Filed 8/20/21 P. v. Nicholson CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and 

 Respondent,

v.

RANDOLPH NICHOLSON,

Defendant and 

 Appellant.

 B304891

 (Los Angeles County

 Super. Ct. No. BA478503)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Robert C. Vanderet, Judge. Affirmed in part 

and reversed in part with directions.

Daniel Milchiker, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance 

E. Winters, Chief Assistant Attorney General, Susan Sullivan 

Pithey, Assistant Attorney General, Scott A. Taryle, David A. 
2

Voet, and Christopher G. Sanchez, Deputy Attorneys General, for 

Plaintiff and Respondent.

____________________________

A jury convicted Randolph Nicholson of vandalism 

resulting in damage less than $400 (Pen. Code, § 594, subd. 

(b)(2)(A)) and found true a gang allegation under Penal Code 

section 186.22, subdivision (d).1 Nicholson contends that the trial 

court erred by allowing improper opinion testimony of a police 

officer who identified Nicholson as the person in a security 

camera video committing the crime or alternatively that the jury 

was improperly instructed regarding how to consider lay opinion 

testimony. We disagree with Nicholson’s lay opinion testimony 

and instructional error contentions.

Nicholson also contends that the gang expert who testified 

regarding the predicate offenses required to prove the gang 

allegation under section 186.22, subdivision (d) relied on and 

testified based on inadmissible hearsay. Based on the Supreme 

Court’s recent opinion in People v. Valencia (2021) 11 Cal.5th 818 

(Valencia), we agree. We will reverse the jury’s true finding on 

the gang allegation and remand that issue to the trial court.

BACKGROUND

Los Angeles Police Officer Eli Huacuja noticed graffiti on 

the side of a store called Inner City Market during his patrol on 

June 6, 2019 that was not there when he patrolled the area on 

June 1, 2019. Based on what he saw, Huacuja asked the store 

owner for access to footage from the security camera that was 

pointed at the graffitied wall. Based on his review of the footage, 

Huacuja determined that the graffiti was painted on the morning 

1 Further statutory references are to the Penal Code.
3

of June 3, 2019. In the video, Huacuja saw an individual he 

described as “a tall individual. He’s holding up his pants like 

they’re falling. He has distinct hair. In this case he has 

dreadlocks type of hair.” Huacuja also noticed tattoos on the 

individual’s forearms and that the person had, “like a mustache, 

goatee type of mustache.” As the video progresses, the individual 

Huacuja described “runs up to the wall [at the Inner City 

Market] and begins spray painting the white wall.” 

Based on “approximately 20 . . . consensual encounters” 

with Nicholson over three years, during which Huacuja observed 

Nicholson’s face, physical features and tattoos, observed his 

mannerisms—“he always pulls his pants up like his pants are 

kind of sagging. And . . . his gait, the way he walks”—Huacuja 

identified Nicholson was the person in the video “tagging” the 

Inner City Market with graffiti on the morning of June 3, 2019. 

The People filed an information charging Nicholson with 

vandalism under $400 damage (§ 594, subd. (b)(2)(A)) and alleged 

that he had committed the crime “for the benefit of, at the 

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

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

conduct by gang members” (§ 186.22, subd. (d)). 

At the outset of the trial in January 2020, the trial court 

asked the parties whether identity was an issue. The People 

responded that “it’s pretty clear that it’s the defendant on the 

video.” Nicholson’s attorney stated that she was not “going to 

contest that it’s the defendant on the video,” but would not 

stipulate to identity. Based on Nicholson’s attorney’s 

representation, the trial court noted that identity was an issue in 

the case. 
4

Over Nicholson’s objection, the trial court allowed the 

People to ask Officer Huacuja whether he had an opinion about 

the identity of the person he saw in the video tagging the Inner 

City Market wall on the morning of June 3. The trial court also 

allowed testimony regarding how Officer Huacuja had come to 

the conclusion that Nicholson was the person in the video, but 

limited that testimony to consensual encounters only, and 

excluding testimony about any arrests. In making its ruling, the 

trial court stated: “[T]he video isn’t that clear. It’s very difficult 

for these jurors to identify especially a virtually all white jury 

and a Black person to evaluate to make an identification on their 

own. The video is just not that clear . . . .” The trial court 

instructed the People that “you can have [Officer Huacuja] talk 

about how many times he’s had contact with the defendant 

before, how long the contacts were, that sort of stuff. I don’t want 

any reference to criminal activity.” 

Officer Huacuja opined for the jury that Nicholson was the 

person in the video. 

The People called Los Angeles Police Officer Chad Scott to 

testify as their criminal street gang expert witness. To prove

predicate offenses necessary to support gang allegations, Officer 

Scott testified about a September 14, 2016 robbery committed by 

Chaka Thomas Daniels and a March 24, 2019 felony vandalism 

committed by Kyle Williams. Officer Scott’s knowledge of the 

offense underlying the Daniels conviction was that he was 

“partnered with the primary investigating officer” in the Daniels 

matter, that Officer Scott had “reviewed [his partner’s] report [in 

the Daniels matter] and he’s discussed the case with” Officer 

Scott. Officer Scott knew about the Williams matter because he 
5

“had personal contact with [Williams] and . . . assisted in the 

investigation” of the Williams matter. 

The jury found Nicholson guilty of vandalism and found 

true the gang allegation. The trial court suspended imposition of 

sentence and placed Nicholson on probation for three years after 

180 days in county jail.2

Nicholson filed a timely notice of appeal. 

DISCUSSION

A. Lay Opinion Testimony & Instruction

Nicholson contends that the trial court abused its 

discretion by admitting Officer Huacuja’s lay opinion testimony 

that Nicholson was the person in the security camera footage 

shown tagging the Inner City Market on June 3, 2019. Nicholson 

also contends that if admitting the testimony was not an abuse of 

discretion, that the trial court erred when it did not instruct the 

jury—even though Nicholson did not request such an 

instruction—how to view lay opinion testimony. We disagree 

with both of Nicholson’s lay opinion testimony contentions.

Nicholson relies on People v. Mixon (1982) 129 Cal.App.3d 

118 (Mixon), People v. Ingle (1986) 178 Cal.App.3d 505, and 

People v. Leon (2015) 61 Cal.4th 569 (Leon) to support his 

argument that the trial court abused its discretion by admitting

Officer Huacuja’s opinion that Nicholson was the person in the 

security camera video spray painting the side of the Inner City 

Market.

According to our Supreme Court in Leon, “[a] lay witness 

may offer opinion testimony if it is rationally based on the 

2 The trial court noted on the record that it was sentencing 

Nicholson “[i]n accordance with the agreement of the parties.” 
6

witness’s perception and helpful to a clear understanding of the 

witness’s testimony.” (Leon, supra, 61 Cal.4th at p. 601, citing 

Evid. Code, § 800.) Leon reaffirmed that the “ ‘identity of a 

person is a proper subject of nonexpert opinion . . . .’ ” (Leon, at p. 

601.) “Courts of Appeal decision,” the Supreme Court explained, 

“have long upheld admission of testimony identifying defendants 

in surveillance footage or photographs.” (Ibid.)

Decades earlier, the Mixon court explained that the “two 

predicates for the admissibility of lay opinion testimony as to the 

identity of persons depicted in surveillance photographs [are]: (1) 

that the witness testify from personal knowledge of the 

defendant’s appearance at or before the time the photo was 

taken; and (2) that the testimony aid the trier of fact in 

determining the crucial identity issue.” (Mixon, supra, 129 

Cal.App.3d at p. 128.) Mixon explored the second of the two 

elements as akin to “helpfulness” as the issue was discussed in 

federal cases under the parallel Federal Rule of Evidence. (Id. at 

p. 129.) Nicholson does not challenge Officer Huacuja’s personal 

knowledge of Nicholson’s appearance, rather Nicholson’s 

argument focuses on whether his testimony could be helpful to 

the jury.

Nicholson argues that he had not changed his appearance 

and the video was clear. All the jury would be required to do to 

make the identity decision for themselves, Nicholson argues, is 

watch the video and look at Nicholson sitting in the courtroom.

We need not consider whether the jury could have made an 

identity decision for itself without Huacuja’s assistance. Rather 

we need only decide whether the trial court abused its discretion 

when it concluded—expressly—that Huacuja’s opinion testimony

would assist the jury in making that identity decision.
7

Whether the video was clear or not, and whether Nicholson 

had changed his appearance or not (the record is silent as to this 

question), Huacuja testified that he had met and observed 

Nicholson approximately 20 times over the course of three years, 

that he had observed and was familiar with Nicholson’s face, his 

physical features, and his tattoos—things that a jury might be 

able to see in a video and compare to a person sitting in the 

courtroom. Huacuja testified that he was also familiar, however, 

with Nicholson’s mannerisms; that he was familiar with 

Nicholson’s habit of pulling up his pants “like his pants are kind 

of sagging” and Nicholson’s gait—“the way he walks.” Huacuja 

testified that all of Nicholson’s characteristics that he was 

familiar with because of having met and observed Nicholson 

approximately 20 times over three years were the way that he 

quickly identified Nicholson as the person in the security camera 

video footage. That is all information that would be helpful to the 

jury as they attempted to determine for themselves whether they 

believed Nicholson was the person in the video.

The trial court did not abuse its discretion when it 

admitted Officer Huacuja’s opinion testimony identifying 

Nicholson as the person in the security camera video footage.

Neither can we conclude that the trial court erred by failing 

to sua sponte instruct the jury regarding the proper way to 

consider lay opinion testimony. Nicholson acknowledges that he 

did not request an instruction on lay witness opinion testimony. 

Without citing any authority for the proposition that the trial 

court had a sua sponte duty to so instruct the jury, Nicholson’s 

argument asks us to create that duty.

Where there is expert opinion offered during a trial, the 

trial court must instruct regarding how the jury should handle 
8

expert opinions. (See People v. Carter (2010) 182 Cal.App.4th 

522, 532.) That instruction is mandatory—the trial court must 

give it whether the defendant requests it. (Ibid.; § 1127b.) There 

is no parallel requirement for lay opinions. To be sure, the Penal 

Code provision mandating an instruction regarding expert 

opinion expressly disclaims that requirement for other opinion 

testimony: “No further instruction on the subject of opinion 

evidence need be given.” (§ 1127b.)

While it may be the case that a trial court should give an 

instruction regarding lay opinions when the defendant requests it 

and the evidence supports it, there is no such requirement when 

the instruction has not been requested. We will not create that 

obligation here.

B. Gang Expert Testimony

The People’s criminal street gang expert witness, Officer 

Chad Scott, testified about two predicate offenses necessary 

under section 186.22 to support the gang allegation in the 

information. Nicholson and the People agree that Officer Scott 

had personal knowledge regarding the circumstances of one of 

the predicate offenses, a 2019 felony vandalism committed by 

Kyle Williams, but not the other, a 2016 robbery committed by 

Chaka Thomas Daniels.

On July 1, 2021, the Supreme Court issued its opinion in 

Valencia, supra, 11 Cal.5th 818. In that opinion, the Supreme 

Court held “that the commission of . . . predicate offenses [under 

section 186.22] must be proven by independently admissible 

evidence. Under the authority of People v. Sanchez (2016) 63 

Cal.4th 665 . . . , such proof may not be established solely by the 

testimony of an expert who has no personal knowledge of facts 
9

otherwise necessary to satisfy the prosecution’s burden.” (Id. at 

p. ___.)

Because Valencia was decided after the parties’ principal 

briefs had been filed, we requested supplemental briefing 

regarding the effect of Valencia on this appeal. The People 

acknowledged Officer Scott’s testimony regarding the Daniels 

predicate offense that his knowledge was based on having 

reviewed his partner’s police report and discussing the case with 

his partner, who had investigated the crime. But the People 

argued that “Officer Scott’s testimony regarding the predicate 

offense by Daniels was independently proven by admissible 

evidence (the certified court records), and he had personal 

knowledge regarding Daniels’[s] gang membership.”

Officer Scott’s testimony regarding how he gained an 

understanding of Daniels’s gang membership places Scott’s 

testimony about the Daniels predicate offense squarely within 

the range of evidence Valencia prohibits. In Valencia, the gang 

expert witness’s testimony about predicate offenses “came from 

conversations with other officers and a review of police reports.” 

(Valencia, supra, 11 Cal.5th at p. ___.) That type of information, 

Valencia explained, amounts to “unsubstantiated assertions of 

fact” that an expert is trying to “place before the jury.” (Id. at p. 

____.) “Experts with no personal knowledge of case-specific facts, 

or who do not rely on other admissible evidence establishing 

those facts, are simply ‘regurgitat[ing] information from another 

source.’ ” (Id. at p. ___, citing People v. Veamatahau (2020) 9 

Cal.5th 16, 34.) “Without independent admissible evidence of the 

particulars of the predicate offenses, the expert’s hearsay 

testimony cannot be used to supply them. In the absence of any 

additional foundation, the facts of an individual case are not the 
10

kind of general information on which experts can be said to 

agree.” (Valencia, at p. ____.)

The People argue that even if the evidence of the Daniels 

conviction was foreclosed by Valencia, the jury’s conclusion that 

Nicholson committed vandalism would suffice as the second 

predicate for purposes of section 186.22. Nicholson counters, 

however, that only felony vandalism suffices as a gang predicate 

offense. (See § 186.22, subd. (e)(20).) Nicholson points out that 

he was charged with misdemeanor vandalism, which will not 

support the gang enhancement.

Nicholson is correct.

Vandalism under $400 is a misdemeanor; vandalism over

$400 is a felony. (See Robert L. v. Superior Court (2003) 30 

Cal.4th 894, 906.) Even misdemeanor vandalism, however, may 

become a felony for sentencing purposes under section 186.22. 

(People v. Arroyas (2002) 96 Cal.App.4th 1439, 1444.) It is 

possible, then, that Nicholson’s conviction—if upheld—could 

eventually serve as a predicate offense for a gang allegation in 

some subsequent case. But because it is a true finding on the

gang allegation that turns what would be a misdemeanor into a 

felony, it cannot support the gang allegation in this case. The 

felony did not exist before the jury found the gang allegation true. 

Consequently, the People had proven only one predicate offense 

under section 186.22.

Consistent with the Supreme Court’s opinion in Valencia, 

we reverse the jury’s true finding on the gang allegation and 

remand to the trial court for retrial of the gang allegation if the 

People elect to retry that issue or for resentencing if the People 

choose not to retry the gang allegation. (Valencia, supra, 11 
11

Cal.5th at p. ___, fn. 7; People v. Ulloa (2009) 175 Cal.App.4th 

405, 413.)

DISPOSITION

The judgment of conviction is affirmed. The jury’s true 

finding on the gang allegation is reversed. On remand, the 

People may retry the gang allegation. If the People elect not to 

retry the gang allegation, the trial court will resentence 

Nicholson consistent with this opinion.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.