1

Filed 12/14/21 P. v. Follings 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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.

BRANDON FOLLINGS,

Defendant and Appellant.

 A157571

 (Alameda County

 Super. Ct. No. 17-CR-023555A)

 

A jury convicted appellant Brandon Follings of the first degree murder 

of Daniel DelToro and of being a felon in possession of a firearm. In reaching 

its verdict, the jury found true several enhancements and special allegations, 

including that the crime was committed for the benefit of a criminal street 

gang and that DelToro had been intentionally killed because he was a 

witness to a crime. Appellant challenges his conviction on the following 

grounds: (1) the trial court abused its discretion and violated his 

constitutional rights to due process and a fair trial by refusing to sever his 

case from that of his codefendant, Pablo Mendoza;

1

(2) the trial court abused 

its discretion and violated his constitutional right to confrontation by

admitting a rap video showing Mendoza making certain hand signs to 

1 We affirmed Mendoza’s related convictions earlier this year. (People 

v. Mendoza (Jan. 29, 2021, A157489) [nonpub. opn.].) 
2

demonstrate an alliance between Mendoza’s gang and appellant’s gang; and 

(3) the evidence was insufficient to support his conviction for first degree 

murder and the imposition of the gang enhancement. Seeing no error, we 

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In December 2017, an information was filed by the Alameda County 

District Attorney, charging appellant, Mendoza, and Valeria Rose Boden in 

count one with DelToro’s murder. (Pen. Code,2 § 187, subd. (a).) With regard 

to count one, the information alleged that both Mendoza and appellant 

personally and intentionally discharged a firearm which proximately caused 

great bodily injury and death (§§ 12022.5, subd. (a), 12022.53, subds. (b)–(d), 

(e)(1) & (g)), doing so for the benefit of a criminal street gang (§ 186.22, 

subd. (b)(5)), and that the charged murder was a serious felony (§ 1192.7, 

subd. (c)(8)) and a violent felony (§ 667.5, subd. (c)). The information further 

alleged a special circumstance that the murder was committed against a 

witness to a crime. (§ 190.2, subd. (a)(10).) Counts two and three charged 

appellant and Mendoza, respectively, with possession of a firearm by a felon. 

(§ 29800, subd. (a)(1).) Appellant was alleged to have sustained two prior 

felony convictions. Additional enhancements were alleged with respect to 

Boden and Mendoza. Prior to trial, Boden’s matter was severed from that of 

Mendoza and appellant. 

Jury trial with respect to Mendoza and appellant commenced on 

April 17, 2019. The following evidence was adduced at trial.

2 All statutory references are to the Penal Code unless otherwise 

indicated.
3

A. Prosecution Evidence

i. Kennedy Park Shooting and Prosecution

In 2008, four members of the Decoto XIV (Decoto) gang—Noel Cruz, 

Raymond Romo, Damien Alaniz, and Joel Perry—attempted a robbery in 

Kennedy Park, an area in Union City claimed as Decoto territory. When the 

victims resisted, the gang members shot them both, killing one and injuring 

the other.

In 2011, DelToro, a member of the Decoto gang, was arrested for 

committing an unrelated felony. In response to questioning by Union City 

detectives, DelToro identified Cruz, Romo, Alaniz, and Perry as individuals

involved in the Kennedy Park incident. The surviving victim corroborated 

this story by identifying one of the named gang members as one of his 

assailants. DelToro dropped out of the Decoto gang and testified for the 

prosecution at the preliminary hearing. Cruz, Alaniz, and Romo all pleaded 

guilty and were sentenced to lengthy prison terms. Romo received an 11-year 

sentence for his role in the shooting. Perry proceeded to trial and was 

convicted as a result of DelToro’s testimony.

Following the trial, detectives learned that DelToro had been identified 

on a “bad news list,” a hit list of former gang members who had dropped out 

or “snitched” and were no longer in good standing with the gang. Bad news 

lists prescribe gang retribution, including beatings, stabbings, and murder. 

In exchange for cooperating with the Kennedy Park prosecution, DelToro 

received a reduced sentence of six years served in local jail to help protect 

him from possible retaliation. 

ii. Murder of DelToro

On the afternoon of July 19, 2017, law enforcement officers responded 

to a 911 call of gunshots in Union City. The officers found DelToro 
4

unresponsive and bleeding, with an overturned stroller nearby and a 

neighbor watching DelToro’s infant son. The woman had run outside after 

hearing the gunshots to check on the baby. DelToro suffered six entry 

gunshot wounds to his chest, back, and thighs. He was pronounced dead at 

the scene.

The neighbor testified that she heard gunshots, saw DelToro on the 

ground, and called 911. Her husband saw a car with a driver and at least two 

passengers. Another individual wrote a partial license plate number on a 

trash can nearby. Using surveillance footage and the partial license plate 

number, sheriff’s deputies determined that a vehicle matching the description 

belonged to Boden’s grandmother. Boden was arrested and eventually 

cooperated with the investigation. 

Boden testified against Mendoza and appellant at trial pursuant to a 

plea deal under which she received six years in prison in exchange for her 

truthful testimony. Boden had been romantically involved with appellant in 

2017. She owned an illegally purchased firearm, a nine-millimeterLlama, 

that she gave to appellant about two weeks before the shooting. Appellant, a 

member of the North Side Oakland gang, was friends with Mendoza.

On July 19, 2017, Boden drove her grandmother’s Toyota Camry to 

Mendoza’s house at appellant’s request. Appellant then asked Boden to drive 

him and Mendoza to buy marijuana at a nearby house. On the way, Mendoza 

saw DelToro walking down the street pushing his infant son in a stroller.

Mendoza was irritated and explained that DelToro was a snitch. Appellant 

stated that he understood, as he had a friend who had been sentenced to 50 

years in prison after someone snitched on him. Mendoza said he wanted to 

“fire on” DelToro, which Boden understood to mean he wanted to fight 

DelToro. Appellant stated he needed to “get on him.” Boden said she did not 
5

think they should fight him while he was with his baby, and Mendoza agreed. 

She drove them back to Mendoza’s house.

After Mendoza exited the car, appellant asked Boden to drive around

the block to see where DelToro was headed, stating: “ ‘You’re not supposed to 

ever give a snitch a chance to tell again.’ ” Boden was afraid but did not 

refuse because appellant was “not the type of person you say ‘no’ to.” After 

noting DelToro’s location, Boden drove appellant back to Mendoza’s house.

Later that day, Mendoza got back into the vehicle carrying socks and a pair of 

jeans. Appellant repeated that you should “never give[] a snitch a chance to 

tell again.” 

According to Boden, as she drove past DelToro, Mendoza told her to 

stop and began exiting the car. With socks on his hands, Mendoza pointed a 

gun at DelToro. DelToro stopped pushing the stroller, put his hands in the 

air, and screamed, “ ‘My son, my son.’ ” The gun did not fire, and DelToro 

fought Mendoza for control of the weapon. Mendoza yelled to appellant,

“ ‘Kill him, kill him.’ ” Appellant exited the car armed with a gun and fired 

multiple shots at DelToro. Boden drove appellant and Mendoza back to 

Mendoza’s house. Mendoza was bleeding from his arm and accused appellant 

of shooting him. Appellant apologized and said it was not intentional. Boden 

left the two at Mendoza’s house and drove away.

Boden was arrested the night of the murder. Sheriff’s deputies located 

appellant and placed him under arrest on August 4, 2017. Mendoza was 

arrested on August 17, 2017, when he reported to his probation officer. At 

that time, he had an apparent gunshot wound to his arm. Mendoza’s mother 

was interviewed that day by detectives and reported that Mendoza had told 

her he and DelToro got into a fight when DelToro tried to take his gun so 

appellant shot and killed DelToro. DNA from blood in Boden’s car and at the 
6

crime scene was matched to Mendoza’s DNA. The surveillance video

obtained by the police was played at trial. The video showed Mendoza with a 

gun, his struggle with DelToro, and appellant shooting his gun at DelToro. 

iii. Gang Expert Testimony

Officer Gabriel Urquiza testified as a gang expert concerning the North 

Side Oakland gang (also known as Ice City) and its subsets, including the 

Bushrod gang. He opined that North Side Oakland/Bushrod was a criminal 

street gang and detailed evidence supporting appellant’s membership in the 

gang. Urquiza testified that a music video of appellant’s rap song “On My 

Job”—in which appellant and Mendoza both appeared—announced a

connection between the Ice City and Decoto gangs by spelling out the words 

“Ice City to Decoto.” In response to a hypothetical in which a North Side 

Oakland gang member and a Decoto gang member saw a snitch on the street 

and murdered that snitch, Officer Urquiza opined that the murder would be 

for the benefit of both gangs because the reputations of both individuals and 

both gangs would benefit from their willingness to commit a violent act 

against the snitch. Urquiza testified as to certain predicate offenses 

committed by the North Side Oakland/Bushrod gang. 

Detective Andrew Gannam testified as a gang expert concerning the 

Decoto gang. He described characteristics of the Decoto gang and testified 

that he had personally obtained DelToro’s statement incriminating Decoto 

gang members in the Kennedy Park shooting. He opined that Mendoza was a 

member of the Decoto gang. Detective Victor Ramirez testified as an expert 

witness with respect to the investigation of gang-related crimes. He testified 

that appellant was a North Side Oakland gang member. He also described 

the composition, characteristics, and activities of the Decoto gang. Ramirez 
7

provided evidence of Mendoza’s membership in the Decoto gang and testified 

regarding certain predicate offenses committed by the Decoto gang.

Detective Ramirez testified that Mendoza was an aspiring rap artist 

who had recorded a song called “ ‘100 Bars Part 2.’ ” After audio of the song 

was played for the jury, Detective Ramirez was asked to explain the meaning 

of certain lyrics from the song. According to the lyrics, Mendoza could not 

wait until Raymond Romo, a Decoto gang member involved in the Kennedy 

Park prosecution, was released from custody. The next several lines of the 

song were a reference to DelToro: “ ‘We gonna find that fuckin’ nigga,’ . . .

[and] ‘We gonna air his ass out. Real killas put the barrel in your mouth.’ ”

Based on the “On My Job” music video, Detective Ramirez opined that 

Mendoza and appellant had formed an alliance and that gang members 

fortify such alliances by committing crimes. In response to a hypothetical 

tracking the facts of the instant offense, Detective Ramirez opined that both 

of the individuals who murdered the snitch, as well as their respective gangs, 

would benefit from enhanced reputations for violence. On the other hand, if a 

gang member stood by and failed to come to the aid of a fellow gang member 

who needed help, both that gang member’s reputation and the reputation of 

his gang would suffer. 

B. Defense Evidence

Appellant testified in his own defense. In 2010, he was convicted of 

robbery and sentenced to seven years eight months in prison. Following his 

release, he experienced some success in his gangster rap career. He met 

Mendoza through their shared interest in music. Part of his rap music 

included claiming the neighborhood of Bushrod Park and playing a persona 

rather than his real self. He denied ever belonging to a gang and stated he 

had not known Mendoza to associate with Decoto gang members. Appellant 
8

had never heard of DelToro before the day of the shooting when Mendoza 

identified him as a snitch. When they drove by DelToro again, Mendoza 

pulled a gun. Appellant did not know that Mendoza was armed but assumed 

DelToro was. Boden gave appellant the gun from her purse. He watched 

Mendoza and DelToro struggle over Mendoza’s gun and heard Mendoza say,

“ ‘Help, B, help.’ ” He got out of the car, heard a shot go off, and repeatedly 

shot DelToro because he “didn’t want to get shot.”

Mendoza elected not to testify. During closing arguments, his defense 

counsel stressed that Mendoza’s gun never fired. He argued that it was 

reasonably possible from the evidence presented that Mendoza only 

wanted to confront, frighten, and fight DelToro, not kill him. 

C. Conviction and Sentence

On May 9, 2019, the jury found Mendoza and appellant guilty of first

degree murder and possession of a firearm by a felon and found true all 

related special circumstances, enhancements, and special allegations. In a 

bifurcated proceeding, the trial court found true appellant’s prior strike 

conviction. The trial court sentenced appellant to prison for 75 years to life. 

Appellant’s timely notice of appeal followed. 

II. DISCUSSION

A. Motion to Sever

i. Additional Background

Preliminary Hearing.

3 At the December 2017 preliminary hearing, 

Mendoza’s mother testified that DelToro and her son grew up together. On 

3 Because we review a trial court’s decision not to sever for abuse of 

discretion based on the record when the motion is heard (People v. Elliot

(2012) 53 Cal.4th 535, 552 (Elliot)), we include here a brief summary of the 

facts elicited at the preliminary hearing which preceded appellant’s pretrial 

motion to sever.
9

the day of DelToro’s murder, Mendoza and appellant were at her house a few 

blocks from the crime scene. In a prior interview with police, she sensed that 

something was going on that day. She told investigators there was a lot of 

commotion back and forth, and appellant kept whispering something in her 

backyard. She also acknowledged that the shooting occurred about 10 to 15 

minutes after appellant and her son left the house. Shortly after the 

shooting, appellant ran into the house to use the bathroom and then left.

Later, Mendoza told his mother that he had fought with DelToro, but 

appellant shot him.

Detective Paxton testified about his response to the crime scene and 

the course of the ensuing investigation. He related DelToro’s history as a 

former Decoto gang member who had testified against other Decoto gang 

members; he described Mendoza’s rap song suggesting retribution against 

Del Toro; and he narrated various surveillance videos which showed Boden’s 

car travelling repeatedly (no less than six times) past DelToro before it 

stopped and the murder unfolded. Detective Paxton also introduced and read 

a letter Boden sent to a friend from jail in which Boden reported meeting 

appellant a month before the murder, stated he had threatened Boden’s 

daughter when she tried to pull back from him due to his criminality, and 

described Mendoza wanting to “ ‘fire on’ ” DelToro because he was a snitch 

and that appellant emptied “ ‘the whole clip’ ” into DelToro after Mendoza’s 

gun jammed and he asked for help.

Finally, Detective Ramirez testified as a gang expert regarding the 

origin, tattoos, hand signs, colors, and prior crimes of the Decoto gang. After 

describing Mendoza’s tattoos, use of hand signs, gang contacts, and behavior 

in appellant’s rap video “On My Job,” Ramirez opined that Mendoza was a 

Decoto gang member on the day of the DelToro murder. Ramirez also opined 
10

that appellant was a North Side Oakland/Ice City gang member on the day of 

the murder. He described appellant’s tattoos, hand signs, and monikers, as 

well as the Bushrod subset of North Side Oakland. He opined that the 

murder of a snitch like DelToro would be for the benefit of the Decoto street 

gang. 

Motion to Sever. In August 2018, while the joint trial of appellant, 

Mendoza, and Boden was pending, appellant filed a motion to sever his case 

from Mendoza’s. Appellant claimed he knew nothing about Mendoza’s plan 

to shoot and kill DelToro, asserting that he only shot DelToro when it 

appeared DelToro was about to kill Mendoza. During a July 2018 jail visit, 

appellant reportedly told his defense attorney that Mendoza had reached out 

to him and indicated that, if the two men were tried separately, Mendoza 

would testify “that his actions were spontaneous, and that defendant Follings 

was given no indication that he planned to assault and attempt to kill 

[DelToro].” Mendoza, however, would not testify in a joint trial due to “gang 

rules” and issues with self-incrimination. Arguing that Mendoza was the 

only witness who could support his “defense-of-another theory” and that the 

expected testimony “confirming the spontaneity of the crime would provide 

critical evidence of [his] innocence,” appellant asked the trial court to exercise 

its discretion to sever his trial from that of Mendoza.

The prosecutor opposed the motion to sever, noting that appellant and 

Mendoza were charged with the same offenses stemming from the same facts.

Although the trial court had the discretion to order separate trials in an 

appropriate case, the prosecutor argued this was not such a case. He 

asserted that the possibility of conflicting or antagonistic defenses did not 

justify the requested severance and that the claim that Mendoza would offer 

exonerating testimony in a separate trial was not adequately supported. 
11

After a hearing on September 7, 2018, the trial court denied the

motion. In doing so, the court indicated to defense counsel: “[W]e’ve got what 

Mr. Mendoza reportedly said to your client . . . that your client has 

communicated to you, that you communicated to us. But that’s all we’ve got 

. . . as the basis for this motion.” When the court asked the “obvious 

question” why further inquiry had not been made about the matter through 

Mendoza’s defense counsel, appellant’s attorney stated that he had made 

inquiries without success.

4

 The court expressed concern about the amount of 

time appellant’s trial would have to wait until Mendoza was tried and his 

appellate rights exhausted. The trial court then ruled: “We’d have to make a 

lot of leaps of faith and a lot of speculation, and for that reason, I’m going to 

deny the motion to sever. I just am not satisfied that there is—there’s a true, 

reasonable expectation that should I grant the severance motion that what is 

being sought, the purpose of it, would actually ever occur.” The court also 

stated a concern that the two defendants might have gotten together and 

“concoct[ed] a reason to try to get a severance.” 

ii. Relevant Law

“Our Legislature has expressed a strong preference for joint trials.” 

(People v. Souza (2012) 54 Cal.4th 90, 109 (Souza).) “Joinder is ordinarily

favored because it avoids the increased expenditures of funds and judicial

resources that may result from separate trials” and, therefore,“ ‘is the course

of action preferred by the law.’ ” (People v. Simon (2016) 1 Cal.5th 98, 122

(Simon).) Indeed,the California Constitution expressly provides that it

“shall not be construed by the courts to prohibit the joining of criminal cases

4 Only appellant and his counsel were present at the motion hearing 

because neither Mendoza nor Boden had joined in the severance request.
12

as prescribed by the Legislature or by the people through the initiative

process.” (Cal. Const., art. I, § 30, subd. (a).)

We review a trial court’s decision not to sever for abuse of discretion 

based on the record when the motion is heard. (Elliot, supra, 53 Cal.4th at 

p. 552.)5 Whether a trial court abused its discretion in denying severance 

depends on the particular circumstances of each case. (Simon, supra, 

1 Cal.5th at p. 123.) “Where, as here, the statutory requirements for joinder 

are met, a defendant must make a ‘clear showing of prejudice’ to establish 

that the trial court abused its discretion in denying the motion.” (Id. at 

pp. 122–123.) Finally, “even if the trial court’s ruling was proper as a matter 

of state law, we will reverse the judgment if the defendant shows that joinder 

of the charges actually resulted in ‘ “ ‘gross unfairness’ ” ’ amounting to a 

denial of due process.” (Id. at p. 123; Ervin, supra, 22 Cal.4th at p. 69 [“a

reviewing court may reverse a conviction when, because of consolidation,

‘ “gross unfairness” ’ has deprived the defendant of a fair trial”].)

Section 1098 provides in pertinent part: “When two or more defendants 

are jointly charged with any public offense, whether felony or misdemeanor, 

they must be tried jointly, unless the court order[s] separate trials.” (Italics 

added.) The court’s discretion to order severance of defendants is guided by 

certain nonexclusive factors, “ ‘such that severance may be appropriate “in 

the face of an incriminating confession, prejudicial association with 

codefendants, likely confusion resulting from evidence on multiple counts, 

conflicting defenses, or the possibility that at a separate trial a codefendant 

would give exonerating testimony.” ’ ” (Souza, supra, 54 Cal.4th at p. 110.) A 

5

If further developments occur during trial that a defendant believes 

justify severance, he or she must renew the motion to sever. (People v. Ervin

(2000) 22 Cal.4th 48, 68 (Ervin).) Appellant does not argue that he did so in 

this case, and we have found no evidence of a renewed motion.
13

court considering a motion to sever based on the possibility that a 

codefendant might then offer exonerating testimony should consider the 

following factors: (1) whether the moving defendant desires the testimony of 

the codefendant; (2) whether the testimony will be exculpatory; (3) whether 

the testimony is significant; (4) whether the court is satisfied that the 

testimony itself is bona fide; (5) how strong the likelihood is, based on the 

showing at the time of the motion, that the codefendant will testify as 

anticipated if severance is granted; and (6) the effect of granting severance on 

judicial administration and economy. (People v. Isenor (1971) 17 Cal.App.3d 

324, 332 (Isenor).)

Typically, when defendants are “ ‘charged with the same crimes arising 

from the same events’ ” the court is presented with a “classic case for a joint 

trial.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 379

(Wheeler).) Moreover, “[s]imply because the prosecution’s case will be 

stronger if defendants are tried together, or that one defense undermines 

another, does not render a joint trial unfair.” (Ibid.) “Indeed, important 

concerns of public policy are served if a single jury is given a full and fair 

overview of the defendants’ joint conduct and the assertions they make to 

defend against ensuing charges.” (Ibid.)

iii. Joinder of Trial Was Not An Abuse of Discretion

On appeal, appellant argues that the trial court’s refusal to sever 

Mendoza’s trial from his was an abuse of discretion because it denied him the 

opportunity to present the exculpatory testimony Mendoza would offer. He 

also contends that even if the trial court’s ruling was proper when made, the 

result of the ruling was “ ‘ “gross unfairness” ’ ” amounting to a denial of his 

constitutional rights to due process and a fair trial. We reject both claims. 
14

Although appellant acknowledges that Isenor is often cited in cases 

involving a severance motion based on an offer of exculpatory testimony, he 

spends considerable time criticizing the legal framework Isenor announces 

and attempting to distinguish the case on its facts. We find the factual 

differences identified by appellant immaterial to our analysis and the factors 

adopted by the Isenor court instructive. Indeed, this District has previously 

followed Isenor under similar circumstances. (People v. Conerly (2009) 

176 Cal.App.4th 240, 250–253 (Conerly).) We see no reason to do otherwise.

Considering the first three Isenor factors, it is clear that appellant 

desired Mendoza’s testimony and that, had Mendoza testified in the manner 

suggested by appellant, such testimony would have been exculpatory and of 

some significance to his defense. (Isenor, supra, 17 Cal.App.3d at p. 332.) 

However, the latter three Isenor factors persuade us that the trial court’s 

denial of severance was not an abuse of discretion. 

First, the trial court was justifiably skeptical that the testimony from 

Mendoza was bona fide. The Isenor court “recognized that in cases in which 

an appellate court has held that severance should have been granted, the 

codefendant exculpated the defendant in an affidavit, in open court or in 

statements to the police, or there was an otherwise reliable indication the 

codefendant would testify in a way that actually exonerates the defendant.” 

(Conerly, supra, 176 Cal.App.4th at p. 251.) Here, no affidavit or statement 

by Mendoza was offered to support the claim that he would testify as 

appellant had suggested. The only indication that Mendoza was willing to 

offer exculpatory testimony was a secondhand report of what Mendoza 

reportedly said to appellant, that appellant communicated to his attorney, 

and that his attorney then communicated to the court. Without any evidence 

to corroborate counsel’s assertion, the trial court had very little basis to 
15

accept the assertion as true. “It is not error to deny a motion to sever based 

solely on defendant’s bald assertion that someone has made an exonerating 

statement in his behalf.” (Isenor, supra, 17 Cal.App.3d at p. 333.) In 

addition, the silence from Mendoza’s defense counsel—both in failing to 

respond to inquiries from appellant’s counsel and in declining to join in the 

motion to sever—was telling and raises serious questions whether Mendoza 

would testify on appellant’s behalf. 

Moreover, as the prosecution pointed out, if Mendoza were tried and 

convicted of murder, his Fifth Amendment privilege against selfincrimination would extend through any appeal, and therefore severance 

would require delaying the trial against appellant until after Mendoza’s 

judgment became final. The trial court determined it was unwilling to 

substantially delay appellant’s trial on the basis of “leaps of faith” and 

“speculation” that Mendoza would give exculpatory testimony at some point

in the future. We see no cause to question this decision. “The absence of

substantial proof that a codefendant would be willing to testify for the

defendant at a later date is, in itself, grounds for denying a motion for

severance.” (Isenor, supra, 17 Cal.App.3d at p. 334.) 

Considerations of judicial administration and economy also weighed 

against severance. This was a lengthy criminal trial with numerous 

witnesses in which the evidence against both Mendoza and appellant was 

largely the same. It was clearly more efficient to conduct a single trial than

to present similar evidence in two trials before separate jury panels. “While 

the concern for judicial efficiency, by itself, does not outweigh a defendant’s 

right to a fundamentally fair trial, it is nonetheless a proper factor for a court 

to consider in weighing the severance decision.” (Conerly, supra, 

176 Cal.App.4th at p. 252.)
16

Given these considerations, we see no abuse of discretion in the trial 

court’s decision to deny severance. Rather, we view the matter as one in 

which “concerns of public policy [have been] served [by] a single jury [being]

given a full and fair overview of the defendants’ joint conduct and the 

assertions they [made] to defend against ensuing charges.” (Wheeler, supra, 

60 Cal.4th at p. 379.)

6

 

iv. No “Gross Unfairness” in the Trial Court’s Decision

For similar reasons, we see no evidence that joinder of the charges 

actually resulted in “ ‘ “ ‘gross unfairness’ ” ’ amounting to a denial of due 

process.” (Simon, supra, 1 Cal.5th at p. 123; Ervin, supra, 22 Cal.4th at 

p. 69.) “In determining whether joinder resulted in gross unfairness, we have 

observed that a judgment will be reversed on this ground only if it is

reasonably probable that the jury was influenced by the joinder in its verdict 

of guilt.” (Simon, at pp. 129–130.) The evidence offered to prove appellant’s 

guilt with respect to DelToro’s murder was distinct from the evidence 

implicating Mendoza in the crime charged, making juror confusion unlikely. 

Moreover, as discussed above, the evidence against appellant was strong and 

included video surveillance of the crime, eyewitness testimony by a 

coresponsible, and gang evidence regarding the context and motive of his 

participation in these events, all of which was subject to vigorous cross6 We also reject appellant’s suggestion that the trial court erred by 

failing to give defense counsel more time to obtain stronger evidence of 

Mendoza’s willingness to testify. It was appellant’s own motion and his

obligation to renew it if stronger evidence became available. (See Ervin, 

supra, 22 Cal.4th at p. 68.) As appellant himself notes, over six months 

elapsed between the motion to sever and the trial. If anything, that the 

severance motion was not renewed suggests that Mendoza’s willingness to 

give exculpatory testimony never rose above the level of speculation. 
17

examination. In addition, appellant testified directly as to his own, less 

culpable, version of events. 

Appellant argues that, at the time the severance motion was heard, the 

court and parties were unaware that Boden would make a deal and testify for 

the prosecution. He asserts that this made Mendoza’s exculpatory testimony 

even more crucial because it would have acted as a “counterweight” to 

Boden’s testimony. He also contends that the joint trial was grossly unfair 

because the trial court admitted Mendoza’s rap song promising to get revenge 

on DelToro. Finally, the joint trial precluded Mendoza from testifying about 

the “On My Job” rap video and whether his hand signs in the video in fact 

signaled an alliance between the Ice City and Decoto street gangs. We are 

not persuaded that these circumstances resulted in a constitutionally infirm 

trial. 

Appellant was not precluded from presenting a defense that he had no 

knowledge of Mendoza’s plan to kill DelToro. Appellant testified that he had 

never heard of DelToro prior to the day of the shooting, he did not know that 

Mendoza was armed until he exited the car to shoot DelToro, and that he got 

out of the car after watching Mendoza struggle with DelToro over Mendoza’s 

gun and hearing Mendoza call out “ ‘Help, B, help.’ ” Video surveillance 

footage of these events was played for the jury. In addition, Boden testified 

that she heard nothing about a plan to assault DelToro while driving around 

in the car with appellant. Thus, the jury was presented with evidence that 

appellant had acted spontaneously in defense of a friend, not out of a 

premeditated plan to kill DelToro for having been a gang snitch. 

We are also unpersuaded that joinder of trial was grossly unfair 

because of the rap video and appellant’s inability to call Mendoza to testify 

about it. As we explain below, there is no merit to appellant’s contention that 
18

admission of this evidence was an abuse of discretion or resulted in a 

confrontation clause violation. But even if the video evidence raised the 

unwarranted suggestion that a gang alliance had been formed, appellant

rebutted that suggestion through his own testimony. Appellant testified that 

the hand signs made by Mendoza simply reflected two rap artists teaming up 

and acknowledging where they came from, not announcing an alliance 

between two street gangs. The jury was free to determine which 

interpretation of the rap video it believed. 

Finally, there was voluminous evidence presented about the Kennedy 

Park shooting, how DelToro’s cooperation with the police had put him in 

danger, and appellant’s knowledge that DelToro was a snitch. Thus, even if 

appellant were correct that severance would have precluded any evidence in 

his trial about Mendoza’s rap song “100 Bars Part 2,” appellant does not 

contend that this other evidence demonstrating why DelToro had been 

targeted for attack would have also been excluded. A joint trial is not 

rendered unfair “[s]imply because the prosecution’s case will be stronger if 

defendants are tried together.” (Wheeler, supra, 60 Cal.4th at p. 379.) In 

sum, joinder of the two codefendants did not result in gross unfairness 

amounting to a due process violation. 

B. Admission of Gang Signs in “On My Job” Video

i. Additional Background

On April 17, 2019, the trial court held a hearing pursuant to Evidence 

Code section 402 to determine the admissibility of gang-related evidence with 

respect to appellant in the upcoming trial. Appellant’s attorney argued that 

the murder of DelToro was committed for the benefit of the Decoto gang and 

appellant’s gang membership and activities were therefore irrelevant. The 

prosecution responded that the crime benefited both Decoto and North Side 
19

Oakland and so evidence regarding appellant’s affiliation with the North Side 

Oakland gang was relevant. After hearing testimony from gang expert 

Officer Urquiza, the court concluded that the evidence was relevant and

admissible under the theory presented by the prosecution, and was not 

unduly prejudicial under the circumstances of the case.

Appellant’s defense counsel then specifically objected to a portion of 

appellant’s rap video “On My Job” on Sixth Amendment confrontation clause 

grounds. He explained: “[M]y objection is to the admission of the portion of 

the video, the rap video that shows Mr. Mendoza signing I believe it is Decoto 

Ice City. I can’t cross-examine Mr. Mendoza on what he meant by that. It 

may have been— he might answer the question that, you know, I signed 

these letters because there was an alliance between [North Side Oakland]

and Decoto. [¶] But he also might say that there was no such alliance. That 

was merely my acknowledging where my friend was from. The music rap 

world is replete with artists teaming up and acknowledging—acknowledging 

where the other person—where the artist lives within the rap song.” Defense 

counsel also objected to the evidence under Evidence Code section 352. The 

prosecution countered that the evidence was “highly relevant” in this gang 

case and that, since appellant authored, produced, and posted the video, 

Mendoza’s hand signs within the video were an adoptive admission. 

The trial court concluded that Mendoza’s hand signs were not 

testimonial. It found them “very relevant” to the “gang aspect or the gang 

allegations in the case.” Although the court conceded the evidence “may be 

prejudicial in the eyes of some,” it determined it was not “unduly prejudicial 

. . . in the sense that the law characterizes that phrase.” The video was 

admitted into evidence.
20

ii. No Sixth Amendment Violation

While appellant’s opening brief mentions in passing that the admission 

of the rap video violated his Sixth Amendment confrontation rights, the brief 

contains no reasoned analysis of the issue. On this basis alone, we could 

decline to consider the matter. (Levin v. Ligon (2006) 140 Cal.App.4th 1456, 

1486 [“It is elementary that points raised for the first time in a reply brief are 

not considered by the court.”].) However, because the Attorney General 

addresses the confrontation issue in his briefing and appellant folds his 

inability to cross-examine Mendoza into other arguments, we briefly address 

and reject the constitutional claim.

“[A]dmission of testimonial hearsay against a criminal defendant 

violates the confrontation clause unless (1) the declarant is unavailable to 

testify and (2) the defendant had a previous opportunity to cross-examine the 

witness or forfeited the right by his own wrongdoing.” (People v. Sanchez

(2016) 63 Cal.4th 665, 680, citing Crawford v. Washington (2004) 541 U.S. 36,

62, 68.) “[T]he term ‘testimonial’ ‘applies at a minimum to prior testimony at 

a preliminary hearing, before a grand jury, or at a former trial; and to police 

interrogations.’ ” (Sanchez, at p. 687.) As the concept has been refined over

time,“[t]estimonial statements are those made primarily to memorialize facts 

relating to past criminal activity, which could be used like trial testimony. 

Nontestimonial statements are those whose primary purpose is to deal with 

an ongoing emergency or some other purpose unrelated to preserving facts for 

later use at trial.” (Id. at p. 689.) Mendoza’s hand signs denoting “Ice City to 

Decoto” could constitute a statement. (See Evid. Code. § 225 [“statement” 

includes “nonverbal conduct of a person intended by [him or her] as a 

substitute for oral or written verbal expression”].) But we agree with the 

trial court that these hand signs did not constitute a testimonial statement 
21

for Sixth Amendment purposes because their primary purpose was not to 

preserve facts for a later trial. Rather, the statement was made in an 

informal setting as a means of artistic expression.

We also agree with the Attorney General that the hand signs constitute 

an adoptive admission by appellant. “The law pertaining to adoptive 

admissions is well settled. ‘Evidence of a statement offered against a party is 

not made inadmissible by the hearsay rule if the statement is one of which 

the party, with knowledge of the content thereof, has by words or other 

conduct manifested his adoption or his belief in its truth.’ (Evid. Code,

§ 1221.)” (People v. Jennings (2010) 50 Cal.4th616, 661 (Jennings).) “ ‘When 

a person makes a statement in the presence of a party to an action under 

circumstances that would normally call for a response if the statement were 

untrue, the statement is admissible for the limited purpose of showing the 

party’s reaction to it. [Citations.] His silence, evasion, or equivocation may 

be considered as a tacit admission of the statements made in his presence.’ ” 

(People v. Riel (2000) 22 Cal.4th 1153, 1189.) As our high court has 

explained, “when a defendant has adopted a statement as his own, ‘the 

defendant himself is, in effect, the declarant. The ‘witness’ against the 

defendant is the defendant himself, not the actual declarant; there is no 

violation of the defendant’s right to confront the declarant because the 

defendant only has the right to confront “the witnesses against him.” ’ ”

(Jennings, at p. 662.)

The rap video entitled “On My Job” was created by appellant.

Appellant testified that the song was his (performed in his persona Bushrod

Beezy) and included appearances by a number of his cousins in addition to

himself and Mendoza. He uploaded it to YouTube through his username 

Bushrod_Beezy. The video shows Mendoza displaying hand gestures or signs 
22

that signify “Ice City to Decoto.”

7

 It is reasonable to assume that if appellant 

did not agree with the “statement” made by Mendoza in the video, he could 

have edited out Mendoza’s involvement before publishing the rap song under 

his name. We agree with the trial court that this was sufficient to qualify the 

hand signs as an adoptive admission and its finding that the rap video was 

admissible on that basis and not subject to Sixth Amendment constraints. 

iii. No Abuse of Discretion Under State Law

Even if the rap video was admissible, appellant argues it should have 

been excluded under Evidence Code section 352 as more prejudicial than 

probative. Only relevant evidence is admissible at trial. (Evid. Code, § 350.) 

Evidence Code section 210 defines relevant evidence as evidence “having any

tendency in reason to prove or disprove any disputed fact that is of

consequence to the determination of the action.” Under Evidence Code

section 352, a trial court has “broad discretion . . . to exclude even relevant

evidence if it determines that the probative value of the evidence is

substantially outweighed by its possible prejudicial effects.” (People v.

Merriman (2014) 60 Cal.4th 1, 74; Evid. Code, § 352.) We review a trial

court’s rulings under Evidence Code section 352 for abuse of discretion. 

(People v. Coneal (2019) 41 Cal.App.5th 951, 964 (Coneal); People v. Minifie

(1996) 13 Cal.4th 1055, 1070.) 

Gang evidence “ ‘is admissible if it is logically relevant to some material

issue in the case other than character evidence, is not more prejudicial than

probative, and is not cumulative. [Citations.] . . . [¶] However, gang evidence

7 As discussed above, several gang experts opined that Mendoza’s gang 

signs in the video announced an alliance between the North Side Oakland 

and Decoto gangs. Appellant claimed that the hand signs made by Mendoza 

simply acknowledged where the two rappers came from, rather than 

announcing an alliance. The matter thus presented a factual dispute for 

resolution by the jury.
23

is inadmissible if introduced only to “show a defendant’s criminal disposition

or bad character as a means of creating an inference the defendant

committed the charged offense. [Citations.]” [Citations.] . . . Even if gang

evidence is relevant, it may have a highly inflammatory impact on the jury.

Thus, “trial courts should carefully scrutinize such evidence before admitting

it.” ’ ” (Coneal, supra, 41 Cal.App.5th at p. 964.) The fact that the evidence 

tends to establish elements of the prosecution’s case does not render it 

prejudicial for purposes of Evidence Code section 352. (People v. Tran (2011) 

51 Cal.4th 1040, 1050.) 

Although appellant challenges the prejudicial effect of admitting the

hand signs, he appears to take issue with the gang experts’ interpretation of

those hand gestures rather than the admission of the rap video itself.

Specifically, appellant contends that the “meaning of Mendoza throwing hand 

signs for both Decoto and Ice City was ambiguous at best” and at worst, “was 

prejudicially misleading because it transformed a friendship between two 

aspiring rappers into a gang alliance for which there was no evidence.” We 

disagree. “Since at least 1980, our courts have recognized that evidence of 

gang sociology and psychology is beyond common experience and thus a 

proper subject for expert testimony.” (People v. Gonzalez (2005) 

126 Cal.App.4th 1539, 1550.) The gang experts’ opinion that Mendoza was 

flashing gang signs in the rap video that announced an alliance between 

Mendoza and appellant and their respective gangs was the proper subject of 

gang expert testimony. The video was clearly relevant to the gang 

allegations charged against both defendants and whether their actions were 

committed for the benefit of and in association with a criminal street gang. 

Moreover, the probative value of this evidence was not substantially 

outweighed by the probability that its admission would unduly prejudice or 
24

confuse the jury. Prejudice in this context “ ‘is not synonymous with

“damaging,” but refers instead to evidence that “ ‘uniquely tends to evoke an

emotional bias against [a] defendant’ without regard to its relevance on

material issues.” ’ ” (People v. Zepeda (2008) 167 Cal.App.4th 25, 35.) 

Appellant’s assertion that the experts’ suggestion of a gang alliance was

damaging to his case is not the type of prejudice contemplated by Evidence 

Code section 352. 

Nor was the gang video evidence likely to evoke an emotional response 

against the defendants. The jury was shown surveillance video evidence of 

the killing of DelToro by Mendoza and appellant while DelToro’s infant son 

was present. It also heard substantial evidence about the Kennedy Park 

shooting and other criminal offenses committed by gang members. The 

music video displayed no violence and was mild in comparison. And, as

stated above, appellant offered a benign interpretation of the hand signs for

the jury to consider. Under the circumstances, we see no abuse of discretion

in the trial court’s admission of the portion of appellant’s rap video in which

Mendoza signed “Ice City to Decoto.” 

C. Substantial Evidence Supports the Murder Conviction

i. Relevant Law

“Murder is the unlawful killing of a human being . . . with malice 

aforethought.” (§ 187, subd. (a).) Malice may be express or implied. (§ 188, 

subd. (a).) Express malice means “a deliberate intention to unlawfully take 

away the life of a fellow creature.” (Id., subd. (a)(1).) Malice is implied “when 

no considerable provocation appears, or when the circumstances attending 

the killing show an abandoned and malignant heart.” (Id., subd. (a)(2).) “A

killing with express malice formed willfully, deliberately, and with

premeditation constitutes first degree murder. [Citation.] ‘Second degree
25

murder is the unlawful killing of a human being with malice aforethought

but without the additional elements, such as willfulness, premeditation, and

deliberation,that would support a conviction of first degree murder.’ ” 

(People v. Beltran (2013) 56 Cal.4th935, 942; see § 189, subds. (a) & (b).)

“To prove the killing was ‘deliberate and premeditated,’ it is not

necessary to prove the defendant maturely and meaningfully reflected upon

the gravity of [his or her] act.” (§ 189, subd. (d).) “ ‘An intentional killing is

premeditated and deliberate if it occurred as the result of preexisting thought

and reflection rather than unconsidered or rash impulse.’ [Citation.] In this

context, ‘ “premeditated” means “considered beforehand,” and “deliberate”

means “formed or arrived at or determined upon as a result of careful

thought and weighing of considerations for and against the proposed course

of action.” ’ ” (Jennings, supra, 50 Cal.4th at p. 645.) “The extent of the

reflection is key, not its duration; thoughts may rapidly follow each other and

a cold and calculated judgment to kill may be arrived at very quickly.” 

(People v. Pettigrew (2021) 62 Cal.App.5th 477, 491 (Pettigrew) [citing 

cases].)

Our high court has identified three categories of evidence to consider

when determining whether a murder was deliberate and premeditated:

planning activity, motive, and the manner of the killing. (People v. Anderson

(1968) 70 Cal.2d 15, 26–27 (Anderson).) When the record contains evidence

in all three categories,the verdict is generally affirmed. (People v. Stitely

(2005) 35 Cal.4th 514, 543.) “ ‘However,these factors are not exclusive, nor

are they invariably determinative. ” (People v. Streeter (2012) 54 Cal.4th

205, 242 (Streeter).) “[T]hey are merely intended to guide a reviewing court’s

assessment of whether the evidence supports a reasonable inference that the

killing was the result of the defendant’s preexisting reflection and not the
26

result of an unconsidered or rash impulse.” (Pettigrew, supra, 62 Cal.App.5th 

at p. 492.) “A first degree murder conviction will be upheld when there is

extremely strong evidence of planning, or when there is evidence of motive

with evidence of either planning or manner.” (People v. Romero (2008)

44 Cal.4th 386, 401, citing Anderson, at p. 27.)

“In reviewing a criminal conviction challenged as lacking evidentiary 

support, ‘ “the court must review the whole record in the light most favorable 

to the judgment below to determine whether it discloses substantial 

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

such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” ’ ” (Streeter, supra, 54 Cal.4th at p. 241.) When 

undertaking such an analysis, we do not reevaluate witness credibility or 

resolve conflicts in the evidence, because “[r]esolution of conflicts and

inconsistencies in the testimony is the exclusive province of the trier of fact.” 

(People v. Young (2005) 34 Cal.4th 1149, 1181 (Young).) In addition, we

“ ‘must accept logical inferences that the jury might have drawn from the 

evidence even if [we] would have concluded otherwise.’ ” (Streeter, at p. 241.)

“[U]nless the testimony is physically impossible or inherently

improbable,testimony of a single witness is sufficient to support a

conviction.” (Young, supra, 34 Cal.4th at p. 1181.) Moreover,“[i]f the 

circumstances reasonably justify the trier of fact’s findings, reversal of the 

judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding.” (People v. Lindberg (2008) 

45 Cal.4th 1, 27.) In sum, the relevant question before us is “whether, after 

viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” (Jackson v. Virginia (1979) 443 U.S. 307, 319.) 
27

ii. Substantial Evidence of Premeditation and Deliberation

Appellant argues there was insufficient evidence to support the jury’s 

verdict of first degree murder. Specifically, he asserts that if there was any 

plan to kill DelToro, it was for Mendoza to do the shooting while appellant

sat in the car. Since it was only after Mendoza called for help that appellant 

got out of the car and “in a panic” shot DelToro, he contends that there was 

insufficient evidence of premeditation and deliberation. We disagree.

With respect to planning, appellant concedes there was evidence of a 

plan to shoot DelToro but argues there was no evidence the plan included 

him doing the shooting. This, however, is beside the point. “Aiders and

abettors may still be convicted of first degree premeditated murder based on

direct aiding and abetting principles. [Citation.] Under those principles,the

prosecution must show that the defendant aided or encouraged the

commission of the murder with knowledge of the unlawful purpose of the

perpetrator and with the intent or purpose of committing, encouraging, or

facilitating its commission.” (People v. Chiu (2014) 59 Cal.4th 155, 166–167,

superseded by statute on other grounds as stated in People v. Gentile (2020)

10 Cal.5th 830, 848–849.) Thus, “[a]n aider and abettor who knowingly and 

intentionally assists a confederate to kill someone could be found to have 

acted willfully, deliberately, and with premeditation, having formed his own 

culpable intent.” (Chiu, at p. 167; see also People v. McCoy (2001) 25 Cal.4th 

1111, 1117–1118.)

There is substantial evidence that appellant and Mendoza together 

planned to kill DelToro, and that appellant encouraged and facilitated the 

commission of the murder, ultimately by pulling the trigger himself. When 

Mendoza first saw DelToro pushing the baby stroller and stated he wanted to 

“fire on” him because he was a snitch, appellant responded that he needed to 
28

“ ‘get on him.’ ” After Boden commented that she did not think they should 

do anything with the baby present, Mendoza agreed and the three returned 

to Mendoza’s house. After leaving Mendoza at the house, appellant 

instructed Boden to drive him back down the block to see where DelToro was 

going because “You’re not supposed to ever give a snitch a chance to tell 

again.” After they passed DelToro going the opposite direction, appellant told 

Boden to turn around because he wanted to find out where DelToro was 

headed. Boden became frightened because she thought appellant was going 

to hurt DelToro, but she did what appellant directed because he was “not the 

type of person you say ‘no’ to.” Boden circled the block until appellant told 

her to go back to Mendoza’s house. Boden testified that the nine-millimeter 

firearm she had given appellant several weeks earlier was hidden beneath 

his seat in her car. 

About 15 to 20 minutes before the shooting, Mendoza’s mother 

overheard appellant and Mendoza in the backyard whispering, “Fuck that, 

fuck that.” According to Boden, when Mendoza got back into her car, he was 

carrying some clothing. She drove down the street and spotted DelToro, still 

with the baby stroller. She knew at that point that something was going to 

happen. Once she passed DelToro, Boden made a U-turn and headed back 

towards him. As she drove past DelToro, Mendoza told her to stop and 

jumped out of the car. He approached DelToro with a white shirt wrapped 

around his face and pointed a gun at him, but the gun did not go off, and 

DelToro and Mendoza started fighting. When Boden asked appellant what 

was going on, he told her to “just calm down” and to “be cool.” When 

Mendoza yelled to appellant to assist him,

8 appellant sighed deeply, retrieved 

8 Boden reported that Mendoza yelled to appellant, “ ‘Kill him, kill 

him,’ ” while appellant testified Mendoza cried,“ ‘Help, B, help.’ ” 
29

Boden’s gun from under the seat, got out of the car, and shot DelToro 

multiple times. Boden also testified that it was appellant who “decided to 

hunt down” DelToro.

Thus, the evidence established that prior to DelToro’s murder, 

appellant “was engaged in activity directed toward, and explicable as 

intended to result in, the killing—what may be characterized as ‘planning’

activity.” (Anderson, supra, 70 Cal.2d at pp. 26–27.) While the plan may 

have called for Mendoza to pull the trigger given his previous gang ties with 

DelToro, a jury could reasonably infer from appellant’s final actions that, 

when things did not go according to plan, he took a final moment to 

deliberate and then decided to step in and commit the murder himself. As 

our high court opined in Anderson, a verdict of first degree murder is proper 

where a defendant “ ‘killed “as a result of careful thought and weighing of 

considerations; as a deliberate judgment or plan; carried on cool[l]y and 

steadily, [especially] according to a preconceived design.” ’ ” (Id. at p. 27.) 

In addition to the evidence of planning, the jury heard substantial 

evidence of appellant’s motive to kill. When Mendoza initially identified 

DelToro on the street as someone who had snitched, appellant stated that he 

understood why Mendoza was upset because he had a friend who had been 

snitched on who was serving a 50-year sentence in prison. Shortly before the 

murder, appellant commented several times that “ ‘[y]ou’re not supposed to 

ever give a snitch a chance to tell again.’ ” According to Officer Urquiza, if a 

gang member is labeled as a snitch, “he’s a snitch across all gangs and is not 

to be trusted by other gang members.” The record indicates that appellant 

had a personal grudge against gang snitches and supports the reasonable 

inference that participating in the murder of DelToro aligned with his view 
30

that snitches should not be given another chance to harm gang members 

again. 

Finally, appellant testified that, once he got out of the car, he “shot 

until the gun wouldn’t shoot any more.” Six entry wounds were identified on 

DelToro’s body and one bullet struck Mendoza in the arm. That appellant—

after telling Boden to calm down, sighing deeply, and exiting the car with a

gun—emptied the clip into DelToro rather than taking some lesser action to 

protect Mendoza and himself, also supports a finding of premeditation and 

deliberation. (See People v. Villegas (2001) 92 Cal.App.4th 1217, 1223–1225 

[manner of attempted killing supported finding of premeditation and 

deliberation where six shots were fired from approximately 25 feet away].)

Given the strong evidence of planning and motive in the case, along 

with the manner in which the killing took place, we reject appellant’s 

substantial evidence challenge to the jury’s finding of premeditation and 

deliberation. 

D. Substantial Evidence Supports the Gang Enhancement

In his initial briefing, appellant asserted—citing People v. Prunty

(2015) 62 Cal.4th 59 (Prunty)—that to sustain his gang enhancement there 

must be evidence that both he and Mendoza were members of the same 

criminal street gang subset or that there was a connection between their 

subsets. He argued that the only evidence of an alliance between the Decoto 

and North Side Oakland gangs at trial was Mendoza’s hand gesture—“ ‘Ice 

City to Decoto’ ”—in appellant’s rap video. According to appellant, the gang 

experts’ testimony about the existence of an alliance based on those hand 

signals was “conclusory” and “factually unsupported,” making imposition of 

the gang enhancement improper. 
31

On the day set for oral argument in this matter, appellant asked for 

leave to file supplemental briefing regarding the impact of newly enacted 

Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 333) on this 

case. (See Stats. 2021, ch. 699, §§ 1–5.) Assembly Bill 333 amends 

sections 186.22 and 1109 to require proof of additional elements to establish a 

gang enhancement. (Assem. Bill 333, § 3, revised § 186.22, effective Jan. 1, 

2022.) We deferred submission of the matter, granted appellant’s request,

and received briefing from both parties. 

Appellant asserts that Assembly Bill 333 should be applied 

retroactively to his case and that, under the new law, there is insufficient 

evidence to support imposition of his gang enhancement. He asks us to strike 

the true finding on the gang allegation and remand the matter so the 

prosecutor can either elect to retry the allegation or the trial court can 

resentence. Appellant also suggests that we reassess the prejudice—both 

individual and cumulative—of any trial errors in light of the changes to 

section 186.22 and the effects of the evidence presented in the case. 

The Attorney General concedes that appellant is likely entitled to the 

ameliorative effects of Assembly Bill 333’s amendments to section 186.22 

because appellant’s judgment will not be final when the new legislation takes 

effect. He argues, however, that substantial evidence supports appellant’s 

gang enhancement, even under the amended statute, and thus remand for 

consideration under the new legislation would be an idle act. Assuming 

without deciding that the amendments to section 186.22 apply retroactively 

here, we see no merit to appellant’s supplemental claims and agree no 

remand is necessary.9

9 The Attorney General additionally argues that section 1109—also 

enacted by Assembly Bill 333 and related to the bifurcation of gang 

enhancements at trial—is a procedural statute that should only apply 
32

i. Statutory Framework and Impact of Assembly Bill 333

Section 186.22 provides for enhanced punishment when a person is

convicted of an enumerated felony committed “for the benefit of, at the

direction of, or in association with any criminal street gang, with the specific

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

members” (§ 186.22, subd. (b)(1), (4).) A “ ‘criminal street gang’ ” is defined 

under current law as “any ongoing organization, association, or group of three 

or more persons, whether formal or informal, having as one of its primary 

activities the commission of one or more [enumerated criminal acts], having a 

common name or common identifying sign or symbol, and whose members 

individually or collectively engage in, or have engaged in, a pattern of 

criminal gang activity.” (Id., subd. (f), italics added.) Effective January 1, 

2022, Assembly Bill 333 narrows the definition of “ ‘criminal street gang’ ” to 

“an ongoing, organized association or group of three or more persons, whether 

formal or informal, having as one of its primary activities the commission of 

one or more [enumerated criminal acts], having a common name or common 

identifying sign or symbol, and whose members collectively engage in, or have 

engaged in, a pattern of criminal gang activity.” (Assem. Bill 333, § 3, revised 

§ 186.22, subd. (f), italics added.)

Assembly Bill 333 also altered the requirements for proving the 

“ ‘pattern of criminal gang activity’ ” necessary to establish the existence of a 

criminal street gang. Currently, a “pattern of criminal gang activity” means 

“the commission of, attempted commission of, conspiracy to commit, or 

solicitation of, sustained juvenile petition for, or conviction of two or more of 

[enumerated] offenses, provided at least one of these offenses occurred after 

prospectively. (See People v. Cervantes (2020) 55 Cal.App.5th 927, 939–940; 

People v. Sandee (2017) 15 Cal.App.5th 294, 305, fn. 7.) Since appellant did

not raise this issue, we need not decide it here.
33

the effective date of this chapter and the last of those offenses occurred 

within three years after a prior offense, and the offenses were committed on 

separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) As of 

the effective date, Assembly Bill 333 redefines “ ‘pattern of criminal gang 

activity’ ” to require that the last of the predicate offenses “occurred within 

three years of the prior offense and within three years of the date the current 

offense is alleged to have been committed,” and that the predicate offenses 

“were committed on separate occasions or by two or more members, the 

offenses commonly benefited a criminal street gang, and the common benefit 

from the offenses is more than reputational.” (Assem. Bill 333, § 3, revised 

§ 186.22, subd. (e)(1), italics added.) In addition, the charged offense cannot 

be used as a predicate offense under the amendments. (Id., subd. (e)(2).) 

Thus, pursuant to the new legislation, imposition of a gang 

enhancement requires proof of the following additional requirements with 

respect to predicate offenses: (1) the offenses must have “commonly benefited 

a criminal street gang” where the “common benefit is more than 

reputational”; (2) the last predicate offense must have occurred within three 

years of the date of the currently charged offense; (3) the predicate offenses 

must be committed on separate occasions or by two or more gang members, 

as opposed to persons; and (4) the charged offense cannot be used as a 

predicate offense. (Assem. Bill 333, § 3, revised § 186.22, subd. (e)(1)–(2).) 

With respect to common benefit, the new legislation explains: “[T]o benefit,

promote, further, or assist means to provide a common benefit to members of

a gang where the common benefit is more than reputational. Examples of a

common benefit that are more than reputational may include, but are not

limited to, financial gain or motivation, retaliation,targeting a perceived or

actual gang rival, or intimidation or silencing of a potential current or
34

previous witness or informant.” (Assem. Bill 333, § 3, revised § 186.22, 

subd. (g).)10 We review the imposition of a gang enhancement for substantial

evidence. (See Prunty, supra, 62 Cal.4th at pp. 71, 81; People v. Ewing (2016)

244 Cal.App.4th 359, 379.)

ii. Substantial Evidence Supports the Gang Enhancement

Appellant first contends that to sustain his gang enhancement, there 

must be evidence that both he and Mendoza were members of the same 

criminal street gang subset or there was a connection between their subsets, 

citing Prunty, supra, 62 Cal.4th 59. Appellant misapprehends Prunty. In 

that case, the Supreme Court considered “the type of evidence required to 

support the prosecution’s theory that various alleged gang subsets constitute 

a single ‘criminal street gang’ ” for purposes of proving a gang enhancement. 

(Id. at p. 70.) Our high court concluded that where the prosecution’s proof 

with respect to a gang enhancement turns on the existence of a single 

“ ‘criminal street gang’ ” and is based on the existence and conduct of one or 

more gang subsets, then the prosecution must show some associational or 

organizational connection uniting those subsets. (Id. at p. 71.) “This 

‘sameness’ requirement means that the prosecution must show that the 

group the defendant acted to benefit, the group that committed the predicate 

offenses, and the group whose primary activities are introduced, is one and 

the same.” (Id. at p. 81.) 

Prunty is inapposite because the prosecution here did not posit that the 

North Side Oakland and Decoto gangs were subsets of the same “criminal 

street gang.” Rather, to prove a gang enhancement in this case, the 

10 Assembly Bill 333 also narrows the list of permissible predicate 

offenses by removing looting, felony vandalism, and specified personal 

identity fraud violations from the list. (See § 186.22, subd. (e)(13), (20) & 

(26)–(30); Assem. Bill 333, § 3, revised § 186.22, subd. (e)(1).) 
35

prosecution had to prove that appellant was “convicted of a felony 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, subd. (b)(1), italics added.) Here, substantial 

evidence supports the conclusion that appellant murdered DelToro “in 

association with” both North Side Oakland and Decoto, with the specific 

intent to promote, further, or assist in criminal conduct by Mendoza, a Decoto 

gang member.

“[T]he Legislature included the requirement that the crime to be 

enhanced be committed for the benefit of, at the direction of, or in association

with a criminal street gang to make it ‘clear that a criminal offense is subject 

to increased punishment under the [gang enhancement statute and related 

legislation] only if the crime is “gang related.” ’ [Citation.] Not every crime 

committed by gang members is related to a gang.” (People v. Albillar (2010) 

51 Cal.4th 47, 60.) Thus, “ ‘it is conceivable that several gang members could 

commit a crime together, yet be on a frolic and detour unrelated to the 

gang.’ ” (Id. at p. 62.) However, if two gang members come together “as gang

members”to commit a crime,they do so “in association with the gang.” 

(Ibid.; see also People v. Garcia (2016) 244 Cal.App.4th 1349, 1367 

[“Committing a crime in concert with known gang members can be 

substantial evidence that the crime was committed in ‘association’ with a 

gang.”]; People v. Leon (2016) 243 Cal.App.4th 1003, 1021 [same].])

The evidence overwhelmingly pointed to a gang-related motive for 

the murder of DelToro—retaliation for his testimony against fellow Decoto 

gang members. As detailed above, DelToro was targeted by Mendoza and 

appellant because he testified against Decoto gang members in the 

Kennedy Park shooting. DelToro had been identified on a “bad news list”—a 
36

hit list of former gang members who had dropped out or “snitched”—which 

announced that the Decoto gang was seeking retribution against him. 

Substantial evidence also established that appellant, a North Side 

Oakland gang member, and Mendoza, a Decoto gang member, committed the 

murder in “association” with each other as gang members and to benefit the 

Decoto gang. As discussed above, appellant expressed his own personal 

motives for assisting Mendoza in the murder, but he also opined that a snitch 

should never be given the chance to tell again. As Officer Urquiza testified, if 

a gang member is labeled as a snitch, “he’s a snitch across all gangs and is 

not to be trusted by other gang members.” Furthermore, “the act of attacking 

a snitch benefits the gang, benefits the gang member as he’s showing his 

willingness to assault someone who hurt the gang.” Detective Ramirez 

similarly testified that retaliating against a snitch benefits the Decoto gang 

because it reinforces the rule that gang members should not testify against 

one another. Thus, in attacking and murdering a snitch, Mendoza and 

appellant committed the offense as gang members and for gang-related 

purposes. 

Finally, substantial evidence supports the conclusion that appellant 

acted “with the specific intent to promote, further, or assist in any criminal 

conduct by gang members”—i.e., Mendoza acting as a member of the Decoto 

criminal street gang. (§ 186.22, subd. (b)(1).) The evidence supports the 

conclusion that, when appellant came to Mendoza’s aid and shot DelToro, he 

did so to assist Mendoza in his mission to kill a Decoto snitch.

11

 

11 As stated above, section 186.22, as amended by Assembly Bill 333, 

provides as follows: “[T]o benefit, promote, further, or assist means to

provide a common benefit to members of a gang where the common benefit is

more than reputational.” (Assem. Bill 333, § 3, revised § 186.22, subd. (g).) 

There was a clear, nonreputational benefit in committing the murder: the 

“silencing of a . . . previous witness or informant.” (Ibid.)
37

Appellant argues that, under the amendments to section 186.22 

enacted by Assembly Bill 333, North Side Oakland cannot be considered a 

“criminal street gang” because the predicate offenses introduced by the 

prosecution at trial with respect to North Side Oakland all happened more 

than three years before the charged offense. We agree. DelToro was 

murdered in July 2017 and the North Side Oakland predicate offenses offered 

by the prosecution occurred in 2009 and 2010. 

This fact, however, does not undermine the gang enhancement 

conviction. As discussed above, appellant’s actions in this case were also 

taken “in association with” the Decoto gang and with the specific intent to 

further or assist in criminal conduct by a Decoto gang member. Appellant 

does not dispute that the Decoto gang is a “criminal street gang” for purposes 

of the gang enhancement statute or that any other prerequisites for 

imposition of the gang enhancement on this basis are lacking. Nor could he. 

Evidence of the following predicate offenses concerning the Decoto gang 

was admitted at trial: The 2008 Kennedy Park shooting by Decoto gang 

members Cruz, Romo, Alaniz, and Perry, which involved charges of murder, 

attempted murder, and attempted robbery; Noel Cruz’s conviction for 

attempted murder in 2013, which occurred while he was incarcerated with 

respect to the Kennedy Park shootings; Mendoza’s 2014 convictions for drug 

possession and illegal possession of a firearm; and the pending homicide 

charges for two other Decoto gang members, Gabriel Martinez and Norberto 

Daniel Villareal, with respect to the May 2016 murder of a Hog gang 

member. 

Thus, evidence was presented of two or more predicate offenses which 

were committed on separate occasions or by two or more gang members, with 

the last offense occurring within three years of the prior offense and within 
38

three years of the charged offense. (Assem. Bill 333, § 3, revised § 186.22, 

subd. (e)(1).) In addition, substantial evidence supports the conclusion that 

these predicate offenses provided a common benefit to the Decoto street gang 

that is more than reputational. (Ibid.) The 2008 Kennedy Park shooting 

involved acts of violence in pursuit of financial gain, and the May 2016 

murder of a Hog gang member involved a murder “targeting a perceived or 

actual gang rival.” (Id., revised § 186.22, subd. (g).) Cruz’s conviction for 

attempted murder in 2013, in which he and another gang member slashed a 

victim’s throat, solidified the gang’s presence in the jail. (Ibid.) Mendoza’s 

2014 conviction for illegal possession of a firearm provided the Decoto gang 

with an armed member on the streets, ready to intimidate or engage in gangrelated violence. (Ibid.) All told, they represent an almost decade-long array 

of serious and violent gang-related crimes that the gang enhancement statute 

was enacted to reach. (Assem. Bill 333, § 2, subd. (d)(5).) The subsequent 

murder of DelToro fits into the same pattern of criminality by this street 

gang. Accordingly, we conclude that the imposition of appellant’s gang 

enhancement in this case was supported by substantial evidence in the 

record, whether the evidence is considered under the current version of 

section 186.22 or the version enacted by Assembly Bill 333.12

12 Appellant has also joined in the arguments made on appeal by his 

codefendant Mendoza that the prosecutor engaged in prejudicial misconduct 

in this case. We concluded in our prior opinion involving Mendoza that those 

claims had been forfeited, and we find no basis to revisit that determination 

here. (See People v. Mendoza, supra, A157489.) We also reject appellant’s 

claim of cumulative prejudice. Since we have identified no errors in the 

proceedings below, there is nothing here to cumulate. (See People v.

Griffin (2004) 33 Cal.4th 536, 600, disapproved on another ground as stated 

in People v. Riccardi (2012) 54 Cal.4th 758, 824, fn. 32.) Our conclusion with 

respect to appellant’s gang enhancement under newly enacted Assembly 

Bill 333 does not change this determination.
39

III. DISPOSITION

The judgment is affirmed. 
40

SANCHEZ,J.

WE CONCUR:

HUMES,P. J.

BANKE,J.

A157571

People v. Follings