Filed 5/24/21 P. v. Steele CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

CLEO STEELE, et al.,

Defendants and Appellants.

 B302850,

 consolidated with B304294

 (Los Angeles County

 Super. Ct. No. NA102745)

APPEALS from a judgment of the Superior Court of Los

Angeles County, Richard M. Goul, Judge. Affirmed in part, 

reversed in part, and remanded with directions.

Randall Conner, under appointment by the Court of Appeal, 

for Defendant and Appellant Cleo Steele.

Aurora Elizabeth Bewicke, under appointment by the Court 

of Appeal, for Defendant and Appellant Deven Jamar Johnson.

Xavier Becerra and Rob Bonta, Attorneys General, Matthew 

Rodriguez, Acting Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Susan Sullivan Pithey, Senior 
2

Assistant Attorney General, Scott A. Taryle and David A. Voet, 

Deputy Attorneys General, for Plaintiff and Respondent.

_____________________

A jury convicted codefendants and appellants Cleo Steele and 

Deven Jamar Johnson of home invasion robbery and first degree 

burglary. The jury further found true allegations that the offenses 

were gang-related and that a principal used a firearm during the 

commission of the offenses. The trial court separately found true 

prior strike and prior serious felony enhancements as to Steele and 

sentenced him to an aggregate term of 45 years to life in state 

prison. The court sentenced Johnson to a total term of 19 years in 

state prison.

Steele and Johnson appeal their convictions on several 

grounds. Johnson asserts: (1) the trial court violated his state and 

federal constitutional rights by allowing the prosecution’s gang 

expert to repeatedly testify to inadmissible hearsay, and (2) a 

remand is necessary to allow the trial court to “strike” rather than 

“stay” sentencing on the gang enhancement. Steele asserts: (1) the 

record contains insufficient evidence from which to conclude that he 

was the gunman who personally used the firearm during the 

robbery, thereby precluding the trial court from imposing sentences

for both the firearm and gang enhancements pursuant to Penal 

Code section 12022.53, subdivision (e)(2),

1 and (2) there was 

insufficient evidence to support the jury’s finding that the offense 

was committed to benefit a criminal street gang. Both appellants 

also contend that they are entitled to two additional days of 

presentence custody credit, an issue respondent concedes on appeal.

1 All further statutory references are to the Penal Code unless 

otherwise specified.
3

We conclude that (1) the vast majority of the gang expert’s 

testimony was permissible under prevailing law and that any 

testimony erroneously admitted was harmless beyond a reasonable 

doubt, and (2) there was sufficient evidence to support the gang 

enhancement challenged by Steele. We also conclude, however, 

that the trial court committed several sentencing errors with regard 

to each appellant.

As to Johnson, the trial court erred by imposing and then 

staying the gang enhancement, when, under applicable statutes, it 

must strike the enhancement with the shortest penalty term. As to 

Steele, the trial court lacked the authority to impose sentence on 

both the firearm and gang enhancements in the absence of any jury 

finding that Steele personally used a firearm. As to both 

appellants, the trial court erred in failing to select and pronounce a 

term for count 2 (and any associated enhancement allegations) prior 

to staying sentence under section 654. Lastly, we direct the trial 

court to grant both appellants two additional days of presentence 

custody credits.

Accordingly, we affirm the judgments of conviction but 

remand for further sentencing proceedings consistent with this 

opinion.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prosecution Evidence

1. Home Invasion Burglary and Robbery

At about 7:47 p.m. on September 30, 2015, John C. was in the 

garage of his house in Signal Hill, repairing a light fixture.2 The 

garage door was open. John heard someone running in his 

2 To protect the privacy of the victims, we will refer to them 

by their first names and last initial. (Cal. Rules of Court, rule 8.90.)
4

driveway, and looked up to see a man pointing a black 

semiautomatic handgun at him. The handgun had a blue clip that 

extended from the handle. Another man appeared wearing a hoodie 

that obscured his features. Both men were African-American. John 

briefly noticed the “determined” and “angry” eyes of the person 

holding the gun, but his attention was focused on the gun. The 

gunman told John to drop the items he was holding, which included 

a flashlight. John complied.

The gunman ordered John to turn around, placed the 

handgun against the back of his head, and directed him into the 

house through the entry door in the garage. As they stepped 

through the doorway, John saw his wife, Laura C., and told her 

they were being robbed. The gunman ordered John and Laura to lie 

face down on the ground in the dining room, frisked them, and then 

took their wedding rings and John’s watch. The gunman repeatedly 

asked, “Where’s your cash?” and “Where’s your gold?” John 

responded that he had left his wallet in the bedroom downstairs. 

The second man went downstairs. Laura indicated her purse was 

on the table, and the intruders took $50 from her purse. The 

burglars also took a dress watch that was on the dining table.

The gunman became agitated because the victims did not 

reveal any stores of cash or gold. The gunman stood on John’s back

and put the handgun to the back of his head. John told the gunman 

he kept a safe in the downstairs bedroom closet with papers and 

two guns. The gunman instructed the second man to check the 

closet.

The home alarm system announced when a door or window 

was opened, so John could tell that the second man was going 

through the rooms upstairs and downstairs. John also heard the 

garage door open several times and someone running down the 
5

stairs. Based on the footsteps and alarm system alerts that he 

heard, John believed a third person might have entered the house.

The gunman repeatedly threatened to kill the couple. John 

told him that Laura’s wedding ring was worth $12,000, and they did 

not have anything else of significant value. The gunman became 

less agitated.

At one point, John heard the garage door and thought the 

men had exited the house. He jumped to his feet, but the gunman 

threw him to the ground and demanded duct tape. John said he did 

not have any duct tape, and the men left soon thereafter.

While Laura called 911, John ran to a stained-glass window 

near the front door. He saw two people struggling to carry a heavy 

object up the street. John quietly exited the house and, while 

hiding behind a bush, saw the men get into a “big boat American 

car” like a Buick, Pontiac, or Oldsmobile. The car passed John’s 

position as it proceeded toward Cherry Avenue. The car, a large 

dark-colored sedan, had a broken headlight.

After the robbery, Laura noticed the men had taken two of 

John’s watches that had been on a counter next to her purse. They 

also took a bracelet, a pair of earrings, and other jewelry kept in a 

box on her bedroom dresser.

2. Police Investigation

a. Suspect Vehicle Stop

At 8:02 p.m. Signal Hill Police Department (SHPD) Officer 

Andrew Serna received a dispatch call about a home invasion 

robbery and a description of the getaway car. About a minute later, 

while driving south on Cherry Avenue, Officer Serna saw a vehicle 

with a broken headlight matching the description of the suspect’s 

car traveling away from the location of the victims’ home. Officer 

Serna followed the car into the parking lot of a Home Depot store on 
6

Cherry Avenue. He stopped the car and detained the occupants, 

waiting for additional officers.

The adult occupants of the vehicle were identified as Charro 

Tovar (the driver), Steele (the front passenger), and Johnson (the

rear passenger seated behind Tovar). T.T., Tovar’s six-year-old 

daughter, occupied the rear passenger-side seat.

There was a flashlight in the car and a safe in the trunk. No 

weapons were found. Officer Serna found a bracelet and a pair of 

earrings in the front pocket of Johnson’s shorts. After speaking 

with T.T., police searched the car for a firearm, but found none.

SHPD Officer Raul Ramirez, walking along Tovar’s route 

backwards from the Home Depot parking lot, found a black LG cell 

phone in the Home Depot parking lot, belonging to Steele, and an 

off-white hooded sweatshirt on Cherry Avenue near the entrance to 

the parking lot. The sweatshirt pocket contained a tangled ball of 

jewelry and two watches.

b. Field Show Up

The police took John and Laura separately to the Home Depot 

parking lot on Cherry Avenue about 30 minutes after the robbery.

Two suspects were shown to John. John “could not be sure” 

that Steele was one of the robbers, but recognized Johnson 

immediately as the robber wearing the hoodie. John was able to 

identify Johnson, in part, by his distinctive high socks, shorts, and 

sneakers. John identified the robbers’ car, as well as his custom 

flashlight found inside the car, his safe, and the safe’s contents.

Laura could not positively identify either of the two suspects, 

but thought Johnson could have been the younger “second” robber, 

who was receiving orders from the gunman. She believed this 

based on his “frame, his weight, his general look, clothing,” and his

“low shoes” paired with “high socks” that resembled those worn by 

the second robber. She identified the jewelry found in Johnson’s 
7

shorts as hers, as well as the tangled ball of jewelry and two 

watches found in the hooded sweatshirt.

John’s wedding ring was found on the street outside his home, 

but his watches were never recovered. Laura’s wedding ring was 

never recovered.

3. Cell Phone Data

A search warrant for GPS location data was used to gather 

information from Steele’s cell phone. On September 30, 2015, at 

7:55 p.m., Steele’s cell phone was within seven meters of the 

victims’ residence in Signal Hill. Steele’s cell phone also was near 

the victims’ residence on September 23, 24, and 25, 2015.

4. T.T.’s Statements to Police

SHPD Sergeant Alex Gabaldon spoke with T.T. in the Home 

Depot parking lot. T.T. told Gabaldon that her “father” (referencing 

Steele) had left the car with a large blue gun, and that he had 

returned to the car with “Funky Hair” (referencing Johnson.) She 

saw Johnson throw a sweater with jewelry in it out of the window of 

the car. She reported that the gun was under the front passenger 

seat.

5. T.T.’s Trial Testimony

T.T. testified that while she was at a park with her mother 

and Steele, Steele met with “Crazy Hair” (referencing Johnson), and 

others.3 T.T.’s mother then drove her and Steele (but not Johnson) 

to a place on a big hill with lights. Neither T.T.’s mother nor Steele 

left the car. Steele, however, obtained someone’s flashlight and put 

3 T.T. testified that one of the people Steele met at the park 

was “Bingo.” Johnnie Johnson, aka “Bingo,” was initially charged 

as a codefendant in the second amended information. (See fn. 5, 

post.)
8

it on the floor of the car. They left the area about 35 to 45 minutes 

later, this time with Johnson, and accompanied by at least one 

other car.

Before the police stopped them, T.T. saw Steele’s gun in the 

backseat next to her. She put it under a seat.

6. Gang Expert’s Testimony

Los Angeles County Sheriff’s Detective Ernesto Castaneda 

testified as an expert on criminal street gangs. Two months prior to 

the robbery, Steele admitted to Detective Castaneda that he was a 

member of a group called the Underground Crips (UGC), which is 

one of several groups operating under an umbrella association 

known as the Rollin’ 100’s. Detective Castaneda observed UGC 

tattoos on Steele’s neck and back during this contact. Photographs 

taken shortly before the trial also depicted Steele with several UGC 

related tattoos on his head, chest, and arms.

Detective Castaneda explained that the Rollin’ 100’s rivals 

are the Hoovers. The term “HK” stands for “Hoover Killer.” Just 

weeks before the instant offense, Johnson made references to HK 

and the “Hundreds” on his Facebook page, including a statement 

that he “[s]tarted school at HK University.” Posted photographs 

showed Johnson wearing clothing associated with the UGC gang. 

In addition, Johnson’s Facebook profile used the name “Infant Bill.” 

Monikers using the name “Bill” were popular and were inspired by 

respected UGC member Billy Shepard, whose moniker was “Lil 

Hundred Dollar Bill.”

Photographs taken before trial revealed several UGC related 

tattoos on Johnson’s face, neck, and hand. In particular, Johnson 

had a dollar sign tattooed underneath his eye, and a moneybag with 

a dollar sign on his hand, signifying he was a member of a 

burglary/robbery crew. Gang tattoos are generally earned for 

“putting in [the] work” (i.e., committing crimes for the benefit of the 
9

gang).4 Moreover, if an individual obtained gang tattoos without 

being a gang member, there would be violent repercussions against 

him.

Based on a hypothetical situation, mirroring the prosecution’s 

case, Detective Castaneda opined that the home invasion robbery 

was committed for the benefit of, or in association with, a criminal 

street gang.

B. Defense Evidence

In response to Detective Castaneda’s testimony that over 90 

percent of UGC members are unemployed, Johnson’s mother 

testified that Johnson was employed at a coffee house as a cook and 

busser around the time of the robbery.

Johnson and Steele introduced their own gang experts to 

contradict Detective Castaneda’s conclusions.

Johnson’s expert, Kimi Lent, was a gang intervention 

specialist. She was familiar with the UGC. Lent testified that 

African American gangs like UGC are “loosely structured” and their 

members do not have an obligation to share the proceeds of their 

crimes or to earn their tattoos. Presented with hypotheticals that

tracked the evidence, and assuming the two suspects were members 

of the same gang, Lent was not able to state with any confidence 

that the hypothetical robbery was committed “at the direction of, in 

association with, or for the benefit of” the gang. She explained that 

4 Detective Castaneda conceded he did not know which

tattoos, if any, Johnson had at the time of the offense (which 

occurred four years prior to trial). Nonetheless, he explained that 

even if Johnson did not have any of the tattoos at the time of the 

robbery—and only obtained them after his arrest—the tattoos were 

significant because Johnson chose to get UGC tattoos on his face, 

neck, and hand while facing felony charges that included a gang 

enhancement.
10

even “gang members can commit crimes that are personal in 

nature,” and they can do so together. In order to conclude that “this 

was definitely a gang crime,” Lent would have to know whether 

people in the UGC neighborhood were aware of the crime or 

whether there were social posts to that effect.

Steele’s gang expert, Dr. James Vigil, also contradicted the 

notion that tattoos needed to be earned, stating that gang members 

get tattoos on their own initiative. Dr. Vigil further testified that 

African American gangs such as UGC do not share proceeds. 

Offered a similar hypothetical, Dr. Vigil opined there was 

insufficient evidence from which to conclude the incident in the 

hypothetical was committed with an intent to benefit a gang.

C. Charges and Jury Verdicts

In a second amended information, the People charged Steele 

and Johnson with home invasion robbery (§§ 211, 213; count 1), and 

first degree burglary (§ 459; count 2). The information also charged 

Steele with child abuse or neglect (§ 273a, subd. (a); count 3).5 As to

counts 1 and 2, the information alleged that the crime was 

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

with, a criminal street gang (§ 186.22, subd. (b)(4)), and that a 

principal personally used a firearm (§§ 12022, subd. (a)(1),

12022.53, subds. (b) & (e)(1)). As to Steele, the information alleged 

he had a prior strike conviction under the Three Strikes law 

(§§ 667, subd. (d), 1170.12, subd. (b)), a prior serious felony 

5 The second amended information charged Charro Tovar, the 

driver of the car, and mother of T.T., in counts 1, 2, and 3, and also 

charged codefendant, Johnnie Johnson (aka “Bingo”) in counts 1 

and 2. The charges against Tovar and Johnson were not addressed 

in the trial involving Steele and Johnson.
11

conviction (§ 667, subd. (a)(1)), and had served a prior prison term 

(§ 667.5, subd. (b)).

Steele and Johnson were tried jointly. The jury convicted 

both as charged in counts 1 and 2, and found true the gang and 

firearm allegations. The jury found Steele not guilty of the child 

abuse charge in count 3. The trial court subsequently found true 

the prior prison term, prior strike, and prior serious felony 

conviction enhancements as to Steele.

On November 20, 2019, the trial court sentenced Steele to 45 

years to life in state prison, consisting of 15 years to life on count 1, 

doubled due to the strike prior, plus a consecutive sentence of 10 

years for the firearm enhancement and five years for the prior 

serious felony conviction. The court stayed the sentence on count 2

pursuant to section 654.6

On the same day, the trial court sentenced Johnson to serve 

19 years in state prison. The court selected the upper term of nine 

years on count 1, and added 10 years for the firearm enhancement. 

The court indicated it was “choosing to stay . . . the gang allegation, 

given its imposition of the gun allegation.” The court further stayed 

the sentence on count 2, pursuant to section 654.

Steele and Johnson timely appealed their respective

judgments, and we consolidated their appeals.

6 The trial court did not impose a term for the prior prison 

term enhancement, and it does not appear in Steele’s abstract of 

judgment. (See Discussion VI, post.)
12

DISCUSSION

I

Johnson’s Assertion of Sanchez/Crawford Error

Johnson contends the trial court committed reversible error 

by allowing the prosecution’s gang expert to testify about

inadmissible case-specific, and sometimes testimonial, hearsay in 

violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) and 

Crawford v. Washington (2004) 541 U.S. 36 [124 S.Ct. 1354, 158 

L.Ed.2d 177] (Crawford). Respondent counters there was no error, 

and in the alternative, any error was harmless under the more 

lenient Watson standard. (People v. Watson (1956) 46 Cal.2d 818, 

836.) We conclude the vast majority of the gang expert testimony 

was not testimonial, and was properly admitted as general 

background information, independently corroborated by the 

personal observations and knowledge of the expert, or subject to a 

valid hearsay exception. Any testimony erroneously admitted was 

harmless under even the more stringent Chapman standard of 

review. (See Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 

824, 17 L.Ed.2d 705] (Chapman).)

A. Relevant Legal Principles

1. Standard of Review

We review the trial court’s evidentiary rulings, including 

those that turn on the hearsay nature of the evidence, for abuse of 

discretion (People v. Harrison (2005) 35 Cal.4th 208, 230; People v. 

Waidla (2000) 22 Cal.4th 690, 725), keeping in mind that an abuse 

of discretion occurs when the trial court makes an error of law. 

(People v. Patterson (2017) 2 Cal.5th 885, 894; People v. Morrison

(2004) 34 Cal.4th 698, 724; see People v. Rowland (1992) 4 Cal.4th 

238, 266 [a trial court’s ruling regarding the admissibility of 

evidence underlying an expert’s opinion is subject to an abuse of 
13

discretion standard, but its conclusion regarding an underlying 

legal principle is subject to independent review].)

If error is found, any violation of state evidentiary rules is 

reviewed for prejudice under the Watson standard. (People v. Fudge

(1994) 7 Cal.4th 1075, 1102-1103; Sanchez, supra, 63 Cal.4th at pp. 

685 & 698; People v. Watson, supra, 46 Cal.2d at p. 836.) A

violation of the confrontation clause is reviewed for harmless error 

under the Chapman standard. (People v. Amezcua and Flores

(2019) 6 Cal.5th 886, 912; Sanchez, supra, at p. 698; see Chapman, 

supra, 386 U.S. at p. 24 [“before a federal constitutional error can be 

held harmless, the court must be able to declare a belief that it was 

harmless beyond a reasonable doubt”].)

2. Experts, Hearsay, and the Sanchez Rule

Hearsay generally is inadmissible, unless it falls under an 

exception. (Evid. Code, § 1200, subds. (a), (b); Sanchez, supra, 63 

Cal.4th at p. 676.) Although expert witnesses frequently acquire 

knowledge in their field of expertise from hearsay sources, “[t]he 

hearsay rule has traditionally not barred an expert’s testimony 

regarding his general knowledge in his field of expertise.” (Sanchez, 

supra, at p. 676.)

In Sanchez, our Supreme Court explained that “[w]hen any 

expert relates to the jury case-specific out-of-court statements, and 

treats the content of those statements as true and accurate to 

support the expert’s opinion, the statements are hearsay.” 

(Sanchez, supra, 63 Cal.4th at p. 686.) The high court defined 

“[c]ase-specific facts” as “those relating to the particular events and 

participants alleged to have been involved in the case being tried.” 

(Id. at p. 676.) It held that an expert’s recitation of case-specific 

facts is prohibited if the facts are outside the expert’s personal 

knowledge, do not fall under an exception to the hearsay rule, or 

have not been independently established by competent evidence. 
14

(Id. at pp. 676-677, 686.) Sanchez preserved an expert’s ability to 

rely on and cite background information “regarding his knowledge 

and expertise and premises generally accepted in his field” and to 

“tell the jury in general terms” “the kind and source of the ‘matter’

upon which his opinion rests.” (Id. at pp. 685-686.) To elucidate the 

distinction between general background information and casespecific facts, Sanchez provided the following example in a gangrelated context. “That an associate of the defendant had a diamond 

tattooed on his arm would be a case-specific fact that could be 

established by a witness who saw the tattoo, or by an authenticated 

photograph. That the diamond is a symbol adopted by a given 

street gang would be background information about which a gang 

expert could testify. The expert could also be allowed to give an 

opinion that the presence of a diamond tattoo shows the person 

belongs to the gang.” (Sanchez, supra, 63 Cal.4th at p. 677.)

3. The Confrontation Clause and the Crawford Rule

In Crawford, the United States Supreme Court held that the 

admission of “testimonial” hearsay against a criminal defendant 

violates the Sixth Amendment right to confront and cross-examine 

witnesses. (Crawford, supra, 541 U.S. at pp. 53-54.) In light of 

Crawford, the Sanchez court held that an additional step of analysis 

is required in criminal cases to determine if an expert’s statements 

qualify as “testimonial hearsay.” (Sanchez, supra, 63 Cal.4th at 

p. 686). Canvassing confrontation clause cases, the Sanchez court 

concluded hearsay statements are testimonial if they are 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, fn. omitted, citing 

Michigan v. Bryant (2011) 562 U.S. 344 [131. S.Ct. 1143, 179 
15

L.Ed.2d 93] and Davis v. Washington (2006) 547 U.S. 813 [126 S.Ct. 

2266, 165 L.Ed.2d 224].)

B. Analysis of Testimony Challenged by Johnson

1. The Gang Expert Explained His Background and

Training in General Terms

In Sanchez, the high court took care to note the defendant 

was not challenging the expert’s “background testimony about 

general gang behavior or descriptions of the . . . gang’s conduct and 

its territory,” which was “based on well-recognized sources in [the 

expert’s] area of expertise.” (Sanchez, supra, 63 Cal.4th at p. 698.) 

The high court observed such testimony “was relevant and 

admissible evidence as to the . . . gang’s history and general 

operations.” (Ibid.)

Like the expert in Sanchez, Detective Castaneda explained 

his knowledge and training in general terms. He testified his 

expertise was built on the conversations he had had with detainees 

while working at the local jail and as a patrol officer handling a 

large volume of gang-related cases, including crimes committed by 

UGC members. His knowledge of the UGC gang was based on 

information conveyed by its members directly to him and to other 

officers, as well as booking photographs displaying tattoos he knew

to be associated with the group.

According to Detective Castaneda, UGC is a gang with 

approximately 75 to 100 members. From 2008 to 2013, he 

personally arrested 60 to 70 UGC gang members. From 2013 to 

2017, he was promoted to detective gang investigator and assigned 

to the South Los Angeles Sheriff's Station. His duties included 

investigating gang-related crimes, focusing on the Rollin’ 100’s 

group of criminal street gangs, which included UGC, and their rival 

gangs. He investigated armed robberies, burglaries, and shootings,

among other crimes. From 2013 to 2016, he conducted over 100 
16

investigations involving UGC gang members. On a weekly basis, he 

would contact gang members and speak with community members 

about the gang.

In so testifying, Detective Castaneda laid a general 

foundation for his testimony. (See, generally, People v. Martinez

(2008) 158 Cal.App.4th 1324, 1330 [an expert’s “eight years dealing 

with the gang, including investigations and personal conversations 

with members, and reviews of reports suffices to establish the 

foundation for his testimony” regarding the gang’s primary 

activities]; In re Alexander L. (2007) 149 Cal.App.4th 605, 613 [an 

expert lays a proper foundation by establishing that his or her 

opinion is based on “conversations with the defendants and with 

other [gang] members, . . . personal investigations of hundreds of 

crimes committed by gang members, as well as information from . . . 

colleagues and various law enforcement agencies”].) In large part, 

his testimony avoided referring “to any particular statement made 

by any one person to him,” and was not hearsay and thus did not 

violate either Sanchez or the confrontation clause. (People v. VegaRobles (2017) 9 Cal.App.5th 382, 413.)

2. In Determining Whether the Specific Testimony 

Challenged by Johnson is Case-specific, Our Focus is on 

the Nature of the Information Disclosed, Not Its Source

Johnson notes that foundational objections raised by trial 

counsel during Detective Castaneda’s testimony, and a line of 

questioning pursued during cross-examination by defense counsel,

prompted the detective to provide more specific examples of his 

source material. Based on the specificity of the detective’s answers, 

Johnson argues the testimony constituted case-specific hearsay.

In a post-Sanchez case, our high court clarified the approach

to evaluating whether testimony is case-specific. “The focus of the 

inquiry is on the information conveyed by the expert’s testimony, 
17

not how the expert came to learn of such information. Thus, 

regardless of whether an expert testified to certain facts based on 

composite knowledge ‘acquired from sources too numerous to 

distinguish and quantify’ or if the expert simply looked up the facts 

in a specific reference as part of his or her duties in a particular 

case, the facts remain the same. The background or case-specific 

character of the information does not change because of the source 

from which an expert acquired his or her knowledge.” (People v. 

Veamatahau (2020) 9 Cal.5th 16, 30 (Veamatahau).)

Accordingly, in assessing whether the specific lines of expert 

testimony challenged by Johnson constitute “background 

information” or “case-specific facts,” we maintain our focus on the 

nature of the information conveyed to the jury, as opposed to the 

source of the information.

3. Detective Castaneda’s Testimony Regarding the UGC’s

Culture, Rules, and Expectations Constituted General 

Background Information, Not Case-specific Facts

Johnson complains that Detective Castaneda improperly 

testified about: (1) the expectation that crime proceeds would be 

distributed among gang members; (2) the likelihood of retribution 

for failing to distribute such proceeds; (3) the likelihood any 

retaliation would be violent; (4) the likelihood UGC would engage in 

such retaliatory conduct; (5) the requirement that tattoos be 

“earned”; (6) the likelihood an individual would engage in bragging 

while in custody; (7) the benefits a gang receives from bragging; and 

(8) that UGC members typically are unemployed.

“Since Sanchez, California appellate courts have held that 

expert testimony about ‘the general attributes of the . . . gang, such 

as the gang’s culture, the importance placed on reputation and 

guns, . . . the gang’s rivals and claimed turf, the use of monikers 

and identifying symbols, and the like, [are] permissible as expert 
18

background testimony.’ [Citations.]” (People v. Anthony (2019) 32 

Cal.App.5th 1102, 1138; see also People v. Meraz (2018) 30 

Cal.App.5th 768, 780.) Consistent with these cases, the information 

conveyed by Detective Castaneda in each of the categories identified 

by Johnson concerns the general behavior and habits of the UGC 

gang. It qualifies as the type of background information that is 

permissible under Sanchez, and may form the basis of the expert’s 

opinion, even if it is derived from hearsay. (Sanchez, supra, 63 

Cal.4th at pp. 685-686, 698.) Moreover, as the testimony concerned 

the general behaviors of the UGC gang, without divulging any outof-court statements, it did not amount to testimonial hearsay in 

violation of Crawford. (People v. Thompkins (2020) 50 Cal.App.5th 

365, 404 (Thompkins).)

Johnson suggests that by overruling some of his 

“foundational” objections to the above lines of testimony, the trial 

court “hindered [his] ability to prevent the prosecution’s 

introduction of inadmissible evidence.” However, as explained in 

Veamatahau, if testimony is properly characterized as “background 

information” it so remains regardless of the underlying source. 

(Veamatahau, supra, 9 Cal.5th at p. 26.) Under Sanchez, “[a]ny 

expert may still rely on hearsay in forming an opinion, and may tell 

the jury in general terms that he did so.” (Sanchez, supra, 63 

Cal.4th at p. 685.) This is what Detective Castaneda did in this 

case.7

7 The Sanchez court expressly recognized that allowing an 

expert who relies on hearsay to simply “tell the jury in general 

terms that he did so . . . may do less to bolster the weight of the 

opinion” but pointed out that to the extent that “Crawford and its 

progeny . . . complicate some heretofore accepted evidentiary rules, 

they do so under the compulsion of a constitutional mandate as 
19

4. Detective Castaneda’s Testimony Regarding the 

Predicate Acts of Two Gang Members

a. Definition of “Criminal Street Gang” Within the 

Meaning of Section 186.22

The jury found that both Steele and Johnson committed 

felonies “for the benefit of, at the direction of, or in association with 

any criminal street gang,” pursuant to section 186.22, subdivision 

(b). The definition of “criminal street gang” is supplied by section 

186.22, subdivision (f).

“ ‘To establish that a group is a criminal street gang within 

the meaning of the statute, the People must prove: (1) the group is 

an ongoing association of three or more persons sharing a common 

name, identifying sign, or symbol; (2) one of the group’s primary 

activities is the commission of one or more statutorily enumerated 

criminal offenses; and (3) the group’s members must engage in, or 

have engaged in, a pattern of criminal gang activity. [Citations.]’ 

[Citation.]” (People v. Lara (2017) 9 Cal.App.5th 296, 326-327.)

“The phrase ‘primary activities,’ as used in the gang statute, 

implies that the commission of one or more of the statutorily 

enumerated crimes is one of the group’s ‘chief’ or ‘principal’ 

occupations.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323.)

Courts have held that expert testimony about a gang’s “primary 

activities” is considered admissible background information under 

Sanchez. (Thompkins, supra, 50 Cal.App.5th at p. 409; People v. 

Vega-Robles, supra, 9 Cal.App.5th at p. 411.)

A “pattern of criminal gang activity” means the commission of 

“ ‘two or more’ ” of the statutorily enumerated offenses. (People v. 

Tran (2011) 51 Cal.4th 1040, 1044; see § 186.22, subd. (e)(1)-(33).) 

established by binding Supreme Court precedent.” (Sanchez, supra, 

63 Cal.4th at p. 686.)
20

These offenses generally have been termed “predicate offenses” 

(although the phrase does not appear in the statute), two or more of 

which must have been committed by gang members within a 

statutorily-defined timeframe to establish the gang as a “criminal 

street gang.” (§ 186.22, subd. (e).) The predicate offenses need not 

themselves be “ ‘gang related,’ ” i.e., it is not necessary to prove they 

were committed for the benefit of, at the direction of, or in 

association with a gang. (People v. Gardeley (1996) 14 Cal.4th 605, 

610, 621, disapproved on other grounds in Sanchez, supra, 63 

Cal.4th at p. 686, fn. 13.) Proof of an actual conviction is 

unnecessary. (People v. Garcia (2014) 224 Cal.App.4th 519, 524.) 

The charged offense at trial may serve as a predicate offense to 

qualify the gang as a criminal street gang. (People v. Tran, supra,

at p. 1046; People v. Gardeley, supra, at p. 625.)

To prove that a particular gang meets the requirements of 

section 186.22, subdivision (f), the prosecution usually presents a 

gang expert to describe the name or “ ‘identifying sign[s] or 

symbol[s]’ ” of the promoted gang; the gang’s “ ‘primary activities’ ”;

and at least two offenses committed by the defendant or his fellow 

gang members to show the gang had engaged in a “ ‘pattern of 

criminal gang activity.’ ” (People v. Prunty (2015) 62 Cal.4th 59, 75-

85.) That was the approach the prosecution took in this case, 

through Detective Castaneda.

Thus, Detective Castaneda testified that UGC had 75 to 100 

active members, at least three of whom have admitted their gang 

membership to him; that their common sign or symbol is primarily 

“UG” or “UGC”; and that they commonly wear apparel by the 

Indianapolis Colts football team, which includes the color blue with 

a horseshoe in the form of a “U.” He also demonstrated the UGC

common hand sign for the jury. The detective further testified that 

the primary activities of the UGC gang include robberies, 
21

burglaries, felony vandalism, assaults committed with and without 

firearms, and attempted murders.

On appeal, Johnson acknowledges that an expert’s testimony 

about the general functioning of gangs has, post-Sanchez, been 

recognized as the kind of background information to which an 

officer may testify, citing Thompkins, supra, 50 Cal.App.5th at 

pp. 403-404. Johnson, however, challenges Detective Castaneda’s 

testimony regarding the two predicate offenses used to establish the 

gang’s pattern of criminal activity. He argues the testimony 

consisted of case-specific facts and testimonial hearsay, in violation 

of the confrontation clause. For the reasons explained below, we 

discern no reversable error.

b. Testimony Regarding Predicate Offenses

(i) Predicate offense involving Marcus Toomes

At trial, the prosecution introduced a “certified docket” for

case No. YA086534. In that case, Marcus Toomes was convicted of 

committing a robbery on November 1, 2012. The charges did not 

involve gang allegations. During the investigation of the robbery, 

Detective Castaneda served a search warrant at Toomes’s

residence. Detective Castaneda also had three to four contacts with 

Toomes while working at the Lennox Station patrol.

When the prosecutor asked Detective Castaneda if Toomes 

was a UGC gang member, Johnson asserted an objection for lack of 

foundation. The trial court sustained the objection. Detective 

Castaneda then testified that during three or four prior patrol 

contacts with Toomes, Toomes admitted his gang membership and 

gang moniker. Detective Castaneda also observed that Toomes had 

“100’s” tattooed on his chest, which is a tattoo commonly used by 

UGC members. Detective Castaneda also investigated another 

crime committed by Toomes, with UGC gang member Erik Ward. 

Johnson objected on hearsay grounds to the admission by Toomes, 
22

and objected on foundation grounds to the testimony that Ward was 

a UGC member. The objections were overruled. Detective 

Castaneda opined that Toomes was a UGC gang member on 

September 30, 2015, the date of the home invasion robbery alleged 

against Steele and Johnson.

(ii) Predicate offense involving Eugene Flowers

The prosecution introduced a certified docket in case 

No. YA093134. In that case, Eugene Flowers was convicted of 

prohibited possession of a firearm on August 6, 2015, in violation of 

section 29800, subdivision (a)(1). Detective Castaneda responded to 

the scene of the incident. This second predicate offense did not 

involve a gang allegation. Detective Castaneda had over 20 prior 

contacts with Flowers. Flowers admitted he was a UGC member, 

displayed his “UG” tattoos, and told Castaneda his gang moniker. 

Citing Sanchez, Johnson objected that Flowers’s statements were 

hearsay. The objection was overruled. Detective Castaneda opined 

that Flowers was a UGC gang member on September 30, 2015. 

Johnson’s objection on foundation grounds was overruled.

c. A Split of Authority Has Developed Regarding 

Testimony of Predicate Offenses Involving Gang 

Members Other Than the Defendants on Trial

In proving a gang enhancement allegation under section 

186.22, a split of authority has developed regarding the admission 

of evidence of the predicate offenses committed by gang members.

In People v. Ochoa (2017) 7 Cal.App.5th 575 (Ochoa), the 

expert testified that nondefendants involved in the predicate 

offenses had admitted their gang membership. (Id. at pp. 582, 588-

589.) The First District Court of Appeal found that it “seem[ed] 

clear” the expert’s testimony regarding the admissions of gang 

membership was case-specific, but any error in its admission was

harmless. (Id. at pp. 588-589; see also People v. Vega-Robles, supra, 
23

9 Cal.App.5th at p. 415 [citing Ochoa and noting that “[u]nder 

Sanchez, it appears that testimony about a nonparty’s out-of-court 

admission that he or she is a gang member, offered to prove he or 

she is a gang member, is hearsay,” but finding any error harmless].)

The Third District Court of Appeal has expressed 

disagreement with Ochoa, holding that testimony about 

participants other than the defendant being tried is “historical 

background information” about the “gang’s conduct and activities”

and that “a predicate offense is essentially a chapter in the gang’s 

biography.” (People v. Bermudez (2020) 45 Cal.App.5th 358, 363, 

376-377 & fn. 13.) Our colleagues in Division Eight of this court 

also reached a contrary conclusion to that announced in Ochoa. 

(See People v. Meraz, supra, 30 Cal.App.5th at pp. 781 [holding that 

testimony about a gang’s “pattern of criminal activities” constituted 

“general background testimony” because it was “unrelated to [the] 

defendants or the current shooting and mirrored the background 

testimony the expert gave in Sanchez”].)8

Here, the predicate offenses, none of which involved Johnson

or Steele, were unrelated to the events on trial. Nonetheless, a 

portion of the detective’s testimony referenced admissions by 

Toomes and Flowers, calling into question the proper 

characterization of the admissions as case-specific hearsay or 

8 In 2020, the California Supreme Court ordered briefing in 

People v. Garcia (July 10, 2018, F073515) 208 Cal.App.Unpub.

LEXIS 4681 (nonpub. opn.), review granted October 17, 2018, 

S250670, to consider whether “gang expert testimony regarding 

uncharged predicate offenses to establish a ‘pattern of criminal 

gang activity’ under . . . section 186.22, subdivision (e) constitute[s] 

background information or case-specific evidence within the 

meaning of [Sanchez],” and whether “any error [was] prejudicial.” 

(People v. Garcia (2020, S250670) 2020 Cal.LEXIS 4641.)
24

background information. We need not resolve this issue, however, 

because other admissible evidence satisfied the requirement to 

prove two qualifying predicate acts.

d. Testimony Regarding the Predicate Offenses was 

Subject to a Valid Hearsay Exception and/or 

Independently Corroborated

As explained above, an expert’s recitation of case-specific facts 

does not run afoul of Sanchez if the facts are within the expert’s 

personal knowledge, fall under an exception to the hearsay rule, or 

have been independently established by competent evidence. 

(Sanchez, supra, 63 Cal.4th at pp. 676-677, 686; Thompkins, supra, 

50 Cal.App.5th at p. 406; see Discussion I, section A.2., ante.) Much 

of the predicate offense evidence satisfies these exceptions.

First, to prove the commission of two statutorily enumerated 

offenses, the convictions of Toomes and Flowers were established 

through certified court records. These were admissible under state 

hearsay rules to prove the offenses occurred. (Thompkins, supra, 50 

Cal.App.5th at p. 412; People v. Duran (2002) 97 Cal.App.4th 1448, 

1460, citing Evid. Code, § 452.5 [“[Evid. Code, § 452.5, subd. (b)]

creates a hearsay exception allowing admission of qualifying court 

records to prove not only the fact of conviction, but also that the 

offense reflected in the record occurred”].) In addition, certified 

records such as these “are not testimonial in nature because they 

are ‘prepared to provide a chronicle of some act or event relating to 

the public employee’s duty’ and are not ‘produced to be used in a 

potential criminal trial or to determine whether criminal charges 

should issue.’ ” (Thompkins, supra, at p. 412, quoting People v. 

Taulton (2005) 129 Cal.App.4th 1218, 1225.)

Johnson contends that People v. Garcia (2020) 46 Cal.App.5th 

123, dictates a different result. We disagree. In Garcia, the court 

held that under Kirby v. United States (1899) 174 U.S. 47 [19 S.Ct. 
25

574, 43 L.Ed. 890], a confrontation clause violation occurs if the 

prosecution seeks to prove more than the mere commission of a 

prior offense with conviction records. (People v. Garcia, supra, at 

p. 171.) The court concluded the use of conviction records to prove 

the date of the offense and thereby satisfy the statutorily-defined 

timeframe required by section 186.22, subdivision (e), “plainly 

violates Kirby’s proscription of the use of the records of prior 

convictions to prove any fact other than the fact of the prior 

conviction.” (People v. Garcia, supra, at p. 172.)

The Garcia court found a confrontation clause violation with 

regard to one of the predicate offenses because the testifying officer 

had no involvement in the first offense and therefore must have 

relied upon testimonial hearsay in stating the date of the offense. 

(People v. Garcia, supra, 46 Cal.App.5th at p. 172.) With regard to 

the second predicate offense, however, the testifying officer 

personally participated in the arrest that led to the conviction. 

Based on the officer’s personal knowledge of the relevant date, no 

confrontation clause violation occurred. (Id. at p. 173.)

In the present case, Detective Castaneda was personally 

involved in both predicate offenses, having served a search warrant 

in the Toomes case and having responded to the scene of the 

incident in the Flowers case. Therefore, the admission of his

testimony about the date of the offense was consistent with Garcia.

The prosecution also was required to prove the predicate 

offenses were committed by gang members. Though neither of the 

predicate offenses included a gang enhancement finding, Detective 

Castaneda was personally involved in the investigation of both 

offenses, and testified that Toomes and Flowers were UGC gang 

members. Castaneda’s knowledge was based in part on his 

personal observation of their gang-related tattoos, and based on 

additional contacts with each of the men. Testimony by an officer 
26

about personal observations of an individual’s tattoos, location, 

companions, or clothing, is not hearsay and thus does not run afoul 

of Sanchez or the confrontation clause. (People v. Iraheta (2017) 14 

Cal.App.5th 1228, 1248.)

In sum, Detective Castaneda’s testimony regarding the 

predicate offenses committed by Toomes and Flowers was 

independently corroborated by admissible evidence (the certified 

court records) and the detective’s personal knowledge regarding the 

dates of the offenses and their gang membership. Therefore, the 

admission of this testimony was not error under Sanchez, and was 

not testimonial under Crawford. (See Sanchez, supra, 63 Cal.4th at 

p. 686.) To the extent the detective also testified that Toomes and 

Flowers admitted their gang membership to him, in view of the 

properly admitted evidence of their gang membership, any error in 

admitting their hearsay statements was harmless beyond a 

reasonable doubt. (See People v. Meraz, supra, 30 Cal.App.5th at 

p. 783 [finding any error in admitting expert testimony based on 

information supplied by other officers was harmless where the 

evidence was duplicative of other proof of gang membership]; People 

v. Vega-Robles, supra, 9 Cal.App.5th at pp. 414 & 416 [same].)9

5. Evidence Regarding Steele’s Gang Membership Was 

Properly Admitted

Detective Castaneda testified that Steele told him he was a 

UGC gang member and his moniker was “Tiny Fly.” Later, 

Detective Castaneda opined that Johnson was a UGC gang member 

based, in part, on his association with Steele.

9 To the extent Johnson objects to additional testimony 

regarding the predicate offenses that might have qualified as casespecific, or testimonial, hearsay, its admission was harmless, as 

discussed below. (See Discussion I, section B.6., post.)
27

Johnson argues the trial court erred by admitting, over his 

objection, Detective Castaneda’s testimony that Steele admitted he 

was a UGC gang member with the moniker Tiny Fly.

a. Steele’s Out-of-court Admission to Prove His 

Gang Membership Did Not Violate Sanchez or 

Crawford

Steele’s own statements were admissible against him as a 

party admission and, as such, could not violate the confrontation 

clause as to him. (Evid. Code, § 1220 [out-of-court admissions by an 

opposing party are admitted for their truth]; People v. Jennings

(2010) 50 Cal.4th 616, 662 [a defendant’s own admissions do not 

implicate the confrontation clause “ ‘because the defendant only has 

the right to confront the “witnesses against him” ’ ”].) Moreover, 

Steele’s statement that he was a UGC gang member and his 

moniker was Tiny Fly did not implicate Johnson. (See Bruton v. 

United States (1968) 391 U.S. 123 [88 S.Ct. 1620, 20 L.Ed.2d 

476].)

10 The trial court admonished the jury that this testimony 

regarding Steele was not admissible against Johnson. The jury also 

was instructed that it “must separately consider the evidence as it 

applies to each defendant” and “decide each charge for each 

defendant separately.”

10 Under Bruton and its progeny, the admission at a joint 

trial of a nontestifying defendant’s confession implicating a 

codefendant violates the confrontation clause if the confession is 

“ ‘facially incriminating’ ” of the nondeclarant defendant. (People v. 

Fletcher (1996) 13 Cal.4th 451, 455.) Johnson does not assert a 

claim of Bruton error.
28

b. Additional Evidence Was Properly Admitted to 

Support the Expert’s Opinion of Johnson’s Gang 

Membership

In opining that Johnson was a gang member, Detective 

Castaneda acknowledged that his opinion was based, in part, on 

Johnson’s association with Steele. Johnson argues that Steele’s 

admission constituted case-specific hearsay to the extent the 

admission informed the detective’s opinion of Johnson’s gang 

membership.

If the sole basis for Detective Castaneda’s opinion regarding 

Steele’s gang membership had been Steele’s admission, his reliance 

on that admission to conclude that Johnson was a gang member 

and the charged offense was gang related could constitute casespecific hearsay as to Johnson. (See Sanchez, supra, 63 Cal.4th at 

pp. 676-677, 686 [testimony is case-specific if it involves 

“participants alleged to have been involved in the case being 

tried”].) However, Detective Castaneda’s opinion as to Steele’s 

membership in UGC also was based on his personal observations 

and knowledge.

In addition to referencing Steele’s self-admission during a 

patrol contact on July 28, 2015, Detective Castaneda testified that 

Steele showed him his UGC tattoos, including a “U” on his neck, 

and “UGC” on his back. The detective based his opinion that Steele 

was a current gang member on his “contact with Mr. Steele, the 

tattoos that [he] observed, as well as other tattoos that [he] 

photographed on prior occasions.”

11 Detective Castaneda reviewed 

11 When the prosecutor followed up by asking Detective 

Castaneda whether Steele’s admission in July 2015 played into the 

detective’s “opinion at all” (italics added), Detective Castaneda 

asked the prosecutor to clarify whether he was referring to “[t]he 

entire contact itself or just the self-admittal to me?” After the 
29

a series of photographs he recently had taken of Steele and testified 

that the photographs were relevant to his opinion that Steele was 

currently a UGC member, pointing out that Steele had clear UGC

tattoos “on his face and neck, visible to the public eye.” As such, 

Detective Castaneda’s opinion regarding Steele’s membership was 

based in part on his past and present observations of Steele’s gangrelated tattoos. These first hand observations do not implicate 

Sanchez or Crawford because such observations do not constitute 

hearsay. (See People v. Vega-Robles, supra, 9 Cal.App.5th at p. 413 

[“[a]s we read Sanchez, it is not error for a gang expert to testify 

about case-specific facts about which he has personal knowledge,” 

nor does it “offend the confrontation clause,” and noting the 

detective had such personal knowledge where he had, inter alia, 

personally met gang members, viewed their tattoos, and viewed 

letters signed under the gang name]; see also People v. Mendez

(2019) 7 Cal.5th 680, 693 [finding no error under Sanchez where the 

defendant expressly “chose to let [the gang expert] testify to 

hearsay accounts of his prior police contacts,” but also observing 

that the prosecutor potentially could have established the same 

facts “based on what the on-scene officers themselves observed”].)

Furthermore, Detective Castaneda’s opinion regarding 

Johnson’s gang membership also was based on his independent 

observations of Johnson. The detective viewed recent photographs 

of Johnson showing several UGC related tattoos, including the 

prosecutor responded, “Just the self-admittal,” Detective Castaneda 

responded, “Yes.”

In his opening brief, Johnson extracts the “just the selfadmittal” excerpt to assert that Detective Castaneda’s belief that 

Steele was a gang member was based only on “ ‘the self-admittal,’

not the tattoos.” Johnson’s assertion, however, is contrary to 

Detective Castaneda’s testimony.
30

symbols that signified he was a member of a burglary/robbery crew. 

Detective Castaneda also personally reviewed Johnson’s Facebook

profile and posts, and found photographs in which Johnson was 

wearing attire associated with the UGC gang. Johnson’s posts 

included statements such as “started school at HK University.” The 

detective recognized the “HK” as an acronym for “Hoover Killers,” 

referencing a rival of UGC. The photographs of Johnson in UGC

related attire, as well as the “HK University” statement were 

posted only weeks before the instant home invasion robbery. Here 

again, the detective’s personal observation of Johnson’s tattoos does 

not constitute hearsay, and his reliance on Johnson’s Facebook 

posts was permissible because they constituted party admissions.

As such, we discern no Sanchez or Crawford error. (See People v. 

Vega-Robles, supra, 9 Cal.App.5th at p. 413.)

6. The Admission of Additional Testimony That Might 

Qualify as Case-specific and/or Testimonial Hearsay

Was Harmless Beyond a Reasonable Doubt

Johnson challenges additional testimony elicited from 

Detective Castaneda during direct examination and crossexamination, which Johnson alleges is case-specific, testimonial 

hearsay.12 Specifically, Johnson challenges the following 

testimony.

12 In Veamatahau, our high court left open the question of 

whether hearsay elicited by a defendant on cross-examination that 

runs afoul of Sanchez should be deemed “invited . . . error.” (See

Veamatahau, supra, 9 Cal.5th at p. 27, fn. 2.) We need not resolve 

this question.
31

a. Additional Testimony Challenged by Johnson

(i) UGC Members Billy Shepherd, Marcus 

Broadmax, and Johnnie Johnson

In testifying about his prior contact with Steele in July of 

2015, Detective Castaneda noted Steele was in the company of 

three other UGC members. After Johnson’s objection for lack of 

foundation, the detective testified that he knew the other three men 

from prior contacts. The three men were Billy Shepherd (“Hundred 

Dollar Bill”), Marcus Broadmax (“Lil Midnight”), and Johnnie

Johnson (“Bingo”). Detective Castaneda testified all three had, at 

various times, admitted their gang membership to him. The court 

overruled Johnson’s subsequent objection on grounds of hearsay

and Sanchez.

(ii) UGC Member Erik Ward

In testifying about the predicate offense committed by UGC 

member Toomes, Detective Castaneda testified he had investigated 

another crime committed by Toomes with UGC member Ward. The 

court overruled Johnson’s foundation and hearsay objections

regarding Castaneda’s knowledge that Ward was a UGC member.

(iii) UGC Member Marques Coleman

In testifying about Johnson’s Facebook account, Detective 

Castaneda noted that in his profile picture, Johnson was with 

Marques Coleman, a UGC member. The detective’s knowledge 

regarding Coleman’s gang membership was based on several patrol

contacts and Coleman’s admission that he was a UGC member. 

The court overruled Johnson’s objection on grounds of hearsay and 

Sanchez.

During cross examination, Johnson’s counsel elicited from 

Detective Castaneda that Coleman admitted his UGC membership 
32

sometime in 2014 or 2015 while the detective was investigating 

Coleman for another crime.

(iv) UGC Member Darwin Nixon

During direct examination, Detective Castaneda testified that 

there was an expectation that UGC members share and disburse 

funds obtained from crimes amongst the gang for their continuing 

operations, and that a gang member who refused to share such 

proceeds would suffer negative repercussions. Detective Castaneda 

stated his opinion was based on “[t]alking to hundreds of gang 

members about different scenarios in which they live day to day, 

which includes what were to happen if you commit a crime and 

keep the money to yourself.”

During cross-examination, Johnson’s counsel asked Detective 

Castaneda where he learned that there was an expectation that 

crime proceeds would be shared amongst the gang. Detective 

Castaneda responded that he learned this information from 

“[v]arious interviews that I conducted of individuals from different 

gangs, including the Underground Crips,” and from reviewing 

reports of other robberies where proceeds were stored in stash 

houses for the gang. Johnson’s counsel then asked Detective 

Castaneda if he knew of any specific instance in which a gang 

member suffered repercussions for failing to share proceeds from a 

crime. Detective Castaneda stated he did not, but had been told of 

such repercussions after talking with gang members. Johnson’s 

counsel asked the detective “[w]hich gang members” told him about 

such repercussions. The detective responded that a UGC gang 

member named Darwin Nixon had explained such consequences 

while Nixon was in custody for an incident the detective was 

investigating at the time.
33

b. In Light of the Wealth of Admissible Gang-related 

Evidence, Any Error in Admitting the Additional 

Testimony Challenged by Johnson Was Harmless

Beyond a Reasonable Doubt

Assuming the foregoing admissions by other individuals to 

Detective Castaneda was testimonial hearsay and was admitted in 

violation of the federal confrontation clause, we find any error 

harmless beyond a reasonable doubt in light of the wealth of gangrelated evidence that was properly admitted. (See People v. Bell

(2020) 47 Cal.App.5th 153, 196-197.)

First, as to the statements by Billy Shepherd, Marcus 

Broadmax, and Johnnie Johnson, Detective Castaneda was 

personally present for the encounter with Steele in July of 2015, 

spoke with him during the contact, and observed several UGC 

tattoos on his person. These observations provided a more direct 

link between Steele and UGC than the men found in his company. 

(People v. Bell, supra, 47 Cal.App.5th at p. 197 [finding harmless 

error where the properly admitted evidence of gang membership

was “compelling,” including the gang-related tattoos observed on 

two of the defendants].)

Second, as to Detective Castaneda’s reference to Ward’s 

commission of an offense with Toomes, as previously discussed, the 

detective was involved in the investigation of the predicate offense 

involving Toomes and personally observed a UGC related tattoo on 

Toomes. Thus, the reference to Ward was tangential to proving 

Toomes’s gang membership.

In addition, the jury was instructed that if they found 

Johnson guilty of the charges on trial, they could consider his 

conduct in determining whether the “pattern of criminal gang 

activity” had been established. Thus, the jury’s conviction of 

Johnson supplied the second predicate offense required by section 
34

186.22, subdivision (e), and any error in admitting the detective’s 

testimony regarding Toomes and Ward was harmless beyond a 

reasonable doubt. (See People v. Garcia, supra, 46 Cal.App.5th at p. 

180 [finding any error involving predicate acts was harmless given 

the properly admitted evidence with regard to one predicate act and 

the fact the defendant’s current conviction qualified as a predicate 

act].)

Third, Detective Castaneda’s testimony regarding the 

Facebook photograph depicting Johnson in the company of UGC 

member Coleman was more tangential and indirect than the other 

gang-related observations regarding Johnson, such as his tattoos 

and Facebook posts, as outlined above. (See Discussion I, section 

B.5.b., ante.)

Fourth, and finally, we discern no reversible error regarding 

the detective’s testimony about the expectation that UGC members 

will share crime-related proceeds. As previously discussed, this 

type of testimony was background information, it did not involve 

the disclosure of an out-of-court statement, and the detective could 

rely on hearsay in forming his opinion and tell the jury that he did 

so in general terms. (See Sanchez, supra, 63 Cal.4th at p. 699

[observing that the gang expert “provided general and admissible 

evidence that if a nonmember sold drugs in a gang’s territory and 

failed to pay tax, that person risked gang retaliation”]; see also 

Discussion I, section B.3., ante.)

Moreover, the detective’s identification of one UGC member 

(Darwin Nixon) as the source for his opinion about profit sharing 

was fodder for the defense to convince the jury they should accord 

less weight to this aspect of the detective’s testimony. (See 

Sanchez, supra, 63 Cal.4th at p. 686 [noting the jury may accord 

less weight to the views of an expert who relies on a single source 

for his opinion].) To that end, both defendants presented experts 
35

who contradicted Detective Castaneda’s testimony regarding the 

sharing of profits by UGC gang members who commit crimes. (See

Veamatahau, supra, 9 Cal.5th at pp. 32-34 [noting that the 

reliability or trustworthiness of an expert’s testimony is a separate 

issue from its admissibility under the Sanchez rule and discussing 

various ways the court and the parties can test the reliability of 

expert testimony, including Evid. Code, § 402 hearings, crossexamination, and the presentation of competing experts].)

Given that Detective Castaneda’s views on disbursement 

were based on conversations with hundreds of gang members and 

constituted permissible background information, we do not discern 

any prejudice from the fact that defense counsel elicited the 

testimony regarding Darwin Nixon. (See, generally, Thompkins, 

supra, 50 Cal.App.5th at pp. 408-409 [observing that even though a 

gang officer referenced at least once the existence of police reports 

as the source of his testimony, he “would have learned much” from 

his personal involvement in relevant investigations, and thus it 

would be inaccurate to say he solely relied on police reports].)

In sum, we are confident the jury’s verdict on the gang 

enhancements would have been the same in this case absent any 

improperly admitted gang-related facts under Sanchez or Crawford. 

We conclude that any error in admitting the foregoing additional 

testimony was harmless beyond a reasonable doubt.

7. There is No Merit to Johnson’s Challenge to the 

Prosecution’s Hypotheticals

To the extent Johnson challenges the prosecutor’s 

presentation of “gigantic, compound hypotheticals,” he

acknowledges his challenge is entirely premised on his 

Sanchez/Crawford arguments directed at the admissibility of the 

underlying, gang-related facts and his assertion that the 

hypothetical was “the sum product of this compound error.” As 
36

such, our disposition of these underlying arguments also disposes of 

Johnson’s challenge to the hypotheticals. (See Sanchez, supra, 63 

Cal.4th at p. 676 [noting that the “distinction between generally 

accepted background information and the supplying of case-specific 

facts is honored by the use of hypothetical questions”]; People v. 

Anthony, supra, 32 Cal.App.5th at p. 1136 [Sanchez permits experts 

to testify to their opinions in response to hypothetical questions]; 

see also Thompkins, supra, 50 Cal.App.5th at p. 418 [finding an 

expert’s opinion was properly admitted where “[m]ost statements he 

made as the basis for his opinion either were not hearsay, were 

supported by testimony from others that was not hearsay, or were 

supported by admissible criminal records”].)

II

Sufficiency of the Evidence To Support the Gang 

Enhancement Allegation

Steele contends the jury’s true finding on the gang 

enhancement allegation must be reversed because there was 

insufficient evidence the crimes were gang-related. Steele notes 

that “[t]he crimes at issue had an obvious financial motive and 

occurred outside of any gang territory.” As explained below, we 

conclude that substantial evidence supports a finding that Steele 

committed the charged crimes “in association with” the UGC gang.

A. Relevant Legal Principles

1. Standard of Review

“The standard of appellate review for determining the 

sufficiency of the evidence supporting an enhancement is the same 

as that applied to a conviction.” (People v. Weddington (2016) 246 

Cal.App.4th 468, 483.) “We view the evidence in the light most 

favorable to the prosecution, and presume in support of the 

judgment the existence of every fact the trier could reasonably 
37

deduce from the evidence.” (People v. Griffin (2004) 33 Cal.4th 

1015, 1028.)

2. Elements of the Gang Enhancement Allegation

To prove a gang enhancement, the prosecution must establish 

that the underlying crime was “committed for the benefit of, at the 

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

gang-related prong), “with the specific intent to promote, further, or 

assist in any criminal conduct by gang members” (the specific intent 

prong). (§ 186.22, subd. (b)(1); see People v. Albillar (2010) 51 

Cal.4th 47, 59.)13 Because the first prong is worded in the 

disjunctive, the gang enhancement may be imposed based on either 

gang association, direction, or benefit. (People v. Weddington, 

supra, 246 Cal.App.4th at p. 484.) The prosecution may rely on 

expert testimony regarding criminal street gangs to establish the 

crime was committed for the benefit of, or in association with, a 

qualifying gang. (People v. Vang (2011) 52 Cal.4th 1038, 1048 

[“ ‘[e]xpert opinion that particular criminal conduct benefited a 

gang’ is not only permissible but can be sufficient to support the . . . 

gang enhancement”]; see also People v. Albillar, supra, at p. 63 

[“[e]xpert 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 § 186.22[, subd.] 

(b)(1)”].)

13 In addition, the prosecution must prove the relevant group 

meets the definition of a “criminal street gang” as defined in section 

186.22, subdivision (f). (See Discussion I, section B.4.a., ante.) On 

appeal, Steele focuses on the gang-related and specific intent prongs 

of the gang enhancement; he does not challenge the sufficiency of 

the evidence to support the “criminal street gang” element.
38

The expert’s testimony, however, “ ‘must be rooted in facts 

shown by the evidence.’ ” (People v. Vang, supra, 52 Cal.4th at 

p. 1045.) “[P]urely conclusory and factually unsupported opinions” 

are insufficient to support a gang enhancement. (People v. Ramirez

(2016) 244 Cal.App.4th 800, 819-820; see People v. Vang, supra, at 

p. 1046.)

B. There Was Sufficient Evidence To Support the Jury’s 

Finding on the Gang Enhancement Allegation

The record supports a finding that Steele and Johnson 

committed the underlying offenses as gang members acting in 

association, thus satisfying the first, “gang related” prong of the 

statute. Steele, who admitted membership in the UGC gang, and 

was observed with various UGC related tattoos shortly before the 

charged crimes, committed the crimes with Johnson, another UGC 

member, as established by his tattoos, and Facebook statements 

and photographs posted shortly before the instant offense. (See 

People v. Albillar, supra, 51 Cal.4th at p. 62 [“[the] defendants came 

together as gang members to attack [the victim] and, thus, . . . they 

committed these crimes in association with the gang”]; People v. 

Morales (2003) 112 Cal.App.4th 1176, 1198 [“the jury could 

reasonably infer the requisite association from the very fact that 

[the] defendant committed the charged crimes in association with 

fellow gang members”].)

In addition, Detective Castaneda testified that robberies and 

burglaries are among the UGC gang’s primary activities. (Cf. 

People v. Ochoa (2009) 179 Cal.App.4th 650, 661-662 & fn. 7 [where 

the gang’s primary activities included car theft, finding insufficient 

evidence that the charged crime of carjacking was one of its primary 

activities].) He established that UGC members are expected to, and 

do, share the proceeds of their crimes. Johnson’s UGC tattoos 

included tattoos signifying he was a member of a UGC 
39

burglary/robbery crew. (People v. Ferraez (2003) 112 Cal.App.4th 

925, 930 [a gang finding may be based upon circumstantial 

evidence, and “[i]t is well settled that expert testimony about gang 

culture and habits is the type of evidence a jury may rely on to 

reach a verdict on a gang-related offense or a finding on a gang 

allegation”].)

The fact that a gang member recognized for his participation 

in the gang’s burglary/robbery crew joined together with a second 

gang member to commit a home invasion robbery, coupled with the 

evidence that burglary and robbery were among the gang’s primary 

activities and its members were expected to share their ill-gotten 

gains with the gang, satisfies the specific intent prong of section 

186.22, subdivision (b)(1). (See People v. Albillar, supra, 51 Cal.4th 

at p. 68 [finding substantial evidence the defendants acted with the 

specific intent to promote, further, or assist the gang where they 

intended to rape the victim, they assisted one another in 

committing the crime, and they were each members of a criminal 

street gang].) Indeed, as our Supreme Court has held, “if

substantial evidence establishes that the defendant intended to and 

did commit the charged felony with known members of a gang, the 

jury may fairly infer that the defendant had the specific intent to 

promote, further, or assist criminal conduct by those gang 

members.” (Id. at p. 68.)

To the extent Steele and Johnson presented their own gang 

experts with contrary opinions, “[t]he credibility and weight of the 

expert testimony was for the jury to determine, and it is not up to 

us to reevaluate it.” (People v. Flores (2006) 144 Cal.App.4th 625, 

633; see also People v. Albillar, supra, 51 Cal.4th at pp. 60, 63-64 

[finding sufficient evidence to support the finding that a rape by 

gang members was gang-related, despite the expert’s testimony 
40

“that the ‘general view’ on rape by Latino street gangs ‘is that it is 

frowned upon’ ”].)

Steele’s reliance on People v. Albarran (2007) 149 Cal.App.4th 

214, to argue otherwise is misplaced. In Albarran, the defendant 

and a second individual shot at a house during a private birthday 

party. A divided panel concluded that a new trial motion should 

have been granted because inflammatory gang evidence had been 

introduced that “had no bearing on the underlying charges,” and 

there was little or no evidence of the gang’s connection to the crime.

(Id. at pp. 227-228.) At trial, a sheriff’s deputy conceded he did not 

know of a motive for the shooting. (Id. at p. 227.) The second 

shooter was never caught or identified, leading the court to observe

that the fact that more than one shooter was involved, without any 

additional information, did not demonstrate “one way or another 

that the crime was gang motivated.” (Ibid., fn. 9.)

Unlike Albarran, here the evidence of gang membership, 

behavior, and primary activities was substantial and was tailored to 

the charges. Both Steele and Johnson were identified as gang 

members and convicted for their role in the home invasion robbery. 

The totality of the evidence was sufficient for the jury to find that 

they committed the underlying offenses “in association” with the 

UGC gang and with the specific intent to promote, further, or assist 

in criminal conduct by the gang. That the circumstances also might 

“ ‘reasonably be reconciled with a contrary finding does not warrant 

a reversal of the judgment.’ ” (People v. Thomas (1992) 2 Cal.4th 

489, 514; cf. People v. Morales, supra, 112 Cal.App.4th at p. 1198 

[observing that “the typical close case is one in which one gang 

member, acting alone, commits a crime”].)
41

III

Imposition of Sentences for Both the Firearm and

Gang Enhancements Against Steele

As part of the second amended information, in addition to the 

gang enhancement, the prosecutor alleged firearm enhancements 

under subdivision (e)(1) of section 12022.53 against both Steele and 

Johnson. Subdivision (e)(1) makes unarmed principals subject to 

any of the personal use enhancements listed in subdivisions (b), (c), 

and (d), if the prosecution establishes that (1) the person violated 

subdivision (b) of section 186.22 (i.e., the criminal street gang 

enhancement), and (2) any principal in the offense personally used 

a weapon as described in subdivisions (b) through (d). (§ 12022.53, 

subd. (e)(1); People v. Gonzalez (2010) 180 Cal.App.4th 1420, 1424-

1426.) Here, the jury found true the allegations as pleaded against 

each appellant, i.e., that a principal personally used a firearm in the 

commission of the offense.

Under section 12022.53, subdivision (e)(2), “[a]n enhancement 

for participation in a criminal street gang . . . shall not be imposed 

on a person in addition to an enhancement imposed pursuant to 

this subdivision, unless the person personally used or personally 

discharged a firearm in the commission of the offense.” (Italics 

added.) There was no finding by the jury that either Steele or 

Johnson personally used a firearm in committing the charged 

crimes. Nevertheless, the trial court imposed both a section 

12022.53 firearm enhancement and a section 186.22 gang 

enhancement against Steele based on the court’s own finding that 

“[Steele] was clearly the lead actor in this,” and “was the one with 

the gun.”

Steele argues there was insufficient evidence to support a 

finding that he “personally” used a firearm. In light of the absence 

of any jury finding on the question of personal use, we asked the 
42

parties to file supplemental briefs to address whether the trial court 

was authorized to (1) make a finding that Steele personally used a 

firearm during the underlying offense; and (2) impose both a life 

term for the gang enhancement pursuant to section 186.22, 

subdivision (b)(4), and a consecutive 10-year sentence for the 

firearm enhancement pursuant to section 12022.53, subdivision (e).

In their supplemental letter briefs, both parties recognize the 

trial court lacked the authority to make the “personal use” finding. 

We agree. (See § 12022.53, subd. (j) [“For the penalties in this 

section to apply, the existence of any fact required under 

subdivision (b), (c), or (d) shall be alleged in the accusatory pleading 

and either admitted by the defendant in open court or found to be 

true by the trier of fact”].) Respondent therefore concedes the trial 

court erred in imposing both enhancements against Steele. (See 

People v. Gonzalez, supra, 180 Cal.App.4th at p. 1427.) We agree 

that under section 12022.53, subdivision (j), the enhancement with 

the greater penalty term must be imposed, while the other must be 

stricken. (People v. Brookfield (2009) 47 Cal.4th 583, 596.) 

Accordingly, the 10-year enhancement imposed under section 

12022.53, subdivision (e)(1), must be stricken from Steele’s 

sentence. (People v. Brookfield, supra, at p. 597 [“The trial court 

erred in sentencing [the] defendant to both the life term under 

[§] 186.22, [subd.] (b)(4) and the 10-year sentence enhancement 

under [subds.] (b) and (e)(1) of [§] 12022.53 [and] [t]he Court of 

Appeal was correct in ordering the 10-year sentence enhancement 

stricken”].)14

14 We note that in pronouncing its sentence, the trial court 

sentenced Steele under section 186.22 to a base term of 15 years to 

life, doubled to 30 years for a strike prior. However, Steele’s 

current abstract of judgment does not reflect the jury’s true finding 

on the gang enhancement. Upon issuing an amended abstract of 
43

IV

Propriety of Staying the Sentence on Johnson’s

Gang Enhancement, While Imposing Sentence on the 

Firearm Enhancement

In its sentencing memorandum, the prosecutor stated that 

because Johnson was not the gunman (and thus did not personally 

use a firearm), the court could not impose both the firearm and 

gang enhancement against him; instead, it must choose one. The 

prosecution recommended that the trial court impose a sentence of 

15 years to life for the home invasion offense, thereby utilizing the 

gang enhancement penalty term.

Conceding the robbery, and acknowledging the use of a 

firearm by a principal, Johnson’s counsel argued a determinate 

term was appropriate and suggested the low term of three years for 

the robbery itself. Defense counsel argued against the imposition of 

the gang enhancement penalty, asserting that a life term would be 

draconian and unfair.

In response to the parties’ arguments, the trial court 

commented on Johnson’s youth as a mitigating factor, noting that 

he had turned 18 years of age just months before the incident. The 

court highlighted the fact that Johnson did not personally use a 

firearm and was acting at the direction of the older robber. In 

aggravation, the trial court pointed to a prior juvenile adjudication 

suffered by Johnson, the vulnerability of the victims, and Johnson’s 

willingness to repeatedly follow the directions of the gunman 

throughout the home invasion robbery. As a result, the trial court 

selected the upper term of nine years for the robbery in count 1 and 

judgment with the modifications ordered in our opinion, the trial 

court should ensure that Steele’s abstract reflects imposition of the 

gang enhancement.
44

added a 10-year term for the section 12022.53 firearm 

enhancement, for an aggregate term of 19 years. The court stated it 

was “choosing to stay [section] 186.22[, subdivision (b)], the gang 

allegation, given its imposition of the gun allegation,” and noted 

that “[i]t may not impose both [enhancements].”

On appeal, Johnson contends the trial court lacked the 

authority to stay the gang enhancement, and requests the matter 

be remanded with directions for the trial court to instead strike the 

gang enhancement.

As previously explained (see Discussion III, ante), a vicarious 

liability enhancement under section 12022.53, subdivision (e), may 

not be imposed in addition to the gang enhancement. Instead, the 

enhancement with the longest term must be imposed and the other 

enhancement must be stricken. (People v. Brookfield, supra, 47 

Cal.4th at pp. 596-597.) In this case the enhancement with the 

longest term is the gang enhancement, which would mean the trial 

court was obligated to impose the gang enhancement penalty 

against Johnson, while striking the firearm enhancement.

Trial courts, however, are authorized to strike the additional 

penalties provided for under section 186.22 and section 12022.53 in 

the interests of justice. (§§ 186.22, subd. (g) [“Notwithstanding any 

other law, the court may strike the additional punishment for the 

enhancements provided in this section . . . in an unusual case where 

the interests of justice would best be served”]; 12022.53, subd. (h) 

[“The court may, in the interest of justice pursuant to [s]ection 1385 

and at the time of sentencing, strike or dismiss an enhancement 

otherwise required to be imposed by this section”].)

The trial court began Johnson’s sentencing hearing by 

acknowledging that it had read both sentencing memoranda and 

was “fully aware” it had “wide discretion,” including the discretion 

“whether or not to impose the gang allegation; whether or not to 
45

impose the gun allegation.” Neither the sentencing memoranda, 

nor the probation officer’s report, however, delineated the court’s 

discretion to strike one or both enhancements in the interests of 

justice. While the trial court acknowledged it could not impose both 

enhancements against Johnson, the reference to its discretion was 

ambiguous and does not clearly reflect that it was aware it had the 

latitude to strike both enhancements. Its comments preceding 

pronouncement of sentence suggest it found a life term excessive in 

light of Johnson’s young age and role in the offense. Given this 

record, we conclude that a remand for resentencing is appropriate. 

(See People v. Salvador (2017) 11 Cal.App.5th 584, 594 [where a 

sentencing error occurred, “providing the trial court with a fresh 

opportunity for sentencing is the most efficient and respectful 

solution”].) Upon remand, if the trial court determines that the 

interests of justice would be served by striking either or both 

enhancements, it should so state on the record. If it does not find 

such grounds exist, the court must impose the enhancement with 

the longest penalty term, which in this case would be the gang 

enhancement penalty provision, and strike the firearm 

enhancement.

V

Stayed Sentences Under Section 654

As noted in our procedural history, the jury found both 

appellants guilty as charged in count 2 of the information and found 

true the associated firearm and gang enhancement allegations. At 

sentencing, the trial court ordered the sentence “stayed” on count 2 

pursuant to section 654, with regard to each appellant. To 

effectuate section 654, however, the trial court must first impose 

the full term and then stay execution of that term. The failure to do 

so—or the imposition of an incorrect term—amounts to an 

unauthorized sentence. (People v. Relkin (2016) 6 Cal.App.5th 
46

1188, 1198; People v. Alford (2010) 180 Cal.App.4th 1463, 1469-

1472.)15 A claim that a sentence is unauthorized “is subject to 

judicial correction whenever the error comes to the attention of the 

reviewing court.” (People v. Dotson (1997) 16 Cal.4th 547, 554, 

fn. 6; In re Harris (1993) 5 Cal.4th 813, 842.)

Accordingly, upon remand, the trial court shall impose 

sentence on count 2 with regards to each appellant prior to staying

the term under section 654.

VI

Implied Striking of the One-year Prior Prison Term 

Enhancement as to Steele

The trial court found true allegations that Steele suffered a 

prior “strike” conviction, a prior serious felony conviction, and that 

he had served a prior prison term. During the sentencing 

proceedings, the trial court imposed sentence with regard to both 

the strike prior and the prior serious felony conviction, but made no 

mention of the prior prison term it found true pursuant to section 

667.5, subdivision (b).

Effective January 1, 2020, Senate Bill No. 136 amended

section 667.5, subdivision (b), to apply only where the prior prison 

term was served “for a sexually violent offense as defined in 

subdivision (b) of Section 6600 of the Welfare and Institutions 

Code.” (§ 667.5, subd. (b); see Sen. Bill No. 136 (2019-2020 Reg. 

Sess.) § 1.) Because the judgment in the current case is not yet 

final, Senate Bill No. 136 applies to Steele. (People v. Winn (2020) 

44 Cal.App.5th 859, 872-873 [Senate Bill No. 136 applies to nonfinal 

15 “[O]therwise if the nonstayed sentence is vacated, either on 

appeal or in a collateral attack on the judgment, no valid sentence 

will remain.” (People v. Alford, supra, 180 Cal.App.4th at p. 1469.)
47

judgments on appeal].) Accordingly, Steele’s one-year prior prison 

term enhancement must be stricken.

VII

Presentence Custody Credits

Steele and Johnson claim they are each entitled to two 

additional days of presentence custody credits. Respondent agrees,

as do we. Appellants were arrested on September 30, 2015, and 

sentenced on November 20, 2019. Including the arrest and 

sentencing dates, appellants were in actual custody for 1,513 days, 

rather than 1,511 days as calculated by the trial court. Accordingly, 

appellants are each entitled to a total of 1,513 days of actual 

custody credit. (§ 2900.5; People v. Morgain (2009) 177 Cal.App.4th 

454, 469 [“A defendant is entitled to credit for the date of his arrest 

and the date of sentencing”].)

DISPOSITION

As to appellant Steele, the judgment of conviction is affirmed. 

The sentence is vacated and the matter is remanded to the trial 

court with directions to: (1) strike the 10-year firearm enhancement 

imposed in count 1 pursuant to section 12022.53, subdivision (e)(1);

(2) impose sentence for count 2, prior to staying the term under 

section 654; (3) strike the prior prison term enhancement under 

section 667.5, subdivision (b); and (4) award Steele two additional 

days of presentence custody credits, for a total of 1,513 days of 

actual custody credit. The trial court is directed to prepare an 

amended abstract of judgment reflecting the changes to Steele’s

sentence and forward a copy to the Department of Corrections and 

Rehabilitation.

As to appellant Johnson, the judgment of conviction is 

affirmed. The sentence is vacated and the matter is remanded to 
48

the trial court for resentencing on count 1. As to count 1, the trial 

court shall exercise its discretion to consider whether to strike the 

additional punishment for either the gang enhancement, or the 

firearm enhancement, or both, in the interests of justice pursuant to 

section 186.22, subdivision (g), and/or section 12022.53, subdivision 

(h). In the event the trial court determines that the interests of 

justice would be served by striking either or both enhancements, it 

shall so state on the record. If the trial court does not find such 

grounds exist, the court must impose the enhancement with the 

longest penalty term, which in this case would be the gang 

enhancement penalty provision under section 186.22, and strike the 

firearm enhancement under section 12022.53. The trial court also 

shall impose sentence for count 2, prior to staying the term under 

section 654, and award Johnson two additional days of presentence 

custody credits, for a total of 1,513 days of actual custody credit. 

The trial court is directed to prepare an amended abstract of 

judgment reflecting the changes to Johnson’s sentence and forward 

a copy to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED

FEDERMAN, J.*

We concur:

ROTHSCHILD, P. J. CHANEY, J.

* Judge of the San Luis Obispo County Superior Court, 

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

California Constitution.