Filed 3/27/15 P. v. Mitchell CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

AARON JAVON MITCHELL,

Defendant and Appellant.

B252808

(Los Angeles County

Super. Ct. No. YA081154)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Mark S. Arnold, Judge. Affirmed as modified with directions.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney 

General, Scott A. Taryle, Deputy Attorney General, and Pamela C. Hamanaka, Assistant 

Attorney General, for Plaintiff and Respondent.

_________________________
2

Defendant and appellant, Aaron J. Mitchell, appeals his conviction for 

premeditated attempted murder, assault with a firearm (2 counts), and shooting at an 

occupied motor vehicle, with criminal street gang, great bodily injury and firearm use 

enhancements (Pen. Code, §§ 664, 187, 245, 246, 186.22, subd. (b), 12022.7, 12022.53).1 

He was sentenced to state prison for a term of 31 years to life, plus life.

The judgment is affirmed as modified.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa

(1993) 6 Cal.4th 1199, 1206), the evidence established the following. 

1. Prosecution evidence. 

a. The shooting.

On March 4, 2011,2at around 9:00 p.m., Erneshia T. arrived at the corner of 108th 

Street and Western Avenue inside her sister-in-law’s Volkswagen Beetle. Erneshia was 

in the front passenger seat, her sister-in-law was driving, and her sister-in-law’s baby was 

in the back. Also in the back was a dog inside a cage. Erneshia’s sister-in-law parked 

near a laundromat which had bright lights. Erneshia called her son, Kameron, who was 

in an apartment in an adjacent building to come help unload the dog cage.

As Kameron and Erneshia were struggling to get the cage out of the car, they were 

approached by defendant Mitchell, who addressed Kameron with a “What’s up” head 

gesture. When Kameron did not respond, Mitchell said: “What’s up, hood, where you 

from? Neighborhood 90.” Kameron was looking at Mitchell “face to face” in the 

illumination of flood lights that were mounted on top of the laundromat building.

Kameron again did not say anything. Instead, he looked over at his mother. 

Erneshia testified her attention had been drawn to Mitchell when he asked Kameron 

where he was from “[b]ecause I knew something wasn’t right when he said that. So . . . I 

 

1 All further statutory references are to the Penal Code unless otherwise specified.

2 All further date references are to the year 2011 unless otherwise specified.
3

immediately looked over at him and told him that no one gang bangs. We all family over 

here.” Erneshia looked right into Mitchell’s eyes as she spoke to him. 

Mitchell’s hands were inside the pocket of his hoodie. He replied, “Fuck that” to 

Erneshia’s statement that “no one gang bangs,” pulled out a silver handgun and started 

shooting. Mitchell shot at Kameron, who was standing behind Erneshia. A bullet hit 

Kameron in the mouth, knocking him to the ground. Erneshia jumped in front of 

Kameron and held her hands out to protect him. The Beetle had been parked in such a 

way that there was an open car door between Mitchell and Kameron, so Mitchell shot 

underneath the car door at Kameron who could see Mitchell’s face through the open 

window. Mitchell was only four or five feet from him at this point. Kameron got up and 

ran. After Kameron escaped, Mitchell shot at Erneshia, hitting her in the foot. Mitchell 

then ran off.

The Beetle had been hit by gunfire. Kameron had been shot in the mouth, twice in 

the chest, twice in the buttocks, once in the left leg above the kneecap, and once in the 

right ankle. 

b. The investigation.

On March 8, Los Angeles County Sheriff’s Detective Eric McDonagh, who 

worked as a gang investigator, went to the crime scene. Mounted on the outside of the 

laundromat, there was a video surveillance camera that faced the street. Footage from 

this camera had recorded the shooting, but the gunman’s image was too indistinct to be 

identifiable. There was a second camera located inside the laundromat, but this one had 

not been set up to record anything that happened out in the street. McDonagh recovered 

expended bullet casings from the sidewalk, but no gun was ever found.

On March 9, McDonagh talked to Erneshia on the telephone. She described the 

gunman as being 5’5” to 5’6” tall, 18 to 25 years old, with a medium build, dark skin, and 

short hair.

On March 23, McDonagh spoke to Kameron by telephone. Kameron described 

the gunman as 5’9” to 5’11” tall, 140 to 150 pounds, with a dark complexion and a short 

Afro haircut. 
4

On April 12, McDonagh showed photo arrays, separately, to Erneshia and 

Kameron. Erneshia viewed two six-packs and selected Mitchell’s photograph from one 

of them. She testified she recognized him “[j]ust by looking at him, his eyes.” She told 

McDonagh that Mitchell looked younger in the photograph than he had during the 

shooting. She did not identify anyone in the other six-pack. Erneshia also viewed a 

binder containing about 50 photographs, but she did not see the gunman in any of those 

pictures.3 

Kameron also picked out Mitchell’s picture from a six-pack photo array. 

McDonagh testified Kameron’s identification was “pretty immediate,” that he “looked at 

the photo. His eyes got big and he looked at the photo, and he circled it.” Kameron 

testified he recognized Mitchell’s picture because of his eyes and facial structure. He,

too, told Detective McDonagh that Mitchell looked younger in the picture than on the 

night of the shooting. 

On April 21, McDonagh met separately with Erneshia and Kameron again because 

he wanted to show them six-packs that included a photograph in which Mitchell looked 

older. Erneshia and Kameron again identified Mitchell as the gunman.

On May 19, McDonagh executed a search warrant at Mitchell’s house. He 

recovered a black hoodie that matched the description given by Erneshia and Kameron. 

Mitchell was arrested.

In the search warrant affidavit, written on May 16, McDonagh stated Erneshia had 

described the gunman as 5’8” to 5’10” tall and 18 to 20 years old. McDonagh 

acknowledged having testified Erneshia also told him the gunman was 18 to 25 years old 

and 5’5” to 5’6” tall. McDonagh explained this height discrepancy by testifying Erneshia 

had told him on other occasions the gunman was 5’8” to 5’10” tall. McDonagh 

 

3 McDonagh testified he did not recall bringing a binder of photographs to 

Erneshia’s house, but if he did it would have been a Crips gang book because the 

111 Neighborhood, 115 Neighborhood, and Block Crips were gangs that congregated in 

the area where the shooting occurred. McDonagh did not recall Erneshia identifying 

anyone in a photograph binder, but if she had he would have notified the appropriate 

parties.
5

acknowledged the search warrant affidavit stated Kameron had described the gunman as 

weighing 130 to 150 pounds, although Kameron’s description in McDonagh’s police 

report said 140 to 150 pounds. McDonagh testified Kameron had given different 

accounts at different times.

On October 17, at the men’s central jail, Erneshia and Kameron picked out 

Mitchell from live lineups. In March 2012, they identified Mitchell at the preliminary 

hearing.

c. The gang evidence. 

Kameron testified Neighborhood 90, the gang Mitchell had mentioned just before 

he started shooting, was a Crips gang active in the local area. The local gangs were the 

90 Neighborhood Crips, the 111 Neighborhood Crips, and the Rollin 100’s Block Crips. 

Crips gang members tended to wear the color blue. Kameron had been wearing blue 

jeans and a shirt with blue in it on the day of the shooting. He could tell Mitchell was 

trying to figure out if Kameron was from the area, and that Mitchell himself was not from 

the Neighborhood 90 Crips: a Neighborhood 90 gang member would not come to 

Rollin’ 100’s territory and make this kind of challenge because the two gangs got along.

Inglewood Police Detective Kerry Tripp worked in a gang intelligence unit. As 

far as African-American gangs were concerned, Inglewood was a Bloods town as 

opposed to a Crips town. One of the Inglewood Bloods gangs was the Avenue Piru, 

which had at least 50 members and had been around since the late 1980’s. Bordering on 

Inglewood were areas controlled by various Neighborhood Crips gangs, including the 

111 Neighborhood Crips, 90 Neighborhood Crips, Rollin 60 Crips, Block Crips, 

Underground Crips and Rollin 100 Crips. All these Crips gangs were enemies of the 

Avenue Piru gang.

Avenue Piru members wore the color red, the letters “A” or “P,” and sometimes a 

California Angels hat. Their primary activities included murders, shootings, robberies, 

drug possession and sale, and weapons possession. Over the years, Tripp had spoken to a 

few hundred Avenue Piru members and investigated more than 50 crimes in which 

Avenue Piru members had been suspects. He had read all the Inglewood police reports 
6

regarding the Avenue Piru gang, reports from other law enforcement agencies, and 

spoken to other police officers about the gang. When contacts were made with 

individuals on the street, field interview cards were filled out, which included information 

such as tattoos, reason for the stop, gang affiliation, etc. 

The shooting in this case occurred in Neighborhood Crips gang territory. Tripp 

testified a liquor store at the corner of 108th and Western, near the laundromat in front of 

which the shooting had taken place, often “gets tagged up. What I mean by ‘tagged up,’ 

there’s graffiti written from Neighborhood Crips claiming that territory, and you 

oftentimes see them writing ‘APG,’ which is Avenue Piru gang, and they’ll have that 

crossed out. And oftentimes in that same liquor store, Avenue Piru Bloods are coming 

over, and they’re crossing out ‘Neighborhood Crips’ and putting their name up there.” 

The liquor store was less than a mile from Avenue Piru territory. 

The following colloquy occurred: 

“Q. And what’s the significance of an Avenue Piru gang member being at that 

location, being in the rival Crip[s] territory?

“A. The significance is they’re looking for enemies. Gang members commit 

crimes of opportunity as they present themselves. And that’s a crime of opportunity. 

You happen to see somebody out. They happen to be between the ages of what gang 

members are, somewhere between the ages of 14 and 45. He fits the general race of the 

majority of the people in that gang, sees that person as a rival and shoots them.

“Q. Does it affect your opinion [i.e., that this shooting had been committed for the 

benefit of the Avenue Piru gang] that the shooter in the hypothetical doesn’t verbally say 

something to the effect of Avenue Piru Gang or Avenue Piru Bloods when he commits 

those crimes?

“A. No.

“Q. Why not?

“A. You don’t have to say Avenue Piru Blood[s] in order to commit a crime. The 

mere fact that he’s an Avenue Piru Blood[s] gang member in rival territory shooting at 

what he believes to be a rival gang member or somebody who fits the general age and 
7

description of a rival gang member in rival gang territory is more than enough. Whether 

he . . . yells out his gang name, whether he’s wearing all red or not.”

Tripp testified it was not at all unusual for a gang member to pretend to belong to 

a rival gang: “[T]hey do that because they’re trying to find out if this person is actually a 

gang member. [¶] Oftentimes, for example, a Blood[s] gang member will go into a 

Crip[s] territory . . . and say, ‘Where you from, homey? This is 90.’ And trying to see 

what kind of reaction they get from this person. If this person lives in that kind of a 

neighborhood, they’re hoping that this person will acknowledge . . . that he’s a Crip[s]

gang member by saying what gang he’s from or throwing up a hand sign. And that 

would be a way for this rival gang member to positively, in his mind, assume that this 

person is a rival gang member and then attack that person.”

Although Tripp had never personally spoken to Mitchell, he was acquainted with 

him “through photographs, talking to other officers, [field interview] cards, police 

reports, and this case.” In his opinion, Mitchell was a gang member. This was based on 

Mitchell’s gang tattoos, information from the field interview cards, police reports, and 

speaking with other officers to whom Mitchell had admitted his gang membership. The 

tattoos on Mitchell’s hands – he had an “A” on his right hand and a “P” on his left hand –

signified he was an Avenue Piru member. 

Based on the facts of this case, Tripp opined the crimes had been committed to 

benefit the Avenue Piru gang. Mitchell was an Avenue Piru gunman in territory 

belonging to the rival Neighborhood Crips. He approached Kameron, who could have 

been a gang member given his age and race, and asked where he was from in order to 

determine if he belonged to an enemy gang. The shooting would have benefitted Avenue 

Piru even if Kameron was not a gang member because Neighborhood Crips members in 

the area would learn of it, thus instilling fear and intimidation. Also, younger Avenue 

Piru members would learn about the shooting and the recognition the perpetrator had 

gained thereby, which would encourage them to commit similar crimes.

Tripp told Detective McDonagh he thought the gunman belonged to either the 

Inglewood Family or the Avenue Piru gang. That was “[b]ecause at the time [of this 
8

shooting] there was a gang war going on between the Neighborhood Crips and the 

Blood[s] gangs in the City [of] Inglewood. There were so many shootings and homicides 

that we actually got [a] multi-task force with ourselves, L.A. Sheriff’s and L.A.P.D. to 

combat these crimes. [¶] So when this crime occurred in the location it occurred, I spoke 

with Detective McDonagh, and I told him I believe this is probably Inglewood Family or 

more than likely Avenue Piru Bloods. [¶] I gave him a list of names of people from 

Avenue Piru Bloods who I thought were the shooters in the gang and gave that to him, 

and then he conducted his investigation and came up with the suspect.”

2. Defense evidence. 

Mitchell testified that on March 4, the date of the shooting, at about 9:00 p.m., he 

was at a friend’s house at 104th and Crenshaw getting ready for a party. His friends, 

including Aaron Parker and Jeoni Hill, were there. Mitchell testified he particularly 

remembered that night because Hill was shot at about 9:30 p.m. The police and an 

ambulance arrived. Mitchell himself went to the hospital at 10:30 p.m. He denied having 

been at 108th Street and Western Avenue that night, or having shot at Erneshia and 

Kameron.

After his arrest, Mitchell spoke to his girlfriend, telling her that he remembered his 

friend had been shot on March 4. However, Mitchell admitted on cross-examination that 

the person he told his girlfriend about was not Hill but someone else, a man named 

Devontae Harrell. Mitchell testified he thought Harrell had gotten shot in March, but it 

actually might have occurred in April.

Mitchell denied being either a member of the Avenue Piru gang or associating 

with them. The “A” and “P” tattoos on his hands stood for the initials of his best friend, 

Aaron Parker. The black sweatshirt police took from his house when he was arrested 

belonged to his sister. Mitchell testified his name had been entered onto a field interview 

card in 2008 when he was at a friend’s house; the police had come and detained 

everyone, but he was not arrested or accused of doing anything wrong.

Nicole Washington testified that on March 4, between 8:45 and 9:15 p.m., she was 

in Eddie’s Liquor store at the corner of 108th Street and Western Avenue. As she was 
9

walking up to the register she heard gunshots. Going to the liquor store’s front door, she 

saw an African-American man in a dark hoodie walk across the parking lot. She could 

not see the man’s face because the hoodie was over his head. Washington described the 

man as “between five-six and five-eight, five-five, five-seven,” but testified she was “not 

really good at heights.”

3. Rebuttal evidence. 

When Mitchell was arrested in May 2011, McDonagh asked him about the March 

shooting in front of the laundromat near the corner of 108th Street and Western Avenue. 

Mitchell said he had been in Lancaster the entire month of March and did not return until 

March 31. A tape recording of this exchange was played for the jury.

CONTENTIONS

1. The trial court erred by denying Mitchell’s post-conviction Pitchess4 motion.

2. There was insufficient evidence to support the gang enhancement.

3. The trial court improperly sentenced Mitchell for a great bodily injury 

enhancement.

DISCUSSION

1. Pitchess motion was properly denied.

Mitchell contends the trial court erred by denying his post-conviction Pitchess 

motion for discovery of Detective McDonagh’s personnel file. This claim is meritless. 

a. Background.

After the jury returned the guilty verdicts, but before sentencing, Mitchell filed a 

motion seeking Pitchess discovery “relating to accusations that [McDonagh] engaged in 

acts of bias, dishonesty, coercive conduct or acts constituting a violation of the statutory 

or constitutional rights of others.” (Fns. omitted.) Defense counsel declared this 

discovery would assist in preparing post-trial motions claiming McDonagh had: 

 

4

Pitchess v. Superior Court (1974) 11 Cal.3d 531.
10

(1) “testified . . . that he destroyed potential Brady[5]evidence by ‘recycling’ [or throwing 

away] photos shown to eyewitnesses”; (2) “testified that he viewed video tapes of the 

interior of the business where the shooting occurred, and failed to preserve the evidence, 

again essentially destroying potential Brady material,” and (3) “testif[ied] . . . that he lied 

or perjured himself in the sworn affidavit for the search warrant.” This last claim alleged 

that McDonagh had “skewed all of the physical descriptions” of the gunman in order to 

achieve “a high level of consistency between what the witnesses saw and the suspect he 

wished to obtain the warrant for. The actual physical descriptions provided by three . . . 

percipient witnesses were different from one another, and very different from the 

physical description of the ‘suspect.’ ” Defense counsel declared: “Based upon the 

aforementioned testimony at trial, and McDonagh’s admission that he lied or perjured 

himself in the sworn affidavit for the search warrant, the defense alleges that the 

detective’s testimony and investigation of the case are false and fabricated. He fabricated 

probable cause.”

The Los Angeles County Sheriff’s Department opposed Pitchess discovery on the 

ground Mitchell’s motion failed to make any claims of actual police misconduct. The 

opposition asserted: (1) McDonagh had merely discarded those six-pack photo arrays 

that had not resulted in any identifications, while preserving all the six-packs in which a 

witness had identified Mitchell; (2) the surveillance videotape from inside the laundromat 

was not preserved because McDonagh had watched it and determined it did not show 

what was going on outside in the street, which is where the shooting occurred; and (3) the 

search warrant affidavit was not dishonest because McDonagh had been given “varying 

information from witnesses regarding the suspect’s physical description and the 

detective[ ] gave his best description of the suspect.”

At the hearing on Mitchell’s Pitchess motion, defense counsel essentially 

conceded that each allegation by itself would be insufficient to justify discovery, but 

 

5

Brady v. Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215] (prosecution has duty to 

disclose exculpatory evidence to defendant).
11

argued the trial court should “combine all of those things.” When the court asked defense 

counsel to point out where in the trial transcript McDonagh admitted having lied or 

perjured himself in the search warrant affidavit, defense counsel could not do so and the 

following colloquy occurred: 

“[Defense counsel]: Your Honor, it may be a misquote or it may be a conclusion 

based on what I saw. I’m not going to stand here and say that he specifically stated, 

‘Yes, I lied.’

“The Court: That’s what your affidavit –

“[Defense counsel]: Well, I probably should have proofread it better.”

The trial court denied Mitchell’s Pitchess request, saying: “The declaration is 

insufficient to justify discovery of police personnel records.”

b. Legal principles.

“Evidence Code sections 1043 and 1045, which codified our decision in Pitchess 

v. Superior Court (1974) 11 Cal.3d 531 . . , allow discovery of certain relevant 

information in peace officer personnel records on a showing of good cause. Discovery is 

a two-step process. First, defendant must file a motion supported by declarations 

showing good cause for discovery and materiality to the pending case. [Citation.] 

This court has held that the good cause requirement embodies a ‘relatively low threshold’ 

for discovery and the supporting declaration may include allegations based on 

‘information and belief.’ [Citation.] Once the defense has established good cause, the 

court is required to conduct an in camera review of the records to determine what, if any, 

information should be disclosed to the defense. (Evid. Code, § 1045, subd. (b).) The

statutory scheme balances two directly conflicting interests: the peace officer’s claim to 

confidentiality and the defendant’s compelling interest in all information pertinent to the 

defense. [Citation.]” (People v. Samuels (2005) 36 Cal.4th 96, 109.)

The good cause showing required by Evidence Code section 1043 is a “specific 

factual scenario” establishing a “plausible factual foundation” for the allegations of 

police misconduct. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85, 86.) 

“What the defendant must present is a specific factual scenario of officer misconduct that 
12

is plausible when read in light of the pertinent documents.” (Warrick v. Superior Court

(2005) 35 Cal.4th 1011, 1025.) “[A] plausible scenario of officer misconduct is one that 

might or could have occurred. Such a scenario is plausible because it presents an 

assertion of specific police misconduct that is both internally consistent and supports the 

defense proposed to the charges.” (Id. at p. 1026.) 

The trial court’s ruling on whether a motion to discover police personnel records 

has been supported by an affidavit sufficient to show good cause and materiality is 

reviewed for an abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 

992.) However, “even if the trial court erroneously denies a Pitchess motion, reversal is 

not required unless the defendant can demonstrate prejudice. (See People v. Samuels, 

supra, 36 Cal.4th at p. 110 [“even if the trial court erred because defendant made a 

showing of good cause in support of his [Pitchess] request . . . such error was harmless 

[under Watson6]”]; People v. Memro (1985) 38 Cal.3d 658, 684, disapproved on another 

ground in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2 [“It is settled that an 

accused must demonstrate that prejudice resulted from a trial court’s error in denying 

discovery.”].)

c. Discussion.

The trial court did not abuse its discretion by denying the Pitchess motion because 

Mitchell failed to present a plausible factual scenario of police misconduct.

As for the discarded photo arrays, it is undisputed that neither eyewitness 

identified any of those pictures as being the gunman. The photo arrays in which 

Mitchell’s picture had been identified were preserved. Mitchell fails to explain how 

collections of photographs not resulting in identifications could have been used to show 

that the actual eyewitness identifications were unreliable.

As for the discarded surveillance videotape, Mitchell argues: “Erneshia said that 

the shooter came from the laundromat. The video from the exterior of the laundromat . . . 

did not show the shooter’s face. If the same man had appeared in the surveillance video 

 

6

People v. Watson (1956) 46 Cal.2d 818.
13

of the interior of the laundromat, his face might have been visible – and that evidence 

might have exonerated appellant.” Although it is theoretically possible the videotape 

from the internal laundromat surveillance camera might have contained a better view of 

the person recorded on the external camera, the trial record does not show the gunman 

had in fact come from inside the laundromat.

Erneshia did at one point say the gunman had come “from the laundromat,” but 

she later backed away from this characterization and the clear thrust of her entire 

testimony was that she had not even seen the gunman until after he spoke to Kameron: 

“Q. You testified today that . . . before [the gunman] said anything, you noticed 

that a guy who was black with a hoodie on had come out from the area of the laundromat; 

is that correct?

“[The prosecutor]: Objection. Misstates testimony.

“The Court: Sustained.

“[Defense counsel]: One more time.

“Q. When did you first see this person? Before he said anything to you, did you 

see him?

“A. No.

“Q. So it wasn’t until you heard his voice that you looked at him?

“A. Yes.

“Q. Okay. And your testimony today is that he spoke and then you looked at 

him?

“A. Yes.”

Moreover, even if had Erneshia’s testimony in this regard been more ambiguous, 

Detective McDonagh testified he “viewed” the tape from the internal surveillance camera 

“and it didn’t show anything on the outside. So I didn’t take anything from the inside of 

the laundromat.” (Italics added.) Defense counsel never asked McDonagh for a further 

explanation of what that meant, and it was Mitchell’s burden to “present . . . a specific 

factual scenario of officer misconduct.” (Warrick v. Superior Court, supra, 35 Cal.4th at 
14

p. 1025.) This notion that the videotape from the internal camera might have contained 

exculpatory evidence amounts to mere speculation.7

Finally, Mitchell asserts McDonagh lied in the search warrant affidavit by 

deliberately altering witness descriptions of the suspect’s height in order to make them 

“taller – more nearly matching appellant’s height.” Mitchell concedes the eyewitnesses 

had given varying height estimates, with Kameron saying the gunman was 5’9” to 5’11” 

tall, while Erneshia said 5’5” to 5’6” tall, and Washington said 5’5” to 5’7” tall. 

Nevertheless, Mitchell complains that in the search warrant affidavit McDonagh stated 

Washington told him the man was 5’7” to 5’9” tall, and that McDonagh gave a final 

description of the gunman as being 5’8” to 5’10” tall. At the same time, however, 

Mitchell testified: “[I]t is certainly true that one of the descriptions that Erneshia gave of 

the shooter’s height was of a man five feet eight inches to five feet ten inches tall.” 

We fail to see how these physical description discrepancies established that 

McDonagh purposely wrote a misleading search warrant affidavit. Mitchell is forgetting 

the search warrant affidavit was drafted after Erneshia and Kameron had already 

identified Mitchell’s face in two different photo arrays, one of which showed Mitchell at 

a younger age than the other. In light of this kind of positive identification, we see no 

evidence of police misconduct arising from these slight discrepancies in the 

eyewitnesses’ height estimates.

Without having established any actual police misconduct, Mitchell falls back on a 

vague police conspiracy theory. He argues “the conduct of the investigation seemed to 

indicate that McDonagh was interested in producing a particular result, not in following 

the evidence wherever it might lead,” and that “[i]t is not farfetched to hypothesize that 

McDonagh reached a conclusion about which [Avenue Piru] gang member committed the 

 

7 Mitchell also complains McDonagh recovered his cell phone during the search, 

but did not utilize available technology to see if this phone had been used in local area 

around the time of the shooting. However, this allegation was not mentioned in the 

Pitchess motion and, again, this is merely a complaint about the thoroughness of the 

investigation.
15

shooting, then nudged Erneshia and Kameron to support his thesis by identifying 

appellant.”

In People v. Lewis and Oliver, supra, 39 Cal.4th 970, a defendant accused of 

murder “alleged that the detectives were involved in a conspiracy with [his estranged 

wife] to steal $10,000 and to murder him. He claimed they attempted to murder him by 

using excessive force during his arrest that would provoke him into defending himself, 

and that would allow them to apply lethal force in return. He also alleged that the 

officers were violent men generally, and that they were conspiring to frame him for 

murders he did not commit.” (Id. at p. 991.) In ruling the trial court had not abused its 

discretion by denying Lewis’s Pitchess motion, our Supreme Court said: “Lewis did not 

show that a police conspiracy to murder or frame him ‘could or might have occurred.’ 

[Citations.] Lewis’s moving papers alleged one or more grandiose conspiracies to frame 

and murder him. The trial court did not abuse its discretion in concluding that Lewis did 

not meet the standard for permitting discovery of information from police personnel 

files.” (People v. Lewis and Oliver, supra, 39 Cal.4th p. 992.)

Although not as elaborate as the police conspiracy alleged in Lewis, the scenario 

Mitchell proposes is no more plausible. He has presented no factual scenario tending to 

show McDonagh improperly guided the witnesses to identify him as the gunman. 

Indeed, Mitchell himself even acknowledges, for instance, that Erneshia testified 

McDonagh “did not suggest to her that she should select a photograph” from the six-pack 

array. Rather, the evidence tends to show a very clean identification: the two 

eyewitnesses got an extremely good look at Mitchell in the flood-lit area in front of the 

laundromat before and after he started shooting; the problem of cross-racial identification

was not present; and both eyewitnesses picked Mitchell out of photo arrays on two 

different occasions.

The trial court did not abuse its discretion by denying Mitchell’s Pitchess motion.
16

2. The gang enhancement was properly imposed.

Mitchell contends the gang enhancement should be vacated because there was 

insufficient evidence to show he shot at Kameron in order to benefit a criminal street 

gang. This claim is meritless. 

a. Legal principles.

“[T]he STEP Act prescribes increased punishment for a felony if it was related to 

a criminal street gang. (§ 186.22, subd. (b)(1).) ‘[T]o subject a defendant to the penal 

consequences of the STEP Act, the prosecution must prove that the crime for which the 

defendant was convicted had been “committed for the benefit of, at the direction of, or in 

association with any criminal street gang, with the specific intent to promote, further, or 

assist in any criminal conduct by gang members.” (§ 186.22, subd. (b)(1) . . . .) In 

addition, the prosecution must prove that the gang (1) is an ongoing association of three 

or more persons with a common name or common identifying sign or symbol; (2) has as 

one of its primary activities the commission of one or more of the criminal acts 

enumerated in the statute; and (3) includes members who either individually or 

collectively have engaged in a “pattern of criminal gang activity” by committing, 

attempting to commit, or soliciting two or more of the enumerated offenses (the so-called 

“predicate offenses”) during the statutorily defined period. (§ 186.22, subds. (e) and (f).)’ 

[Citation.]” (People v. Hernandez (2004) 33 Cal.4th 1040, 1047, fn. omitted.)

“In considering a challenge to the sufficiency of the evidence to support an 

enhancement, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence – that is, evidence that is reasonable, 

credible, and of solid value – from which a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in 

support of the judgment the trier of fact could have reasonably deduced from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] ‘A reviewing court neither 
17

reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Albillar (2010)

51 Cal.4th 47, 59-60.)

b. Discussion.

Mitchell asserts there was no evidence what the motive for the shooting was. He 

is wrong. Detective Tripp’s testimony constituted substantial evidence that Mitchell 

belonged to the Avenue Piru gang and carried out this shooting for the gang’s benefit. 

Tripp’s conclusion was based on the following evidence: Mitchell was an Avenue Piru 

member in the rival gang territory of the Neighborhood Crips when he issued a gang 

challenge to Kameron, even if only to determine whether Kameron belonged to an enemy 

gang. Kameron was of an age and race that made him a potential rival gang member and 

Mitchell attempted to murder him. Tripp opined the crimes benefitted Avenue Piru, even 

if Kameron was not a member of the Neighborhood Crips, because local Neighborhood 

Crips members would hear about the shooting, thus instilling fear and intimidation. 

Younger gang members affiliated with Mitchell’s gang who heard about the shooting,

and the recognition gained thereby, would be encouraged to commit similar crimes. This 

incident occurred during a time when a gang war had been going on between the 

Neighborhood Crips and the Inglewood Bloods gangs, and shootings were quite 

common.

“Evidence of the defendant’s gang affiliation – including evidence of the gang’s 

territory, membership, signs, symbols, beliefs and practices, criminal enterprises, 

rivalries, and the like – can help prove identity, motive, modus operandi, specific intent, 

means of applying force or fear, or other issues pertinent to guilt of the charged crime. 

[Citations.]” (People v. Hernandez, supra, 33 Cal.4th at p. 1049.) Here, the gang 

evidence proved Mitchell’s motive for committing an otherwise inexplicable assault on 

Kameron and Erneshia, who had tried to avert any violence by not rising to Mitchell’s 

gang challenge. Mitchell’s assault was the functional equivalent of the classic, 

apparently motiveless, drive-by shooting that is given an understandable context by the 

presentation of gang culture evidence. (See People v. Ruiz (1998) 62 Cal.App.4th 234, 

239 [notwithstanding potential prejudicial effect of gang evidence, such evidence is 
18

admissible “when the very reason for the crime is gang related”]; People v. Martin (1994) 

23 Cal.App.4th 76, 81 [“where evidence of gang activity or membership is important to 

the motive, it can be introduced even if prejudicial”].)

“A gang expert may render an opinion that facts assumed to be true in a 

hypothetical question present a ‘classic’ example of gang-related activity, so long as the 

hypothetical is rooted in facts shown by the evidence.” (People v. Gonzalez (2005) 

126 Cal.App.4th 1539, 1551, fn. 4.) A gang expert may testify on the ultimate question 

of whether the defendant was acting for the benefit of a gang. (People v. Valdez (1997) 

58 Cal.App.4th 494, 507-509 [where participants were diverse group affiliated with 

various gangs, trial court did not abuse its discretion by letting gang expert testify “the 

participants acted for the benefit of each and every gang represented by the caravan”].) 

“Expert opinion that particular criminal conduct benefited a gang by enhancing its 

reputation for viciousness can be sufficient to raise the inference that the conduct was 

‘committed for the benefit of . . . a[ ] criminal street gang’ within the meaning of section 

186.22(b)(1). (See, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347 . . . [relying on 

expert opinion that the murder of a nongang member benefited the gang because ‘violent 

crimes like murder elevate the status of the gang within gang culture and intimidate 

neighborhood residents who are, as a result, “fearful to come forward, assist law 

enforcement, testify in court, or even report crimes that they’re victims of for fear that 

they may be the gang’s next victim or at least retaliated on by that gang” ’]; People v. 

Romero (2006) 140 Cal.App.4th 15, 19 . . . [relying on expert opinion that ‘a shooting of 

any African American men would elevate the status of the shooters and their entire 

[Latino] gang’].)” (People v. Albillar, supra, 51 Cal.4th at p. 63.) 

Based on Tripp’s testimony, there was sufficient evidence to establish the 

“benefit” factor of the benefit/direction/association element of the gang enhancement. 

(See, e.g., People v. Galvez (2011) 195 Cal.App.4th 1253, 1261 [“The crimes were 

committed for the benefit of the gang because, as . . . explained by [the gang expert], the 

gang members’ act of severely beating [the victim] in a public place in gang territory 
19

‘promotes fear, which, in essence, promotes their gang and their brutality to the 

community in which they live.’ ”].)

There was also sufficient evidence to establish Mitchell committed the shooting 

with the specific intent to promote, further, or assist in criminal conduct by gang 

members. The promote/further/assist element of the gang enhancement is satisfied even 

if the only gang member whose criminal conduct was furthered was the defendant 

himself in his commission of the underlying offense. (See People v. Hill (2006) 

142 Cal.App.4th 770, 774 [“There is no requirement in section 186.22, subdivision (b), 

that the defendant’s intent to enable or promote criminal endeavors by gang members 

must relate to criminal activity apart from the offense defendant commits. To the 

contrary, the specific intent required by the statute is ‘to promote, further, or assist in any

criminal conduct by gang members.’ (Pen. Code, § 186.22, subd. (b), italics added.) 

Therefore, defendant’s own criminal threat qualified as the gang-related criminal activity. 

No further evidence on this element was necessary.”].)

Mitchell cites People v. Albarran (2007) 149 Cal.App.4th 214, as a case 

“strikingly similar” to his. But Albarran is inapposite because there the gang expert 

basically “testified he did not know why the shooting occurred.” (People v. Martinez

(2008) 158 Cal.App.4th 1324, 1333.) In Albarran, the defendant and a companion fired 

shots at a house where a party was going on, but there was no evidence the gunmen had 

made themselves known by gang signs, announcements or graffiti, and the gang expert 

“conceded he did not know the reason for the shooting.” (People v. Albarran, supra, 149 

Cal.App.4th at p. 227.) Here, on the other hand, the evidence showed Mitchell made 

some sort of verbal gang challenge to Kameron before opening fire.

Citing In re Frank S. (2006) 141 Cal.App.4th 1192, Mitchell argues: “Except for 

the gang expert’s general assertion that firing on Kameron would tend to instill fear in the 

Neighborhood Crips, there was no evidence that appellant fired in order to benefit the 

[Avenue Piru] gang. The motive for the shooting is simply not known. The fact that 

there was no known motive for the shooting, does not give rise to a legitimate inference 

that it must have served the purposes of some gang. The gang expert’s thesis, apparently, 
20

is that appellant was a gang member because he associated with them. If he fired on 

Kameron, he must have done so to advance his gang and denigrate the Neighborhood 

Crips. This is a chain of inference even weaker than that presented in Frank S.”

But Frank S. was decided by the same Court of Appeal that decided People v. 

Killebrew (2002) 103 Cal.App.4th 644, where “in response to hypothetical questions, the 

People’s gang expert exceeded the permissible scope of expert testimony by opining on 

‘the subjective knowledge and intent of each’ of the gang members involved in the crime. 

[Citation.] Specifically, he testified that each of the individuals in a caravan of three cars 

knew there was a gun in the Chevrolet and a gun in the Mazda and jointly possessed the 

gun with everyone else in the three cars for mutual protection. [Citation.] [However,] 

Killebrew does not preclude the prosecution from eliciting expert testimony to provide 

the jury with information from which the jury may infer the motive for a crime or the 

perpetrator’s intent; Killebrew prohibits an expert from testifying to his or her opinion of 

the knowledge or intent of a defendant on trial.” (People v. Gonzalez (2005) 

126 Cal.App.4th 1539, 1550-1551.) As our Supreme Court has said: “Obviously, there 

is a difference between testifying about specific persons and about hypothetical persons. 

It would be incorrect to read Killebrew as barring the questioning of expert witnesses 

through the use of hypothetical questions regarding hypothetical persons. . . . [U]se of 

hypothetical questions is proper.” (People v. Gonzalez (2006) 38 Cal.4th 932, 946, fn. 3.)

Frank S. rejected an expert opinion because, “[s]imilar to Killebrew, the expert 

. . . testified to ‘subjective knowledge and intent’ of the minor. [Citation.] ‘Such 

testimony is much different from the expectations of gang members in general when 

confronted with a specific action.’ ” (In re Frank S., supra, 141 Cal.App.4th at pp. 1197-

1198, italics added and omitted.) The crucial point is the difference between testifying 

about the particular defendant’s mental state rather than the mental state of gang 

members in general. Here, Tripp was asked and answered a detailed hypothetical 

question based on the facts of this case.

There was sufficient evidence to sustain the gang enhancement.
21

3. Great bodily injury enhancement term must be stayed.

Mitchell contends, and the Attorney General properly agrees, that the trial court 

erred by imposing on count 1 (the attempted murder of Kameron) both a term of 25 years 

to life under section 12022.53, subdivision (d), for discharging a firearm and causing 

great bodily injury, as well as a three-year term for causing great bodily injury under 

section 12022.7. Mitchell asserts the remedy for this error is to strike the sentence 

imposed under the great bodily injury enhancement (§ 12022.7), but the Attorney General 

argues the correct remedy is to reverse the section 12022.7 enhancement finding. The 

proper remedy, however, is to merely stay imposition of the great bodily injury 

enhancement term.

Section 12022.53, subdivision (f), provides: “Only one additional term of 

imprisonment under this section shall be imposed per person for each crime. If more than 

one enhancement per person is found true under this section, the court shall impose upon 

that person the enhancement that provides the longest term of imprisonment. An 

enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 

12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement 

imposed pursuant to this section. An enhancement for great bodily injury as defined in 

Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an 

enhancement imposed pursuant to subdivision (d).”

This statute has been construed by our Supreme Court as follows: “[I]t becomes 

apparent that section 12022.53 was enacted to ensure that defendants who use a gun 

remain in prison for the longest time possible and that the Legislature intended the trial 

court to stay, rather than strike, prohibited enhancements under section 12022.53. As 

noted above, staying rather than striking the prohibited firearm enhancements serves the 

legislative goals of section 12022.53 by making the prohibited enhancements readily

available should the section 12022.53 enhancement with the longest term be found 

invalid on appeal and by making ‘the trial court’s intention clear – it is staying part of the 

sentence only because it thinks it must. If, on the other hand, the trial court were to strike 

or dismiss the prohibited portion of the sentence, it might be misunderstood as exercising 
22

its discretionary power under Penal Code section 1385.’[8] [Citation.] When the word 

‘impose’ in section 12022.53(f) is properly understood as shorthand to mean impose and 

then execute, section 12022.53 allows for the same resolution of the prohibited 

enhancements under sections 12022.53 and 12022.5, namely, that they must be imposed 

and then stayed.” (People v. Gonzalez (2008) 43 Cal.4th 1118, 1129-1130, fn. omitted.) 

In Gonzalez, the trial court imposed firearm enhancements for each of the three 

section 12022.53 subdivisions,9as well as an enhancement for a section 12022.5 firearm 

use finding. Our Supreme Court held: “[W]e construe section 12022.53 to require that, 

after a trial court imposes punishment for the section 12022.53 firearm enhancement with 

the longest term of imprisonment, the remaining section 12022.53 firearm enhancements 

and any section 12022.5 firearm enhancements that were found true for the same crime 

must be imposed and then stayed.” (People v. Gonzalez, supra, 43 Cal.4th at pp. 1122-

1123.) Similarly, in the case at bar, the redundant section 12022.7 great bodily injury 

enhancement imposed on Mitchell must be stayed.

Accordingly, we will stay the three-year section 12022.7 enhancement term 

imposed in connection with count 1.

 

8

Section 1385, subdivision (a), provides, in pertinent part: “The judge or 

magistrate may, either of his or her own motion or upon the application of the 

prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”

9

Section 12022.53 prescribes sentence enhancements for specified felonies in three 

escalating situations: 10 years for use of a firearm under subdivision (b); 20 years for 

discharging a firearm under subdivision (c); and 25 years to life for discharging a firearm 

and causing great bodily injury or death under subdivision (d).
23

DISPOSITION

The three-year section 12022.7 enhancement term imposed in connection with 

count 1 is hereby stayed. As modified, the judgment is affirmed. The trial court is 

directed to prepare and forward to the Department of Corrections and Rehabilitation an 

amended abstract of judgment.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

KITCHING, J.

ALDRICH, J.