was “particularly germane where the case 

was racially charged”]; People v. Hawthorne (2009) 46 Cal.4th 67, 79 

[defendant bears burden of demonstrating inference of discrimination and in 

making prima facie showing “should make as complete a record of the 

circumstances as is feasible”].) 

Second, defendants have not shown that the prosecutor’s questioning of 

Prospective Juror B. was cursory or materially different from the questioning 

of other jurors. (Bonilla, supra, 41 Cal.4th at p. 343.) To the contrary, the 

prosecutor thoroughly questioned Prospective Juror B. about his own and his 

24 As noted above, when joining in the Batson/Wheeler challenge, 

Young’s counsel noted that there may have been one or two other AfricanAmerican jurors in the venire. 
27

family’s experiences with the criminal justice system and whether those 

experiences would affect his deliberations. 

Third, while not required at this stage, the record of voir dire reveals 

reasons for excusing Prospective Juror B. that were valid, race-neutral

reasons at the time of jury selection, including that he had multiple close 

family members (brothers and a nephew) who had been involved in serious 

criminal proceedings.

25 (See People v. Reed (2018) 4 Cal.5th 989, 1001 

[relative’s negative experience with law enforcement is “race-neutral 

hypothetical reason for a strike”]; People v. Bryant (2019) 40 Cal.App.5th 525, 

537.) Moreover, Prospective Juror B. himself had been court-martialed—a 

process he described as “unfair”—and had spent 30 days in jail for a DUI. 

When asked if he felt the DUI was fair at the time, he responded, “No. Yeah. 

Because it’s the way of writing tickets out for no reasons. So yeah.” (See, 

e.g., People v. Hardy (2018) 5 Cal.5th 56, 82 [juror’s belief he had been 

treated unfairly during prior arrest was race-neutral reason]; People v. 

Winbush (2017) 2 Cal.5th 402, 436 [juror’s prior arrest was race-neutral 

reason].) While Prospective Juror B. also stated that he felt he could be fair, 

impartial, and apply the law, such responses do not raise any inference of 

bias when there are race-neutral reasons for excusing him that are clearly 

reflected in the record. (See, e.g., Battle, supra, 11 Cal.5th at p. 778; Scott, 

supra, 61 Cal.4th at p. 385.) 

25 Although Code of Civil Procedure section 231.7, as recently amended,

provides that a juror’s close relationship with someone who had been arrested 

is presumed to be an invalid reason, this statute was not yet in effect at the 

time of jury selection in this matter. (See Code Civ. Proc., § 231.7, subd. (i) 

[provision applies to “jury trials in which jury selection begins on or after 

January 1, 2022”].)
28

Finally, we reject defendants’ arguments on appeal as to why the trial 

court erred in finding no prima facie showing at the first stage. Defendants 

complain that the trial court committed procedural error by substituting its 

own judgment for that of the prosecutor in stating race-neutral reasons on 

which a prosecutor could rely and commenting that Prospective Juror B.’s 

responses to questions on voir dire were evasive. We disagree. The trial 

court described these justifications before inviting the prosecutor to state her 

reasons. The court’s comments merely show that the trial court was noting

the existence of race-neutral reasons clearly established in the record. (Scott, 

supra, 61 Cal.4th at p. 384.) Further, the trial court’s observation that 

Prospective Juror B. gave evasive responses was not a “highly subjective 

assessment” as defendants contend, but is reflected in his numerous

equivocal answers to questions asked by both the court and the prosecutor. 

Defendants also contend the trial court should have considered the 

documented and well-established recent history of racially discriminatory 

jury selection practices by the Contra Costa County District Attorney, but 

defendants did not raise this issue below and do not point to any evidence in 

the record before the trial court on this point. (See Lenix, supra, 44 Cal.4th 

at p. 624 [trial court’s decision on Batson/Wheeler motion is reviewed on 

record as it stands at time of ruling].) Accordingly, the argument is forfeited. 

Defendants also rely on legislative intent reflected in Assembly Bill No. 3070 

(Reg. Sess. 2019–2020) to mitigate the effects of bias in jury selection, but 

they concede that statute applies only prospectively to jury selection 

beginning on or after January 1, 2022. (Code Civ. Proc., § 231.7, subd. (i).) 

Their contention that the record in this case would be problematic under the 

new legislation is unpersuasive, as it clearly did not apply when the jury in 

this matter was selected. 
29

In sum, we conclude the trial court correctly determined that 

defendants failed to make a prima facie showing of group bias with respect to 

Prospective Juror B. The Batson/Wheeler motion was properly denied. 

D. Third Party Culpability Evidence 

Defendants next argue their judgments must be reversed because the 

trial court impermissibly excluded evidence regarding three other identified 

individuals who may have shot Singh. 

1. Additional Background

Young moved to introduce, and the prosecution moved to exclude, 

evidence that (1) Andre Brewer, (2) Trevon Richardson, or (3) Cleashaun Hill

may have shot Singh. 

Andre Brewer’s son was allegedly a victim of a robbery committed by 

Singh and Richardson a few weeks prior to Singh’s murder. On October 22, 

2018, Richardson texted Singh’s father a screenshot of Brewer. The caption 

said something to the effect of, “ ‘This is the person who shot me.’ ” 

Defendants asserted the text was admissible to prove that Brewer killed 

Singh. 

Defendants also sought to introduce evidence that Richardson himself 

and Cleashaun Hill each had motive and an opportunity to kill Singh, either 

to “save face” in Big Block or to avoid an obligation to pay Singh the 

remainder of the money he was owed for killing Matthew. D.Y., Singh’s 

girlfriend at the time of his murder, told police that Singh told her that Hill 

hired him to kill Matthew, and Singh had only been paid part of what was 

promised for the job. She also said that Singh sent her a text on his way to 

meet with Hill to collect part of his payment stating that if anything 

“happen[ed]” to him, Hill did it. Singh’s mother, D.S., corroborated some of 

D.Y.’s and Singh’s statements. 
30

Defendants also sought to introduce evidence that Singh had a gun at 

the time of the murder to prove Singh feared for his safety and to support the 

defense theory that “numerous people wanted him dead.”

Before trial, the trial court held a hearing on third party culpability. 

Regarding the text message from Richardson to Singh’s father indicating that 

Brewer shot Singh, the court questioned the parties about the details of 

Singh’s alleged robbery of Brewer’s son, then asked, “[O]ther than this motive 

that’s been asserted here, what evidence is there that would link Mr. Brewer 

to the night of the shooting?” Young’s counsel argued that because 

Richardson was an eyewitness to the shooting, his text to Singh’s father

stating that Brewer was the shooter was inconsistent with his statement to 

police on the night of the shooting that he did not know who did it. The court 

responded: “If you have an eyewitness who says, I was there, Mr. Brewer did 

this. I’m going to allow that person to testify to that. That would be evidence 

directly tying someone to this. [¶] But, as I understand the evidence, Mr. 

Richardson formed a belief, it was not based on personal observation of 

anything, and based on that belief that, ahh, this must be retaliation for the 

robbery, it had to be [Brewer], he then sent the picture off, and that’s what 

led to the interview of Mr. Brewer.” Young’s counsel then argued that “[y]ou 

have to assume . . . that [Richardson] was truthful with the police” when he 

told them he did not know who did it, that he did not see the shooter—but 

that statement was inconsistent with what he told “everyone else but 

police”—that the shooter was Brewer. 

The trial court told defense counsel they could bring Richardson in for 

an Evidence Code section 402 hearing (section 402 hearing), but barring 

testimony from Richardson or other witnesses that laid a foundation for his 

knowledge that Brewer was the shooter or otherwise connected Brewer with 
31

the shooting, the court would not allow the evidence because it was hearsay, 

would confuse the jury, and failed to meet the standard set forth in People v. 

Hall (1986) 41 Cal.3d 826 (Hall) and subsequent decisions regarding 

admissibility of third party culpability evidence. Otherwise, the court ruled 

the robbery of Brewer’s son was “completely irrelevant” and was “more [of] an 

effort to paint a picture of [Singh] and [Richardson] so that the jury is 

impassioned and inflamed against them.” Thus, according to the court, the 

evidence was not only “actually prejudicial,” but “also . . . confusing”; the 

court would not “try that robbery within this case,” because there was 

insufficient evidence to connect them. The court then told the parties if 

something came out in discovery that connected Brewer with the murder, 

they could revisit the issue. 

When the issue was raised again during trial, the prosecutor argued 

Richardson’s statements on the 911 call—that he did not know who the 

shooter was and did not see the person—were not inconsistent in any way 

with his text to Singh’s father indicating Brewer was the person who shot 

him. The trial court agreed and again sustained the prosecution’s objection 

to admission of the text from Richardson to Singh’s father. 

Regarding the statements by D.Y. and D.S. that Hill hired Singh to kill 

Matthew but only paid him part of the amount owed, the court asked the 

parties what evidence other than those statements and motive would connect 

Hill to Singh’s murder. Young’s counsel responded the only other evidence 

was the text from Singh to D.Y. stating, “ ‘If anything happens to me, it’s Hill 

and Richardson.’ ”

26 As with the Brewer evidence, the court stated it would 

26 Later in the hearing, Young’s counsel conceded the statement “ ‘If 

anything happens to me, it’s . . . Richardson’ ” was hearsay that would not be 

admissible to prove Richardson or Hill committed the murder. 
32

allow a section 402 hearing if the parties had “witnesses who have admissible 

evidence that connects them to the killing” beyond just motive. 

During D.Y.’s testimony at the section 402 hearing, the court again 

ruled her statements about what Singh told her were irrelevant and 

inadmissible. Defense counsel argued the statements were a declaration 

against penal interest when made, admissible under Evidence Code 

section 1230. The court observed they would be declarations against interest 

as to Singh, but not as to Richardson. The court further questioned the 

relevance of Singh’s statements, observing the defendants had already gotten 

in, without objection from the prosecution, that Singh anticipated being paid 

$12,000 for Matthew’s murder, and ruled there was no relevance to the 

amount he was actually paid. 

The trial court also excluded any evidence that Singh was armed at the 

time of the shooting both because it was irrelevant and its relevance was 

substantially outweighed by its prejudicial effect under Evidence Code 

section 352. 

At a hearing on March 10, 2020, Richardson invoked his Fifth 

Amendment right not to testify. The court refused to grant Richardson 

immunity in exchange for his testimony. 

2. Analysis

Defendants contend the trial court erred in excluding (1) the text from 

Richardson to Singh’s father with a photo of Brewer and a caption indicating 

Brewer shot Singh; (2) D.Y.’s statements (and D.S.’s corroborating 

statements) that Singh told D.Y. (a) Hill paid him to kill Matthew, (b) he had 

only been partially paid, and (c) if anything happened to him, Hill was 

responsible; and (3) evidence that Singh was armed at the time of the 

shooting, which corroborated D.Y’s statements that Singh feared for his 
33

safety. Defendants assert that all of the out-of-court statements were 

admissible under various hearsay exceptions and that the trial court violated 

their constitutional rights to present a defense and to a fair trial by excluding 

evidence that these other individuals may have been responsible for the 

murder. 

We review a trial court’s rulings excluding evidence at trial for abuse of 

discretion. (People v. Turner (2020) 10 Cal.5th 786, 817.)

a. Brewer text

As an initial matter, the trial court did not err in excluding 

Richardson’s text stating Brewer was the shooter because it was inadmissible 

hearsay, i.e., an out-of-court statement offered to prove the truth of the 

matter asserted. (Evid. Code, § 1200, subd. (a).) Defendants argue cursorily 

that the text was admissible “because it was a prior inconsistent statement 

by a hearsay declarant,” citing to Evidence Code section 1202, but they fail to 

develop the argument. 

In any event, Richardson’s statement in the text message that Brewer 

was the shooter was simply not inconsistent with his statements in his 911 

call that he did not see who shot him and did not know who the shooter was

at the time of the murder. The text to Singh’s father was sent over two 

months after the shooting, and contains no context or explanation for his 

assertion Brewer was the shooter. As the trial court so aptly explained in 

extensive colloquy with counsel, there is no reason to infer Richardson’s 

statement was based on having seen the shooter, as opposed to having 

developed such a belief in the months following the shooting. Because 

defendants have not shown Richardson made any inconsistent statements, 

the text was inadmissible hearsay.
34

Further, as the trial court correctly concluded, without knowing 

whether Richardson’s text was based on having actually seen Brewer, and in 

the absence of any other direct or circumstantial evidence linking Brewer to 

the crime, evidence that Brewer had a motive to kill Singh because Singh had 

robbed his son earlier was an insufficient basis for admission of the evidence. 

“To be admissible, . . . third-party evidence need not show ‘substantial proof 

of a probability’ that the third person committed the act; it need only be 

capable of raising a reasonable doubt of defendant’s guilt. At the same time, 

we do not require that any evidence, however remote, must be admitted to 

show a third party’s possible culpability. . . . [E]vidence of mere motive or 

opportunity to commit the crime in another person, without more, will not 

suffice to raise a reasonable doubt about a defendant’s guilt: there must be 

direct or circumstantial evidence linking the third person to the actual 

perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833; accord, People v. 

Turner, supra, 10 Cal.5th at pp. 816–817.) 

As the Hall court explained, “courts should simply treat third-party 

culpability evidence like any other evidence: if relevant it is admissible 

([Evid. Code,] § 350) unless its probative value is substantially outweighed by 

the risk of undue delay, prejudice, or confusion ([id.,] § 352).” (Hall, supra, 

41 Cal.3d at p. 834.) Here, the trial court carefully considered the facts of the 

case and reasonably concluded that Richardson’s text was irrelevant because 

there was no basis to infer he had actually seen Brewer, and Richardson’s 

unsubstantiated belief about the identity of the shooter was irrelevant.27 

27 We reject defendants’ argument that Hall cannot be reconciled with 

article I, section 28, subdivision (f)(2) of the California Constitution or the 

accused’s right to present a defense, the presumption of innocence, and the 

right to a fair trial. Hall was decided four years after enactment of the 
35

(Hall, at p. 834 [admissibility of third party culpability evidence and 

balancing under Evid. Code, § 352 will always turn on facts of case].) 

In addition to its concerns about relevance, the trial court excluded the 

text message because in the absence of testimony from Richardson or some 

evidence connecting Brewer to the shooting, his text message would be 

“completely confusing to a jury under [an Evidence Code section] 352 

analysis.” We agree. Assuming, as defendants argue, that the text were 

admissible to impeach Richardson’s credibility, a jury may find it difficult to 

parse that purpose from the truth of the matter asserted in the statement. 

More significantly, without knowing the basis for Richardson’s purported 

knowledge that Brewer was the shooter, its probative value was minimal. 

Further, the prosecution made an offer of proof that the police determined 

through Google location data that Brewer was at home at the time of the 

murder and that Brewer’s hands were too disabled to pull the trigger of a 

firearm. Thus, the trial court could reasonably conclude the probative value 

of the text message was substantially outweighed by the potential for 

prejudice. (Evid. Code, § 352; People v. Verdugo (2010) 50 Cal.4th 263, 290–

291 [trial court did not abuse discretion in excluding evidence that would 

require lengthy evidentiary detour into marginally relevant matter that 

would serve only to confuse jury].) For the same reasons, admitting the 

“Right to Truth-in-Evidence” amendment to our state Constitution, and we 

are bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 

450, 455.) In any event, as we discuss further below, our Supreme Court in 

Hall instructed that third party culpability evidence is to be treated like any 

other evidence—if relevant, it is admissible subject to the court’s discretion 

under Evidence Code section 352. (Hall, supra, Cal.3d at p. 834.) That rule 

does not run afoul of the right to truth-in-evidence provision, which provides 

that except as provided by statute, relevant evidence shall not be excluded in 

criminal proceedings. (Cal. Const., art. I, § 28, subd. (f)(2).)
36

Richardson text would result in an undue consumption of time and confusion 

of issues because the defense would seek to prove the circumstances of 

Brewer’s son’s robbery, while the prosecution would seek to introduce 

evidence that Brewer did not and could not have committed the murder. 

(Evid. Code, § 352; People v. Rhoades (2019) 8 Cal.5th 393, 417 [trial court 

did not abuse its discretion by excluding evidence where the consumption of 

time outweighed probative value].) 

Nor are we persuaded by defendants’ argument that the trial court’s 

ruling gave the prosecution an unfair advantage because the prosecution’s 

case relied “largely” on motive. The prosecution’s theory that defendants 

murdered Singh in retaliation for Matthew’s murder was supported by ample 

circumstantial evidence linking them directly to the murder—including text 

messages, video surveillance, and GPS location data. On this record, the trial 

court did not abuse its discretion in excluding Richardson’s text messages

regarding Brewer. 

b. Singh’s statements to D.Y. and D.S.

Next, defendants contend the trial court erred by excluding evidence of 

Singh’s statements, described above, to D.Y. and D.S. 

First, D.Y.’s and D.S.’s statements to the police about what Singh told 

them are double hearsay. (Evid. Code, §§ 1200, 1201; People v. Anderson 

(2018) 5 Cal.5th 372, 403 [double hearsay admissible if there is a justification 

for admitting it at each level].) Defendants contend Singh’s statements to 

D.Y. that Hill had hired him to kill Matthew and still owed him money were

admissible as statements against penal interest (Evid. Code, § 1230), but 

they do not contend Singh’s statement that if anything happened to him Hill 

was responsible would qualify for the same hearsay exception. 
37

Even assuming all of the out-of-court statements were admissible, 

however, the trial court properly excluded them based on their lack of 

relevance. As discussed above, “evidence of mere motive or opportunity to 

commit the crime in another person, without more, will not suffice to raise a 

reasonable doubt about a defendant’s guilt: there must be direct or 

circumstantial evidence linking the third person to the actual perpetration of 

the crime.” (Hall, supra, 41 Cal.3d at p. 833.) Here, the only evidence 

connecting Hill to the murder was motive and opportunity evidence, but that 

is not enough to raise a reasonable doubt about defendants’ guilt. Singh’s 

statements to D.Y. about Hill owing him money for murdering Matthew were 

made immediately after he committed the crime on July 24, 2018. Likewise, 

Singh’s text about Hill being responsible if anything happened to him was 

sent to D.Y. several days later while he was on his way to meet with Hill and 

another individual in a parking lot to collect part of his payment. Singh’s 

statement to D.S. merely corroborated D.Y.’s statements that Singh was 

afraid of Hill when he went to collect his payment for Matthew’s murder. At 

most, these statements taken together provide some tenuous evidence of a 

possible motive, but they do not provide any direct or circumstantial 

connection to the actual perpetration of Singh’s murder on August 19, 2020. 

Any inference that Hill murdered Singh to avoid having to pay him the 

balance owed for Matthew’s murder was purely speculative. As the trial 

court observed, “I mean, we can go through [Singh’s] life and find out who all 

his enemies are, and then go through each one of those. [¶] . . . And pretty 

soon we’re not even on the issues that [are] before this jury.” 

Defendants also contend in their appellate briefing that the “evidence 

that Hill wanted Singh dead also tended to support an inference that 

Richardson, undisputedly the last person to see Singh alive, shot Singh to 
38

avoid himself being targeted by Hill. . . . In this alternative scenario, 

Richardson may have identified Brewer in an effort to deflect suspicion from 

him.” Notwithstanding that defendants apparently failed to raise this 

argument in the trial court, the convoluted and speculative theory offers 

nothing more than an alternative possible motive for the murder. 

Accordingly, defendants have not shown the trial court abused its discretion 

in excluding Singh’s statements.

In sum, because the evidence regarding Hill’s and Richardson’s

purported motives for killing Singh was not supported by any other direct or 

circumstantial evidence connecting them to Singh’s murder, the trial court 

did not err in excluding the statements. 

c. Singh’s gun

Defendants also contend the trial court erred by excluding evidence 

that Singh was armed on the night of his murder because it corroborated 

D.Y.’s statements that Singh feared for his safety. But even assuming we can 

infer Singh carried a gun because he feared for his safety, defendants fail to 

explain how such a generalized fear tends to raise a reasonable doubt as to 

defendants’ guilt. As Webb’s counsel argued to the trial court, the fact that 

Singh carried a gun might be relevant to a “third-party culpability argument 

that numerous people wanted him dead, numerous people had a motive” 

(italics added), but without more it does not tend to prove Hill or Richardson 

(or any other individual for that matter) shot him. Because defendants have 

failed to explain the relevance of the evidence that Singh was armed at the 

time of the murder, we conclude the trial court did not abuse its discretion in 

excluding the evidence. 

d. Federal constitutional error
39

Finally, we reject defendants’ argument that the trial court’s exclusion 

of third party culpability evidence violated their federal due process rights 

and their rights to present a defense. “[T]he routine application of provisions 

of the state Evidence Code law does not implicate a criminal defendant’s 

constitutional rights.” (People v. Jones (2013) 57 Cal.4th 899, 957; Hall,

supra, 41 Cal.3d at p. 834.) “[O]nly evidentiary error amounting to a 

complete preclusion of a defense violates a defendant’s federal constitutional 

right to present a defense.” (People v. Bacon (2010) 50 Cal.4th 1082, 1104, 

fn. 4.) There was no violation of defendants’ constitutional rights. 

E. Assembly Bill 333

Defendants next argue the judgments must be reversed based on 

changes to section 186.22 that redefined the offense of active participation in 

a criminal street gang. First, they contend the record lacks substantial 

evidence of every element necessary to the prosecution’s gang case under the 

amended statute. Alternatively, they argue they are entitled to a new trial 

because the trial court’s instructions to the jury omitted crucial elements of 

the offense under the new law. 

Section 186.22 criminalizes active participation in a “criminal street 

gang,” and enhances the punishment for certain crimes committed “for the 

benefit of, at the direction of, or in association with any criminal street gang, 

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

gang members.” (§ 186.22, subds. (a), (b)(1); People v. Tran (2022) 13 Cal.5th 

1169, 1205–1206 (Tran).) The jury in this case found defendants guilty of 

participation in a criminal street gang and found true the gang 

enhancements on the murder and conspiracy to commit murder convictions. 

Effective January 1, 2022, Assembly Bill 333 changed section 186.22 in 

several important respects. (Stats. 2021, ch. 699, § 3.) “First, it narrowed the 
40

definition of a ‘criminal street gang’ to require that any gang be an ‘ongoing, 

organized association or group of three or more persons.’ (§ 186.22, subd. (f), 

italics added.) Second, whereas section 186.22, former subdivision (f) 

required only that a gang’s members ‘individually or collectively engage in’ a 

pattern of criminal activity in order to constitute a ‘criminal street gang,’ 

Assembly Bill 333 requires that any such pattern have been ‘collectively 

engage[d] in’ by members of the gang. (§ 186.22, subd. (f), italics added.) 

Third, Assembly Bill 333 also narrowed the definition of a ‘pattern of criminal 

[gang] activity’ by requiring that (1) the last offense used to show a pattern of 

criminal gang activity occurred within three years of the date that the 

currently charged offense is alleged to have been committed; (2) the offenses 

were committed by two or more gang ‘members,’ as opposed to just ‘persons’; 

(3) the offenses commonly benefitted a criminal street gang; and (4) the 

offenses establishing a pattern of gang activity must be ones other than the 

currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth, Assembly 

Bill 333 narrowed what it means for an offense to have commonly benefitted 

a street gang, requiring that any ‘common benefit’ be ‘more than 

reputational.’ (§ 186.22, subd. (g).)” (Tran, supra, 13 Cal.5th at p. 1206.) 

“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).) 

Under the principles enunciated in In re Estrada (1965) 63 Cal.2d 740, 

Assembly Bill 333’s amendments to section 186.22 apply retroactively to 

defendants whose convictions are not yet final. (Tran, supra, 13 Cal.5th at 

pp. 1206–1207.) The changes to the definitions of “criminal street gang” and 

“a pattern of criminal gang activity” in Assembly Bill 333 effectively added 
41

new elements to section 186.22, on which the jury was not instructed, 

implicating defendants’ right to a jury trial under the Sixth Amendment. 

(Tran, at pp. 1206–1207; People v. E.H. (2022) 75 Cal.App.5th 467, 477, 479.) 

Accordingly, we must reverse unless it appears beyond a reasonable doubt 

that the error did not contribute to the verdict. (Tran, at p. 1207.) 

As an initial matter, we reject defendants’ argument that we must 

reverse the judgments due to a lack of substantial evidence under the 

elements of the amended statute. Although, for reasons we explain below, 

the recent passage of Assembly Bill 333 requires that we reverse the 

defendants’ gang-related convictions and vacate the enhancements, any 

substantial evidence analysis for purposes of deciding whether double 

jeopardy principles preclude a retrial must necessarily be determined under 

the law applicable at trial. (See, e.g., People v. Sek (2022) 74 Cal.App.5th 

657, 669–670 (Sek) [instructional error omitting elements of gang 

enhancements under amended § 186.22 permitted retrial because court did 

not reverse based on insufficiency of the evidence required by statute 

applicable at time of trial]; People v. Eagle (2016) 246 Cal.App.4th 275, 280 

[“When a statutory amendment adds an additional element to an offense, the 

prosecution must be afforded the opportunity to establish the additional 

element upon remand.”]; People v. Shirley (1982) 31 Cal.3d 18, 71 [double 

jeopardy does not bar retrial after reversal premised on error of law].) 

Defendants do not contend the evidence was insufficient to meet the elements 

of section 186.22 in effect at the time of trial, and thus reversal is not 

compelled on that basis. 

Defendants next argue they are entitled to a new trial because the trial 

court’s instructions to the jury under former versions of CALCRIM Nos. 1400 

and 1401 omitted elements necessary to the gang allegations. The Attorney 
42

General concedes there were instructional errors and that the jury’s 

determination that the predicate offenses benefitted the gang was likely 

based, in part, on reputational benefits. Nonetheless, the Attorney General 

asserts, there was also substantial evidence in support of every newly 

modified element and the evidence in the record was sufficient for this court 

to conclude that the instructional errors were harmless beyond a reasonable 

doubt. We disagree. 

Under section 186.22, as amended, to prove a “ ‘pattern of criminal 

gang activity,’ ” the prosecution must prove at least two enumerated 

predicate offenses commonly benefitted the gang in a way that is more than 

reputational. (§ 186.22, subd. (e)(1).) 

Our Supreme Court recently addressed the appropriate test for 

harmless error under Chapman when the jury is not instructed as to these 

new elements. “When a jury instruction has omitted an element of an 

offense, our task ‘is to determine “whether the record contains evidence that 

could rationally lead to a contrary finding with respect to the omitted 

element.” ’ ” (People v. Cooper (2023) 14 Cal.5th 735, 742–743; Tran, supra, 

13 Cal.5th at p. 1207 [“When a substantive change occurs in the elements of 

an offense and the jury is not instructed as to the proper elements, the 

omission implicates the defendant’s right to a jury trial under the Sixth 

Amendment, and reversal is required unless ‘it appears beyond a reasonable 

doubt’ that the jury verdict would have been the same in the absence of the 

error.”]; People v. Mil (2012) 53 Cal.4th 400, 417.) 

In Cooper, the Supreme Court held the failure to instruct the jury that 

the predicate offenses must have commonly benefitted the gang in a way that 

is more than reputational was not harmless beyond a reasonable doubt where 

the record contained no evidence of those elements with respect to the 
43

predicate offenses themselves. (Cooper, supra, 14 Cal.5th at pp. 743–744.) 

The two predicate offenses used to establish the “ ‘pattern of criminal gang 

activity’ ” in Cooper were a robbery and a narcotics sale, each committed by a 

different gang member. (Id. at pp. 740–741.) Although a gang expert had 

testified that the gang’s primary activities included robbery and the sale of 

narcotics, the court drew a distinction between “the question of whether an 

offense is one of the gang’s primary activities” and “the question of whether a 

particular offense has ‘commonly benefitted a criminal street gang.’ ” (Id. at 

p. 743.) “A jury determination regarding the gang’s primary activities merely 

constitutes a conclusion about the types of activities in which a gang typically 

engages, whereas the question about a common benefit asks about how the 

specific predicate offense actually benefitted the gang.” (Ibid.) Because the 

totality of the evidence showed only that there was a robbery and a sale of 

narcotics by gang members and that those were primary activities of the 

gang, the court could not conclude beyond a reasonable doubt that the error 

did not contribute to the verdict. (Id. at p. 746.) 

At trial in this case, the prosecution offered evidence of five convictions 

of Big Block members for felon in possession of a firearm (§ 29800) for 

offenses committed on various dates in 2014, 2015, 2016, and 2018, proven 

through certified records of conviction and Manning’s testimony. Officers 

also testified about two other incidents involving possession of a firearm. In 

the first incident on December 24, 2016, Manning and another officer saw 

video surveillance footage of Young discarding a gun under a Pepsi machine 

after a shooting with a rival gang. Another gang member discarded a second 

firearm in the hallway. An officer testified about a second incident that 

occurred on January 2, 2018, when he served a narcotics arrest warrant at 

Young’s house. Young discarded a firearm at the rear of the house which 
44

officers recovered after his arrest. In addition, Manning testified about two 

murders by Big Block members: (1) Lee Sullivan was a Big Block member 

convicted in 2019 for a murder that occurred in July 2013; and (2) Michael 

Higginbotham was a Big Block member who was convicted of shooting and 

murdering a Westmob gang member, Germane “Marley” Jackson. Manning 

testified Michael was in jail for that murder when Matthew was murdered in 

July 2018. 

As to the five convictions for possession of a firearm by a felon, 

Manning did not offer any testimony at all that the offenses benefitted the 

gang. The Attorney General suggests the jury could infer from Manning’s 

general testimony that one of Big Block’s primary activities was possession of 

“gang guns” that are passed between members and that every instance of 

illegal firearm possession was for the benefit of the gang. Manning did not, 

however, testify that any of the guns used in the five convictions were “gang 

guns” or that any of those instances involved providing a “gang gun” to a 

fellow gang member. Nor did he testify to any other common benefit to the 

gang from these five offenses. 

The limited evidence in the record regarding the murders committed by 

Big Block members is also insufficient for us to conclude the jury would have 

found a pattern of criminal gang activity beyond a reasonable doubt. 

Manning’s testimony regarding Lee Sullivan did not include any testimony 

that the murder was committed for the common benefit of the gang or 

benefitted the gang in a way that was more than reputational.28 (See Cooper, 

supra, 14 Cal.5th at p. 743 [prosecution never introduced any evidence about 

28 Manning’s testimony that Lee Sullivan was convicted of murder for 

killing a rival gang member was offered in response to a question about 

Manning’s testimony as a gang expert in other cases, not as a basis to prove a 

pattern of criminal gang activity. 
45

how the gang commonly benefitted from predicate crimes].) As to Michael, 

the Attorney General asks us to “infer” the crime occurred within three to six

years before Singh’s murder because Michael was in jail for Jackson’s murder 

when Matthew was murdered in July 2018. We cannot determine beyond a 

reasonable doubt the predicate offense occurred within the statutory 

timeframe where the record lacks any information about the date of the 

crime. The Attorney General also asserts the jury could infer from the fact 

that Michael killed a rival gang member that the crime benefitted Big Block, 

citing section 186.22, subdivision (g).29 But Manning did not testify to such 

benefit. (See Cooper, at p. 743, fn. 7 [rejecting Attorney General’s argument 

that Chapman inquiry concerns question whether the jury could draw a 

reasonable inference that the alleged predicate offenses commonly benefitted 

the gang].) In addition, the prosecution did not rely on either the Lee 

Sullivan or Michael Higginbotham murder convictions in arguing a pattern of 

criminal gang activity to the jury. 

As to the testimony regarding Young’s conduct as a felon in possession 

of firearms on two separate occasions, the question is somewhat closer. 

Regarding the December 24, 2016 incident, the prosecutor asked Manning 

whether, in his opinion, Young was “furthering gang conduct when he hid 

that gun under the machine so him [sic] and his group wouldn’t be found out 

by police,” to which Manning replied, “Absolutely.” That testimony appears 

to describe a common benefit to the gang that was more than reputational—

i.e., Young was hiding guns to prevent the police from discovering him and 

29 Section 186.22, subdivision (g) provides examples of a common 

benefit that are more than reputational “may include . . . targeting a 

perceived or actual gang rival . . . .” (Italics added.) 
46

other gang members in the wake of a rival gang shooting.30 As to the 

January 2018 incident, however, the prosecutor asked whether Young was 

acting “to further the criminal conduct of a gang member by hiding that gun.” 

(Italics added.) Manning responded, “Sure. . . . sounds like from the 

testimony he was attempting to hide a gun so that Darius York wouldn’t be 

arrested with it.” That testimony is more equivocal as to whether the crime 

provided a common benefit to the gang that was more than reputational, or 

whether he committed the crime only to help his friend, York, avoid arrest. 

Finally, as in Cooper, the jury here was specifically instructed that the 

predicate offenses that establish a pattern of criminal gang activity need not 

be gang-related, which directly contradicts the new requirement that 

predicate offenses commonly benefit the gang and that the common benefit is 

more than reputational. (See Cooper, supra, 14 Cal.5th at p. 744.) 

On this record, given the absence of evidence of at least two predicate 

crimes that commonly benefitted Big Block, or that the common benefit to the 

gang from those predicate offenses was more than reputational, we cannot 

conclude beyond a reasonable doubt that the instructional error did not 

contribute to the jury’s verdicts.31 (See Cooper, supra, 14 Cal.5th at p. 746;

30 The Attorney General contends one of Young’s fellow gang members 

discarded a second firearm in the hallway during that incident. There was no 

testimony, however, that the unidentified person who discarded the second 

firearm was a gang member, a felon, or otherwise prohibited from carrying a 

weapon or committed an offense for the common benefit of the gang beyond 

reputational benefit. 

31 Because we conclude remand is required based on the absence of 

evidence in the record that two predicate offenses were committed for the 

common benefit of the gang and that the benefit was more than reputational, 

we need not consider the parties’ additional arguments regarding the failure 

to instruct on the requirement that the gang be “organized” and that the 

predicate offenses were committed “collectively.” 
47

Tran, supra, 13 Cal.5th at p. 1207 [reversing gang enhancements where jury 

was not presented with evidence gang members collectively engage in pattern 

of criminal gang activity].) 

The changes made by Assembly Bill 333 affect not only the gang offense 

and enhancement allegations under section 186.22, but other statutes that 

incorporate section 186.22 by reference, including section 12022.53. (Cooper, 

supra, 14 Cal.5th at p. 746; People v. Lopez (2021) 73 Cal.App.5th 327, 346–

348.) Because the jury’s true findings on the enhancements under 

section 12022.53, subdivision (e) required findings that defendants committed 

the murder for the benefit of a criminal street gang, those findings must also 

be vacated.

We reject defendants’ arguments, however, that reversal of their 

convictions on the gang offenses and true findings on the gang enhancements 

also requires us to reverse their murder and conspiracy to commit murder 

convictions. Defendants contend the prosecution’s theory of the case was that 

intent to kill could be inferred from their gang motivation to retaliate on 

behalf of Big Block, and “[d]ue to the centrality of the gang evidence to the 

People’s entire case, the failure of the evidence with respect to the 

substantive gang offense and the enhancement mandates that the entire 

judgment be vacated.” Defendants cite no authority in support of this 

argument, and we are not persuaded. The murder and conspiracy to commit 

murder offenses did not incorporate section 186.22, nor was meeting the 

requirements of that statute necessary for the jury to find beyond a 

reasonable doubt that defendants committed those crimes. The evidence 

regarding the gang motive for the murder and conspiracy would have been 

admissible notwithstanding the section 186.22 charges, and defendants have 

not shown any reason the entire judgment should be reversed. (See, e.g., 
48

People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [evidence of gang 

membership and activity can help prove identity, motive, specific intent, and 

other issues pertinent to guilt]; People v. Ramirez (2022) 13 Cal.5th 997, 1095 

[evidence of gang membership is admissible on the charged offense assuming 

its probative value outweighs its prejudice].) 

Accordingly, we shall reverse defendants’ convictions for active 

participation in a criminal street gang (§ 186.22, subd. (a); count 4); vacate 

the true findings on the gang-related firearm enhancement (§ 12022.53, 

subd. (e); count 1); and vacate the true findings on the gang enhancement 

allegations (§ 186.22, subd. (b)(5); counts 1 & 3.) The prosecution will have 

the option to retry these counts and enhancements on remand. 

F. Lying-in-wait Special Circumstance

Defendants next argue the lying-in-wait special circumstance findings 

on their murder convictions must be stricken because the record lacks 

substantial evidence of every element necessary for that finding. 

“A sufficiency of evidence challenge to a special circumstance finding is 

reviewed under the same test applied to a conviction. [Citation.] Reviewed 

in the light most favorable to the judgment, the record must contain 

reasonable and credible evidence of solid value, ‘such that a reasonable trier 

of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People 

v. Stevens (2007) 41 Cal.4th 182, 201.)

“The ‘ “lying-in-wait special circumstance requires ‘ “ ‘an intentional 

murder, committed under circumstances which include (1) a concealment of 

purpose, (2) a substantial period of watching and waiting for an opportune 

time to act, and (3) . . . a surprise attack on an unsuspecting victim from a 

position of advantage . . . .’ ” ’ ” ’ ” (People v. Parker (2022) 13 Cal.5th 1, 58.) 
49

The record in this case reveals substantial evidence as to each of the required 

elements. 

Concealment, as required to prove the lying-in-wait special 

circumstance, “ ‘is that which puts the defendant in a position of advantage, 

from which the factfinder can infer that lying-in-wait was part of the 

defendant’s plan to take the victim by surprise. [Citation.] It is sufficient 

that a defendant’s true intent and purpose were concealed by his actions or 

conduct.’ ” (People v. Morales (1989) 48 Cal.3d 527, 555, overruled on another 

ground in People v. Williams (2010) 49 Cal.4th 405, 459; People v. Ceja (1993) 

4 Cal.4th 1134, 1140.) Here, there was ample evidence of concealment—both 

of defendants’ purpose and physical concealment. Defendants and their 

coconspirators located Singh at City Nights and communicated that 

information with each other. They kept track of when Singh left City Nights 

and followed him back to Antioch. The evidence that defendants remained 

several minutes behind Singh’s car supports an inference that they were 

concealing both their presence and purpose. When Webb saw Singh drive by 

the Valero gas station, he ducked—literally concealing himself behind his 

car. Further, when he pulled out of the gas station to follow Singh, he did so 

with his headlights turned off, again supporting a reasonable inference he 

was both concealing his purpose and preventing Singh and Richardson from 

seeing him.32 

32 Young contends this case is like People v. Nelson (2016) 1 Cal.5th 

513, in which our Supreme Court concluded the evidence was insufficient to 

support instructions on lying-in-wait first degree murder and special 

circumstance allegations. We disagree. While Young relies on Nelson to 

argue insufficient evidence of concealment, the defendant in that case argued 

the prosecution failed to prove he had engaged in a substantial period of 

watching and waiting for a favorable or opportune time to act. (Id. at 
50

Defendants effectively concede that evidence they tracked Singh and 

Richardson’s locations to City Nights, then followed them from San Francisco 

to the Mira Vista apartments in Antioch would be sufficient evidence to 

satisfy the watching and waiting requirement. As our Supreme Court has 

explained, “the purpose of the watching and waiting element ‘ “ ‘is to 

distinguish those cases in which a defendant acts insidiously from those in 

which he acts out of rash impulse. [Citation.] This period need not continue 

for any particular length “ ‘of time provided that its duration is such as to 

show a state of mind equivalent to premeditation or deliberation.’ ” ’ ” ’ ” 

(People v. Flinner (2020) 10 Cal.5th 686, 749.) In addition to the evidence 

referenced by defendants, there was evidence that defendants arrived at the 

Mira Vista apartments before Singh and Richardson, and that Young waited 

there, while Webb left. Webb then went to the Valero gas station and after 

Singh and Richardson’s car passed by, he ducked, got into his car, pulled out 

pp. 550–551.) In Nelson, the defendant went to where he expected the 

victims to be in a Target parking lot, then hid his bicycle, and snuck up 

behind them on foot to take them by surprise. (Id. at p. 551.) The court 

explained that there was no evidence that the defendant “arrived before the 

victims or waited in ambush for their arrival. In the absence of such 

evidence, there is no factual basis for an inference that before approaching 

the victims, he had concealed his bicycle and waited for a time when they 

would be vulnerable to surprise attack. The jury was presented with no 

evidence from which it could have chosen, beyond a reasonable doubt, that 

scenario over one in which defendant arrived after the victims, dismounted 

from his bicycle, and attacked them from behind without any distinct period 

of watchful waiting.” (Ibid.) Here, by contrast, there was evidence from 

which a jury could draw a reasonable inference that Young and Webb arrived 

at the murder scene before the victims, and Young waited there for their 

arrival while Webb went to find them. In addition, unlike Nelson, there was 

substantial evidence Young and Webb had tracked Singh’s location all 

evening and followed him while concealing their purpose, further supporting 

a reasonable inference of a substantial period of watching and waiting. 
51

of the Valero station, and followed them with his headlights off even though 

he had only pumped less than half of the $40 in gas he had prepaid. From 

this evidence, the jury could reasonably infer Webb and Young were watching 

and waiting for Singh and Richardson to arrive at the Mira Vista apartments 

where they could surprise them. 

Finally, there was substantial evidence defendants made a surprise 

attack from a position of advantage. Singh’s car was discovered by police 

with its engine still running and headlights on. The evidence supports a 

reasonable inference that after Singh parked his car in the carport, Webb and 

Young approached his car quickly and shot him before he had the chance to 

turn off the car. Further, the jury could infer both defendants approached 

Singh’s car in separate cars because an eyewitness saw three cars leave the 

scene. The jury also could reasonably infer the attack was a surprise because 

Richardson told the 911 operator that he did not see the shooter, did not 

know who shot them, and did not know where the shooting came from. 

Moreover, defendants had an advantageous position because Singh was 

confined by his car and easily visible through the open driver’s side window.33 

Defendants, on the other hand, had free range of movement either on foot or 

by car—including two separate vehicles. 

33 An officer testified that during his investigation at the murder scene, 

he discovered the driver’s side window of Singh’s Infiniti was missing. It

appeared to have been broken recently based on the number and size of glass 

fragments remaining in the window frame. He also believed that the window 

had been broken at a different location, because there was not a substantial 

amount of glass inside or outside the vehicle. Shortly before the murder, 

while he was at the Chevron gas station with Singh, Richardson ran several 

Internet searches on his phone regarding the cost of replacing a driver’s side 

window on an Infiniti FX45. 
52

In sum, there was substantial evidence to support the lying-in-wait 

special circumstance. 

G. Sentencing Issues

Defendants assert two errors at sentencing: first, they contend their 

sentences for life without the possibility of parole on their conspiracy 

convictions must be stricken as unauthorized because the murder and 

conspiracy were part of a continuous course of conduct pursuant to a single 

objective; and second, they contend the matter must be remanded for the trial 

court to choose whether to stay punishment for the murder or the conspiracy 

counts under section 654.

34 The Attorney General concedes error and agrees 

defendants must be sentenced to 25 years to life on their conspiracy 

convictions. The Attorney General also agrees sentences cannot be imposed 

on both defendants’ murder and conspiracy convictions under section 654, but 

asserts we should direct the trial court to stay the conspiracy sentences. 

We agree defendants must be resentenced to terms of 25 years to life on 

the conspiracy convictions. The punishment for conspiracy to commit murder 

is the same as for first degree murder, but the special circumstances in 

section 190.2 do not apply to conspiracy to commit murder. (People v. 

Hernandez (2003) 30 Cal.4th 835, 868–870 (Hernandez), overruled in part on 

another ground in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32, 

disapproved on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 

1216; see People v. Lopez (2022) 12 Cal.5th 957, 963–965.) Thus, the trial 

34 Defendants also argued that to the extent the active participation 

convictions survived their challenge based on the statutory amendments to 

section 186.22, they would be entitled to resentencing on those counts under 

section 654. We need not address that argument because we have already 

determined the active participation convictions must be reversed for reasons

explained above. 
53

court should not have imposed the same life without possibility of parole 

sentence it imposed for the murder count (based on the § 190.2 lying-in-wait 

special circumstance) on the conspiracy count. (See People v. Scott (1994) 

9 Cal.4th 331, 354 [sentence is unauthorized when court violates mandatory 

provisions governing the length of confinement].) 

Moreover, because the murder and conspiracy to commit murder 

convictions had the same objective (killing Singh), section 654 precludes 

defendants from being punished more than once. (Hernandez, supra, 

30 Cal.4th at p. 866.) Accordingly, we will remand with directions to the trial 

court to sentence defendants to 25 years to life on their conspiracy to commit 

murder convictions and exercise its discretion to determine whether to stay 

the sentences for murder or the sentences for conspiracy to commit murder.

35

H. Cumulative Error

Defendants contend the cumulative effect of the multiple errors at trial 

identified above requires reversal of the judgment. Under the cumulative 

error doctrine, “a series of trial errors, though independently harmless, may 

in some circumstances rise by accretion to the level of reversible and 

prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.) As we have 

discussed in detail above, we have rejected defendants’ individual claims of 

error and, accordingly, there is no prejudice to accumulate. Any potential 

35 At the time of defendants’ original sentencing, the trial court would 

have been required to impose the longest potential term of imprisonment. 

(Former § 654, subd. (a).) Effective January 1, 2022, however, Assembly Bill 

No. 518 (2021–2022 Reg. Sess.) amended section 654 to provide that when an 

act or omission is punishable by different provisions, the defendant “may be 

punished under either of such provisions.” (§ 654, subd. (a).) Assembly Bill 

No. 518 applies retroactively. (Sek, supra, 74 Cal.App.5th at p. 673.) Thus, 

on remand the trial court will have discretion under the new version of 

section 654 to sentence defendants under either provision. 
54

errors we have considered separately and found to be harmless; we reach the 

same conclusion considering them collectively. 

III. DISPOSITION

Defendants’ convictions for active participation in a criminal street 

gang (§ 186.22, subd. (a); count 4) are reversed. The true findings on the 

gang enhancement allegations (§ 186.22, subd. (b)(5); counts 1 & 3) and gangrelated firearm enhancements (§ 12022.53, subd. (e); count 1) are vacated.

The prosecution will have the option to retry these counts and enhancements 

on remand. Further, the trial court is directed to resentence defendants to 25 

years to life on their conspiracy convictions, and exercise its discretion under 

section 654 whether to stay the conspiracy terms or the terms for defendants’ 

murder convictions. The judgments are otherwise affirmed. 
55

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BOWEN, J.*

A161098

People v. Webb

A161100

People v. Young

 Judge of the Contra Costa County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California Constitution.