1 

Filed 3/12/15 P. v. Bassett CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

TAMARA NICOLE BASSETT et al., 

 Defendants and Appellants. 

C071072 

(Super. Ct. No. 09F02925) 

 The night of April 18, 2009, defendant Tamara Bassett went with Roshien Besa to 

see friends at Jeremy Sleeper’s house in Elk Grove. There, Bassett intervened in an 

argument between Besa and Besa’s boyfriend, Brian McDaniel, and hit McDaniel. In 

response, McDaniel hit Bassett in the face, bloodying her nose. Angry, Bassett 

threatened to return with her Norteño gang member boyfriend, defendant Raymond 

Vigel, “to shoot up the place.” Bassett did return with Vigel, who fired multiple shots 

from the car. The drive-by shooting left one person dead and three seriously injured. 
2 

 Defendants were found guilty of first degree murder with a drive-by shooting 

special circumstance, three counts of attempted murder, and shooting at an inhabited 

dwelling. Various firearm, great bodily injury, and gang enhancements, and a gang 

special circumstance as to Vigel were also found true.1 The trial court sentenced both 

defendants to life without the possibility of parole; in addition, the court sentenced Vigel 

to 160 years to life, and Bassett to 121 years to life. 

 On appeal defendants raise a myriad of issues, challenging the sufficiency of the 

evidence, the admission of certain evidence, the single jury, the jury instructions, 

misconduct by the prosecutor and two jurors, and certain fines and fees. We strike 

Bassett’s parole revocation fine and order correction of Vigel’s abstract of judgment. In 

all other respects, we shall affirm. 

FACTS

Evidence at the First Trial 

 The Shooting 

 On the evening of April 18, 2009, a group of longtime friends in their 20’s, 

including Stephen Benetti, Michael Escarcega, and Justin Hughes, met at Jeremy 

Sleeper’s house in Elk Grove, as they did most weekends. The friends were drinking and 

playing pool, and a NASCAR race was on the television. Also there that night was a 

neighbor, Rocky Arroyo, and his friend Brian McDaniel. No one in this group was 

affiliated with a gang. 

 McDaniel’s girlfriend, Roshien Besa, arrived with her friend Tamara Bassett. 

Bassett did not know anyone at the gathering except Besa. Bassett talked with another 

 

1 There were two trials. Each trial used only one jury for both defendants. The first jury 

found Vigel guilty on some counts and failed to reach verdicts on others, including all 

counts charging Bassett. The second jury found both defendants guilty of all counts 

remaining before it. 
3 

woman about people they knew in Oak Park. Bassett mentioned her boyfriend was in a 

gang. 

 After drinking too much, Besa threw up in the bathroom. McDaniel was angry 

and they argued. Bassett got mad at McDaniel and told him not to call Besa a “bitch.” 

McDaniel told Bassett to “shut up, bitch,” and she hit McDaniel in the back of the head. 

McDaniel turned and hit Bassett in the face, hard enough to cause her nose to bleed. 

 McDaniel took Bassett’s phone because she was threatening to call her boyfriend 

and tell him to “shoot up the place.” Bassett told McDaniel, “[Y]ou hit me. . . . I’m 

gonna get my friends to kill you and shoot you.” Bassett continued to yell for ten 

minutes that she was going to get her “Norte hom[ie]s” to shoot and kill everyone. 

McDaniel told Bassett just to go home and returned her phone; he told her they did not 

want problems. Bassett was still angry and Besa and others were trying to calm her 

down. Bassett got in her car and made a phone call. Besa got in the car and begged 

Bassett not to do anything or bring anyone to Sleeper’s house. Bassett told Besa to get 

out of the car. Meanwhile, Bassett was on the phone saying that McDaniel had hit her 

and she “wanted something done about it”; she wanted McDaniel killed. When Bassett 

made a U-turn, Besa reached over and turned off the car. Bassett demanded that Besa get 

out, and she did so. Besa went back to Sleeper’s and Bassett drove away. 

 Sleeper and Benetti asked Besa to call Bassett so there would not be any problems. 

Besa called and asked Bassett to come back and talk. Bassett asked if McDaniel was still 

there. Besa had not seen him but assumed he was still there, so she said yes. She asked 

Bassett to come by herself; Bassett said she was alone and that she had not picked up her 

boyfriend. Meanwhile, there were several calls between Bassett and her boyfriend Vigel. 

 Bassett then called Besa and said she was outside the house. Besa and Benetti 

went out to the car, which was in the street in front of the garage. Besa panicked when 

she saw Vigel in the front passenger seat, which was facing the house. Besa and Benetti 

talked to Bassett and Vigel, telling them they did not want any problems and that 
4 

McDaniel was not there. The garage door opened revealing several people inside, and 

Vigel asked if anyone was McDaniel; Bassett said no. Benetti leaned in the passenger 

window to talk. Vigel shouted, “Oak Park 10th Ave.” and fired a gun at Benetti, who had 

stepped backwards. Benetti was shot in the stomach, and Vigel shot him three more 

times as he staggered toward some grass and fell. Vigel continued to fire into the garage. 

When the shooting ended, Bassett and Vigel “sped off.” 

The Victims and Their Injuries

 The police arrived and found four victims. Benetti was on the lawn. He had been 

shot four times and spent 19 days in the hospital. He suffered injuries to his small bowel, 

colon, and bladder. The artery in his arm was injured and he suffered vein and nerve 

damage. His hip and hand were fractured. 

 There were more victims in the garage. Alison Freeseha had arrived at Sleeper’s 

shortly before the shooting began. She had four gunshot wounds located in the back of 

her head, her back, her buttocks, and her lower left leg. The shots were fatal and she was 

pronounced dead at the scene. 

 Justin Hughes was in the garage when the shooting began and tried unsuccessfully 

to get back in the house. A bullet completely transected his spinal cord, leaving him 

permanently paralyzed. He suffered complications from his injuries, requiring multiple 

hospitalizations. 

 Michael Escarcega dove under the pool table when the shots were fired and called 

911. He was shot in the leg and spent a month in the hospital. The gunshot caused injury 

to a blood vessel, requiring six or more surgeries to his left leg. 

Gang Evidence

 Detective Robert Strange testified as a gang expert, although he admitted he had 

had limited contact with Oak Park Norteños. He opined that Bassett participated in a 

criminal street gang based on her involvement with this case. He testified that Vigel was 
5 

a validated gang member and further opined that Vigel committed the crimes to benefit 

and promote the Norteño criminal street gang. 

The Defense

 Vigel testified in his defense. He admitted he “hung out” with Norteños, but 

denied that he had been “jumped in” the gang or committed crimes with the gang. He 

testified he was a heavy drinker and usually drank until he blacked out or got belligerent. 

The day of the shooting, he had also snorted cocaine. 

 When Bassett called him and told him she had been hit, he grabbed his gun. When 

he saw that her face and hands were full of blood and she was crying, he got mad and told 

her to take him to where she had been hit. He had no plan, but intended to “humiliate” 

McDaniel, probably to fight him. He claimed Bassett did not know that he owned a gun 

and they had no conversation about the gun. 

 Vigel testified he thought Benetti was going to hit him, so he pulled out the gun 

and fired. It was a “messed up” decision. Vigel claimed he did not aim and was not 

trying to kill anyone. After the shooting, both he and Bassett cried. He testified the 

shooting was wrong and he should not have done it. 

 Bassett’s mother and stepfather testified to Bassett’s good character. 

 A clinical and forensic pathologist testified about how factors such as the 

consumption of alcohol, stress, and a traumatic event, affect memory and recall. 

Verdicts

 The jury found Vigel guilty of first degree murder (Pen. Code, § 187),2 and found 

various firearm enhancements (§ 12022.53, subds. (b)-(d)) and a drive-by shooting 

special circumstance true (§ 190.2, subd. (a)(21)). The jury also found Vigel guilty of the 

attempted deliberate and premeditated murder of Benetti, with the same firearm 

 

2 Further undesignated statutory references are to the Penal Code. 
6 

enhancements and a great bodily injury enhancement (§ 12022.7, subd. (a)), and shooting 

at an inhabited dwelling (§ 246). 

 The jury could not reach a verdict as to Vigel on the gang enhancements or the 

gang special circumstance, or counts three and four, the attempted murder of Hughes and 

Escarcega. The jury was “hopelessly deadlocked” on all counts as to Bassett. The trial 

court declared a mistrial as to these counts and allegations. The People elected to set the 

matter for retrial. 

Evidence at the Second Trial

 The evidence at the second trial was substantially similar to that at the first, 

although there was additional testimony about Bassett’s threats and gangs, and additional 

witnesses. Hughes was unavailable due to medical problems, so his prior testimony was 

read to the jury. Vigel elected not to testify. Bassett introduced his prior testimony. 

Officer Mitchell Marquez and lead investigator Detective Brandon Gomez testified about 

their interview with Besa at the scene. She was afraid for her and her child’s safety and 

did not want to testify. Besa had said when she saw Bassett and Vigel, she knew Vigel 

would kill someone because “they” always talked about how Vigel was in a gang and 

gang members do not care who they kill. Although Besa had not heard Vigel talk about 

people he had killed, he always wore red and said, “I’m gonna clap this guy.” To “clap” 

means to shoot. 

 Escarcega testified he heard Vigel shout “14th Avenue” before he fired. He 

admitted that he had not testified to that in the “first proceeding.” To corroborate 

Escarcega’s testimony about Bassett’s threats to get her “Norte homies” to kill them, the 

People introduced the testimony of two police officers. These officers testified Escarcega 

had told them about these threats. 

 Others who were at Sleeper’s house that night testified as well. Robert Arroyo, a 

neighbor, testified Bassett talked about Oak Park and 14th or 44th Avenue. He told her 

there was no gang-banging going on at Sleeper’s. After McDaniel hit her, Bassett was 
7 

mad and said she would come back with her boyfriend and shoot everyone. Sleeper 

testified, confirming the basic outline of what happened that night. McDaniel testified he 

heard Bassett talk about gangs that night. Strangely, he testified he did not believe he had 

hit Bassett, but conceded that obviously he had. 

Gang Evidence

 Detective Don Schumacher testified as an expert on “criminal street gang[s] in 

general, specifically Hispanic.” He had been the lead detective in over 100 Norteño 

gang-related crimes. He testified to his opinion that Vigel was a Norteño gang member. 

He based this opinion on a number of factors. Twice, Vigel had admitted being a 

member of the Oak Park Norteños. There were photographs in which Vigel flashed 

Norteño gang signs. Vigel had been in repeated contact with other Norteño gang 

members and had been involved in gang-related crimes. Schumacher further opined that 

Vigel was actively participating with the Norteño gang when he committed these crimes. 

He opined that Bassett was not a gang member, but she acted in association with the 

gang. The basis of this opinion was her making threats concerning Vigel to the others 

and her knowledge of his gang membership. Based on a hypothetical that tracked the 

facts of this case, Schumacher opined that Bassett acted in association with the gang and 

Vigel acted to benefit the gang. 

Verdicts and Sentencing

 The jury found defendants guilty of all remaining charges. As to Vigel, the jury 

found true the gang special circumstance relating to Freeseha’s murder. (§ 190.2, subd. 

(a)(22).) The jury also found true gang enhancements as to all counts. (§ 186.22, subd. 

(b)(1).) It found Vigel guilty of the attempted deliberate and premeditated murder of 

both Hughes and Escarcega (§§ 664/187), with firearm (§ 12022.53, subds. (b)-(d)) and 

great bodily injury (§ 12022.7, subds. (a)-(b)) enhancements. 

 The jury found Bassett guilty of first degree murder of Freeseha (§ 187), with 

firearm and gang enhancements (§§ 12022, subd. (a)(1), 186.22, (b)(1), 12022.53, subd. 
8 

(e)(1)) and a drive-by special circumstance (§ 190.2, subd. (a)(21)); the attempted 

deliberate and premeditated murder of Benetti, Hughes, and Escarcega, with the same 

enhancements; and discharging a firearm at an inhabited dwelling (§ 246), with the gang 

and gang-related firearm enhancements (§§ 186.22, subd. (b)(1), 12022.53, subd. (e)(1)). 

 The court sentenced Vigel to life in prison without the possibility of parole plus 

160 years to life. The court sentenced Bassett to life in prison without the possibility of 

parole plus 121 years to life. 

DISCUSSION

I 

Insufficient Evidence of First Degree Murder and Attempted Murder 

 Vigel contends there is insufficient evidence to support his convictions for first 

degree murder and attempted murder. He contends the evidence “establishes” that he 

acted in the heat of passion and therefore he is guilty only of manslaughter and attempted 

manslaughter. Bassett joins this contention, arguing that because the evidence supports 

only a finding that Vigel acted in the heat of passion, she must be acquitted. The People 

assert there was substantial evidence that both defendants acted with premeditation and 

deliberation. We agree. 

 A. The Law

 “In assessing the sufficiency of the evidence, we review the entire record in the 

light most favorable to the judgment to determine whether it discloses evidence that is 

reasonable, credible, and of solid value such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is 

unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient 

substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 

18 Cal.4th 297, 331 (Bolin).) 

 “We normally consider three kinds of evidence to determine whether a finding of 

premeditation and deliberation is adequately supported—preexisting motive, planning 
9 

activity, and manner of killing—but ‘[t]hese factors need not be present in any particular 

combination to find substantial evidence of premeditation and deliberation.’ [Citation.] 

If the evidence of preexisting motive and planning activity by itself is sufficient to 

support the first degree murder conviction on a theory of premeditation and deliberation, 

we need not review the evidence concerning the manner of killing. [Citation.]” 

(People v. Jennings (2010) 50 Cal.4th 616, 645-646.) “A first degree murder conviction 

will be upheld when there is extremely strong evidence of planning, or when there is 

evidence of motive with evidence of either planning or manner. [Citations.]” (People v. 

Romero (2008) 44 Cal.4th 386, 401 (Romero).) 

 B. Analysis

 Here, the evidence of preexisting motive was very strong. After McDaniel struck 

Bassett, she vowed to get revenge. She threatened “to get my Norteno homies and come 

kill you.” She said she would return with her boyfriend and shoot everyone. The 

evidence indicated Vigel shared this motive as Bassett called and said she wanted 

“something done about it”; she wanted McDaniel killed. Vigel testified Bassett called 

him, hysterical, and said she had been hit. Vigel then heard a male voice and the line 

went dead. Vigel was angry and immediately left to find Bassett. 

 There was ample evidence from which the jury could infer planning. There were 

several calls between Vigel and Bassett, beginning just before midnight and continuing 

until about half past midnight; one call lasted six minutes. These calls gave Bassett and 

Vigel the opportunity to plan for revenge. Vigel armed himself with a gun after the first 

call from Bassett. A jury can infer planning when the defendant brings a gun to the crime 

scene. (See Romero, supra, 44 Cal.4th at p. 401.) In the phone calls between Bassett and 

Besa, Bassett asked Besa if McDaniel was still there (to which Besa replied he was) and 

told Besa that she was coming back alone, suggesting a plan for revenge that required 

surprise at Vigel’s participation. Bassett kept the car running while Vigel repeatedly 

fired, and drove away when he stopped shooting. This evidence suggests she knew that 
10 

Vigel was going to shoot at people, acquiesced in and facilitated the carnage while it was 

ongoing, and planned to (and did) leave quickly thereafter in order to escape 

responsibility. 

 Substantial evidence supports the verdicts for first degree murder and attempted 

deliberate and premeditated murder for both defendants. 

II 

Insufficient Evidence of Gang Enhancements and Special Circumstance

 Both Vigel and Bassett contend there was insufficient evidence to support the 

gang enhancements, and in Vigel’s case the gang special circumstance also. They make 

different arguments. Although both Benetti and Hughes testified that Vigel said “Oak 

Park, 10th Avenue” before the shooting, Vigel contends this evidence is insufficient to 

show the crime was gang related because others nearby, especially Besa and Sleeper, did 

not hear these words, and Hughes did not report these words to the police. Bassett 

contends the evidence, particularly Schumacher’s vague testimony, was insufficient to 

establish either the primary activities or the predicate offenses of Vigel’s gang. 

 A. The Law

 Section 186.22, subdivision (b)(1) provides for a sentence enhancement for “any 

person who is convicted of a felony committed for the benefit of, at the direction of, or in 

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

assist in any criminal conduct by gang members.” A “criminal street gang” “means any 

ongoing organization, association, or group of three or more persons, whether formal or 

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

enumerated criminal acts, “having a common name or common identifying sign or 

symbol, and whose members individually or collectively engage in or have engaged in a 

pattern of criminal gang activity.” (§ 186.22, subd. (f).) A “pattern of gang activity” 

may be shown by the commission of two or more of certain offenses, committed within 
11 

certain time frames “on separate occasions, or by two or more persons.” (§ 186.22, subd. 

(e).) This law is set forth in the pattern jury instruction CALCRIM No. 1401. 

 A gang special circumstance requires that the defendant “intentionally killed the 

victim while the defendant was an active participant in a criminal street gang, as defined 

in subdivision (f) of Section 186.22, and the murder was carried out to further the 

activities of the criminal street gang.” (§ 190.2, subd. (a)(22).) 

 The standard of review of the sufficiency of the evidence of gang special 

circumstances and gang enhancements is the same as for any other conviction. (People v. 

Streeter (2012) 54 Cal.4th 205, 241; People v. Ochoa (2009) 179 Cal.App.4th 650, 657.) 

The evidence must be “reasonable, credible, and of solid value.” (Bolin, supra,

18 Cal.4th at p. 331.) 

 B. Vigel’s Contention

 Vigel contends there was insufficient evidence that his crimes were gang related 

rather than personal. He argues the evidence showed he acted because Bassett was 

injured. He recognizes there was evidence that before he fired, he yelled out his gang 

subset, “Oak Park, 10th Avenue,” but argues this evidence was not substantial. 

 Detective Schumacher testified that gang members will announce their gang 

affiliation to show their gang is responsible for the crimes and to enhance the gang’s 

reputation. From this evidence, the jury could infer the crimes were committed to benefit 

the gang. (See, e.g., People v. Miranda (2011) 192 Cal.App.4th 398, 412 [expert 

explained that “[w]hen a gang member announces his gang affiliation during commission 

of a crime, the entire gang is benefited by an enhanced reputation”]; People v. Samaniego

(2009) 172 Cal.App.4th 1148, 1162 [defense expert testified that “[w]hen a group 

commits a gang crime, it is customary for them to yell out their gang’s name”].) 

 Vigel argues Benetti’s testimony that he heard Vigel shout those words just before 

he fired is not substantial evidence because the others present, especially Besa who was 

standing right next to Benetti, did not testify they heard the same. Hughes also testified 
12 

he heard “10th Ave.” when the shots were fired and this testimony was read at the second 

trial where the jury found the gang allegations true. Vigel discounts Hughes’s testimony 

because shortly before trial Hughes did not tell an investigator that he heard Vigel yell 

the gang affiliation. 

 These alleged “defects” in the evidence were explored on cross-examination, but 

the jury accepted the testimony that showed the shooting was identified as a gang crime, 

intended to benefit the gang and enhance its reputation. It is the exclusive province of the 

jury to resolve conflicting evidence and decide credibility issues. (People v. Ochoa

(1993) 6 Cal.4th 1199, 1206; People v. Martinez (2008) 158 Cal.App.4th 1324, 1331.) 

“Moreover, unless the testimony is physically impossible or inherently improbable, 

testimony of a single witness is sufficient . . . .” (People v. Young (2005) 34 Cal.4th 

1149, 1181 (Young).) “[I]f the verdict is supported by substantial evidence, we must 

accord due deference to the trier of fact and not substitute our evaluation of a witness’s 

credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d 

294, 314.) 

 Vigel further contends that there was insufficient evidence he acted “in association 

with” a criminal street gang. Under section 186.22, subdivision (b), the gang 

enhancement is established by proof defendant acted “for the benefit of, at the direction 

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

further, or assist in any criminal conduct by gang members.” (Italics added.) Having 

established that Vigel acted “for the benefit of” the Oak Park Norteños, the People were 

not required to also prove that he acted “in association with” the gang. 

 C. Bassett’s Contention 

 Bassett contends there is insufficient evidence to establish either the primary 

activity or predicate offenses of Vigel’s gang. She argues Schumacher’s testimony on 

these points is too vague. 
13 

 1. Primary Activity of Gang 

 Bassett contends Schumacher did not establish any primary activity of the gang. 

Instead, she contends, he testified only to his investigations. 

 The People asked Schumacher what, in his opinion, is the primary activity of the 

Norteño criminal street gang. He responded, “[A]s far as the larger Norteno gang is 

concerned, I’ve investigated . . . crimes ranging from graffiti to felony assaults with 

deadly weapons to felony batteries, possession of illegal firearms, assaults with firearms, 

drive-by shootings, car-jackings, . . . even several murders.” 

 In claiming this testimony is insufficient to establish the gang’s primary activities, 

Bassett relies on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) and In re 

Nathaniel C. (1991) 228 Cal.App.3d 990 (Nathaniel C.). In Alexander L., when asked 

about the primary activities of the gang, the expert responded, “ ‘I know they’ve 

committed quite a few assaults with a deadly weapon, several assaults. I know they’ve 

been involved in murders. [¶] I know they’ve been involved with auto thefts, 

auto/vehicle burglaries, felony graffiti, narcotic violations.’ ” (Alexander L., at p. 611.) 

The court found this testimony insufficient because even if the court inferred the expert 

meant the primary activities were those crimes to which he referred, the testimony lacked 

an adequate foundation. Nothing in the expert’s testimony established its reliability; he 

did not testify as to how he “knew” of the crimes. (Id. at pp. 611-612.) The testimony 

was conclusory. (Id. at p. 612.) Likewise, the gang expert in Nathaniel C. offered only 

“vague, secondhand testimony” about what he had been told by the police in another area 

to establish one of the predicate crimes; he had no personal knowledge. (Nathaniel C., at 

p. 1003.) Here, by contrast, Schumacher testified at length about his experience with 

Norteño gangs. The crimes he listed were those he had personally investigated. 

 We reject the argument that Schumacher’s testimony did not establish the crimes 

he listed were primary activities of the gang. In People v. Margarejo (2008) 

162 Cal.App.4th 102, the gang expert was asked the primary activities of a gang and 
14 

responded by describing the gang’s activities. Defendant contended this evidence was 

insufficient because the expert left out the word “primary” in his answer. The court 

rejected this contention, reasoning that while counsel’s questions are not evidence, their 

wording is relevant in interpreting the answer and sometimes is vital, such as when the 

answer is simply “yes.” (Id. at p. 107.) “Here the jury had ample reason to infer that [the 

expert’s] answer implicitly incorporated the word ‘primary’ from the question.” (Ibid.) 

 Unlike the expert in Alexander L., Schumacher provided sufficient background 

information about his training and the sources of his information concerning the Norteño 

criminal street gang to support the reliability of his opinions and conclusions. That he did 

not repeat the term “primary activities” in response to the People’s question does not 

provide a reasonable basis to interpret his response as meaning anything other than that 

the crimes he listed, which he had personally investigated, were the principal activities of 

the gang. 

 2. Predicate Offenses 

 Schumacher testified about three predicate offenses, crimes committed by a Mr. 

Torrez and a Mr. Bruno (both Oak Park Norteños), to establish the gang’s pattern of 

criminal activity. In June 2007, Torrez picked up a trash can lid, yelled out “Oak Park” 

and threw the lid through the window of a vehicle striking a rival gang member in the 

face. A few months later, Torrez’s cousin beat up someone believed to be a “snitch” and 

then, while the perceived snitch was on the ground, Torrez came out of the crowd and 

shot him multiple times in the stomach. Torrez sustained a conviction for “these crimes” 

that included a gang enhancement. In August 2007, Bruno crashed a birthday party and 

asked a partygoer his gang affiliation. The individual responded that he was not in a 

gang and went to his vehicle to leave. Bruno fired multiple rounds into the victim’s 

vehicle as it left the parking lot. Bruno was convicted of “this crime,” including a gang 

enhancement. 
15 

 Bassett does not dispute that these crimes may qualify as predicate offenses under 

section 186.22, subdivision (e). Instead, she objects on the basis that Schumacher did not 

identify the crimes that Torrez and Bruno committed. She contends the People 

“submitted no documentary evidence to establish the crimes of conviction and the jury 

was not instructed on the elements of the crimes that supported the predicate offenses.”3 

 While Schumacher did testify that both Torrez and Bruno were convicted of their 

offenses, with a gang enhancement, he was not asked to identify the crimes of conviction, 

and the People simply referred to the various offenses to which he was testifying as 

“these crimes” or “this crime.” So the offenses committed by Torrez and Bruno were 

never identified--either for the jury, or otherwise. Under section 186.22, subdivision (e), 

a pattern of criminal activity may be shown by evidence of the commission or attempted 

commission of two or more predicate crimes--proof of conviction is not required. The 

first enumerated crime in that subdivision is assault with a deadly weapon or by means of 

force likely to produce great bodily injury. (§ 186.22, subd. (e)(1).) This offense seems 

to encompass the criminal conduct of both Torrez and Bruno as described by 

Schumacher. Thus, in order to determine whether substantial evidence supports the 

jury’s finding of the requisite predicate offenses, we would need to determine whether a 

 

3 At oral argument, without sufficient advance notice to the court, Bassett sought to rely 

on People v. Garcia (2014) 224 Cal.App.4th 519, in which a gang enhancement was 

reversed for insufficient evidence of the required predicate offenses. In Garcia, the 

People failed to prove the predicate offenses because the proffered evidence did not show 

the offenses were within three years of each other as required by section 186.22, 

subdivision (e). (Garcia, at p. 525.) The court also rejected the People’s argument that 

defendant’s conduct could be used to show the commission of a predicate offense, even 

though he had been acquitted. While the statute permits establishing a predicate offense 

by either “commission” or “conviction,” the Garcia jury had been instructed--

erroneously--that a conviction was necessary to establish a predicate offense. (Ibid.) 

Garcia does not aid Bassett because the defects in the evidence there are not present in 

this case. Here, there is no issue as to the three-year limitation, and our analysis follows 

the instructions as given to the jury. 
16 

jury could find, without instruction on the elements, that the actions of Torrez and Bruno-

-which resulted in convictions for unspecified crimes--constituted the predicate crime of 

assault with a deadly weapon or by means of force likely to produce great bodily injury.4 

However, as we explain post, because here the jury was not instructed that assault of any 

kind even qualified as a predicate offense for purposes of finding a pattern of criminal 

gang activity, we cannot make that determination. We cannot look to legal theories not 

before the jury in seeking to reconcile a jury verdict with the substantial evidence rule. 

(People v. Kunkin (1973) 9 Cal.3d 245, 251.) 

 The trial court instructed the jury that one of the requirements of a criminal street 

gang was that its members “engage in a pattern of criminal activity.” It defined that 

pattern as, “[T]he commission of or attempted commission of or a conspiracy to commit, 

or solicitation to commit, or conviction of attempted murder in violation of Penal Code 

section 664/187(a) or murder in violation of Penal Code section 187.” Under this 

instruction, given in both trials, the predicate offenses were limited to murder and 

attempted murder. 

 CALCRIM No. 1401 requires that the applicable crimes from section 186.22, 

subdivision (e) (of which there are 33) be inserted into the instruction. Here, apparently 

by mistake, only the charged offenses were inserted instead of all the predicate offenses 

for which there was evidence. As the People argued in closing, the purpose of 

Schumacher’s testimony about the crimes of Torrez and Bruno was to prove the pattern 

of criminal gang activity. 

 

4 We observe that the bench notes to CALCRIM No. 1401 direct: “The court should 

also give the appropriate instructions defining the elements of crimes inserted in the list 

of alleged ‘primary activities,’ or the definition of ‘pattern of criminal gang activity’ that 

have not been established by prior convictions or sustained juvenile petitions.” 
17 

 We requested supplemental briefing addressing the adequacy of CALCRIM No. 

1401 as given, and the effect of any inadequacy on this case. 

 Defendants respond the instructions given were inadequate to permit the jury to 

find the gang enhancements or the gang special circumstance true. The jury received no 

instruction on aggravated assault (with a firearm or with force likely to produce great 

bodily injury), either as to its elements or that such crime could serve as a predicate 

offense. While the jury was instructed on the elements of murder and attempted murder, 

those instructions specified they related to the charged offenses. More importantly, 

defendants contend Schumacher’s testimony about the facts of the predicate offenses was 

too cursory to provide sufficient evidence that either Torrez or Bruno committed murder 

or attempted murder. 

 Surprisingly, the People’s supplemental brief does not recognize any mistake in 

the instruction. The People argue the trial court did not need to instruct on the elements 

of the predicate offenses because Schumacher testified both Bruno and Torrez were 

convicted of their crimes, although the People’s briefing, like the prosecutor at trial, fails 

to identify what those crimes were. Further, the People point out that the jury was 

instructed on the elements of murder and attempted murder, the crimes listed as predicate 

offenses to be used to determine a pattern of criminal activity. Conspicuously absent 

from the People’s brief is any discussion of Schumacher’s actual testimony about the 

predicate offenses, including that he was not asked to identify the crimes for which Bruno 

and Torrez were convicted. Nor is there any argument that Schumacher’s general 

description of Bruno and Torrez’s assaultive conduct (which included throwing a trash 

can lid and two shootings) was sufficient to show they committed either of the only two 

potential predicates (murder and attempted murder) actually set forth in the jury 

instruction. Instead, the People assert any error is necessarily harmless because 

defendants never challenged that the Norteños constitute a criminal street gang. This 

argument ignores the fundamental duty of the prosecution to prove every element of the 
18 

crimes and enhancements charged beyond a reasonable doubt. (See People v. Belton

(1979) 23 Cal.3d 516, 520.) Defendants “at the outset mounted the most complete 

challenge possible” to the gang enhancements and special circumstance; they demanded a 

trial. (People v. Rodriguez (1998) 17 Cal.4th 253, 262.) “[D]efendant[s] could not waive 

[their] right to challenge the sufficiency of the evidence on which the allegation was 

found true until it was found true and, then, only by failing to file a timely notice of 

appeal. In this, however, [they] did not fail.” (Ibid.) 

 The charged offenses may also be used to establish a gang’s pattern of criminal 

activity. (People v. Loeun (1997) 17 Cal.4th 1, 10-11.) The trial court told the jury: “If 

you find the defendant guilty of a crime in this case, you may consider that crime in 

deciding whether one of the group’s primary activities was commission of that crime and 

whether it’s -- a pattern of criminal gang activity has been proved.” 

 The People concede the current offenses can constitute only one predicate offense. 

The predicate offenses must be committed on separate occasions or by two or more 

people. (§ 186.22, subd. (e).) Here, all the current offenses were committed on one 

occasion and only Vigel was a direct perpetrator. Bassett’s act of aiding and abetting 

does not constitute a separate predicate offense. (People v. Zermeno (1999) 21 Cal.4th 

927, 931-932.) 

 The questions we are left with, then, is whether Schumacher’s testimony about the 

predicate offenses was sufficient to establish a second predicate offense of murder or 

attempted murder, and, correspondingly, whether the jury instructions as given supplied 

the jury with sufficient information to so find. 

 Schumacher did not testify that any of the victims of the crimes perpetrated by 

Bruno or Torrez died, so there is no evidence to support a predicate offense of murder. 

There is, however, sufficient evidence from which the jury could find attempted murder. 

Schumacher testified Torrez’s cousin beat someone believed to be a snitch. Torrez then 

stepped from the crowd and shot this victim multiple times in the stomach while the 
19 

victim was on the ground. From this description of the crime, the jury could infer Torrez 

was at close range and by firing multiple times intended to kill his victim. “[T]he act of 

purposefully firing a lethal weapon at another human being at close range, without legal 

excuse, generally gives rise to an inference that the shooter acted with express malice.” 

(People v. Smith (2005) 37 Cal.4th 733, 742 (Smith); also People v. Silva (2001) 

25 Cal.4th 345, 369 [“multiple shotgun wounds inflicted on an unarmed and defenseless 

victim who posed no threat to defendant--is entirely consistent with a premeditated and 

deliberate murder”]; People v. Lashley (1991) 1 Cal.App.4th 938, 945 [firing a single 

gunshot “toward the victim at a range and in a manner that could have inflicted a mortal 

wound had the bullet been on target is sufficient to support an inference of intent to 

kill”].) 

 Defendants contend the jury was not instructed on the elements of attempted 

murder as it related to the predicate offenses. They are correct that the instruction on 

predicate offenses did not include the elements of attempted murder. While the jury was

instructed on the elements of attempted murder as one of the current offenses, defendants 

stress the instruction stated it applied to the charged counts of attempted murder and 

included the names of the victims of those charges. Although this is also correct, we find 

no prejudicial error in failing to instruct on the elements of attempted murder as it relates 

to the predicate offenses. We consider the correctness of jury instructions based on the 

entire charge to the jury and the absence of an essential element in one instruction may be 

cured when it is supplied by another instruction. (People v. Musselwhite (1998) 

17 Cal.4th 1216, 1248.) Here, considering the jury instructions as a whole, the jury was 

adequately instructed on the elements of attempted murder. Schumacher’s testimony 

provided sufficient evidence from which the jury could find Torrez committed that crime, 

thus establishing the second predicate offense for a pattern of criminal activity. 

Sufficient evidence supports the gang enhancements and the gang special circumstance. 
20 

III 

Gang Expert’s Reliance on Hearsay

 Vigel contends the trial court erred in permitting Schumacher to opine that Vigel 

was a gang member based on unreliable hearsay. He contends the hearsay statement was 

unreliable because it referred to a declaration of gang membership that could not be 

definitively attributed to him. 

 A. Background 

 In the second trial, Vigel moved to exclude evidence of a statement made by 

Regina Murrti about a birthday party in late July 2007. At that party, Murrti heard Vigel 

or his brother Sam say “I am here representing Oak Park.” Schumacher intended to rely 

on this statement as part of the basis of his opinion that Vigel was a member of the 

Norteño street gang. 

 The trial court found neither the Fifth nor Sixth Amendment was implicated by 

admission of this statement; it was the type of hearsay on which an expert could rely. On 

cross-examination, the defense could point out the statement was not necessarily 

attributed to Vigel. 

 Schumacher testified that in his opinion Vigel was a member of the Norteño 

criminal street gang. He based his opinion in part on Vigel’s repeated contact with 

validated or admitted gang members, and discussed two such incidents. The second 

incident occurred in 2007 at a family birthday party in West Sacramento that Vigel 

attended with his brother. One of the partygoers overheard Vigel or his brother tell 

someone they were there representing Oak Park. Vigel became intoxicated and started a 

fight, so he was asked to leave. Vigel and his brother left, but they returned with three 

others, two of whom were identified Norteño gang members. This group assaulted the 

head of the household, and then led the police on a high-speed pursuit. The group’s 

vehicle was found abandoned in Oak Park. No charges were filed in connection with this 

incident. 
21 

 B. The Law

 “Expert testimony in the form of an opinion may be based on hearsay or facts 

outside the personal knowledge of the expert.” (People v. Harris (2013) 57 Cal.4th 804, 

847; Evid. Code, § 801, subd. (b).) However, “an expert may not under the guise of 

stating reasons for an opinion bring before the jury incompetent hearsay evidence.” 

(People v. Price (1991) 1 Cal.4th 324, 416.) 

 “Because an expert’s need to consider extrajudicial matters, and a jury’s need for 

information sufficient to evaluate an expert opinion, may conflict with an accused’s 

interest in avoiding substantive use of unreliable hearsay, disputes in this area must 

generally be left to the trial court’s sound judgment.” (People v. Montiel (1993) 5 Cal.4th 

877, 919).) A trial court may cure a hearsay problem by a limiting instruction, or by 

excluding the evidence as irrelevant, unreliable, or potentially prejudicial under Evidence 

Code section 352. (Montiel, at p. 919.) 

 C. Analysis

 Schumacher relied on several factors in concluding Vigel was a gang member, 

including Vigel’s prior admissions, pictures of him throwing gang signs, his contact with 

gang members, and his commission of gang-related offenses. “A gang expert’s overall 

opinion is typically based on information drawn from many sources and on years of 

experience, which in sum may be reliable.” (People v. Gonzalez (2006) 38 Cal.4th 932, 

949.) Vigel did not object to this other evidence, which is sufficient alone to support 

Schumacher’s opinion. Further, the evidence about the birthday party was admitted to 

show Vigel had contact with gang members, one factor in determining that he was a gang 

member. Even assuming it was his brother, not him, who claimed to represent Oak Park, 

the claim demonstrated Vigel’s close contact with gang members. In any event, the 

affiliation was clearly shown because Vigel returned to the party with two other gang 

members and assaulted someone. 
22 

 The trial court did give a limiting instruction just before this portion of 

Schumacher’s testimony, at Bassett’s request. The instruction told the jury evidence of 

gang activity could be used only to prove gang-related crimes and enhancements and not 

as evidence of bad character or disposition to commit crimes. “In the absence of 

evidence to the contrary, we assume the jury followed this instruction. [Citation.]” 

(People v. Lucas (2014) 60 Cal.4th 153, 321.) 

 There was no reason to exclude the evidence as unduly prejudicial under Evidence 

Code section 352. “ ‘[E]vidence should be excluded as unduly prejudicial when it is of 

such nature as to inflame the emotions of the jury, motivating them to use the 

information, not to logically evaluate the point upon which it is relevant, but to reward or 

punish one side because of the jurors’ emotional reaction. In such a circumstance, the 

evidence is unduly prejudicial because of the substantial likelihood the jury will use it for 

an illegitimate purpose.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 439.) In light of all 

the other (overwhelming) evidence showing Vigel’s gang membership--the rest of 

Schumacher’s testimony, including that Vigel had admitted twice that he was a gang 

member, Besa’s statements to officers about her concern due to Vigel’s gang 

membership, and evidence that Vigel shouted his gang affiliation before shooting--it is 

inconceivable that evidence of what Murrti reported was said at the party inflamed the 

jury against Vigel. 

IV 

Gang Expert Testimony that Bassett Acted in Association with Gang

 Bassett contends the trial court erred in admitting, over her objection, 

Schumacher’s testimony that although Bassett was not an active gang member, her 

actions the night of the shooting were done in association with the Norteño street gang. 

She contends the jury was as competent as the expert to determine what Bassett knew and 

whether her conduct was in association with a gang. 
23 

 A. Background

 Schumacher first testified Bassett was not an active member of the Norteños. 

Over Bassett’s objection of improper opinion, Schumacher then testified her actions 

surrounding the shooting were done in association with the Norteño street gang. The 

bases of his opinion were her various statements about her boyfriend being a Norteño and 

that he would retaliate or “fuck you up.” In Schumacher’s opinion, these statements 

showed Bassett “had a fairly intimate knowledge that her boyfriend was an active 

Norteno gang member.” 

 Bassett moved for a mistrial, contending Schumacher had improperly testified to 

Bassett’s state of mind. The court denied the motion. 

 The prosecutor then asked Schumacher a hypothetical question that closely 

tracked the evidence in this case and asked, “In your expert opinion, did the girlfriend 

commit the act in association with the criminal street gang Nortenos?” Schumacher said 

yes. His opinion was based on the girlfriend’s statements at the party about her boyfriend 

being a Norteño. Further, Schumacher opined that the acts of picking up the boyfriend, 

driving him to the party, being present while he fired shots and shouted his gang set, and 

then driving him away were all “done in association with a Norteno gang member who is 

part of a larger Norteno gang set.” 

 B. The Law

 “California law permits a person with ‘special knowledge, skill, experience, 

training, or education’ in a particular field to qualify as an expert witness (Evid. Code, 

§ 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence 

Code section 801, expert opinion testimony is admissible only if the subject matter of the 

testimony is ‘sufficiently beyond common experience that the opinion of an expert would 

assist the trier of fact.’ (Id., subd. (a).) The subject matter of the culture and habits of 

criminal street gangs . . . meets this criterion.” (People v. Gardeley (1996) 14 Cal.4th 

605, 617; see also id. at p. 619 [expert opinion that described attack would be “gang-
24 

related activity”].) The prosecution may use hypothetical questions that track the 

evidence, even if only “thinly disguised,” to establish that the crime was gang related. 

(People v. Vang (2011) 52 Cal.4th 1038, 1045.) 

 “[A]lthough expert testimony is generally inadmissible on topics ‘so common’ that 

jurors of ordinary knowledge and education could reach a conclusion as intelligently as 

the expert, an expert may testify on a subject about which jurors are not completely 

ignorant. [Citations.] In determining the admissibility of expert testimony, ‘the pertinent 

question is whether, even if jurors have some knowledge of the subject matter, expert 

opinion testimony would assist the jury.’ [Citations.]” (People v. Lindberg (2008) 

45 Cal.4th 1, 45.) 

 “When expert opinion is offered, much must be left to the trial court’s discretion.” 

(People v. Carpenter (1997) 15 Cal.4th 312, 403.) “The trial court has broad discretion 

in deciding whether to admit or exclude expert testimony [citation], and its decision as to 

whether expert testimony meets the standard for admissibility is subject to review for 

abuse of discretion. [Citations.]” (People v. McDowell (2012) 54 Cal.4th 395, 426) 

 C. Analysis

 We find no abuse of discretion in admitting Schumacher’s opinion that Bassett 

acted in association with the gang. Numerous cases have found the purpose and intent 

elements of a gang enhancement are usually beyond common knowledge and thus 

properly are the subject of expert testimony. (E.g., People v. Garcia (2007) 

153 Cal.App.4th 1499, 1512–1513; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1207-

1209; People v. Valdez (1997) 58 Cal.App.4th 494, 507-509.) “Since at least 1980, our 

courts have recognized that evidence of gang sociology and psychology is beyond 

common experience and thus a proper subject for expert testimony. [Citations.]” 

(People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550.) Schumacher testified to this 

sociology and psychology. In his experience, girlfriends of gang members were proud to 

be with a gang member. They liked the transferred respect and notoriety that came from 
25 

being connected to a gang member. Bassett used her association with Vigel--and, 

through him, used her association with his gang--to instill fear into the other partygoers 

the night of the shooting. Ultimately, due to Bassett’s actions in making sure Vigel 

arrived at the party to help her exact her revenge, that fear proved justified. 

V 

Separate Juries

 Vigel contends the trial court erred in denying his motion for a separate jury in the 

first trial.5 He contends he needed a separate jury to prevent Bassett’s statements from 

prejudicing him. He argues that while her statements were admitted only against her, to 

show her state of mind, and a limiting instruction was given, it was impossible for the 

jury to refrain from considering these statements for the truth of the matter asserted--that 

her boyfriend was a gang member and she would get him to shoot everyone--against him, 

particularly since the People used these statements for just that purpose in closing 

argument. He contends the error was prejudicial because without Bassett’s statements, 

the jury could have found him guilty of manslaughter on a heat of passion theory. 

 A. Background

 Before the first trial, Vigel moved for separate jury, contending that he would be 

unable to confront Bassett about her statements. The trial court denied the motion. In a 

lengthy and detailed ruling, the trial court found: Bassett’s statements were not 

testimonial under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] 

(Crawford); the statements were admissible under Evidence Code section 1250, the state 

of mind exception to the hearsay rule, which was a firmly rooted hearsay exception 

(People v. Morales (1989) 48 Cal.3d 527, 552, overruled on other grounds in People v. 

Williams (2010) 49 Cal.4th 405, 459); the statements, made in a casual setting, were 

 

5 In the second trial, Vigel advocated for a single jury. 
26 

trustworthy; and the court would give CALCRIM No. 305, a limiting instruction. The 

court also found the statements were against Bassett’s penal interest, as she stated her 

intent to aid and abet a shooting. Finally, the court found the statements were admissible 

as hearsay upon which the gang expert could rely in forming his opinion relative to the 

gang enhancements. 

 The People elicited testimony from witnesses that Bassett said her boyfriend was a 

Norteño gang member, and that after she was struck by McDaniel, she threatened to have 

Vigel shoot everyone. The court repeatedly admonished the jury that these statements 

could be used only against Bassett.6 The court instructed the jury, “You have heard 

evidence that each defendant made statements out of court and out of the presence of the 

other defendant. You may consider that evidence only against the defendant who made 

the statement.” 

 In closing argument, the People argued that Bassett said exactly what she was 

going to do; it was her choice to get her “muscle” and her “loaded weapon,” that is, 

Vigel. Besa tried to stop her because she knew Vigel was a Norteño and what he was 

capable of doing. The People stressed that Bassett made true on her threats. In rebuttal, 

the People again stressed that Bassett told people before the shooting what she was going 

to do. Neither defendant objected to these arguments. 

 B. The Law

 The Sixth Amendment of the United States Constitution guarantees that “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the 

witnesses against him.” (U.S. Const., 6th Amend.) Prior to Crawford, the test for 

 

6 We note that if the statements were properly admissible as statements against penal 

interest, they would be admissible against Vigel as well as Bassett. (People v. Acero

(2011) 195 Cal.App.4th 556, 576-577; People v. Cervantes (2004) 118 Cal.App.4th 162, 

175-176.) 
27 

confrontation clause compliance focused on whether the statement, made out of court by 

an unavailable speaker, bore adequate indicia of reliability because it either fell within a 

“firmly rooted hearsay exception” or bore “particularized guarantees of trustworthiness.”7 

(Ohio v. Roberts (1980) 448 U.S. 56, 66 [65 L.Ed.2d 597, 608].) 

 In Crawford, the high court rejected the rule of Roberts; instead, it held that the 

right of confrontation applies only to out-of-court testimonial statements, and that such 

statements are admissible at trial only when the witness is unavailable and the defendant 

had a prior opportunity to cross-examine the witness. (Crawford, supra, 541 U.S. at 

pp. 68-69 [158 L.Ed.2d at p. 203].) Subsequently, the court articulated the corresponding 

rule that the confrontation clause does not apply to nontestimonial hearsay. (See Whorton 

v. Bockting (2007) 549 U.S. 406, 420 [167 L.Ed.2d 1, 13]; Davis v. Washington (2006) 

547 U.S. 813, 821-822 [165 L.Ed.2d 224, 236-237].) Testimonial statements “have two 

critical components. First, to be testimonial the statement must be made with some 

degree of formality or solemnity. Second, the statement is testimonial only if its primary 

purpose pertains in some fashion to a criminal prosecution.” (People v. Dungo (2012) 

55 Cal.4th 608, 619.) 

 

7 There was a special rule for out-of-court statements by a non-testifying codefendant. 

In Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476], the United States 

Supreme Court held that the introduction of a confession of a defendant that implicates a 

codefendant violates the codefendant’s constitutional right of cross-examination even if 

the jury is instructed to disregard the confession in determining the codefendant’s guilt or 

innocence. (Id. at p. 137 [20 L.Ed.2d at p. 485].) The court recognized that “where the 

powerfully incriminating extrajudicial statements of a codefendant, who stands accused 

side-by-side with the defendant, are deliberately spread before the jury in a joint trial,” 

that “the risk that the jury will not, or cannot, follow instructions is so great, and the 

consequences of failure so vital to the defendant, that the practical and human limitations 

of the jury system cannot be ignored.” (Id. at pp. 135-136 [20 L.Ed.2d at pp. 484-485].) 
28 

 C. Analysis

 Vigel concedes that Bassett’s statements are not testimonial. Given that 

concession, there is no confrontation clause violation, which was the basis of Vigel’s 

motion for separate juries. (See People v. Blacksher (2011) 52 Cal.4th 769, 813.) 

Consequently, the only issue we need to decide is whether Bassett’s statements are 

admissible under state evidentiary law. 

 Vigel focuses on the trial court’s finding that the statements were admissible for 

the nonhearsay purpose of showing Bassett’s state of mind. Evidence Code section 1250, 

subdivision (a)(1) allows the admission of a statement offered to prove the declarant’s 

state of mind “at that time or at any other time when it is itself an issue in the action.” 

Here Bassett’s state of mind was at issue, specifically her intent because she was charged 

as an aider and abettor. This state of mind exception to the hearsay rule is inapplicable 

“if the statement was made under circumstances such as to indicate its lack of 

trustworthiness.” (Evid. Code, § 1252.) “ ‘ “The decision whether trustworthiness is 

present requires the court to apply to the peculiar facts of the individual case a broad and 

deep acquaintance with the ways human beings actually conduct themselves in the 

circumstances material under the exception. Such an endeavor allows, in fact demands, 

the exercise of discretion.” ’ [Citation.] ‘To be admissible under Evidence Code section 

1252, statements must be made in a natural manner, and not under circumstances of 

suspicion, so that they carry the probability of trustworthiness. Such declarations are 

admissible only when they are “ ‘made at a time when there was no motive to deceive.’ ” 

[Citation.]’ ” (People v. Ervine (2009) 47 Cal.4th 745, 778-779.) 

 Vigel contends Bassett’s statements are not trustworthy “where [he] is concerned.” 

He argues he was not present, did not hear the statements, and “[t]hey could in no way be 

construed as [his] adoptive admissions.” That is not the test for trustworthiness under 

Evidence Code section 1252; the test focuses only on the circumstances when the 

statements were made, not whether a defendant has adopted the content of the statement. 
29 

Vigel does not contend the circumstances were such as to make the statements 

untrustworthy. 

 The trial court found the statements were trustworthy, as they were made 

voluntarily in a social setting with no thought of any legal use. We review this finding 

for abuse of discretion. (People v. Edwards (1991) 54 Cal.3d 787, 820; People v. Ortiz

(1995) 38 Cal.App.4th 377, 386.) Vigel has failed to show the trial court abused its 

discretion in finding the statements were trustworthy, and thus has failed to demonstrate 

an abuse of discretion in admitting the statements under the state of mind hearsay 

exception. 

 Vigel’s main contention appears to be that the People improperly used Bassett’s 

statements for the truth of the matter she asserted, and against him, rather than simply 

against Bassett to show her state of mind. He bases this contention on the People’s 

closing arguments, which stressed that Bassett’s threats outlined exactly what she was 

going to do and that she and Vigel carried through on her threats. Vigel argues the 

People used Bassett’s statements as evidence he was a gang member and that he would 

avenge Bassett. He contends the People’s argument relied on Bassett’s statements to 

establish his actions and his premeditation and deliberation. 

 By failing to object at trial, Vigel has forfeited any contention that such argument 

was improper. (People v. McDowell, supra, 54 Cal.4th at p. 436.) Vigel responds he 

should not be required to interrupt argument to renew his objection to the in limine ruling 

denying his motion for a separate jury. He argues the People’s improper use of the 

evidence was foreseeable and could--and should--have been prevented by granting his 

motion for a separate jury. The proper objection during argument, however, was to the 

argument, not to earlier rulings. To the extent the People’s argument was improper (a 

conclusion we do not reach), it was incumbent upon Vigel to object. 

 Further, any error in the People’s closing argument was harmless. First, the trial 

court instructed the jury that the evidence of Bassett’s statements was to be used only 
30 

against her and admonished the jury about this limited use when the evidence was 

received. We presume the jury understood and followed the instructions. (People v. 

Yeoman (2003) 31 Cal.4th 93, 139.) Also, there was ample evidence to convict Vigel of 

premeditated and deliberate murder and attempted murder. Vigel returned with Bassett 

to the Sleeper residence after several phone calls between the two, giving him time to 

consider his actions. He took his gun, supporting the inference that he planned a violent 

encounter. (See People v. Marks (2003) 31 Cal.4th 197, 230.) After he was told 

McDaniel, presumably perceived by him as the offending party, was not there, he did not 

leave. Instead, he announced “Oak Park, 10th Avenue” and fired multiple times, killing 

one victim with four shots to her body and wounding three others with multiple shots. 

Vigel then fled. 

VI 

Admission of Photographs

 Defendants contend the trial court erred in admitting into evidence 22 photographs 

showing the injuries to the four victims. There are photographs of Freeseha both at the 

scene and from the autopsy, showing the bullet holes in her back and head; and 

photographs of Benetti, Hughes, and Escargega in the hospital, showing their injuries and 

the various medical tubing and equipment used. Vigel contends the photographs were 

cumulative and prejudicial and that one photograph per victim would have been 

sufficient. Bassett joins the argument. 

 At the first trial, Bassett asked the court to exercise its discretion to limit 

photographic evidence; Vigel joined this motion. The trial court excluded one autopsy 

photograph showing bullet holes in Freeseha’s back and buttocks, as cumulative. The 

court admitted the remaining photographs, finding them not unduly graphic and relevant 

to show the injuries and assist the jury in evaluating the testimony of witnesses, including 

the forensic pathologist. At the second trial, defendants again objected to admitting all 

the photographs. The trial court found the photographs relevant to show the spread of 
31 

gunfire and to support the great bodily injury enhancements. It found their probative 

value clearly outweighed their prejudicial effect. The court noted the photographs were 

not as graphic as those routinely shown on television shows such as CSI. 

 “The admission into evidence of photographs lies within the trial court’s discretion 

and will not be disturbed absent an abuse of that discretion. [Citation.]” (People v. 

Rountree (2013) 56 Cal.4th 823, 852.) A trial court has broad discretion to admit 

photographs “in the face of a claim that they are unduly gruesome or inflammatory. 

[Citation.]” (People v. Wilson (1992) 3 Cal.4th 926, 938.) “ ‘[M]urder is seldom pretty, 

and pictures, testimony and physical evidence in such a case are always 

unpleasant . . . .’ ” (People v. Pierce (1979) 24 Cal.3d 199, 211, quoting People v. Long

(1974) 38 Cal.App.3d 680, 689.) “[A] court may admit even ‘gruesome’ photographs if 

the evidence is highly relevant to the issues raised by the facts, or if the photographs 

would clarify the testimony of a medical examiner.” (People v. Coleman (1988) 

46 Cal.3d 749, 776.) 

 As did our Supreme Court in People v. Ramirez (2006) 39 Cal.4th 398 at page 

454, we find the photographs at issue “are gruesome because the charged offenses were 

gruesome, but they did no more than accurately portray the shocking nature of the 

crimes.” Here, as each trial court found, the photographs were very probative, showing 

that Freeseha was shot multiple times in the back and the grave injuries the other three 

victims suffered. At both trials, the trial court carefully exercised its discretion before 

admitting the photographs, weighing the probative value against the possible prejudicial 

effect. We have reviewed the photographs and find they are not unduly shocking or 

gruesome. It was not an abuse of discretion to admit them. 

VII 

Admission of Vigel’s Prior Convictions

 Bassett contends the second trial court erred in permitting the People to use 

Vigel’s convictions from the first trial to impeach his testimony given in the first trial 
32 

(and subsequently read to the jury in his second trial). Bassett introduced Vigel’s 

testimony in the second trial and now contends the evidence of Vigel’s convictions 

should have been excluded under Evidence Code section 352 because they were of 

minimal probative value as they did not involve dishonesty. Further, she contends that by 

sanitizing his convictions to characterize them as three prior felony convictions involving 

moral turpitude in the past five years, the evidence was confusing and prejudicial because 

the jury may have believed that Vigel had convictions in addition to those arising from 

this case.8 

 A. Background

 In the second trial, Bassett moved to admit Vigel’s testimony from the first trial if 

he exercised his right not to testify. The People argued that Vigel’s felony convictions in 

the first trial could be used to impeach his prior testimony. Bassett objected, arguing that 

indicating to the jury that Vigel had been convicted in this case would lessen the 

prosecution’s burden of proof as to Bassett. Later, the trial court ruled Vigel’s priors 

could be used for impeachment, but that they would be sanitized so the jury would not 

know they were from this case. The People could introduce evidence that Vigel had been 

convicted of three felonies involving moral turpitude in the past five years. Defendants’ 

objection to this ruling was preserved. At the People’s request, and with no procedural 

objection from the defense, the trial court took judicial notice of Sacramento County 

court records showing that Vigel had been convicted of three felony convictions within 

the past five years and those convictions were for crimes of moral turpitude. 

 

8 Although Vigel joined in Bassett’s contention on appeal, he did not make any separate 

arguments about how the alleged error in admitting his sanitized convictions from the 

first trial may have prejudiced the jury’s consideration of the charges against him in the 

second trial. “An appellate court is not required to examine undeveloped claims, nor to 

make arguments for parties.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 

106.) We will not make his arguments for him. 
33 

 B. The Law

 Generally, “all relevant evidence is admissible.” (Evid. Code, § 351.) A felony 

conviction involving moral turpitude may suggest a willingness to lie and thus is 

probative to impeach a witness. (See People v. Wheeler (1992) 4 Cal.4th 284, 295-296 

(Wheeler); People v. Castro (1985) 38 Cal.3d 301, 314-315 (Castro).) Section 28, 

subdivision (f) of article I of the California Constitution provides: “Any prior felony 

conviction . . . shall . . . be used without limitation for purposes of impeachment . . . .” In 

Castro, supra, 38 Cal.3d 301, our Supreme Court held that trial courts retain their 

discretion under Evidence Code section 352 to bar impeachment with felony convictions 

that necessarily involve moral turpitude when their probative value is substantially 

outweighed by their prejudicial effect. (People v. Collins (1986) 42 Cal.3d 378, 381.) 

 A trial court may exclude evidence under Evidence Code section 352 if its 

probative value is substantially outweighed by a substantial danger of undue prejudice or 

confusion of issues. “When determining whether to admit a prior conviction for 

impeachment purposes, the court should consider, among other factors, whether it reflects 

on the witness’s honesty or veracity, whether it is near or remote in time, whether it is for 

the same or similar conduct as the charged offense, and what effect its admission would 

have on the defendant’s decision to testify. [Citations.]” (People v. Clark (2011) 

52 Cal.4th 856, 931.) 

 We review a trial court’s ruling under Evidence Code section 352 for an abuse of 

discretion. (People v. Lucas (1995) 12 Cal.4th 415, 449.) 

 C. Analysis

 We find no abuse of discretion in the trial court’s decision to admit Vigel’s prior 

convictions for impeachment. Although the convictions occurred after Vigel testified, it 

is the criminal conduct, not the fact of conviction, that is relevant on the issue of 

credibility. (Wheeler, supra, 4 Cal.4th at p. 299.) The Clark factors support admitting 

the priors: the convictions were for crimes of moral turpitude and thus reflected on 
34 

Vigel’s honesty or veracity; they were not remote; although they involved the same 

crimes before the jury, the jury was not apprised of that fact; and the record is devoid of 

evidence that admission of the priors had any effect on Vigel’s willingness to testify or 

Bassett’s use of that testimony. To exclude Vigel’s priors would have given his prior 

testimony “ ‘ “a false aura of veracity.” ’ ” (People v. Hinton (2006) 37 Cal.4th 839, 

888.) 

 Bassett contends the jury already knew of Vigel’s willingness to “do evil” because 

he admitted that he owned a gun, took it to the Sleeper residence, and fired multiple 

times, striking the victims. Therefore, she argues, admitting the priors was unnecessary. 

To the extent we accept this argument, it follows that admission of the priors did not 

prejudice Bassett. Bassett claims the jury was likely to reject Vigel’s testimony that 

Bassett did not know of his gun if the jury believed (due to hearing of his criminal 

convictions) that he was “an evil person prone to criminal acts and likely to possess a gun 

and [Bassett] knew it.” It is difficult to imagine how hearing that Vigel had committed 

past crimes could convince the jury that Vigel was evil or prone to violence to a greater 

extent than did the evidence of his current crimes, which, as Bassett points out, amply 

showed his willingness to “do evil.” 

VIII 

Instructional Error: Kill Zone Theory

 Bassett contends the trial court erred in the second trial by instructing on the “kill 

zone” theory. She contends there is no evidentiary support for this instruction, and 

therefore the convictions for the attempted murder of Hughes and Escarcega must be 

reversed. Vigel joins in this contention. 

 A. The Instruction

 One of the theories the People relied upon to prove the attempted murder of 

Hughes and Escarcega was the kill zone theory. The trial court instructed the jury: “A 
35 

person may intend to kill a specific victim or victims and at the same time intend to kill 

everyone in a particular zone of harm or kill zone. 

 “In order to convict defendant of the attempted murder of [Hughes] and 

[Escarcega], the People must prove that the defendant not only intended to kill [Benetti] 

but also either intended to kill [Hughes] and [Escarcega] or intended to kill everyone 

within the kill zone. 

 “If you have a reasonable doubt whether the defendant intended to kill [Hughes] 

and [Escarcega] or intended to kill [Benetti] by killing everyone in the kill zone, then you 

must find the defendant not guilty of attempted murder of [Hughes] and [Escarcega].” 

 B. The Law

 “[T]he trial court must instruct on the general principles of law applicable to the 

case,” which means the court “must give instructions on every theory of the case 

supported by substantial evidence . . . .” (Young, supra, 34 Cal.4th at p. 1200.) 

“Evidence is ‘substantial’ only if a reasonable jury could find it persuasive. [Citation.]” 

(Ibid.) In determining whether an instruction should be given, the court does not weigh 

the credibility of the evidence. (Ibid.) However, “[i]t is error to give an instruction 

which, while correctly stating a principle of law, has no application to the facts of the 

case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) 

 We apply the de novo standard of review to claims of instructional error. 

(People v. Manriquez (2005) 37 Cal.4th 547, 581.) 

 Where intent to kill is at issue in murder, it may be proven through the doctrine of 

transferred intent. “ ‘Under the classic formulation of California’s common law doctrine 

of transferred intent, a defendant who shoots with the intent to kill a certain person and 

hits a bystander instead is subject to the same criminal liability that would have been 

imposed had “ ‘the fatal blow reached the person for whom intended.’ ” [Citation.] In 

such a factual setting, the defendant is deemed as culpable as if he had accomplished 
36 

what he set out to do.’ [Citation.]” (People v. Bland (2002) 28 Cal.4th 313, 320-321 

(Bland).) 

 “Attempted murder requires the specific intent to kill and the commission of a 

direct but ineffectual act toward accomplishing the intended killing.” (People v. Superior 

Court (Decker) (2007) 41 Cal.4th 1, 7.) The doctrine of transferred intent, however, does 

not apply to inchoate crimes such as attempted murder. (Bland, supra, 28 Cal.4th at 

pp. 317, 327.) “The conclusion that transferred intent does not apply to attempted murder 

still permits a person who shoots at a group of people to be punished for the actions 

towards everyone in the group even if that person primarily targeted only one of them.” 

(Id. at p. 329.) A person who shoots at a group of people, primarily targeting only one of 

them, may be found guilty of attempting to murder everyone in the group, if the person 

also, concurrently, intended to kill others within the “ ‘kill zone.’ ” (Id. at pp. 329-330.) 

 “[A] shooter may be convicted of multiple counts of attempted murder on a ‘kill 

zone’ theory where the evidence establishes that the shooter used lethal force designed 

and intended to kill everyone in an area around the targeted victim (i.e., the ‘kill zone’) as 

the means of accomplishing the killing of that victim. Under such circumstances, a 

rational jury could conclude beyond a reasonable doubt that the shooter intended to kill 

not only his targeted victim, but also all others he knew were in the zone of fatal harm. 

[Citation.]” (Smith, supra, 37 Cal.4th at pp. 745-746.) 

 C. Analysis

 Bassett contends that Hughes and Escarcega were not in Benetti’s kill zone or 

immediate vicinity. She argues that Vigel changed the direction in which he fired after 

shooting Benetti. We find that there is evidence from which the jury could conclude that 

Hughes and Escarcega were in Benetti’s kill zone. 

 Benetti testified he had stepped back towards the rear of the car before Vigel fired 

and Vigel had to aim the gun backwards to shoot him. If Vigel had fired straight ahead, 

Benetti testified, he would have fired into the garage. Thus, at the first shot, Benetti was 
37 

not in the same line of fire as those in the garage. Benetti, however, did not stay in the 

same place once he was shot. He moved toward the front of the car and lay down in 

some grass next to the driveway. Benetti continued to hear gunfire. He was shot three 

more times between the first shot when he was at the rear of the car and when he was on 

the grass. Once he was at the grass, the gunfire continued. When it stopped, the car left. 

 From this evidence, the jury could conclude that Vigel intended to kill Benetti by 

firing a gun at him at close range. (Smith, supra, 37 Cal.4th at p. 741.) The jury could 

further conclude that Vigel continued to fire at Benetti as Benetti passed by the passenger 

window (perhaps then striking Benetti’s left arm), at which point the garage was behind 

Benetti. It was this gunfire, that continued as Benetti staggered to the grass, that struck 

Hughes and Escarcega. This evidence is sufficient to show that Hughes and Escarcega 

were in the kill zone around Benetti and supports giving the kill zone instruction. 

IX 

Instructional Error: Natural and Probable Consequence of Conspiracy

 Bassett contends the second trial court erred by instructing the jury that it could 

find the shootings were the natural and probable consequence of an uncharged conspiracy 

between Bassett and Vigel to assault McDaniel. She contends the evidence did not 

support this theory because any conspiracy ended before Vigel began shooting when 

Vigel was told that McDaniel was not present. Vigel joins this contention. 

 A. The Instruction

 In addition to arguing that Bassett was an aider and abettor, the People argued she 

could also be guilty “under the legal principals of uncharged conspiracy and a natural and 

probable consequence doctrine.” The People argued the jury could find a conspiracy to 

assault McDaniel and that the shooting was a natural and probable consequence of that 

conspiracy. 

 The trial court instructed the jury that the People had presented evidence of a 

conspiracy to commit an assault on McDaniel. The court instructed on the law of 
38 

conspiracy, including as relevant here the following: “A member of a conspiracy is also 

criminally responsible for any act of the member of the conspiracy if that act is done to 

further the conspiracy and that act is a natural and probable consequence of the common 

plan or design of the conspiracy. [¶] This rule applies even if the act was not intended as 

part of the original plan. [¶] A natural and probable consequence is one that a reasonable 

person would know if likely to happen if nothing unusual intervenes. [¶] In deciding 

whether a consequence is natural and probable, consider all of the circumstances 

established by the evidence.” 

 B. Analysis

 Bassett does not argue that there was insufficient evidence either of a conspiracy 

or that the shooting was a natural and probable consequence of that conspiracy. Instead, 

her contention is that any conspiracy had ended before the shooting began (although she 

did not request any instruction defining the “end” of a conspiracy). The general rule is 

that a conspiracy comes to an end when the target crime of the conspiracy “ ‘is either 

attained or defeated.’ ” (People v. Hardy (1992) 2 Cal.4th 86, 143.) Bassett contends the 

conspiracy to assault McDaniel was “defeated” because he was not present at Sleeper’s 

when Vigel and Bassett arrived. We are not persuaded. 

 “It is for the trier of fact -- considering the unique circumstances and the nature 

and purpose of the conspiracy of each case -- to determine precisely when the conspiracy 

has ended.” (People v. Saling (1972) 7 Cal.3d 844, 852.) A conspiracy does not 

necessarily end merely because it is not carried out as originally planned. (See People v. 

Patrick (1981) 126 Cal.App.3d 952, 966 [kidnapping conspiracy was not defeated when 

police arrived; conspirators avoided defeat by pretending to abandon it, but resuming 

plan later].) 

 Here, the jury could conclude the conspiracy continued even though either Besa or 

Benetti told Vigel that McDaniel was not there and McDaniel had in fact left. 

McDaniel’s absence did not necessarily defeat the conspiracy; it may have only 
39 

postponed or prolonged it. Vigel and Bassett could have intended to pursue McDaniel 

after Vigel “shot up the place.” Unfortunately for their victims, Vigel and Bassett did not 

abandon their criminal plans upon hearing that McDaniel was not there. 

X 

Reduction to Second Degree Murder under People v. Chiu 

 In a second supplemental brief, Bassett contends her first degree murder 

conviction must be reduced to second degree and the special circumstance vacated. In 

People v. Chiu (2014) 59 Cal.4th 155 (Chiu), our Supreme Court held, as a matter of law, 

that an aider and abettor cannot be held culpable for first degree murder based on the 

natural and probable consequences doctrine. Here, the jury was instructed that Bassett 

could be guilty of first degree murder because she conspired with Vigel to assault 

McDaniel and murder was the natural and probable consequence of that conspiracy. 

Bassett contends that conspiracy is similar to aiding and abetting as a theory of vicarious 

liability, so the rule of Chiu applies. Since the jury was given the option of finding guilt 

based on the natural and probable consequence of a conspiracy, Bassett contends that she 

can be guilty only of second degree murder. We disagree. 

 A. The Law 

 “ ‘ “A person who knowingly aids and abets criminal conduct is guilty of not only 

the intended crime [target offense] but also of any other crime the perpetrator actually 

commits [nontarget offense] that is a natural and probable consequence of the intended 

crime.” ’ [Citations.] ‘Thus, for example, if a person aids and abets only an intended 

assault, but a murder results, that person may be guilty of that murder, even if 

unintended, if it is a natural and probable consequence of the intended assault.’ 

[Citation.]” (Chiu, supra, 59 Cal.4th at p. 161.) 

 “In the context of murder, the natural and probable consequences doctrine serves 

the legitimate public policy concern of deterring aiders and abettors from aiding or 

encouraging the commission of offenses that would naturally, probably, and foreseeably 
40 

result in an unlawful killing. A primary rationale for punishing such aiders and 

abettors—to deter them from aiding or encouraging the commission of offenses—is 

served by holding them culpable for the perpetrator’s commission of the nontarget 

offense of second degree murder. [Citation.]” (Chiu, supra, 59 Cal.4th at p. 165.) 

“[T]his same public policy concern loses its force in the context of a defendant’s liability 

as an aider and abettor of a first degree premeditated murder” because the required 

mental state of willfulness, premeditation, and deliberation is uniquely subjective and 

personal. (Id. at p. 166.) “Accordingly, we hold that punishment for second degree 

murder is commensurate with a defendant’s culpability for aiding and abetting a target 

crime that would naturally, probably, and foreseeably result in a murder under the natural 

and probable consequences doctrine. We further hold that where the direct perpetrator is 

guilty of first degree premeditated murder, the legitimate public policy considerations of 

deterrence and culpability would not be served by allowing a defendant to be convicted 

of that greater offense under the natural and probable consequences doctrine.” (Ibid.) 

 “Aiders and abettors may still be convicted of first degree premeditated murder 

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

prosecution must show that the defendant aided or encouraged the commission of the 

murder with knowledge of the unlawful purpose of the perpetrator and with the intent or 

purpose of committing, encouraging, or facilitating its commission. [Citation.]” (Chiu, 

supra, 59 Cal.4th at pp. 166-167.) 

 “When a trial court instructs a jury on two theories of guilt, one of which was 

legally correct and one legally incorrect, reversal is required unless there is a basis in the 

record to find that the verdict was based on a valid ground. [Citations.] Defendant’s first 

degree murder conviction must be reversed unless we conclude beyond a reasonable 

doubt that the jury based its verdict on the legally valid theory . . . .” (Chiu, supra, 

59 Cal.4th at p. 167.) 
41 

 B. Analysis

 In Chiu, the record showed the jury was deadlocked between first and second 

degree murder and one juror had difficulty placing the defendant in the shoes of the 

actual shooter. “These events indicate that the jury may have been focusing on the 

natural and probable consequence theory of aiding and abetting and that the holdout juror 

prevented a unanimous verdict on first degree premeditated murder based on that theory. 

Thus, we cannot conclude beyond a reasonable doubt that the jury ultimately based its 

first degree murder verdict on a different theory, i.e., the legally valid theory that 

defendant directly aided and abetted the murder.” (Chiu, supra, 59 Cal.4th at p. 168.) 

 Here, as we explain, the record shows the jury based its first degree murder verdict 

on a legally valid ground; the jury found Bassett aided and abetted first degree drive-by 

shooting. Therefore, any error in the instructions is harmless beyond a reasonable doubt 

in this case.9 

 The People offered two theories of first degree murder: premeditation and 

deliberation and shooting a firearm from a motor vehicle. A drive-by shooting is first 

degree murder where it is “perpetrated by means of discharging a firearm from a motor 

vehicle, intentionally at another person outside of the vehicle with the intent to inflict 

death.” (§ 189.) The People argued Bassett could be guilty of first degree murder either 

as an aider and abettor or, under the natural and probable consequence doctrine, of an 

uncharged conspiracy to assault McDaniel. The jury was instructed on the natural and 

probable consequences doctrine as it related to a conspiracy. 

 

9 Because any error is harmless, we need not address whether Chiu limits a murder 

conviction to second degree when the natural and probable consequence doctrine applies 

to a conspiracy rather than aiding and abetting. (See People v. Rivera (Mar. 9, 2015, 

C074297) ___ Cal.App.4th ___.) 
42 

 The jury found Bassett guilty of first degree murder of Freeseha. The jury also 

found the drive-by shooting special circumstance true. Specifically, the jury found the 

murder “was intentional and perpetrated by means of discharging a firearm from a motor 

vehicle, intentionally at another person outside the vehicle with the intent to inflict 

death.” This finding establishes beyond a reasonable doubt that the jury found Bassett 

guilty as an aider and abettor of first degree drive-by murder. Bassett’s first degree 

murder conviction was based on a legally valid theory. 

XI 

Prosecutorial Misconduct: Misstating the Law of Intent

 Bassett contends the prosecutor committed misconduct by misstating the law of 

intent in telling the jury that Bassett could be guilty of attempted murder if she intended 

to kill McDaniel. She contends that because the information charged attempted murder 

on the basis that Bassett intended to kill certain named victims, basing attempted murder 

on her intent to kill McDaniel denied her notice and a reasonable opportunity to defend. 

 A. Background

 In arguing that Bassett was guilty of attempted murder as an aider and abettor, the 

People argued: “That intent to kill element is still there. We’ve talked about that in 

length. Don’t have to prove that her intent to kill was as to these three specific victims or 

the fourth, Mr. Benetti. [¶] Don’t have to prove that it was her specific intent to kill 

either one of them. Could have been specific intent to [kill] Brian McDaniel. [¶] You 

have evidence of both. Her anger directed towards him and then really everyone else at 

[the] party as she’s getting in the car.” 

 Bassett objected, stating: “That misstates the law on aiding and abetting.” The 

objection was overruled. 

 The People’s argument continued, stating the law was defined in CALCRIM No. 

601 [premeditated attempted murder]. The People then addressed the kill zone theory. 
43 

 B. The Law

 “The standards under which we evaluate prosecutorial misconduct may be 

summarized as follows. A prosecutor’s conduct violates the Fourteenth Amendment to 

the federal Constitution when it infects the trial with such unfairness as to make the 

conviction a denial of due process. Conduct by a prosecutor that does not render a 

criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it 

involves the use of deceptive or reprehensible methods to attempt to persuade either the 

trial court or the jury. Furthermore, and particularly pertinent here, when the claim 

focuses upon comments made by the prosecutor before the jury, the question is whether 

there is a reasonable likelihood that the jury construed or applied any of the complainedof remarks in an objectionable fashion. [Citation.]” (People v. Morales (2001) 

25 Cal.4th 34, 44 (Morales).) 

 It is prosecutorial misconduct to misstate the applicable law during argument to 

the jury. (People v. Huggins (2006) 38 Cal.4th 175, 253, fn. 21; People v. Otero (2012) 

210 Cal.App.4th 865, 870.) 

 In considering whether a defendant was harmed by the misconduct, we examine 

the prosecutor’s remarks in the context of the whole record, including arguments and 

instructions. (Morales, supra, 25 Cal.4th at p. 44.) “When argument runs counter to 

instructions given a jury, we will ordinarily conclude that the jury followed the latter and 

disregarded the former, for ‘[w]e presume that jurors treat the court’s instructions as a 

statement of the law by a judge, and the prosecutor’s comments as words spoken by an 

advocate in an attempt to persuade.’ [Citation.]” (People v. Osband (1996) 13 Cal.4th 

622, 717; People v. Boyette (2002) 29 Cal.4th 381, 436 [even if prosecutor misstated the 

law, “the trial court properly instructed the jury on the law, and we presume the jury 

followed those instructions”].) 
44 

 C. Analysis

 Because proving Bassett’s intent to kill McDaniel was insufficient to prove 

attempted murder as to the three charged victims, the People were wrong to argue 

otherwise, as was the trial court to overrule the objection. However, we find the error 

harmless. The improper argument constitutes less than half a page of an argument 

consuming over 60 pages of transcript. Elsewhere, the People correctly argued the law of 

intent to kill and aiding and abetting. Bassett does not challenge that argument. More 

importantly, the trial court correctly instructed the jury on the applicable law. Directly 

after the portion of the argument referenced above, the People referred the jury to the 

instructions. The court directed the jury that if argument conflicted with the instructions, 

the jury was to follow the instructions. Bassett has not shown--and we do not find--“a 

reasonable likelihood that the jury construed or applied any of the complained-of remarks 

in an objectionable fashion. [Citation.]” (Morales, supra, 25 Cal.4th at p. 44.) 

XII 

Juror Misconduct: Elk Grove Calls

 Vigel contends the verdicts were tainted by outside information that one of the 

jurors received. Juror No. 7 told the other jurors that she had received “strange” phone 

calls from Elk Grove, the city where the shootings occurred. Vigel contends this outside 

information “tainted the verdicts” and the presumption of prejudice was not rebutted. 

Bassett joins this contention. 

 A. Background 

 The afternoon before the jury in the second trial reached a verdict, the jury sent the 

trial court a note. The note listed a phone number and then said: “Juror #7 mentioned 

that she has been receiving strange phone calls from the above phone number. Her phone 

says this phone number is in Elk Grove. We thought it prudent to mention this.” 

 The next morning, after the jury indicated it had reached a verdict, counsel for 

Bassett requested that the court ask Juror No. 7 whether these calls influenced her 
45 

decision-making process and that this inquiry occur before the verdict was read. Juror 

No. 7 told the court that she received these calls about twice a week from the beginning 

of the trial, a total of 10 calls. She never spoke to anyone or received a message. She 

declared that her vote on the verdict was not influenced by these calls. She had told the 

other jurors about these calls, both the number of them and that they were from Elk 

Grove. The bailiff reported that she had not heard about the calls until she was handed 

the note. Upon further questioning, Juror No. 7 indicated she mentioned the calls to the 

other jurors only late the previous afternoon. She did not report the calls earlier because 

at first she thought it was just a wrong number, and she still thought it could be. The 

court then questioned each juror individually about whether the information about the 

calls influenced his or her verdict and each juror said no. 

 Bassett then moved for a mistrial based on Juror No. 7 violating the court’s 

admonitions. Vigel joined the motion. 

 The trial court clarified that its admonition to the jury was to tell the bailiff only if 

someone tried to contact them about this case; it was not to report anything a juror 

thought could be relevant. The court found it crucial that the juror received no actual 

communication and found that Juror No. 7 did nothing wrong. It denied the motion for a 

mistrial. 

 B. The Law

 “An accused has a constitutional right to a trial by an impartial jury. [Citations.] 

An impartial jury is one in which no member has been improperly influenced [citations] 

and every member is ‘ “capable and willing to decide the case solely on the evidence 

before it” ’ [citations].” (In re Hamilton (1999) 20 Cal.4th 273, 293-294 (Hamilton).) 

“A sitting juror’s involuntary exposure to events outside the trial evidence, even if not 

‘misconduct’ in the pejorative sense, may require similar examination for probable 

prejudice.” (Id. at pp. 294-295.) When the alleged misconduct involves an unauthorized 

communication with a juror, the presumption of prejudice does not arise unless there is a 
46 

showing that the content of the communication was about the guilt or innocence of the 

defendant. (Id. at p. 305.) 

 “Misconduct by a juror, or a nonjuror’s tampering contact or communication with 

a sitting juror, usually raises a rebuttable ‘presumption’ of prejudice. [Citations.]” 

(Hamilton, supra, 20 Cal.4th at p. 295.) The test for whether an individual verdict must 

be overturned for jury misconduct or irregularity is an objective standard: the substantial 

likelihood test. (Id. at p. 296.) “Any presumption of prejudice is rebutted, and the 

verdict will not be disturbed, if the entire record in the particular case, including the 

nature of the misconduct or other event, and the surrounding circumstances, indicates 

there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or 

more jurors were actually biased against the defendant. [Citations.]” (Ibid.) 

 “A sitting juror commits misconduct by violating her oath, or by failing to follow 

the instructions and admonitions given by the trial court. A lay juror cannot be expected 

to conform to standards of behavior of which she has not been informed, or to make 

unguided personal judgments about what the court needs to know. Her failure to do so 

cannot place at risk a presumptively valid verdict.” (Hamilton, supra, 20 Cal.4th at 

p. 305.) 

 C. Analysis

 Here, no presumption of prejudice arose from the calls to Juror No. 7. The only 

evidence that the calls were somehow related to this case was their regular occurrence 

throughout the trial and their origination in Elk Grove. Significantly, nothing was said 

and no message was left. Although defendants speculate that “a reasonable juror” could 

infer that someone in Elk Grove “wanted a guilty verdict,” an inference to the contrary--

that someone wanted an acquittal--is just as likely. And neither of these inferences is 

reasonable given the complete lack of communication within the calls. 

 The ambiguous nature of the calls is analogous to the juror situation in Hamilton. 

There, in a habeas proceeding claiming jury misconduct in a capital case, a juror 
47 

declaration indicated that once during the guilt phase of the trial, petitioner’s sister and 

her boyfriend parked in an alley behind the juror’s home, they sped away when they saw 

the juror, and the juror did not report the incident to the police. (Hamilton, supra,

20 Cal.4th at p. 304.) There was doubt as to whether this incident actually occurred. 

(Ibid., see also fn. 24.) Our Supreme Court found no misconduct in failing to report this 

incident to the trial court because the incident did not fall within the admonitions given; 

the jury was told to avoid any contact with those connected to the case, not to report a 

mere observation of such persons. (Id. at p. 305.) Second, there was no communication 

involved. (Id. at p. 306.) Finally, even if the incident was interpreted as an improper 

attempt to intimidate the juror, the objective circumstances--that the episode was brief, 

isolated, and ambiguous--gave rise to “no substantial likelihood” that the incident 

resulted in actual bias. (Ibid.) 

 We recognize there are differences between this case and Hamilton. Here, the 

calls were not isolated; they continued throughout trial. Further, unlike the juror in 

Hamilton, Juror No. 7 discussed the matter with other jurors. On the other hand, 

however, in Hamilton it was certain that the incident involved parties related to the 

petitioner. Here, the source of the calls as well as the reason for them is unknown--even 

their recipient opined that the calls could be meant for another number. Moreover, to the 

extent the presumption of prejudice did arise, it was rebutted. The trial court questioned 

each juror about the effect this information had on his or her decision. Without 

equivocation, each juror said it had none. Defendants provide no reason why we should 

not accept the trial court’s credibility determination on this issue. (See In re Carpenter

(1995) 9 Cal.4th 634, 646 [appellate court accepts trial court’s credibility determinations 

on juror misconduct].) 
48 

XIII 

Juror Misconduct: Inattentive Juror

 Bassett contends the trial court violated her right to due process by failing to 

conduct an adequate hearing into possible misconduct by Juror No. 3. There was 

evidence that this juror had been inattentive during trial and that she told another juror 

she did not know what was going on in the trial. Bassett contends the trial court erred in 

failing to (1) question the second juror about her conversation with Juror No. 3; (2) 

question those who claimed to have seen Juror No. 3 asleep during trial; and (3) ask Juror 

No. 3 about her lack of attentiveness and her comments about the same. Vigel joins this 

contention. 

 A. Background

 On the first full day of deliberations in the second trial (a Monday), Juror No. 3 

told the bailiff that she needed the next day off to take her daughter on a field trip; she 

had mentioned the trip during voir dire and had been told it would not be a problem. The 

court conferred with the lawyers to determine the appropriate course of action: whether 

to tell the juror that she had to be at trial, to give the rest of the jurors the day off as well, 

or to remove the juror and replace her with an alternate juror. 

 Bassett moved to remove Juror No. 3 and Vigel joined the motion. Vigel’s 

attorney noted Juror No. 3 had appeared inattentive during trial, often closing her eyes. 

The court responded that if counsel wanted this juror removed for sleeping or being 

inattentive, they should have made a motion at the time of the observation. Bassett’s 

attorney then recounted information he had learned from Bassett’s mother, Lisa Boyce. 

Boyce told him that on Thursday an Asian female juror left the courtroom, extremely 

upset and said the case was taking too long. On Friday, this juror asked the bailiff if an 

alternate could be substituted. On this Monday, Boyce said she had a conversation with 

an African-American woman outside (later identified as Sharika Johnson). Boyce was on 

her cell phone, mentioning that the jury was deliberating in her daughter’s case. Johnson 
49 

said, “that’s weird” because she had heard an Asian woman wearing a juror badge 

comment she did not know what was going on because she was not paying attention 

during trial. The bailiff reported to the court that Juror No. 3 had never asked for an 

alternate. The court then questioned the accuracy of Boyce’s information. 

 The People objected to removing Juror No. 3, claiming there was not good cause. 

The court agreed there was no good cause. It found the information from Johnson too 

tenuous to conduct an investigation.10 The court gave the jury the following day off. 

 Bassett’s counsel then spoke with Johnson and learned that she had seen Juror No. 

3 talking with Juror No. 9. Juror No. 3 walked by the courtroom and threw up her hand 

in the direction of the courtroom, saying, “I don’t know what they were -- were even 

talking about. I wasn’t paying attention.” Counsel asked that Juror No. 3 be brought in 

“just to ask [the] general question about whether she’s discussed outside the jury room 

anything -- made any comments outside the jury room relating to our case.” Vigel’s 

counsel added that Juror No. 3 had her eyes closed frequently, consistent with someone 

not paying attention. The court indicated it had watched Juror No. 3 throughout the trial 

and early on she appeared to nod off. The court had the bailiff give her a cup of water. 

The court said it was careful to make sure Juror No. 3 was not falling asleep. The court 

declined to question the juror about her inattentiveness since it had not been raised 

earlier. Bassett’s attorney then said Boyce had told him that she thought Juror No. 3 was 

sleeping. Boyce’s brother made the same comment. 

 The trial court called Juror No. 3 in and told her it had been reported she had made 

a comment in the hallway that could be interpreted as a comment about the case. The 

court reminded her of the admonition not to discuss the case outside the presence of all 

the other jurors and asked if she had abided by that admonition. Juror No. 3 said yes. 

 

10 The court questioned its authority to question “some civilian out in the hallway.” 
50 

 B. The Law

 The trial court may discharge a juror who “becomes ill, or upon other good cause 

shown to the court is found to be unable to perform his or her duty . . . .” (§ 1089.) 

While extreme inattentiveness due to sleeping may constitute good cause to discharge a 

juror, “ ‘courts have exhibited an understandable reluctance to overturn jury verdicts on 

the ground of inattentiveness during trial. . . . Perhaps recognizing the soporific effect of 

many trials when viewed from a layman’s perspective, these cases uniformly decline to 

order a new trial in the absence of convincing proof that the jurors were actually asleep 

during material portions of the trial. [Citations.]’ [Citation.]” (People v. Bradford

(1997) 15 Cal.4th 1229, 1349 (Bradford).) “A juror must not be discharged for sleeping 

unless there is convincing proof the juror actually slept during trial. [Citations.]” 

(People v. Bowers (2001) 87 Cal.App.4th 722, 731.) 

 “Once a trial court is put on notice that good cause to discharge a juror may exist, 

it is the court’s duty ‘to make whatever inquiry is reasonably necessary’ to determine 

whether the juror should be discharged. [Citation.]” (People v. Espinoza (1992) 

3 Cal.4th 806, 821.) The decision whether to investigate the possibility of juror 

misconduct rests within the sound discretion of the trial court. (People v. Ray (1996) 

13 Cal.4th 313, 343.) “The court does not abuse its discretion simply because it fails to 

investigate any and all new information obtained about a juror during trial.” (Ibid.) Mere 

speculation that a juror might have been sleeping or inattentive is insufficient to provide 

notice of good cause to discharge, and does not obligate a trial court to conduct an 

inquiry. (Espinoza, at p. 821.) 

 C. Analysis

 The alleged inattentiveness of Juror No. 3 was insufficient to require the trial court 

to conduct an inquiry. The court itself had paid attention to this particular juror after 

early signs of sleepiness. The court did not observe her actually sleeping. The court 

could reasonably conclude that Boyce’s information, coming at the 11th hour and from 
51 

an interested party, was unreliable, especially after her earlier information that Juror No. 

3 had spoken to the bailiff about being replaced proved unreliable. Although counsel 

claimed he observed inattentiveness, and had been told the same by Boyce and her 

brother, his failure to make a concomitant assertion of juror misconduct indicates an 

inquiry was not required. (Bradford, supra, 15 Cal.4th at p. 1349.) 

 Bassett faults the court for making only a limited inquiry of Juror No. 3, 

suggesting additional questions that should have been asked and additional people who 

should have been questioned. The trial court’s inquiry tracked the question suggested by 

Bassett’s counsel. When the court asked if there should be a further investigation based 

on the statement from Johnson as to what Juror No. 3 said, counsel expressed concern 

about “tainting her in any fashion.” Having both suggested and agreed to the limited 

inquiry, Bassett cannot now object that it was too limited. (See People v. Rodrigues

(1994) 8 Cal.4th 1060, 1193 [where defendant both suggested and consented to court’s 

responses to jury question, the claim of error forfeited].) 

XIV 

Sentence on Gang Enhancement

 Vigel contends the trial court erred in imposing a sentence of 15 years to life for 

the gang enhancement on count one, the murder charge.11 He contends the proper 

sentence for a section 186.22, subdivision (b) gang enhancement where defendant 

 

11 For the first time at oral argument, Vigel contended the section 186.22, subdivision (b) 

gang enhancement did not apply to a life term without the possibility of parole, relying on 

People v. Lopez (2005) 34 Cal.4th 1002. This argument is procedurally barred because 

points first raised at oral argument are untimely and need not be considered. (California 

Redevelopment Assn. v. Matosantos (2013) 212 Cal.App.4th 1457, 1500.) In Lopez, our 

Supreme Court noted “the predecessor to section 186.22(b)(5) was understood to apply to 

all lifers, except those sentenced to life without the possibility of parole.” (Lopez, at 

p. 1010.) We recognize, of course, that the gang enhancement has no practical effect on a 

defendant sentenced to life without the possibility of parole. 
52 

received a life sentence is a minimum parole eligibility of 15 years. The People respond 

this minimum parole eligibility term is properly expressed as an additional sentence of 15 

years to life, relying on People v. Villegas (2001) 92 Cal.App.4th 1217 (Villegas). 

 Section 186.22, subdivision (b) provides in relevant part: “[A]ny person who 

violates this subdivision in the commission of a felony punishable by imprisonment in the 

state prison for life shall not be paroled until a minimum of 15 calendar years have been 

served.” Vigel was sentenced to a life sentence without the possibility of parole, so this 

provision for minimum parole eligibility has no practical effect on him. It is subsumed 

by the sentence of life without the possibility of parole. As our Supreme Court has noted, 

“newer and more powerful sentencing laws, such as section 190, have sapped the strength 

of section 186.22(b)(5).” (People v. Montes (2003) 31 Cal.4th 350, 361, fn. 14.) 

 Unsurprisingly, the abstract of judgment form has no provision for showing a 

minimum parole eligibility date where the sentence does not provide for parole. In 

sentencing Vigel on the gang enhancement attached to count one, the murder charge, the 

trial court relied on Villegas, supra, 92 Cal.App.4th 1217. In Villegas, the trial court 

imposed a 15-year-to-life sentence for the gang enhancement allegation under section 

186.22, subdivision (b) where defendant received a life sentence for attempted 

premeditated and deliberate murder. The appellate court found no error, finding the 

sentence correctly set a minimum parole eligibility of 15 years. (Villegas, at pp. 1228-

1229.) 

 Without directly addressing Villegas, Vigel contends this approach is incorrect and 

the 15-year-to-life sentence must be stricken. Vigel offers no reason--persuasive or 

otherwise--why the trial court erred in following Villegas. He does not explain how a 

statement of 15-year minimum parole eligibility functions differently from a 15-year-tolife term so as to make the sentence unauthorized. Nor does he explain how changing the 

abstract as he seeks will benefit him. Accordingly, Vigel has failed to show error. 
53 

 Vigel contends the abstract must be corrected to show the proper sentence on 

counts 2, 3, and 4, the attempted murder charges. For these counts, the abstract does 

provide a method for showing a minimum parole eligibility term. Vigel contends that the 

minimum parole eligibility of 15 years should be shown by checking box 6.a. (life with 

the possibility of parole on counts 2, 3, & 4, with a minimum parole eligibility of 15 

years to life) rather than showing a 15-year to life enhancement on these counts under 

box 2 (enhancements). He further contends that box 7 (additional determinate term--see 

CR-290.1) should not be checked because no form CR-290.1 was prepared. The People 

agree to these corrections. Because all parties agree, we will direct the changes be made. 

XV 

Jury Determination of Restitution Fine

 Defendants contend they had a right to a jury trial with regard to the restitution 

fines. As to both defendants, the court imposed a $10,000 restitution fine under section 

1202.4, and ordered direct victim restitution in the amount of $28,251.19. Bassett 

contends these restitution fines are punishment and a victim restitution fine “could not 

[be] imposed on judicially determined facts without violating the Sixth Amendment,” 

citing Southern Union Co. v. United States (2012) 567 U.S. ___ [183 L.Ed.2d 318] 

(Southern Union) and Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] 

(Apprendi)). Vigel joins in this argument. 

 In Apprendi, supra, 530 U.S. at page 490 [147 L.Ed.2d at p. 455], the United 

States Supreme Court held, “Other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable doubt.” “[The] ‘statutory 

maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely 

on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 

(Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].) “In other 

words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may 
54 

impose after finding additional facts, but the maximum he may impose without any 

additional findings.” (Id. at pp. 303-304, [159 L.Ed.2d at pp. 413-414].) In Southern 

Union, supra, 567 U.S. at p.___ [183 L.Ed.2d at p. 334], the United States Supreme 

Court held Apprendi applies to the imposition of criminal fines. The statutory fine 

imposed in Southern Union was $50,000 for each day of violation of a federal 

environmental statute and the trial court, not the jury, made a specific finding as to the 

number of days the statute was violated. The United States Supreme Court held the 

district court’s factual finding as to the number of days the defendant committed the 

crime violated Apprendi. (Southern Union, supra, 567 U.S. at p. ___ [183 L.Ed.2d at 

p. 329].) 

 In People v. Kramis (2012) 209 Cal.App.4th 346 (Kramis), the Second District, 

Division Five held that Apprendi and Southern Union do not apply when the trial court 

exercises its discretion within a statutory range, as it does when selecting a restitution 

fine pursuant to section 1202.4, subdivision (b). The court explained that “ ‘Apprendi 

distinguishes a “sentencing factor”—a “circumstance, which may be either aggravating 

or mitigating in character, that supports a specific sentence within the range authorized 

by the jury’s finding that the defendant is guilty of a particular offense”—from a 

“sentence enhancement”—“the functional equivalent of an element of a greater offense 

than the one covered by the jury’s guilty verdict” constituting “an increase beyond the 

maximum authorized statutory sentence.” [Citation.]’ [Citation.]” (Kramis, at p. 351, 

citing People v. Urbano (2005) 128 Cal.App.4th 396, 405-406.) Because the $10,000 

restitution fine was within the statutory range of section 1204.4, subdivision (b), 

“Apprendi and its progeny do not preclude its imposition.” (Kramis, at p. 352.) 

 In People v. Pangan (2013) 213 Cal.App.4th 574, the Fourth District, Division 

Three held that neither Apprendi nor Southern Union applied to direct victim restitution. 

The court reasoned that “direct victim restitution is not a criminal penalty. As explained 

in U.S. v. Behrman (7th Cir. 2000) 235 F.3d 1049, 1054, direct victim restitution is a 
55 

substitute for a civil remedy so that victims of crime do not need to file separate civil 

suits. It is not increased ‘punishment.’ [People v. Millard (2009) 175 Cal.App.4th 7, 35] 

makes the same point in regard to California law. [Citations.] [People v. Chappelone

(2010) 183 Cal.App.4th 1159, 1184] has collected the numerous federal cases also 

holding victim restitution does not constitute increased punishment for crime. [Citation.] 

And we would note the restitution statute itself characterizes victim restitution awards as 

civil. (See [] § 1202.4, subd. (a)(3)(B) [victim restitution ‘shall be enforceable as if the 

order were a civil judgment’].)” (Pangan, at p. 585.) 

 We agree with the reasoning of the courts in Kramis and Pangan. Here, as in 

Kramis, defendants were not entitled to a jury trial on the fines imposed pursuant to 

section 1202.4, subdivision (b) because these fines were within the range prescribed by 

statute. Further, as in Pagan, they were not entitled to a jury trial on the $28,251.19 

award to the state victims’ restitution fund because direct victim restitution is not 

increased punishment. 

XVI 

Parole Revocation Fine

 Bassett and the People agree that the trial court erred by imposing a parole 

revocation fine where there is no parole eligibility. 

 Section 1202.45 provided for a fine equal to the restitution fine under section 

1202.4 “[i]n every case where a person is convicted of a crime and whose sentence 

includes a period of parole.” (§ 1202.45, as amended by Stats. 2007, ch. 302, § 15.) The 

parole revocation fine may not be imposed where defendant is sentenced to life in prison 

without parole. (People v. Battle (2011) 198 Cal.App.4th 50, 63.) Here, it was. We shall 

strike the fine. 

 Although the trial court did not orally impose a parole revocation fine on Vigel, 

his abstract also shows a $10,000 parole revocation fine. We direct that the trial court 

correct his abstract to delete this fine. 
56 

XVII 

Fines and Fees

 Vigel contends there are additional errors in the abstract of judgment relating to 

fines and fees. Bassett does not join in this contention. 

 First, he contends the order for restitution in the amount of $28,251.19, pursuant to 

section 1202.4, subdivision (f), should be shown as joint and several. Vigel failed to 

object to the restitution order and therefore has forfeited the issue on appeal. (People v. 

Tillman (2000) 22 Cal.4th 300, 303.) Further, the decision to make restitution joint and 

several is a discretionary sentencing choice. (See People v. Neely (2009) 

176 Cal.App.4th 787, 800.) Here, the trial court did not order this restitution to be a joint 

and several obligation. 

 Second, the People agree the amount of Vigel’s court security fee ($120) is 

incorrect. Judge Fall imposed a fee of $120 on counts 1, 2, and 5. Judge Sawtelle 

imposed an additional fee of $80 on counts 3 and 4. The abstract should reflect $200 as 

the court security fee. 

 Third, Vigel contends the court facility fee assessment is not shown on the 

abstract, and the People agree. Judge Fall imposed $90 for counts 1, 2, and 5. Judge 

Sawtelle imposed a fee of $60 for counts 3 and 4. The abstract should reflect $150 as the 

court facilities fee. 

XVIII 

Cumulative Error 

 Bassett contends the cumulative effect of the many errors deprived her of a fair 

trial. Having rejected all claims of trial error, we find no cumulative error. (People v. 

Watkins (2012) 55 Cal.4th 999, 1036; People v. McKinzie (2012) 54 Cal.4th 1302, 1369.) 
57 

DISPOSITION

 The parole revocation fine imposed on Bassett is stricken. The trial court is 

directed to correct that portion of Vigel’s abstract of judgment concerning the sentence 

on counts 2, 3, and 4, the parole revocation fine, and other fees in accordance with this 

opinion and to prepare an amended abstract of judgment as to Bassett, and a corrected 

abstract of judgment as to Vigel, and to forward certified copies to the Department of 

Corrections and Rehabilitation. In all other respects, the judgments are affirmed. 

 DUARTE , J. 

We concur: 

 MURRAY , Acting P. J. 

 HOCH , J.