Filed 8/6/14 P. v. Cook CA2/4 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

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

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 This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION FOUR 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

BRYAN COOK et al., 

 Defendants and Appellants. 

 B247646 

 (Los Angeles County 

 Super. Ct. No. BA392115) 

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

Ronald S. Coen, Judge. Affirmed. 

 Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and 

Appellant Bryan Cook. 

 Mark S. Givens, under appointment by the Court of Appeal, for Defendant and 

Appellant Travis O. Foster. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Tita 

Nguyen, Deputy Attorneys General, for Plaintiff and Respondent. 
2 

 The jury convicted defendants Bryan Cook and Travis O. Foster of attempted 

premeditated murder, evading a police officer, and shooting at an occupied motor 

vehicle. It also convicted Foster of possession of a firearm by a felon, and found that he 

had suffered a prior serious felony conviction. The jury sustained criminal street gang 

and firearm allegations as to both defendants. 

 In this appeal from the judgment, Foster contends the trial court erred in admitting 

hearsay evidence, and Cook contends the evidence failed to support his conviction as an 

aider and abettor. For the reasons discussed below, we affirm the judgment. 

BACKGROUND 

 Defendants were charged with a gang-related shooting in which Foster was the 

driver and the shooter; Cook was the front passenger; and Marquis Graham, who entered 

a plea before trial pursuant to a negotiated agreement, was the rear passenger. The 

prosecution’s theory was that defendants intended to shoot a rival gang member who 

drove a car similar to that of the victim and frequented the area where the shooting 

occurred. The prosecution’s evidence showed the following: 

At about 10:30 p.m. on December 21, 2011, Foster was driving a silver Dodge 

Charger on Brynhurst Avenue in Los Angeles. He stopped next to a white Buick Century 

that also was facing northbound. The driver of the Buick, Tamika Baul, saw Foster’s 

face before he glanced around and began firing a gun through his front passenger 

window. After seeing muzzle flashes and hearing bullets striking her car, she ducked 

down onto the floorboard until the Dodge drove away. She was uninjured and ran to her 

friend’s house to call 911. Los Angeles Police Department officers who responded to the 

call found several bullet holes in her driver’s side door and recovered multiple shell 

casings. 

 Other officers in a nearby patrol car were heading toward the sound of the gunfire 

when they nearly collided with the Dodge. They could see the driver (Foster) but not the 

passengers. They activated their lights and siren and began pursuing the Dodge as it sped 
3 

through several stop signs and red lights, made unsafe turns, hit a pole, and went airborne 

before stopping due to two flat tires. When officers illuminated the Dodge with their 

spotlight, they saw Foster and two passengers. They detained Foster, who was wearing a 

dark hooded sweatshirt; Cook, the front passenger; and Graham, the rear passenger. 

 Officers immediately began searching the Dodge and retracing the pursuit route. 

In the Dodge, they found a live .45 caliber bullet on the right front floorboard and a 

Texas Rangers baseball cap in the trunk. On the pavement along the pursuit route, they 

found two loaded guns, a pair of orange and black gloves, and a third orange and black 

glove. One of the weapons, a .45 caliber handgun (the same caliber as the bullet found in 

the Dodge), was later matched to the bullets and spent casings that were recovered from 

the scene of the shooting. Subsequent tests showed that the pair of gloves contained 

Cook’s DNA, and the remaining glove contained the DNA of several contributors 

including Graham. 

 Shortly after defendants were detained, Baul was brought to view the Dodge and 

the three suspects. During the viewing, she identified both the Dodge and the driver 

(Foster), stating, “That’s him. He is wearing the same hoodie, and that’s the car. . . . 

That’s the guy that shot at me.” During the shooting, Baul did not see anyone in the 

vehicle other than the driver. She did not identify the front passenger (Cook) or the rear 

passenger (Graham). At trial, she identified Foster as the driver who had fired a gun at 

her. 

 The prosecution’s gang expert, Officer Manuel Esqueda, testified that in his 

opinion, Foster and Cook are members of the Hoover Criminals gang.1 He explained that 

his opinion was based on their tattoos, gang monikers, and relevant information obtained 

 1 Esqueda also described the primary activities and predicate criminal acts of the 

gang in accordance with Penal Code section 186.22. His testimony on those points is not 

at issue on appeal and thus has been omitted from the opinion. 
4 

from other experienced gang officers. He stated that the gang’s primary color is orange; 

the gloves that were found along the pursuit route were orange and black.2 

 Esqueda also explained that the shooting occurred deep in the territory of a rival 

gang, the Rollin’ 60’s. Gang members usually do not travel together into the heart of a 

rival gang’s territory unless they intend to commit a crime for the benefit of their gang. 

By going as a group, the shooter is assured of having other gang members who will act as 

lookouts, provide motivation, and verify the crime to others. 

 When Esqueda was presented with a hypothetical situation that tracked the facts of 

this case, he opined that the crime would promote the reputation of the members who 

committed it, and would benefit their gang by creating fear within the community. In his 

opinion, the gang would benefit even if the victim was not a rival gang member. 

 Over a defense objection, the prosecution presented evidence regarding the 

intended target, Marquise Thomas. Esqueda testified that in his opinion (based on 

information received from an experienced gang officer, Officer Porter), Thomas was an 

original gangster or O.G. member of the Rollin’ 60’s gang. Officer Jonathan Kincaid—

an experienced gang officer who encountered Thomas on five or six occasions and 

testified as an expert witness in other cases regarding the Rollin’ 60’s gang—similarly 

testified that in his opinion, Thomas was an O.G. member of the Rollin’ 60’s gang.3 

 Kincaid testified that he had personally observed Thomas in a white Buick and 

had encountered him on Brynhurst near where the shooting occurred. During a prior 

traffic stop, Thomas told Kincaid that his address was 6541 Brynhurst, which is on the 

same block where the shooting occurred. 

 2 Officer Robert Coats testified that members of the gang’s affiliate, the Eight Tray 

Hoovers, wear Texas Rangers clothing (the cap found in the Dodge was a Texas Rangers 

cap). 

3 On cross-examination, Kincaid testified that because Thomas, who was born in 

1981, was not as old as the “true O.G.’s” who “are in their 40’s and 50’s,” he could not 

“really say” that Thomas was a “true O.G.” However, Kincaid testified that “due to 

[Thomas’s] status within the gang, I guess the youngsters would call him O.G., 

somebody that they look up to, and that he is a little bit older.” 
5 

 Foster, who was in pro. per., testified in his own defense. He explained that on the 

night of the shooting, he was driving home from his mother’s house when he stopped to 

give Cook and Graham a ride. He denied committing the shooting on Brynhurst. When 

he heard the gunshots, he claimed to be about three miles away from where the shooting 

occurred, and he tried to leave the area but was pulled over by the police for what he 

thought was a traffic stop. He did not lead the officers on a high speed chase. There 

were no guns in the car. He testified that Cook was in the rear seat and Graham was in 

the front seat. When they were ordered from the car, their belongings, including their 

phones, wallets, and gloves, were removed from their pockets. He previously belonged 

to the Hoover Criminals but is no longer an active member. Cook and Graham are still 

members of that gang. He has family members who live in the area of the shooting and 

are members of the Rollin’ 60’s gang. 

 In rebuttal, Officer Yolanda Mansillas-Valento testified that on the morning after 

the shooting, Foster told her that he was at home when he left to pick up Cook and 

Graham. 

 In closing argument, the prosecutor argued that defendants were attempting to 

murder “a rival, Marquise Thomas,” who was seen driving a white Buick and “was 

known to reside on the same street, same block” where the shooting occurred. The 

prosecutor argued that Foster was the driver and the shooter, and Cook was the front 

passenger. He argued that Cook had aided and abetted the crimes by accompanying 

Foster on an armed “mission” into “rival territory to attack the enemy” for the benefit of 

their gang, by “ducking” out of the way to give Foster a “clear shot” through the open 

front passenger’s window, and by giving Foster moral support and acting as his 

“backup.” 

 The jury found Cook and Foster guilty of attempted premeditated murder (Pen. 

Code, §§ 664, 187, subd. (a), count 1);4 evading a police officer (§ 2800.2, subd. (a), 

count 2); and shooting at an occupied motor vehicle (§ 246, count 3). The jury convicted 

 4 Unless otherwise indicated, all further statutory references are to the Penal Code. 
6 

Foster of possession of a firearm by a felon (§ 12021, subd. (a)(1), count 4), and found 

that he had sustained a prior serious felony conviction (§ 667, subd. (a)(1)). It found the 

criminal street gang (§ 186.22, subd. (a)) and firearm allegations (§ 12022.53) to be true 

as to both defendants. The trial court imposed determinate and indeterminate sentences 

as to both defendants.5 Defendants timely appealed from the judgment. 

DISCUSSION 

I. Hearsay Evidence 

Foster contends the opinion testimony of Officers Esqueda and Kincaid 

concerning Thomas’s gang membership was based on unreliable hearsay statements. He 

argues that Kincaid’s testimony concerning Thomas’s hearsay statement that he lived at 

6541 Brynhurst was inadmissible. He contends the incompetent hearsay evidence was 

essential to the prosecution’s theory that Thomas was the intended target, and that 

without this theory the prosecution “would have been stuck with the unimpressive 

 5 Foster received the following consecutive sentences: On count 2 (evading a 

police officer), a seven-year base term, consisting of four years (double the midterm of 

two years pursuant to §§ 1170.12, subds. (a)-(d), and 667, subds. (b)-(i)), plus three years 

for the gang enhancement (§ 186.22, subd. (b)(1)). On count 4 (possession of a firearm 

by a felon), a term of seven years and four months, consisting of 16 months (double the 

midterm of eight months), plus one year (one-third the midterm of three years) for the 

gang enhancement (§ 186.22, subd. (b)(1)), plus five years for the prior conviction 

allegation (§ 667, subd. (a)(1)). On count 1 (attempted murder), life with the possibility 

of parole after a minimum of 30 years in state prison (§§ 1170.12, subd. (a)-(d), 667, 

subds. (b)-(i)), plus 20 years in state prison pursuant to section 12022.53, subdivision (c). 

The sentence on count 1 was to run consecutively to the sentences on counts 2 and 4. 

The sentence on count 3 (shooting at an occupied motor vehicle and all enhancements) 

was imposed and stayed under section 654. 

 Cook received the following consecutive sentences: On count 2 (evading a police 

officer), a five-year base term, consisting of the midterm of two years, plus three years 

for the gang enhancement (§ 186.22, subd. (b)(1)). On count 1 (attempted murder), life 

with the possibility of parole after a minimum term of 15 years pursuant to section 

186.22, subdivision (b)(5). The sentence on count 3 (shooting at an occupied motor 

vehicle and all enhancements) was imposed and stayed under section 654. 
7 

opinion by the gang expert that the mere fact that three gang members were in a car 

together in rival gang territory establishes that they were out to commit some heinous act 

for the benefit of their gang.” We disagree.6 

 The Supreme Court set forth the applicable law on this issue in People v. Gardeley 

(1996) 14 Cal.4th 605 (Gardeley). Gardeley provides that “[s]o long as this threshold 

requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form 

the proper basis for an expert’s opinion testimony. (In re Fields (1990) 51 Cal.3d 1063, 

1070 [expert witness can base ‘opinion on reliable hearsay, including out-of-court 

declarations of other persons’] . . . .) And because Evidence Code section 802 allows an 

expert witness to ‘state on direct examination the reasons for his opinion and the matter 

. . . upon which it is based,’ an expert witness whose opinion is based on such 

inadmissible matter can, when testifying, describe the material that forms the basis of the 

opinion. (People v. Shattuck (1895) 109 Cal. 673, 678 [medical expert could testify to 

patient’s complaints in order ‘to give a clinical history of the case to understand the 

significance of her symptoms’]; McElligott v. Freeland (1934) 139 Cal.App. 143, 157-

158 [certified public accountant could testify to information he relied on in property 

valuation] . . . .)” (Gardeley, supra, at pp. 618-619.) 

 Before trial, Cook filed an in limine motion (joined by Foster) to exclude 

information regarding Thomas’s address and vehicle as unreliable hearsay evidence that 

was based on “nothing more than a station house or street rumor.” But in response to the 

prosecutor’s representation that the information regarding Thomas was reliable and that 

other officers were available to testify that they had stopped Thomas while he was 

driving a white Buick, the trial court concluded the information could form the proper 

basis for an expert opinion under Gardeley and denied the in limine motion. 

 At trial, Cook repeated his objections to Esqueda’s and Kincaid’s testimony 

concerning Thomas. The trial court again overruled the objection, stating, “It’s the basis 

 6 Cook joined in Foster’s arguments. We reject Cook’s contentions for the reasons 

discussed. 
8 

of the opinion. It’s overruled.”7 As a result, Esqueda and Kincaid were permitted to 

testify that in their expert opinion, Thomas was an O.G. member of the Rollin’ 60’s gang. 

 On appeal, Cook argues the expert testimony on the issue of Thomas’s gang 

membership was improper. Other courts have held, however, that whether a person 

belongs to a criminal street gang is a proper subject of expert testimony. (People v. 

Duran (2002) 97 Cal.App.4th 1448, 1464 [“an individual’s membership in a criminal 

street gang is a proper subject for expert testimony”].) We similarly conclude that expert 

testimony is admissible on this subject because the average person is not qualified to 

understand the gang-related significance of tattoos, gang monikers, and field information 

cards without the assistance of an expert. 

 Cook argues that Esqueda should not have referred to Officer Porter as a source of 

information concerning Thomas’s gang affiliation. We disagree. Under Gardeley, 

Esqueda was entitled to mention the source of the material that he relied upon to form his 

expert opinion. (Gardeley, supra, 14 Cal.4th at pp. 618-619.) 

 Cook also challenges the admission of Kincaid’s expert opinion regarding 

Thomas’s gang affiliation. The record is undisputed, however, that Kincaid is a veteran 

officer with extensive knowledge and experience regarding the Rollin’ 60’s gang, and 

that he has had five or six personal encounters with Thomas. He thus was qualified to 

offer an expert opinion as to whether Thomas was a member of this particular gang. 

 Cook objects to the admission of Kincaid’s testimony concerning Thomas’s 

hearsay statement that he lived at 6541 Brynhurst. Because a criminal street gang is 

comprised of persons who live within the area controlled by that gang, the home address 

 7 The Attorney General argues that Foster forfeited the issue on appeal by failing to 

join in Cook’s objections at trial. We disagree. Although a defendant is obligated to 

raise a timely hearsay objection at trial in order to preserve the issue for appellate review, 

we conclude that because the record indicates any additional objection by Foster would 

have been equally unsuccessful and therefore futile, he is excused from making a timely 

objection. (See People v. McKinnon (2011) 52 Cal.4th 610, 654 [failure to object did not 

constitute a waiver because the objection would have been futile].) 
9 

that Thomas provided was relevant to determining his gang affiliation. Under Gardeley, 

Kincaid’s reference to the source of the information was proper. 

 To the extent Cook’s argument is that Thomas’s home address should not have 

been introduced for the truth of the matter asserted (i.e., to prove that Thomas actually 

lived at that address), we note there is no sua sponte duty to give a limiting instruction. 

“Ordinarily, the use of a limiting instruction that matters on which an expert based his 

opinion are admitted only to show the basis of the opinion and not for the truth of the 

matter cures any hearsay problem involved[.]” (Grimshaw v. Ford Motor Co. (1981) 119 

Cal.App.3d 757, 789.) However, “[t]he court is not required to give such limiting 

instructions sua sponte. (Evid. Code, § 355 . . . .)” (Ibid.) The same rule applies in 

criminal cases. (People v. Kendrick (1989) 211 Cal.App.3d 1273, 1277-1278.) 

 In any event, any error in admitting the hearsay evidence concerning Thompson’s 

address was not prejudicial under either the Watson or Chapman standard of prejudice.8 

In evaluating challenges to evidentiary rulings, we must look at all the evidence, both 

supporting and contradicting the judgment, to determine whether, had Thomas’s 

extrajudicial statement been excluded, the jury might have drawn different factual 

conclusions. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) In light of Kincaid’s 

percipient testimony that he had seen Thomas on Brynhurst Avenue on several occasions, 

any additional harm that resulted from the admission of Thomas’s hearsay statement 

regarding his home address was not unduly prejudicial. Even in the absence of any 

evidence that Thomas was the intended victim, the jury had ample evidence to find that 

defendants had ventured into the heart of a rival gang’s territory in order to commit a 

shooting that would enhance their reputation and benefit their gang regardless whether 

the victim was a rival gang member or an innocent bystander. 

 Finally, we reject any challenge to the admission of Kincaid’s percipient testimony 

regarding Thomas’s car and the area he frequents. Such testimony was not hearsay 

because it was based on the officer’s personal observations. 

 8 People v. Watson (1956) 46 Cal.2d 818, 834; Chapman v. California (1967) 386 

U.S. 18, 23. 
10 

II. Cook’s Liability as an Aider and Abettor 

 Cook contends the evidence was insufficient to support his convictions on counts 

1 (attempted murder) and 3 (shooting at an occupied motor vehicle), because the jury 

could not have found beyond a reasonable doubt that he aided and abetted in their 

commission. We are not persuaded. 

 “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.”’ (People v. Hillhouse [(2002)] 27 Cal.4th 

[469,] 496.) The same standard of review applies to cases in which the prosecution relies 

mainly on circumstantial evidence (People v. Rodriguez (1999) 20 Cal.4th 1, 11) . . . . 

An appellate court must accept logical inferences that the jury might have drawn from the 

circumstantial evidence. (Rodriguez, supra, at p. 11.)” (People v. Maury (2003) 30 

Cal.4th 342, 396 [Maury].) 

 As explained in People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), “an aider and 

abettor’s liability for criminal conduct is of two kinds. First, an aider and abettor with the 

necessary mental state is guilty of the intended crime. Second, under the natural and 

probable consequences doctrine, an aider and abettor is guilty not only of the intended 

crime, but also ‘for any other offense that was a “natural and probable consequence” of 

the crime aided and abetted.’ (People v. Prettyman [(1996)] 14 Cal.4th [248,] 260.)” (25 

Cal.4th at p. 1117.) However, in this case, as in McCoy, “the trial court did not instruct 

the jury on the natural and probable consequences doctrine. It instructed only on an aider 

and abettor’s guilt of the intended crimes. Accordingly, only an aider and abettor’s guilt 

of the intended crime is relevant here.” (Ibid.) 

 In order for a defendant to be found guilty as an aider and abettor, he or she “must 

do something and have a certain mental state.” (McCoy, supra, 25 Cal.4th at p. 1117.) 

“[O]utside of the natural and probable consequences doctrine, an aider and abettor’s 
11 

mental state must be at least that required of the direct perpetrator. ‘To prove that a 

defendant is an accomplice . . . the prosecution must show that the defendant acted “with 

knowledge of the criminal purpose of the perpetrator and with an intent or purpose either 

of committing, or of encouraging or facilitating commission of, the offense.” ([People v. 

Beeman (1984) 35 Cal.3d 547,] 560, italics in original.) When the offense charged is a 

specific intent crime, the accomplice must “share the specific intent of the perpetrator”; 

this occurs when the accomplice “knows the full extent of the perpetrator’s criminal 

purpose and gives aid or encouragement with the intent or purpose of facilitating the 

perpetrator’s commission of the crime.” (Ibid.)’ (People v. Prettyman, supra, 14 Cal.4th 

at p. 259.) What this means here, when the charged offense and the intended offense—

murder or attempted murder—are the same, i.e., when guilt does not depend on the 

natural and probable consequences doctrine, is that the aider and abettor must know and 

share the murderous intent of the actual perpetrator.” (McCoy, supra, 25 Cal.4th at 

p. 1118, fn. omitted.) 

 The Supreme Court summarized the above principles, stating, “Thus, proof of 

aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s 

actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor’s mens 

rea—knowledge of the direct perpetrator’s unlawful intent and an intent to assist in 

achieving those unlawful ends, and (c) the aider and abettor’s actus reus—conduct by the 

aider and abettor that in fact assists the achievement of the crime. (See McCoy[, supra, 25 

Cal.4th] at p. 1117.)” (People v. Perez (2005) 35 Cal.4th 1219, 1225.) 

 Applying the above principles to this case, we conclude the jury could reasonably 

infer from the evidence that Cook intentionally encouraged and assisted Foster to kill a 

rival gang member, Thomas, by accompanying Foster on an armed mission to the 

neighborhood that Thomas was known to frequent, locating a white Buick that was 

similar to the car that Thomas was known to drive, ducking down in the front passenger’s 

seat to give Foster a clear shot at the driver of the white Buick, and tossing weapons and 

gloves from the Dodge during the police pursuit. These inferences, which are reasonably 

supported by the evidence, are indicative of Cook’s knowledge of Foster’s intent to kill 
12 

Thomas and of Cook’s intent to assist Foster in doing so. (See People v. Garcia (2008) 

168 Cal.App.4th 261, 273 [“Factors to be considered by the trier of fact in determining 

‘whether one is an aider and abettor include presence at the scene of the crime, failure to 

take steps to attempt to prevent the commission of the crime, companionship, flight, and 

conduct before and after the crime.’ (People v. Jones (1980) 108 Cal.App.3d 9, 15.)”].) 

Because “[a]n appellate court must accept logical inferences that the jury might have 

drawn from the circumstantial evidence” (Maury, supra, 30 Cal.4th at p. 396), we 

conclude that Cook’s convictions of attempted murder and shooting at an occupied 

vehicle are supported by substantial evidence. 

 Cook’s reliance on Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262 (Juan H.) is 

misplaced. In that case, the defendant, a minor, was standing behind his brother during a 

confrontation with two rival gang members. The brother pulled out a shotgun that was 

either in the front of his pants or at his side, and shot at both rival gang members, killing 

one. The other rival member was not injured. During the shooting, the defendant did not 

say anything, make any gestures, or otherwise encourage his brother, who fled from the 

scene in his car and was not captured. The defendant did not flee, but went home after 

the shooting. The Ninth Circuit granted the defendant’s petition for writ of habeas 

corpus, finding the evidence insufficient to support his conviction as an aider and abettor 

of the murder and attempted murder of the rival gang members. 

 This case is distinguishable from Juan H. because, as previously mentioned, Cook 

was not a passive observer of the shooting, but an active participant who traveled into a 

rival gang’s territory with loaded handguns and gloves, ducked out of the way so that 

Foster could shoot at the driver of a vehicle similar to that of a rival gang member, and 

tossed the incriminating handguns and gloves out of the car while fleeing from the police. 

Because we are required to accept the logical inferences that the jury might have drawn 

from the circumstantial evidence (Maury, supra, 30 Cal.4th at p. 396), Juan H. does not 

require a reversal of the convictions in this case. 
13 

DISPOSITION 

 The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 

 EDMON, J.*

We concur: 

 EPSTEIN, P. J. 

 WILLHITE, J. 

 *Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.