Filed 7/22/15 P. v. Anderson CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

GETZ ANDERSON et al.,

Defendants and Appellants.

 B251527

 (Los Angeles County

 Super. Ct. No. BA368517)

APPEALS from judgments of the Superior Court of Los Angeles County. 

Stephen A. Marcus, Judge. Affirmed.

Charolette E. Costan, under appointment by the Court of Appeal, for Defendant 

and Appellant Getz Anderson.

Verna Wefald, under appointment by the Court of Appeal, for Defendant and 

Appellant Allen Cox.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Stephanie A. Miyoshi and Nima 

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

Defendants and appellants Getz Anderson (Anderson) and Allen Cox (Cox) 

(collectively defendants) appeal from judgments entered following their convictions of 

attempted murder and other felony offenses. Each defendant generally joins in each 

other’s arguments, and both defendants challenge the denial of Wheeler/Batson motions.1

Cox separately contends: that the prosecution’s failure to identify the true name of 

attempted murder victim “John Doe” resulted in a potential double jeopardy violation and 

a violation of Penal Code section 954;

2

that the trial court’s failure to instruct the jury that 

it must unanimously agree on the identity of John Doe violated his right to due process;

that the trial court erred in giving a “kill zone” jury instruction; and that jurors engaged in 

misconduct in the first trial by discussing their anxiety about the length of the trial.

Anderson contends: that the trial court erred to his prejudice by instructing the 

jury that it could base liability on the uncharged, nonexistent crime of conspiracy to 

commit attempted murder; that the jury’s finding that the crimes were gang related was 

not supported by substantial evidence; that the trial court erred in denying his motion for 

new trial; and that reversal is required due to asserted cumulative errors.

Finding no merit to defendants’ contentions, we affirm the judgments.

BACKGROUND

Procedural history

The original six-count information charged defendants and codefendant Trevon 

Jermaine Brown (Brown) in count 1 with the willful, deliberate, and premeditated 

attempted murder of Steve Farias (Farias), in violation of sections 664 and 187, 

subdivision (a), and in count 6, with the willful, deliberate, and premeditated attempted 

murder of “John Doe,” a rival gang member. Defendants were also charged in count 5 

with shooting at an inhabited dwelling in violation of section 246. Cox alone was 

charged in count 2 with violation of Vehicle Code section 10851, subdivision (a), and in 

 

1 See People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky

(1986) 476 U.S. 79 (Batson).

2 All further statutory references are to the Penal Code, unless otherwise indicated.
3

count 3, with possession of a firearm by a felon in violation of section 12021, subdivision 

(a)(1). Anderson was charged in count 4 with possession of an assault weapon in 

violation of section 12280, subdivision (b).

The information also specially alleged as to counts 1 and 5, that Anderson 

personally inflicted great bodily injury on Farias. As to all counts, it was alleged

pursuant to section 186.22, subdivision (b), that the offenses were committed for the 

benefit of, at the direction of, or in association with a criminal street gang, with the 

specific intent to promote, further and assist in criminal conduct by gang members. It 

was further alleged that Anderson and a principal personally used a firearm within the 

meaning of section 12022.53, subdivisions (b) and (e), and that Anderson and a principal 

personally and intentionally discharged a firearm within the meaning of section 

12022.53, subdivisions (c) and (e)(1), causing great bodily injury to Farias, within the 

meaning of section 12022.53, subdivision (d).

At defendants’ first jury trial in 2011, the jury found Cox guilty of possession of a 

firearm by a felon (count 3), and found Anderson guilty of possession of an assault 

weapon (count 4). The jury found true the gang allegation attached to both counts. 

However, the jury was unable to reach verdicts as to the remaining counts and the trial 

court declared a mistrial. The court granted the prosecution’s motion to dismiss count 2, 

and ordered a retrial on counts 1, 5, and 6.

3

The second jury trial commenced in July 2013 and resulted in guilty verdicts

against defendants on the remaining three counts. As to Cox, the jury found true all the 

special allegations. As to Anderson, the jury found true the premeditation and gang 

allegations, as well as the firearm allegations regarding a principal, and the allegation that 

 

3 Brown did not participate in the second trial and is not a party to this appeal. The 

information was amended to renumber the counts. Count 1 (attempted murder) remained 

the same; shooting at an inhabited dwelling, originally count 5, became count 2; and the 

second attempted murder count (originally count 6) became count 3, resulting in two 

count 3’s. Although the court used the amended count numbers in its oral 

pronouncement of sentence, the clerk kept the original count numbers for the abstracts of 

judgment.
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he personally used a firearm. The jury rejected the allegations that Anderson personally 

and intentionally discharged a firearm causing great bodily injury.

Both defendants were sentenced on September 5, 2013. Anderson was sentenced 

to two consecutive life terms in prison for the attempted murders, both with consecutive 

firearm enhancements of 25 years to life. Remaining firearm enhancements were stayed 

pursuant to section 12022.53, subdivision (f). The trial court imposed a term of 15 years 

to life plus a 10-year firearm enhancement as to the original count 5 (violation of section 

246), and stayed the term under section 654. As to count 4, the court imposed the high 

term of three years with a four-year gang enhancement, to run currently with the terms 

imposed for the attempted murders. The court imposed mandatory fines and fees, 

ordered print impressions and DNA samples, terminated probation in another case, and 

granted presentence custody credit.

Cox also received two consecutive life terms for the attempted murders, plus a 

consecutive firearm enhancement of 25 years to life, with the remaining firearm 

enhancements stayed. As to the original count 5, the court imposed a term of 15 years to 

life and stayed the term under section 654. As to the original count 3, felon in possession 

of a firearm, the court imposed the high term of three years plus a gang enhancement of 

four years, to run concurrently with the terms imposed for the attempted murder counts. 

The court imposed mandatory fines and fees, ordered print impressions and DNA 

samples, and awarded Cox presentence custody credit. Probation was terminated in 

Cox’s two other cases.

Both defendants filed timely notices of appeal.

Prosecution evidence

The shooting and investigation

Around midnight on February 26, 2010, Farias was visiting at a friend’s home

near the intersection of 43rd Place and San Pedro Street. Farias testified that he was with 

Jerome Stevens (Stevens) on his porch with their friends Tradeon, “Tito,” and “Chato,”

when a blue Chrysler slowly passed by. About 10 to 20 minutes later, two AfricanAmerican men appeared on foot near the house. One of the two men took a firearm
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resembling an Uzi from his waist, loaded the gun with an ammunition clip, took two

steps toward Farias and his friends who were within two or three feet of him, and fired 

the gun in their direction. As Farias ran to the back of the house he was struck in the leg 

by a bullet.

Farias told the police that the driver’s side windows of the Chrysler were down 

when it passed the house and he was able to identify Cox as the driver and Anderson as 

the shooter from photographic line-up. Farias also told officers that one of the men

yelled out something like, “Fuck these fools,” just before the shooting began. Farias was 

a reluctant witness, claimed not to remember many details, and denied that he heard

anyone shout gang names. Farias also denied that he or any of his four friends belonged 

to a gang.

Stevens’s stepfather, Kenneth Murphy (Murphy), testified that he was in his living 

room while Stevens was outside with his friends, when he heard five or six gunshots. 

When he saw Farias come in through the back door with a leg wound, he called 911. 

When Murphy later inspected his house, he found two new bullet holes. One hole was 

over the trash area and the other was in the wall outside a bedroom. Los Angeles Police 

Officer Kevin Raines inspected the area after the shooting and observed seven bullet 

strikes in and around Stevens’s house.

Officer Juan Arenas was on patrol with his partner, Officer Gerard Reygosa in the 

neighborhood of the shooting, when just after midnight he heard approximately five or 

six gunshots in rapid succession. As the officers sped toward the sound, they saw a blue 

Chrysler with no license plate. They also received a radio call regarding a shooting in the 

area. The officers pursued the blue Chrysler, which accelerated when the patrol car’s 

lights and siren were activated. Soon the Chrysler slowed down and men got out and 

fled. The front seat occupant wore a black sweatshirt, and the other man, later identified 

as Brown, wore a checkered shirt. As Officer Arenas gave chase he heard something 

metallic fall on a hard surface near the fleeing suspect in the black sweatshirt, whom he 

later identified as Anderson. The Chrysler had collided with a pole and come to a stop. 

It had only paper dealer license plates.
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Officer Arenas caught up with Brown, took him into custody, and returned to the 

area and found a high capacity firearm magazine containing five nine-millimeter rounds. 

The police set up a perimeter and Officer Reygosa recovered a handgun within the 

boundary. Officers also found a baseball cap and a black sweatshirt that had been 

discarded behind a residence on 48th Street.

Officer Raygosa testified that he saw four men get out of the Chrysler and flee. A

handgun fell from the driver’s midsection onto the street and Officer Raygosa later

recovered a Glock 26 semiautomatic handgun with an empty magazine in the same area. 

As he ran, the driver was wearing the same black sweatshirt that Officer Arenas 

recovered later in a nearby backyard. Officer Raygosa identified Brown as the suspect 

who exited the Chrysler from passenger side. After Brown was detained police found no 

weapons, but recovered a USB flash drive from his person.

A neighborhood resident reported seeing a man hide under a car and then run 

away as he discarded the dark-colored sweatshirt he wore over a white T-shirt. Officers 

maintaining the perimeter that night searched the area for clothing and checked all 

vehicles leaving the perimeter. A second black sweatshirt was found near a trash can in 

the area. Cox was found hiding in the trunk of a car leaving the area, and Anderson was 

found in the back seat of another car. Cox was wearing a white shirt when he was taken 

into custody.

Forensic analysis revealed that Cox was a possible contributor to the DNA mixture 

recovered from the Glock handgun, one black sweatshirt, and the baseball cap found 

within the perimeter. Anderson was a possible contributor to the DNA recovered from 

the other black sweatshirt. Several fingerprints found outside the front passenger window

of the Chrysler were determined to belong to Cox. A firearms expert test fired the Glock 

handgun and concluded that it had fired the four nine-millimeter casings found at the 

scene of the shooting. The expert also examined the recovered assault pistol, and 

testified that it was an Interdynamic semiautomatic assault pistol, which resembles an Uzi

and a MAC 11 assault weapon. The gun was operational but had jammed with a bullet in 
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the chamber, possibly due to the use of a large capacity magazine which was not 

designed for that firearm.

Detective Eric Rose testified that after Anderson and Cox were arrested he 

arranged to have them placed in the same holding cell where officers monitored and 

recorded their conversations and telephone calls. Excerpts of the recordings were played 

for the jury. Cox told Anderson in one conversation that that police had the “burner” 

(slang for gun) and in another conversation Anderson said that they had the “Glock.”

In a telephone conversation Anderson asked “Bay-Bo” to pick up his “macaroni 

jeans” that was in a shopping cart behind “Lil Rag’s” house. Detective Rose testified that 

“macaroni” referred to a “MAC 11” type assault weapon, and that Lil’ Rag was Richard 

Beckner (Beckner), a person who had admitted several times to the detective that he was 

a member of the 5-3 Avalon Gangster Crip gang.4 The detective also believed that 

Anderson and Cox were members of the same gang. Thus, when Detective Rose heard 

mention of the shopping cart in the jailhouse recordings, he went to Beckner’s home. 

There he found a shopping cart on the sidewalk. After looking under several black trash 

bags an assault weapon was found. The weapon appeared to be jammed with a ninemillimeter bullet.

In other excerpts from the recordings Anderson expressed the hope that the police 

had not found “that mother fuckin’ jacket” and that his friends would say he was with 

them during the shooting, because “we need, an alibi, bad.” Cox described how he saw 

Anderson attempt to “shoot that motherfucker.” Cox also spoke about trying to drive 

away, seeing the police, and then running and hiding.

Defendants’ gang membership

While conducting pedestrian stops during a narcotics and gang suppression 

assignment on February 4, 2010, Officer John Carlyle spoke to Brown in the South Park 

 

4 Throughout the trial, various witnesses referred to the same gang as the Five Tres 

Avalon Gangster Crip gang, the Five Trey Avalon Gangster Crip gang, the Avalon 

Gangster Crip gang, and more simply the Avalon gang. In referring to the full name of 

the gang, we use the most commonly used spelling in the record, which was Five Tres 

Avalon Gangster Crip gang.
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neighborhood of Los Angeles. Officer Carlyle testified that Brown acknowledged being 

a member of the Five Tres Avalon Gangster Crip gang for two years.

Officer Joseph Fransen, testified that in 2009 and 2010, he was a gang officer

assigned to monitor gang activity in the South Park neighborhood, which was the 

territory of the Five Tres Avalon Gangster Crip gang. In the course of his work he

contacted approximately 50 members of the gang and developed a rapport with many of 

them. During Officer Fransen’s several encounters with Cox, the latter admitted his 

membership in the Five Tres Avalon Gangster Crip gang. One such encounter occurred 

in October 2009, when Cox not only admitted being a member of the gang but claimed 

the moniker “Low Key.”5 On one occasion Cox was wearing a baseball cap embroidered

with the “A” logo of the Atlanta Braves, meant to signify Avalon. Officer Fransen also 

observed gang tattoos on Cox, including an “A” with a halo over it, and the numbers five 

and three in roman numerals on the back of his arms. At times, Officer Fransen 

encountered Cox in the company of other gang members, including Devaughn Banner 

and Cedrick Thomson, both self-admitted members of the Five Tres Avalon Gangster 

Crips, and Cox’s brother, Anthony Cox (Anthony). Officer Fransen explained that in 

gang culture, publicly associating with other known members of the same gang within 

their gang’s territory was a sign of allegiance to the gang.

Officer Fransen also had contacts with Anderson in the company of other gang 

members in the South Park area during 2009 and 2010. When he encountered Anderson

in South Park in October 2009, Cox was not there, but Banner was, the same member of 

the Five Tres Avalon Gangster Crip gang he had found in Cox’s company. Anderson 

admitted being a member of the Five Tres Avalon Gangster Crip gang, and gave his 

moniker as “Baby Chaotic.” Officer Fransen recalled Anderson wearing a coat with “SP”

for South Park embroidered on it, but did not recall seeing any gang tattoos.

 

5 Officer Fransen explained that a moniker was a nickname used within a gang 

member’s gang. In gang culture a moniker signified allegiance to the gang and 

acceptance by fellow gang members. As far as he was aware, people who were not 

members of the gang were not allowed to have gang monikers.
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Gang expert

Officer Jesse Drenckhahn testified as the prosecution’s gang expert. Officer 

Drenckhahn had gained knowledge of the Five Tres Avalon Gangster Crip gang while 

assigned to patrol in 2007, and while assigned to the Newton Division Gang Enforcement 

Unit from October 2008 through October 2010. During that period he had significant 

contact with the gang. His responsibilities included gathering intelligence, identifying 

and documenting gang members, staying current on trends and tattoos, documenting 

graffiti, and photographing members. In February 2010, there were an estimated 100 

members of the gang, and Officer Drenckhahn had personally contacted about 60 of 

them.

Many criminal street gangs operated in the Newton Division. The Five Tres 

Avalon Gangster Crip gang feuded with Blood gangs and several of the other Crip gangs 

in the area. The shooting in this case occurred within the territory claimed by the Four 

Deuce Four Tres 48 Gangster Crips, the primary rivals of the Five Tres Avalon Gangster 

Crip gang. The crime scene was adjacent to the Gilbert Lindsey Park, where the Four 

Duce Four Tres 48 Gangster Crip gang members were known to congregate. In Officer 

Drenckhahn’s experience, it would demonstrate disrespect for a gang member to venture 

into the territory of a rival gang, and even innocent entries into the area could result in a 

dangerous confrontation.

Officer Drenckhahn explained that the notion of respect was very important to 

gangs and had a special meaning in gang culture, where respect was equated with fear 

and intimidation earned through criminal activity. To be disrespected made a gang 

appear weak, which would damage the reputation of the gang and its members. Thus, to 

earn respect, gangs engaged in aggressive, violent, and intimidating activities that spread 

fear in the community; the more heinous the crime, the greater the respect earned for the 

gang and the member who committed it. The resulting benefit to the gang was the 

reluctance of residents to cooperate with police investigations, testify, or identify gang 

members due to fear of retaliation, thus allowing gang members to engage in narcotic 

sales and commit robberies and other crimes openly. An individual gang member 
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generally gained the respect of his gang by committing violent crimes, such as shooting 

and assaulting rival gang members, thereby demonstrating allegiance to the gang and 

fellow gang members.

The primary activities of the Five Tres Avalon Gangster Crip gang were assault, 

robbery, narcotic sales, and illegal firearm possession. Officer Drenckhahn presented 

certified records of the convictions of Devaughn Banner, for assault with a deadly 

weapon in December 2009, and Jerry Green, found to be a felon in possession of a 

firearm in January 2010. Both Banner and Green were admitted members of the Five 

Tres Avalon Gangster Crip gang.

Officer Drenckhahn described the Five Tres Avalon Gangster Crip gang’s 

common signs or symbols which were frequently found in graffiti and tattoos, including 

the number 53, the abbreviation “AGC” for Avalon Gangster Crip, “East Side” for East 

Side Crips, and South Park. More subtle tattoos included dice displaying a five and a 

three and a street sign for 53rd Street. Five Tres Avalon Gangster Crip gang members 

often wore clothing identifying them as members of the gang, such as baseball caps with 

the logos of the Los Angeles Angels of Anaheim or Oakland A’s. Community residents 

learned to recognize members of the gang by the areas where they congregated, their 

clothing, their use of the number 53, the “A” hats, and the color blue.

Officer Drenckhahn opined that Brown, Anderson, and Cox were members of the 

Five Tres Avalon Gangster Crip gang, and he explained the factual basis for his opinions. 

Officer Drenckhahn described his contact with Brown in February 2010 in South Park, 

the “epicenter” of the gang’s territory, when Brown admitted to Officer Drenckhahn that 

he was a member of the gang and said his moniker was “Baby Tres.” Brown was 

wearing a blue belt with a chrome belt buckle bearing the letter A, and one of his 

companions wore a baseball cap with an A on it. He was in the company of John 

Edwards, Lou Dixon, James Thomas, and Cox’s brother Anthony, all members of the 

Five Tres Avalon Gangster Crip gang. In addition, Officer Drenckhahn reviewed the 

flash drive found on Brown. The drive contained items with gang significance: the 

Angel’s “A” logo; the Oakland A’s logo; an image from the South Park television show; 
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and photographs of Anthony and others making hand signs used by the Five Tres Avalon 

Gangster Crip gang. It also contained a party flyer with the word “kiccbacc,” which 

demonstrated the Crip gang’s avoidance of placing a C and K side by side, because that 

could mean Crip Killer.

Officer Drenckhahn based his opinion that Anderson was a member of the gang on 

past law enforcement contacts with him, his observation of Anderson’s tattoos and 

clothing, and Officer Fransen’s testimony. Officer Drenckhahn testified that he had 

known Anderson since late 2007 or early 2008, and had seen or talked to him personally 

at least 20 times in Five Tres Avalon Gangster Crip territory. On May 3, 2009, Officer 

Drenckhahn observed Anderson at the gang’s 2009 annual “Hood Day” gathering at 

South Park, where participants typically wore their gang colors. Anderson was wearing a 

jersey with his moniker “Baby Chaotic” on it. Another encounter with Anderson was in 

April 2009 while Anderson was in the company of other members of the Five Tres 

Avalon Gangster Crip gang. In June 2009, another officer documented his contact with 

Anderson in South Park with other members of the gang, including the same Jerry Green 

whose record of conviction was admitted to show that gang engaged in a pattern of 

criminal conduct. Officer Drenckhahn identified photographs of Anderson’s tattoos of a 

5 and 3, and “South Park” and he explained their gang significance.

Officer Drenckhahn testified that he had come into contact with Cox about 20 

times, including the day of the 2009 Hood Day celebration, where Cox was in the 

company of Green, Banner, and other gang members. Officer Drenckhahn identified a 

photograph from that day in which most of the people depicted were wearing blue. Cox 

and others were shown displaying a gang sign in the photograph, and Banner was 

wearing a shirt with the moniker “Baby Shady.” Prior to that, in October 2008, Cox 

admitted to Officer Drenckhahn that he was a member of the Five Tres Avalon Gangster 

Crip gang and said his moniker was “Little Blue.” At that time Cox was with Banner and 

other gang members who Officer Drenckhahn saw with Anderson in April 2009. In 

February 2008, Officer Drenckhahn encountered Cox in the company of Green in South 

Park. Cox was wearing a blue shirt, blue pants, and blue shoes. He admitted his 
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membership in the Five Tres Avalon Gangster Crip gang and that his moniker was Low 

Key. Officer Drenckhahn identified photographs of Cox’s gang related tattoos, including 

“A5AL3N” which represented the word Avalon, but with the numbers 5 and 3 replacing 

two of the letters, a Roman numeral V on right forearm and a III on the left forearm. Cox 

and his brother Anthony both had the letters “FTAG” tattooed on them, which stood for 

Five Trey Avalon Gangster.

Officer Drenckhahn explained that in gang culture a “mission” meant committing 

crimes on behalf of the gang, usually with other gang members. Gang members would 

typically anticipate a confrontation during missions into rival territory, and thus would 

bring along fellow gang members for support, and confidence, and to verify the mission. 

Gang members on a mission in rival territory typically either targeted known rivals or 

went to areas where rivals were known to congregate, and then shot indiscriminately at 

anyone fitting the description of a rival gang member. Boasting about missions 

enhanced the member’s reputation and standing within the gang. Each member would 

have his own responsibility on a mission, such as driving the getaway car, doing the 

shooting, or being the lookout, and each member should know his role. Each participant 

would be expected to back up the others and to protect them to the best of his ability. 

Further, if caught, gang members would be expected to obstruct the police investigation

in order to avoid getting the reputation as a “snitch.” Officer Drenckhahn explained that 

snitches would be subject to discipline within the gang for cooperating with law 

enforcement which could include being shot or killed.

The prosecutor posed a hypothetical question in which three, possibly four 

members of the Five Tres Avalon Gangster Crip gang traveled into the territory of the 

Four Tres Avalon Gangster Crip gang, one in possession of an assault weapon, and the 

other with a nine-millimeter weapon; they drove slowly by a house at 43rd and San Pedro

Streets, and 20 minutes later, walk up to the house, say something derogatory to young 

men in front, such as, “Fuck these fools,” when the person with the assault weapon points 

it at one of the young men and fires multiple shots, before getting back into the car with 

the other members of Five Tres Avalon Gangster Crip gang and speeding away. Officer 
13

Drenckhahn was of the opinion that the hypothetical crime was gang related, as the 

perpetrators went to an area where rival gang members were known to congregate, 

showed disrespect, shot at them, and then fled. It was a classic drive-by or walk-up 

mission type shooting.

Officer Drenckhahn was also of the opinion that such a shooting was committed 

for the benefit of a criminal street gang, because it would enhance the gang’s reputation 

and earn respect for both the perpetrators and the gang in the community, by showing that 

the gang was willing to commit egregious acts of violence. The gang would benefit by 

the fear created in the community as word of it spread, leading to reluctance to cooperate

with the police and an unwillingness to identify gang members involved in the crime. 

Officer Drenckhahn’s opinion would not change if the gang members did not call out the 

name of the gang, as gang members may or may not announce the name of their gang 

while committing a shooting. He had experience with gang crimes committed both ways.

Defense evidence

Shandrea Melton (Melton) testified that in February 2010 she lived with 

Anderson, and on February 25, Anderson was home all day, and did not go out until

about midnight when he walked across the street to a party. The police came the next 

morning and removed things from her apartment, including Anderson’s black sweater. 

Melton did not tell the police or defense counsel prior to trial that Anderson had been 

with her all day or that night. She confirmed that Anderson was a member of the Avalon 

gang.

Defense investigator Gary Cooper testified that in a telephone interview with 

Farias prior to trial, Farias said the blue car was speeding when it passed the front porch, 

and the driver’s side window was less than halfway down. Farias also told him that one 

of the two men he saw had a Tech Nine machine gun, and that at the time of the 

photographic lineup, the police informed him that they had caught the driver and had

recovered some weapons. Cooper went to the porch and determined that a tree blocked 

some of the view of the street and when he drove the route taken by the blue car, it took 

him 73 seconds.
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Brown testified that he pled guilty in September 2011 to the attempted murder of 

Farias, and was in custody at the time of this trial. He testified that late on the evening

before the shooting he was walking to a bus stop after playing basketball at the park, 

when a car stopped and the back seat passenger asked him if he needed a ride. Brown 

recognized the person as someone he had seen playing basketball at South Park, so he got

into the car. Brown claimed that the back seat passenger was wearing a bright red shirt 

and a light silver-gray sweater, and that the driver had a beard that connected with his 

sideburns; however he admitted that during his interview with police after his arrest he 

had variously said that the rear passenger was clean shaven and that he had a mustache 

but no beard.

Brown said that the car stopped in an unfamiliar residential area and the front and 

rear passenger stepped out and walked away from the car. Brown saw something black 

in the hands of the rear passenger, but did not see anything in the other man’s hands. 

About 30 seconds later Brown heard gunshots, ducked down, and did not see what 

happened. The two passengers then came back to the car, and they drove away. When 

the police later came up behind them, the driver continued to drive for a short time before 

stopping. Brown fled because he was shocked and scared and the police officers had 

their guns out. After a few steps an officer told him to stop, he complied, and the police 

grabbed him.

Brown denied knowing Anderson or Cox in February 2010, and denied knowing 

the other people in the car. When defense counsel identified Anderson and Cox in court, 

Brown testified that they had not been among the three people in the car. He claimed to 

have met defendants for the first time in court about a month after his arrest and that he

had seen only one of the car’s occupants before that night. However, when he was 

interviewed by the police after arrest, Brown admitted he had said that he knew “a 

couple” of them, having seen them around. Brown admitted falsely telling the police 

repeatedly that he had not been anywhere near the gunshots, that he was not in the car, 

did not know what happened, and that he was not there.
15

Brown testified that he was not a gang member, that he had never told police that 

he was a gang member, and that he had no gang tattoos. He admitted having met 

Officers Dracon and De la Cruz while he was in South Park with Anthony Cox and Lou 

Dixon in February 2010, but denied knowing Anthony or Dixon to be members of the 

Five Tres Avalon Gangster Crip gang. Brown identified a photograph of himself in 

South Park in which he is shown wearing a blue belt with an A on the buckle. Anthony 

Cox was wearing a similar blue belt and buckle that day and Dixon wore a hat with an A 

on it. When shown a photograph of Anthony’s arms, Brown claimed he could not see all 

his tattoos, despite the fact that Anthony was wearing a short sleeved shirt.

Brown testified he was attending school in February 2010, and the flash drive that 

was seized by the police contained school documents. When he was shown photographic 

images from the flash drive, Brown admitted that he created many of them, including a 

collage with 53, A, and South Park written on a shirt. He admitted that 53 and A stood 

for Five Tres and Avalon. He admitted taking the photograph of papers containing such 

words as East Side 53, Avalon, and 53, and that that the writing was gang graffiti, but he 

explained that it was merely interesting trash he found on the ground. Brown identified 

other photographs on the flash drive, including one depicting Brown, Anthony Cox, and 

others displaying Five Tres Avalon Gangster Crip gang signs. Finally, Brown identified 

the party flyer announcing a “kiccbacc” for February 25, 2010. Although he knew how 

to spell kickback correctly, he denied that replacing the “ck” with “cc” had any 

significance.

Rebuttal

The prosecution presented testimony regarding the search of the neighborhood 

after the shooting and the recovery and booking of the sweatshirts.
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DISCUSSION

I. Blanket joinders

Citing California Rules of Court, rule 8.200(a)(5),6 each defendant provided a 

“notice of joinder” in their opening briefs. Anderson’s notice stated that he joined in all 

briefs filed by Cox and adopted all of his arguments that might accrue to his benefit, and 

Cox’s notice stated that he joined in all arguments in Anderson’s opening brief.

As respondent points out, the California Supreme Court has recently criticized

blanket joinders in claims raised in a multiple defendant appeal. (People v. Bryant, Smith 

and Wheeler (2014) 60 Cal.4th 335, 364 (Bryant) [“We strongly disapprove of this 

seriously improper tactic”]; see also People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 

11.) The court noted that although joinder is broadly permitted, California Rules of 

Court, rule 8.200(a)(5) is not satisfied by “such cursory and unfocused statements” of 

joinder, and each defendant continues to have the burden of demonstrating error and 

prejudice. (Bryant, supra, at pp. 363-364.) Further, neither the reviewing court nor 

respondent “is required to divine which aspects of a claim might be adverse to a 

particular defendant, rendering him unwilling to join the particular claim at issue. 

Appellate counsel for the party purporting to join some or all of the claims raised by 

another are obligated to thoughtfully assess whether such joinder is proper as to the 

specific claims and, if necessary, to provide particularized argument in support of his or 

her client’s ability to seek relief on that ground.” (Id. at p. 363.) Finally, the court 

warned that it would not “assume that each defendant has standing to raise each and 

every claim raised in the briefs or that he preserved a claim for appeal by taking 

appropriate and timely action below.” (Id. at p. 364.)

In reply to respondent’s observation, Cox contends that his appellate counsel has 

in fact “‘thoughtfully assess[ed]’” whether such joinder is proper as to the specific 

claims, and has determined that all joined issues pertain equally to both defendants, with 

 

6 California Rules of Court, rule 8.200(a)(5) provides: “Instead of filing a brief, or 

as part of its brief, a party may join in or adopt by reference all or part of a brief in the 

same or a related appeal.”
17

no separate prejudice arguments necessary on Cox’s part. Anderson also contends that 

all joined arguments apply equally to both defendants. In addition, Anderson represents 

that all objections necessary to preserve claims were made by both defendants, and that 

he will make any necessary additional arguments in his reply brief.

We thus consider each defendant’s arguments made solely by joinder only if we 

are satisfied that they were individually preserved and are sufficient to meet such 

individual defendant’s duty to spell out how the claimed error resulted in a miscarriage of 

justice as to him. (See People v. Nero, supra, 181 Cal.App.4th at p. 510, fn. 11.)

II. Juror misconduct in first trial

Cox contends that his conviction of felon in possession of a firearm must be 

reversed due to the misconduct of jurors who complained about the length of the trial and 

discussed those concerns among themselves. He contends that such a discussion was a 

violation of the jurors’ oaths, duties, and the trial court’s many admonitions pursuant to 

section 1122 not to discuss the case. Cox also contends that the trial court should have 

granted his motion for mistrial, made on the same ground. In addition to his general 

joinder, Anderson contends (for the first time in his reply brief) that the trial court erred 

in denying his motion for new trial, made in part on the same ground.

A. Proceedings below

On September 22, 2011, after the prosecution rested one month into the first trial, 

Juror No. 2 asked to speak to the court on behalf of himself and the other jurors, and 

reminded the judge that his original estimate was that the trial would conclude by 

September 23. Juror No. 2 expressed the jurors’ concern that the trial seemed to have no 

end and told the court that there was “a sense of frustration” from what seemed to be a 

“very slow forward progression.”

The court explained that the length of the trial was unusual, acknowledged that he 

and the attorneys seriously underestimated the time it would take, and explained some of 

the reasons that trials took longer than expected. Juror No. 2 told the court: “I take this 

very seriously and take the circumstances that these gentlemen are in very, very 

seriously, and I’m not going to rush a verdict or just agree with other people because 
18

that’s the way things are going.” When Juror No. 2 was questioned a second time, he 

said that he thought the physical evidence presented was “pretty compelling” and that an 

“array of character witnesses” would not be as persuasive as the material witnesses. He 

had not, however, discussed those views with the other jurors, and he assured the court 

that he had not yet formed a judgment in this case, and “absolutely” still had an open 

mind. Juror No. 2 stated that he understood and respected the presumption of innocence 

and the prosecution’s burden to prove defendants guilty beyond a reasonable doubt.

Since several other jurors had submitted notes, the trial court decided to inquire of 

each juror individually to determine whether he or she could render a fair judgment.

Juror No. 3 reported that all but one juror had met together to discuss their frustrations 

about the length of the trial. Juror No. 5 said that the jurors’ discussion about their 

frustrations with the length of the trial was brief. All jurors, except Juror No. 12 and 

Alternate Juror No. 2, assured the court that that they could remain fair despite their 

frustrations about time delays and the length of the trial.

Juror No. 12 told the court that he had not participated in the “little meeting” with 

the other jurors over lunch, but was “extremely concerned” about the duration of the trial 

because of his “significant financial burden.” Asked whether this would affect his 

deliberations, he said he would do his duty as best as he could, but added, “I’m not going 

to sacrifice my life for these individuals that I do not know.” Alternate Juror No. 2 stated 

he had “had enough” and had written a note the day before about the financial hardship 

caused by not being paid at work. He also stated he had already made his decision and 

believed there was enough evidence upon which to do so, but he denied having discussed 

this view with other jurors.

Anderson moved for a mistrial on the ground that the jury had disobeyed the 

court’s order not to discuss any matter related to the case “and yet . . . they’ve gotten 

together and they’ve called a meeting.” Counsel for Anderson argued, “[W]e don’t really 

know anything about how this meeting occurred and who did it, but it was clearly in 

violation of an order that this court has given probably a hundred times.” Cox joined the 
19

motion, and argued that the meeting in which the jurors discussed their frustrations meant 

that they were talking about the evidence.

The court excused Alternate Juror No. 2, and Juror No. 3. The court denied the 

motion for mistrial.

B. Applicable legal principles

A motion for mistrial “should be granted only when a party’s chances of receiving 

a fair trial have been irreparably damaged.” (People v. Ayala (2000) 23 Cal.4th 225, 

283.) We defer to the trial court’s factual findings if they are supported by substantial 

evidence, and we review the court’s denial of the mistrial motion for an abuse of 

discretion. (Id. at pp. 283, 299.) With regard to the trial court’s denial of a new trial 

motion based upon alleged juror misconduct, we independently review the ruling as a 

question of mixed law and fact. (People v. Nesler (1997) 16 Cal.4th 561, 582 & fn. 5; 

see People v. Ault (2004) 33 Cal.4th 1250, 1261.)

“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.) Juror misconduct 

does not render the judgment reversible per se. (In re Carpenter (1995) 9 Cal.4th 634, 

675.) However, serious juror misconduct will usually give rise to a rebuttable 

presumption of prejudice. (Hamilton, supra, at pp. 294-295.)

Serious juror misconduct may occur when jurors discuss among themselves a 

“‘subject connected with the trial’” in violation of their oaths, duties, and admonitions. 

(People v. Pierce (1979) 24 Cal.3d 199, 207.) A subject is not connected to the trial 

unless “the content of the communication was about the matter pending before the jury, 

i.e., the guilt or innocence of the defendant. [Citations.]” (People v. Federico (1981) 127 

Cal.App.3d 20, 38.) Absent a showing of such content, a conversation among jurors is 

not serious misconduct and does not give rise to a presumption of prejudice. (People v. 

Chavez (1991) 231 Cal.App.3d 1471, 1484-1485.)
20

C. No prejudice presumed or shown

Without supporting authority and contrary to the cases cited above, Cox suggests 

that expressing frustration over the length of the trial is a “subject connected with the 

trial.” Cox has not shown that the jurors’ conversations about the duration of the trial 

included any discussion of the evidence or any matter relating to the guilt or innocence of 

the defendants. He merely quotes the supposition of Anderson’s counsel that the jurors 

had discussed “what kind of evidence the defense intended to put on,” as well as his own 

counsel’s surmise that the jurors’ responses to the trial court’s questions meant that 

“they’re talking about the evidence.”

The record does not support counsel’s conjectures. Juror No. 2 thought that the 

physical evidence was compelling and that any character witnesses presented by the 

defense would not be as persuasive as the “material” witnesses, but he did not express 

that thought to any of the other jurors. Similarly, Alternate Juror No. 2 expressed his 

belief to the court that there was enough evidence to permit a decision, but he denied 

having discussed this view with other jurors. None of the other jurors expressed an 

opinion about the evidence, and none reported discussing the evidence or defendants’ 

guilt or innocence. Thus, the unauthorized communications were not about a subject 

connected with the trial, and prejudice is not presumed. (See People v. Chavez, supra, 

231 Cal.App.3d at pp. 1484-1485.)

Neither defendant contends that there was a likelihood of actual juror bias. (See In 

re Carpenter, supra, 9 Cal.4th at p. 653.) As there was no serious misconduct and no 

prejudice, presumed or shown, we find no abuse of discretion in denying the mistrial 

motion, and we independently conclude that the trial court did not err in denying the 

motion for new trial.

III. The John Doe contentions

Cox contends that his conviction for attempted murder (count 6) must be reversed 

because the prosecution failed to reveal the identity of John Doe, the alleged victim in 

that count.
21

There is no rule that the victim must be identified by his or her true name, “a 

person who shoots into a group of people, intending to kill one of the group, but not 

knowing or caring which one, [can] be convicted of attempted murder . . . . The mental 

state required for attempted murder is the intent to kill a human being, not a particular

human being.” (People v. Stone (2009) 46 Cal.4th 131, 134.) “If the defendant is 

accused of attempted murder of someone, although not necessarily a specific person, it 

would be sufficient to allege enough facts to give notice of the incident referred to and 

that the defendant is charged with attempted murder. For example, . . . it would [be]

sufficient to allege that defendant committed attempted murder, in that on or about [a 

specific date], he attempted to murder a member of a group of persons gathered together 

[in a particular location]. Although other ways to charge a case like this no doubt exist, a 

charge like this example would provide adequate notice of the offense of which 

defendant was accused.” (Id. at pp. 141-142.)

Despite this general rule, Cox argues that not knowing the identity of John Doe 

deprived him of due process, potentially placed him in double jeopardy, possibly resulted 

in a nonunanimous verdict, and in effect, violated section 954 by alleging more than one 

act or victim in a single count.7

Respondent contends that Cox has forfeited these contentions by failing to object

to the charging documents in the trial court. Objections to accusatory pleadings on the 

ground of uncertainty must be raised by demurrer, and failure to do so results in forfeiture 

of the issue on appeal. (People v. Jennings (1991) 53 Cal.3d 334, 356-357; § 1004, subd. 

(2); § 1012.) This rule of forfeiture applies to claims that the pleading of insufficient 

particulars resulted in a lack of notice. (See People v. Ramirez (2003) 109 Cal.App.4th 

992, 997.) Further, a double jeopardy claim must be raised at the time the defendant 

enters a plea. (People v. Scott (1997) 15 Cal.4th 1188, 1201.) Finally, the forfeiture rule 

 

7

In relevant part, section 954 provides: “An accusatory pleading may charge two 

or more different offenses connected together in their commission, or different statements 

of the same offense or two or more different offenses of the same class of crimes or 

offenses, under separate counts . . . .” (Italics added.)
22

applies to the allegation of multiple acts in one count, as prohibited by section 954. 

(§ 1004, subd.(2); § 1012; People v. McNeill (1980) 112 Cal.App.3d 330, 334-335 

(McNeill).) Thus, we find that Cox has forfeited his John Doe contentions.

Anderson expressly joins in Cox’s double jeopardy argument, although he 

concedes he did not object on that ground. Anderson contends that we should 

nevertheless reach the double jeopardy issue because the failure to identify John Doe had 

the additional consequence of violating the constitution by potentially placing him in 

double jeopardy. In the only authority Anderson cites for this proposition, the California 

Supreme Court explained that constitutional arguments advanced for the first time on 

appeal are not forfeited when the “‘new arguments do not invoke facts or legal standards 

different from those the trial court itself was asked to apply, but merely assert that the 

trial court’s act or omission, insofar as wrong for the reasons actually presented to that 

court, had the additional legal consequence of violating the Constitution.’” (People v. 

Letner and Tobin (2010) 50 Cal.4th 99, 138, fn. 6, first italics added.) As Anderson has 

failed to demonstrate that he objected to the charging documents or otherwise brought the 

issue to the trial court’s attention, he is arguing, in essence, that a forfeited potential 

double jeopardy violation was an additional consequence of a forfeited due process 

violation. We read nothing in the Supreme Court’s explanation that would permit the 

assertion of a forfeited constitutional violation as an additional consequence of another 

forfeited constitutional violation.

In any event Cox’s argument is that he might be subject to double jeopardy “in 

case additional charges are brought”; and neither he nor Anderson has demonstrated that

a potential double jeopardy violation in some possible future prosecution is a 

consequence suffered as a result of the John Doe allegation. We thus agree with 

respondent that defendants’ double jeopardy claims are purely speculative. (Cf. People v. 

Sloan (2007) 42 Cal.4th 110, 120 [no double jeopardy violation when future conviction 

and sentencing remain speculative]; People v. Sanchez (2001) 24 Cal.4th 983, 993 

[double jeopardy contention not reached, as the court was “not faced with that question in 

the present case”].)
23

Cox attempts to counter the claim of forfeiture by denying he has ever contended

that the accusatory pleading must provide the name of the victim or that the victim must 

be otherwise identified. Cox concedes that “the information on its face is not 

inadequate”; but he then incongruously claims that his true concern is that pursuant to 

section 954, “an information cannot allege more than one victim per count.” Cox argues 

he had no reason to demur to the information, because “[w]hat became unconstitutional 

as the trial unfolded was the prosecution’s argument after the testimony of Steve Farias, 

that the John Doe in count six (renumbered count three) could have been anyone of four 

different people.” (Italics added.)8

It seems then that Cox contends that prosecutorial misconduct gave rise to the trial 

court’s obligation to instruct the jury that it must unanimously agree which of the four 

people defendants intended to kill. Such an argument does not resolve the forfeiture 

issue. “In order to preserve a claim of prosecutorial misconduct for appeal, the defense 

must make a timely objection at trial and request an admonition. [Citations.]” (People v. 

Gutierrez (2002) 28 Cal.4th 1083, 1146.) Cox did not object to the prosecutor’s 

argument or request an admonition.

Cox also suggests that the prosecutor’s argument gave rise to the trial court’s sua 

sponte obligation to craft and give a pinpoint unanimity instruction regarding the four 

individuals. Cox cites the general rule that “when the evidence suggests more than one 

discrete crime, either the prosecution must elect among the crimes or the court must 

require the jury to agree on the same criminal act. [Citations.]” (People v. Russo (2001) 

25 Cal.4th 1124, 1132.) Cox then relies on a comparison with McNeill, where the trial 

court failed to give a unanimity instruction. There, an exception to the forfeiture rule 

 

8 The prosecutor was attempting to explain the “kill zone” theory of concurrent 

intent. Under that theory, a defendant may be convicted of attempted murder if he 

intended to kill a primary victim by killing everyone in that victim’s vicinity. (See 

People v. Stone, supra, 46 Cal.4th at pp. 136-138.) In addition, a defendant who directs 

lethal force at a group of people in close proximity “can be convicted of several 

attempted murders if he intended to kill several people, even if there were no particular 

people he intended to kill. [Citation.]” (People v. McCloud (2012) 211 Cal.App.4th 788, 

798-799.)
24

arose in the absence of an appropriate instruction, when the inclusion of multiple victims 

in one count could have resulted in a verdict rendered by jurors who did not unanimously 

agree on the act constituting the charged offense. (McNeill, supra, 112 Cal.App.3d at pp. 

335-336.) McNeill does not provide an apt comparison. First, unlike here, the 

information in that case was defective, as a single count charged the defendant with 

assault upon four victims, not one John Doe; and second, the McNeill trial court 

instructed the jury that it could convict the defendant of assault if it found “‘that 

defendant committed these acts on only one of the named individuals.’” (Id. at pp. 334-

335.) Here, the information was not defective and the trial court did not instruct the jury 

that it could find that a defendant attempted to murder John Doe if he attempted to 

murder any one of the four companions.

“The unanimity instruction is not required when the acts alleged are so closely 

connected as to form part of one transaction. [Citations.] The ‘continuous conduct’ rule 

applies when the defendant offers essentially the same defense to each of the acts, and 

there is no reasonable basis for the jury to distinguish between them. [Citation.]”

(People v. Stankewitz (1990) 51 Cal.3d 72, 100.) Thus, no unanimity instruction is 

required where the continuous course of conduct consisted of repeatedly firing a weapon 

directly at a group of people with the intent to kill any or all of them. (People v. Ervine

(2009) 47 Cal.4th 745, 788; see People v. Flores (2007) 157 Cal.App.4th 216, 223.) 

Here, in a continuous course of conduct, the shooter fired multiple shots in the direction 

of Farias and his four friends who were within two or three feet of Farias. Cox presented 

the same defense to the two attempted murder charges: that Cox was not there. Cox does 

not claim that he would have presented any different defense with regard to Farias or any 

of his four companions.

We conclude the trial court was not required to give a sua sponte special 

unanimity instruction regarding the four companions; and as Cox has conceded that the 

information was not defective, we need not reach his pleading issues.
25

IV. Wheeler/Batson

Anderson contends that the prosecutor used peremptory challenges in both the first 

and second trials to systematically exclude African-Americans from the jury, and that he 

was deprived of his right to a jury trial as guaranteed by the United States Constitution 

by the trial court’s denial of defendants’ Wheeler/Batson motions to strike the panel. In 

addition to his blanket joinder, Cox contends that he was denied an adequate record to 

permit meaningful appellate review of the motions.

A. Applicable legal principles

1. Three-step inquiry

The use of peremptory challenges to remove prospective jurors solely on the basis 

of a presumed group bias violates both the state and federal Constitutions. (Wheeler, 

supra, 22 Cal.3d at pp. 276-277; Batson, supra, 476 U.S. at p. 89.) In reviewing a 

Wheeler/Batson motion, the trial court engages in a three-step inquiry: first, the objecting 

party must make a prima facie showing of prohibited group bias; second, the burden 

shifts to the party who exercised the peremptory challenge to give a nondiscriminatory 

reason; and in the third step, the trial court evaluates the proffered reasons and determines

whether the objecting party has proven purposeful discrimination. (People v. Silva

(2001) 25 Cal.4th 345, 384; Purkett v. Elem (1995) 514 U.S. 765, 767.) “The ultimate 

burden of persuasion regarding [discriminatory] motivation rests with, and never shifts 

from, the opponent of the strike. [Citation.] The three-step procedure also applies to 

state constitutional claims. [Citations.]” (People v. Lenix (2008) 44 Cal.4th 602, 612-

613 (Lenix).)

2. Standard of review

In both trials, the trial court found that the defense made a prima facie showing as 

to each of the prosecutor’s challenges and required the prosecutor to articulate reasons for

them. The court then found each challenge was justified with a nondiscriminatory 

reason. Defendants’ contentions relate to the third-stage inquiry to determine whether 

defendants proved purposeful discrimination. (See People v. Silva, supra, 25 Cal.4th at 

p. 384; Purkett v. Elem, supra, 514 U.S. at p. 767.)
26

“‘[T]he critical question in determining whether a [defendant] has proved 

purposeful discrimination’ at a third-stage inquiry ‘is the persuasiveness of the 

prosecutor’s justification for his peremptory strike . . .’ [and] whether the trial court finds 

the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, 

among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, 

the explanations are; and by whether the proffered rationale has some basis in accepted 

trial strategy.’ [Citations.] (People v. Riccardi (2012) 54 Cal.4th 758, 787 (Riccardi), 

quoting Miller-El v. Cockrell (2003) 537 U.S. 322, 338-339.) “‘“As with the state of 

mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and 

credibility lies ‘peculiarly within a trial judge’s province.’”’ [Citations.]” (Riccardi, 

supra, at p.787.) “‘We presume that a prosecutor uses peremptory challenges in a 

constitutional manner and give great deference to the trial court’s ability to distinguish 

bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a 

sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its 

conclusions are entitled to deference on appeal. [Citation.]’ [Citation.]” (Lenix, supra,

44 Cal.4th at pp. 613-614, fn. omitted.)

“Accordingly, because the trial court is ‘well positioned’ to ascertain the 

credibility of the prosecutor’s explanations and a reviewing court only has transcripts at 

its disposal, on appeal ‘“the trial court’s decision on the ultimate question of 

discriminatory intent represents a finding of fact of the sort accorded great deference on 

appeal” and will not be overturned unless clearly erroneous.’ [Citations.]” (Riccardi, 

supra, 54 Cal.4th at p.787; Miller-El v. Cockrell, supra, 537 U.S. at p. 339-340.)

B. First trial

1. Challenge and ruling

When the prosecutor struck prospective Juror No. 7117 from the panel, 

Anderson’s counsel objected. There remained three other African-American jurors on 

the panel at that time, and the prosecutor represented that Juror No. 7117 was the first 
27

African-American excused. The trial court found a prima facie showing and heard the 

prosecutor’s reasons for excusing Juror No. 7117.

9

The prosecutor explained her negative feeling about Juror No. 7117 from the 

beginning: when Juror No. 7117 was asked to describe her impressions of the defendants 

as she entered the courtroom for the first time, she stated that she thought the defendants 

were three nice-looking, clean-cut young men. Because one of the defendants was a 

juvenile, the prosecutor expressed concern that his counsel would use that to create 

sympathy for him. She also pointed out that she had previously excused 10 other jurors 

because their comments suggested sympathy toward the defendants given their youth. 

The prosecutor also thought that Juror No. 7117 had “puff[ed] up” her occupation by 

saying she was in aerospace, and later clarified that she was a data processor in the 

aerospace industry. Additionally, the prosecutor noticed that Juror No. 7117 had few

interactions with others in the hallway and had not made friends with the other jurors, as 

well as seeming animated and attentive to defense topics and questions, but not so 

animated during prosecution questions. In sum, the prosecutor explained, her overall 

impression was that Juror No. 7117 was a pro-defense juror.

The trial court found that Juror No. 7117’s comments about the defendants’ youth 

and other things justified the prosecutor’s concern that she would be sympathetic. The 

court then overruled the Wheeler/Batson objection.

2. Comparative analysis and inadequate record

Anderson suggests that it is appropriate to review the trial court’s ruling by 

undertaking a comparative juror analysis of the first trial’s jury selection, although 

neither defendant made such an analysis in the trial court. A “comparative juror analysis 

is but one form of circumstantial evidence that is relevant, but not necessarily dispositive, 

on the issue of intentional discrimination.” (Lenix, supra, 44 Cal.4th at p. 622.) 

 

9

In his opening brief, Anderson states that the prosecutor excused two AfricanAmerican women prior to challenging Juror No. 7117, and defense counsel argued to the 

trial court that two of the prosecutor’s challenges had been African-American, but the 

record does not support this claim.
28

Comparisons to accepted jurors may tend to show purposeful discrimination “[i]f a 

prosecutor’s proffered reason for striking a black panelist applies just as well to an 

otherwise-similar nonblack who is permitted to serve.” (Miller-El v. Dretke (2005) 

545 U.S. 231, 241; see also Lenix, at p. 621.)

Anderson relies on People v. Williams (2013) 56 Cal.4th 630, in which the 

California Supreme Court restated the rule that a “comparative juror analysis must be 

considered for the first time on appeal while reviewing third stage Batson/Wheeler claims 

when a defendant relies on such evidence and the record is adequate to permit the 

comparisons. [Citation.]” (Id. at p. 661, citing Lenix, supra, 44 Cal.4th at p. 607, italics 

added.) Even then, when no comparative analysis was made in the trial court, appellate 

review is necessarily circumscribed. (Lenix, supra, at pp. 622, 624.) “Defendants who 

wait until appeal to argue comparative juror analysis must be mindful that such evidence 

will be considered in view of the deference accorded the trial court’s ultimate finding of 

no discriminatory intent. [Citation.]” (Id. at p. 624; see also Hernandez v. New York

(1991) 500 U.S. 352, 365.)

Although Anderson has demanded a comparative analysis for the first time on 

appeal, he makes no attempt to provide his own comparison between challenged AfricanAmerican jurors and seated non-African-American jurors to demonstrate that the 

prosecutor’s reasons were pretextual. We note that Anderson merely points out that one 

of the prosecutor’s reasons for striking Juror No. 7117, appearing sympathetic toward 

defendants due to their youth, applied equally to 10 other jurors who were not seated. If 

anything, Anderson’s comparison tends to demonstrate the prosecutor’s sincerity, not a 

pretext.

Cox complains that the state of the record makes a comparative analysis 

impossible, and both defendants contend that the inadequacy of the record requires 

reversal. Cox cites the general rule that “‘“[a] defendant in a criminal case is entitled to

an appellate record adequate to permit ‘meaningful appellate review.’”’ [Citation.]”

(People v. Galland (2008) 45 Cal.4th 354, 370.) However, the right to an adequate 

record does not negate the “appellant’s burden to present a record adequate for review 
29

and to affirmatively demonstrate error.” (People v. Whalen (2013) 56 Cal.4th 1, 84.) If 

parts of the record are missing, defendant must attempt if possible, to reconstruct them or 

obtain a settled statement. (See People v. Osband (1996) 13 Cal.4th 622, 661-663.) If 

not possible, reversal is not automatic, as the defendant must demonstrate just the 

inadequate record prejudiced him. (See People v. Heard (2003) 31 Cal.4th 946, 970.)

Cox does not claim that he attempted to obtain juror questionnaires, reviewed the 

court’s minutes, requested information from the courtroom clerk, or attempted to obtain a 

settled statement drawn from the recollections of people present in court during voir dire.

Instead, he suggests that he is relieved of his burden because the court reporter is to 

blame, having failed to properly identify all prospective jurors by badge number. On the 

contrary, his burden is not met by “simply citing an administrative dereliction.” (People 

v. Coley (1997) 52 Cal.App.4th 964, 970.)

Moreover, as soon as defendants made their Wheeler/Batson objections, they were 

required to make a prima facie showing that jurors were challenged solely on the basis of 

their presumed group bias, and upon so doing, it was incumbent upon them to “‘make as 

complete a record of the circumstances as . . . feasible.’” (People v. Williams (1997) 16 

Cal.4th 153, 187; see also Wheeler, supra, 22 Cal.3d at pp. 278-281.) Surely the court 

reporter would have recorded each prospective juror by both badge and seat number if

counsel had requested clarification of their identifications at the time they were 

questioned, excused, or seated. As defendants have shown no attempt to preserve or 

provide an adequate record and make no claim of prejudice, reversal is not required on 

this ground.

3. Genuineness of prosecutor’s reasons

Anderson contends that the prosecutor’s impression that Juror No. 7117 showed 

sympathy toward defendants was incorrect, and that her responses reflected “only 

curiosity.” The trial court was apparently satisfied by the prosecutor’s sincerity as well 

as her descriptions of Juror No. 7117’s demeanor, negative body language when 

questioned by the prosecution, and positive body language when questioned by the 

defense. “It is well settled that ‘[p]eremptory challenges based on counsel’s personal 
30

observations are not improper.’ [Citation.]” (People v. Reynoso (2003) 31 Cal.4th 903, 

917.) Thus, a prosecutor may rely upon even subtle body language, such as a smile or a 

glare, or the prospective juror’s manner of answering questions. (Ibid.) The trial court 

was able to observe Juror No. 7117’s demeanor, and apparently agreed with the 

prosecutor. As we have only the transcript of the proceedings before us, we defer to the 

court’s observations. (See Riccardi, supra, 54 Cal.4th at p. 787; Lenix, supra, 44 Cal.4th

at pp. 626-627.)

Anderson argues that the prosecutor based her challenge of Juror No. 7117 solely

upon her demeanor and occupation as a data processor rather than an aerospace engineer, 

and failed to state any other race-neutral reasons. Anderson exaggerates, as the 

prosecutor did not base her challenge solely on demeanor, nor did she express a bias 

against data processors. Moreover, as respondent observes, Anderson has failed to 

consider the totality of the prosecution’s reasons. The prosecutor explained in detail why 

Juror No. 7117’s words, demeanor, and body language appeared to demonstrate 

sympathy toward the defendants. The prosecutor also described Juror No. 7117’s 

behavior toward other prospective jurors, and explained that the juror did not appear to fit 

in and voiced her concerns that Juror No. 7117’s claim to be retired from “aerospace” 

gave the impression she was exaggerating the importance of her occupation.

We agree with respondent that the cases cited by Anderson are inapposite, as all 

involved vague reasons unsupported by the sort of detailed and specific explanations 

supplied by the prosecutor in this case. (See, e.g., People v. Allen (2004) 115 

Cal.App.4th 542, 551-553 [“incomprehensible” reference to “demeanor” without any 

details]; People v. Turner (1986) 42 Cal.3d 711, 725 [“something in her work” which 

prosecutor could not remember]; McCain v. Prunty (9th Cir. 2000) 217 F.3d 1209, 1223 

[“patently frivolous” explanation that juror had her “elbow on her chair”].)

Anderson cannot meet his third stage Wheeler/Batson burden to show the 

prosecutor excused prospective jurors for discriminatory reasons merely by asserting

“‘that some of the nondiscriminatory reasons offered by the prosecutor are not supported 

by the record.’ [Citations.]” (People v. Mai (2013) 57 Cal.4th 986, 1049-1050.) In any 
31

event, the prosecutor’s impression that Juror No. 7117 was sympathetic toward 

defendants was amply supported by the record. After the court reminded the jurors that 

defense counsel had inquired about the prospective jurors’ first impressions upon 

entering the courtroom, the court asked the jurors to volunteer any impressions or 

thoughts that might interest the attorneys. Juror No. 7117 was the only one to volunteer 

her first impression. She told the court that upon first entering the courtroom, she 

thought, “[W]hat are three nice-looking, clean-cut men doing here? And I’m trying to 

figure out what they did.” And she wondered, “What was the problem[?]”

We conclude that defendants have failed to demonstrate that the trial court’s ruling 

was clearly erroneous, and find reversal of the convictions from the first trial is 

unwarranted. (See Riccardi, supra, 54 Cal.4th at p. 787.)

C. Second trial

Anderson made another Wheeler/Batson objection in the second trial after the 

prosecutor challenged three African-American prospective jurors (Nos. 7215, 9331, and 

0726). The court found the defendant made a prima facie showing and asked the 

prosecutor to justify the challenges.

The prosecutor explained that she excused Juror No. 7215 because the prospective 

juror was a young social worker who worked with the homeless and had worked with 

children in foster care. The prosecutor also challenged Juror No. 7215 because she had 

little life experience and had never heard of the presumption of innocence. These factors 

provide a reasonable basis for a peremptory challenge. (See People v. Watson (2008) 43 

Cal.4th 652, 677; People v. Sims (1993) 5 Cal.4th 405, 430-431.)

As for Juror No. 9331, the prosecutor explained that when responding to an 

inquiry about negative experience with law enforcement, Juror No. 9331 revealed that he 

had been arrested in the past. The prosecutor reasonably construed his response as 

stating that his arrest was a negative experience. The California Supreme Court has

“‘repeatedly upheld peremptory challenges made on the basis of a prospective juror’s 

negative experience with law enforcement.’ [Citations.]” (Lenix, supra, 44 Cal.4th at p. 

628.)
32

Finally, the prosecutor challenged Juror No. 0726 because that prospective juror 

did not want to sit in judgment of another and said she felt she was being forced to do so. 

Juror No. 0726 also said her father had been murdered and she attended the trial every 

day. The prosecutor had the impression that although there was a conviction in the case 

of the father’s murder, Juror No. 0726’s other responses indicated that she had a problem 

with the justice system. “[S]kepticism about the fairness of the criminal justice system is 

a valid ground for excusing jurors. [Citations.]” (People v. Calvin (2008) 159 

Cal.App.4th 1377, 1386.)

The trial court found the reasons to be race-neutral, and expressly agreed with the 

prosecutor’s assessments, particularly with regard to Juror No. 0726, who “was all over 

the place.” Anderson does not contend that the trial court’s ruling was unsupported by 

substantial evidence, although our review considers only whether substantial evidence 

supports the court’s conclusions. (Lenix, supra, 44 Cal.4th at p. 613.)

Moreover, Anderson does not demonstrate substantial evidence of pretext. It is 

not the reviewing court’s obligation to “examine the record in detail and determine 

independently whether the proffered reasons for the excusal were likely sincere.” 

(People v. Mai, supra, 57 Cal.4th at p. 1049, fn. 26.) Anderson simply disagrees with the 

reasons the prosecutor gave, and briefly draws inferences that might support a contrary 

result.10

The burden to demonstrate purposeful discrimination remains with Anderson as 

the objecting party. (Lenix, supra, 44 Cal.4th at pp. 612-613.) That burden is not met by 

simply inviting this court to make a contrary finding, but requires an examination of all

relevant circumstances, which “may often be open to more than one reasonable 

deduction. Thus, care must be taken not to accept one reasonable interpretation to the 

 

10 Anderson notes that the youthful social worker had a job, which suggests maturity, 

and she told the court she could be fair. Juror No. 9331, who had a negative experience 

with law enforcement, also said he could be fair, from which Anderson infers that he “got 

over it.” Finally, Anderson did not agree that Juror No. 0726 had reservations about the 

justice system because she expressed satisfaction with the outcome of the trial of her 

father’s murderer and she had served on two other juries which reached verdicts.
33

exclusion of other reasonable ones.” (Id. at p. 627, see also pp. 626, 628.) Where, as 

here, “the trial court accepted explanations that are facially permissible, inherently 

plausible, and factually supported, and defendant cites no substantial evidence of pretext

. . . , there is no reason on appeal to suspect a dereliction of duty by the trial court, or to 

reverse the presumption that the excusals were exercised legitimately . . . .” (People v. 

Mai, supra, 57 Cal.4th at p. 1049, fn. 26.) We find no error by the trial court.

V. Kill zone instruction

Cox contends that there was insufficient evidence to justify a kill zone jury 

instruction in the second trial. The trial court read CALJIC No. 8.66.1, as follows: “A 

person who primarily intends to kill one person may also concurrently intend to kill other 

persons within a particular zone of risk. This zone of risk is termed the kill zone. The 

intent is concurrent when the nature and scope of the attack while directed at a primary 

victim are such that it is reasonable to infer the perpetrator intended to kill the primary 

victim by killing everyone in that victim’s vicinity. Whether a perpetrator actually 

intended to kill the victim either as a primary target or as someone within the kill zone or 

zone of risk is an issue to be decided by you.”

To be guilty of attempted murder, a defendant must intend to kill the alleged 

victim and commit a direct but ineffectual act toward accomplishing the intended killing. 

(People v. Stone, supra, 46 Cal.4th at p. 136.) “The act of shooting a firearm toward a 

victim at close range in a manner that could have inflicted a mortal wound had the shot 

been on target is sufficient to support an inference of an intent to kill. [Citation.]” 

(People v. Houston (2012) 54 Cal.4th 1186, 1218.) The intent to kill multiple victims 

may be inferred when the defendant uses lethal force calculated to kill everyone within an 

area around the primary target as a means of ensuring the primary target’s death. (People 

v. Bland (2002) 28 Cal.4th 313, 329.) Similarly, a defendant who directs lethal force at a 

group of people in close proximity “can be convicted of several attempted murders if he 

intended to kill several people, even if there were no particular people he intended to kill. 

[Citation.]” (People v. McCloud, supra, 211 Cal.App.4th at pp. 798-799; see also People 

v. Houston, supra, at p. 1218.) The term “kill zone” is merely shorthand for such 
34

concurrent intent, which “is not a legal doctrine requiring special jury instructions, as is 

the doctrine of transferred intent.” (People v. Bland, supra, at p. 331, fn. 6.) Although 

the trial court is not required to give a kill zone instruction, it may do so when it is 

supported by the evidence. (See People v. Stone, supra, at pp. 137-138.)

Cox argues that there was no evidence that the shooter intended to kill everyone in 

front of the house, and he suggests that the shooter might only have intended to kill 

Farias and John Doe, or merely to frighten or harm one or the other. On the contrary, 

substantial evidence established that the shooter used a semiautomatic weapon to fire 

multiple shots at a small group of people a short distance away. Firing a single shot in 

the direction of a group will not ordinarily support multiple counts of attempted murder 

under a kill zone theory. (People v. Perez (2010) 50 Cal.4th 222, 225, 230-231.) And 

firing multiple shots at a very large group of people will not necessarily support an 

inference that the shooter intended to kill more people than the number of bullets fired. 

(See People v. McCloud, supra, 211 Cal.App.4th at pp. 802-807.) However, firing 

multiple shots directly at a small group at close range will give rise to a reasonable 

inference that the shooter intended to kill all in the group. (People v. Garcia (2012) 204 

Cal.App.4th 542, 554.) Such was the case here. A kill zone instruction was thus 

appropriate, and the trial court did not err in reading CALJIC No. 8.66.1.

VI. Conspiracy instruction

Anderson contends that the jury instruction regarding uncharged conspiracy was 

incorrectly modified by the trial court.

“[C]onspiracy is a specific intent crime requiring an intent to agree or conspire, 

and a further intent to commit the target crime.” (People v. Swain (1996) 12 Cal.4th 593, 

602.) “‘[A]n uncharged conspiracy may properly be used to prove criminal liability for 

acts of a coconspirator. [Citations.] “Failure to charge conspiracy as a separate offense 

does not preclude the People from proving that those substantive offenses which are 

charged were committed in furtherance of a criminal conspiracy [citation]; nor, it follows, 

does it preclude the giving of jury instructions based on a conspiracy theory [citations].” 

[Citation.]’ [Citations.]” (People v. Valdez (2012) 55 Cal.4th 82, 150.)
35

The trial court modified CALJIC No. 6.22 to identify the target crime as attempted 

murder and instructed the jury in relevant part as follows: “Before you may use a 

conspiracy theory to convict any of the defendants of attempted murder, you must 

unanimously agree and find beyond a reasonable doubt, that (1) there was a conspiracy to 

commit the crime of attempted murder, and (2) a defendant willfully, intentionally and 

knowingly joined with any other or others in the alleged conspiracy. You must also 

unanimously agree and find beyond a reasonable doubt that an overt act was committed 

by one of the conspirators.”

Anderson correctly asserts that conspiracy to commit attempted murder is a 

nonexistent crime. (See People v. Iniguez (2002) 96 Cal.App.4th 75, 79-81 (Iniguez).) 

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

ineffectual act toward accomplishing the intended killing. . . .’ [Citation.]” (People v. 

Houston, supra, 54 Cal.4th at p. 1217.) “[U]nder a traditional conspiracy approach, one 

cannot conspire to try to commit a crime.” (People v. Johnson (2013) 57 Cal.4th 250, 

264.)

Anderson contends that the judgment must be reversed because the instruction was 

an incorrect statement of law. Respondent contends that Anderson forfeited this issue by 

failing to object to the modified instruction. Anderson does not deny that he failed to 

object to the instruction, but contends that the error affected his substantial rights and 

thus should be reviewed. (See People v. Famalaro (2011) 52 Cal.4th 1, 35; § 1259.) He 

argues that because there was a general verdict and the trial court also instructed with 

regard to the legally correct theory of aiding and abetting, it is impossible to determine 

whether the jury relied on that theory or the incorrect theory of liability in convicting him 

of attempted murder. He concludes that under such circumstances, reversal is required. 

(See People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130 [reversal generally required 

when reviewing court cannot determine whether jury convicted in reliance on improper 

legal theory].)

Anderson relies on a case in which a conspiracy conviction was reversed because 

“[t]he conduct defendant pleaded to, conspiracy to commit attempted murder, is a 
36

conclusive legal falsehood.” (Iniguez, supra, 96 Cal.App.4th at p. 79.) Anderson has 

cited no case in which an attempted murder conviction has been reversed due to an 

instruction that, as an alternative to ordinary aiding and abetting principles, the jury could 

find derivative liability based upon an uncharged conspiracy to commit an attempted 

murder. As the modified instruction given here did not permit the jury to convict 

Anderson of conspiracy, Iniguez does not directly support Anderson’s theory. However, 

as that court aptly pointed out, the crime of attempted murder requires a specific intent to 

actually commit the murder, while an agreement to commit attempted murder would 

contemplate no more than an ineffectual act, and “[n]o one can simultaneously intend to 

do and not to do the same act.” (Iniguez, supra, 96 Cal.App.4th at p. 77.) By suggesting 

such an impossibility here, we conclude that the court’s modification resulted in an 

ambiguous instruction.

We thus agree with respondent that whether the instruction was erroneous must be 

tested under the “reasonable likelihood” test applied to ambiguous instructions: whether 

there is a reasonable likelihood that the jury misunderstood and misapplied the 

instruction. (See People v. Benson (1990) 52 Cal.3d 754, 801, citing Boyde v. California 

(1990) 494 U.S. 370, 378-381.) In applying this test, we determine “the meaning that the 

instructions communicated to the jury. If that meaning was not objectionable, the 

instructions cannot be deemed erroneous. [Citation.]” (People v. Benson, supra, at p.

801.) Further, “we do not view the instruction in artificial isolation but rather in the

context of the overall charge. [Citation.]” (People v. Mayfield (1977) 14 Cal.4th 668, 

777.)

The modified conspiracy instruction, taken in the context of the other instructions, 

made clear to the jury that defendants were not charged with the crime of conspiracy, that 

the conspiracy instructions provided an alternative to the prosecution’s aiding and 

abetting theory, that the prosecution was required to prove that the coconspirator who 

committed the act harbored the specific intent to kill, and that all conspirators entertained 

the same intent when the defendant agreed to the criminal design. The court also 

instructed the jury that the crime of attempted murder was not committed by mere 
37

planning, but by acts actually undertaken by “a person who intends to kill another person 

. . . where those acts clearly indicate a certain unambiguous intent to kill,” and which 

would have been completed but for “some circumstances not intended in the original 

design.” The court instructed the jury, in essence, that the conspirators must be found to 

have intended to kill and have intended for their original design to succeed, but the 

original design failed for an unintended reason.

“It is fundamental that jurors are presumed to be intelligent and capable of 

understanding and applying the court’s instructions. [Citation.]” (People v. Gonzales

(2011) 51 Cal.4th 894, 940.) “Jurors do not sit in solitary isolation booths parsing 

instructions for subtle shades of meaning in the same way that lawyers might. 

Differences among them in interpretation of instructions may be thrashed out in the 

deliberative process, with commonsense understanding of the instructions in the light of

all that has taken place at the trial likely to prevail over technical hairsplitting.” (Boyde v. 

California, supra, 494 U.S. at pp. 380-381.) Thus, as other instructions made clear that 

liability could not be premised upon an agreement to kill the victims while also agreeing 

to fail at their attempt, and there is no indication in the record that the jury believed

otherwise, we presume that the jurors did not engage in the kind of technical hairsplitting 

suggested by Anderson. We conclude that there is no reasonable likelihood that the jury 

misunderstood or misapplied the modified instruction. Thus the instructions cannot be 

deemed erroneous. (People v. Benson, supra, 52 Cal.3d at p. 801.)

Moreover, as the instruction was merely ambiguous, with no reasonable likelihood 

that the jury misunderstood or misapplied the modified instruction, coupled with the 

overwhelming evidence which established that Anderson shared Cox’s intent to kill the 

young men on the porch, the modification was harmless under any standard. (See People 

v. Beltran (2013) 56 Cal.4th 935, 955-956.) Although the bullets recovered from the 

scene had been fired from the Glock handgun linked to Cox, Anderson was armed as well 

with the jammed assault weapon that Farias thought was an Uzi. In addition, Farias 

identified both defendants as the men who approached within a few feet of the porch, 

where he saw Anderson fire his gun after loading it with an ammunition clip. Firing a 
38

semiautomatic weapon from a few feet of a person or persons creates a strong inference 

that the shooting intended to kill whoever was within point-blank range, and the 

fortuitous jamming of the weapon does not weaken that inference. (People v. Lee (1987) 

43 Cal.3d 666, 677-679.)

VII. Sufficiency of gang evidence

Anderson contends that the gang enhancement was unsupported by substantial 

evidence.

The finding of a gang enhancement is reviewed under the same substantial 

evidence standard as any other conviction. (See People v. Albillar (2010) 51 Cal.4th 47, 

59-60 (Albillar).) Thus, “we review the entire record in the light most favorable to the 

judgment to determine whether it contains substantial evidence -- that is, evidence that is 

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

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

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

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

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

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

reweighs evidence nor reevaluates a witness’s credibility.’ [Citation.]” (Ibid.)

A finding under section 186.22, subdivision (b)(1), has two elements: (1) the 

crime was committed for the benefit of any criminal street gang, or in the alternative, at 

the direction of or in association with any criminal street gang; and (2) the crime was 

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

by gang members. (Albillar, supra, 51 Cal.4th at pp. 64-65, 67-68.) The association 

alternative of the first element may be established with substantial evidence of the 

intentional commission of the crime in concert with a known gang member. (People v. 

Morales (2003) 112 Cal.App.4th 1176, 1198; see Albillar, at pp. 61, 67-68.) As to the 

second element, “if substantial evidence establishes that the defendant intended to and 

did commit the charged felony with known members of a gang, the jury may fairly infer 
39

that the defendant had the specific intent to promote, further, or assist criminal conduct 

by those gang members.” (Albillar, at p. 68.)

It is unclear whether Anderson is challenging the evidence supporting the first 

element of the gang enhancement, the second element, or both, as he has not challenged 

the overwhelming evidence that all three defendants were members of the Five Tres 

Avalon Gangster Crip criminal street gang, nor has he challenged the sufficiency of the 

evidence establishing that the three defendants participated in the crime knowing that 

each other participant was a gang member. Thus, under the evidence which Anderson 

has failed to challenge as insubstantial, the jury could reasonably infer both elements of 

the enhancement: that defendants committed the crime in association with a criminal 

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

by gang members.

Moreover, as respondent observes, Anderson has failed to set forth all the 

evidence favorable to the judgment to demonstrate its insufficiency.11 Anderson’s 

argument consists of pointing out flaws in the gang expert’s opinion and the absence of 

certain facts that would better support that opinion, and of suggesting that we reweigh the

evidence and draw inferences less favorable to the jury’s finding. It is Anderson’s 

burden as the appellant to demonstrate that the evidence is insufficient to support the 

judgment, and he does not meet that burden “by citing only his own evidence, or by

arguing about what evidence is not in the record, or by portraying the evidence that is in 

the record in the light most favorable to himself.” (People v. Sanghera (2006) 139 

Cal.App.4th 1567, 1573.)

 

11 In reply, Anderson does not deny the accuracy of respondent’s observation, but 

claims that it is unjustified because if a defendant were prevented from “marshaling his 

own evidence” in this manner, he would be foreclosed from “point[ing] out the 

constitutional deficiencies in the People’s evidence” and could never prevail on a 

substantial evidence challenge on appeal. We have found no authority to disregard the 

standard of review set forth by our high court in Albillar. (See Auto Equity Sales, Inc. v. 

Superior Court (1962) 57 Cal.2d 450, 455.)
40

Nevertheless Anderson attempts to do just that by arguing “[t]he shooting lacked 

all recognized indicia of a gang-related crime” because there was no evidence that the car 

used in the crime was stolen, or of a prior gang challenge, gang signs, shouting out the 

name of the gang, or bragging by the gang afterward. Anderson contends that the gang 

“expert conceded that there is no evidence that a shooting was for the benefit of or in 

association with a gang when two men walk up to a house and fire at three people, when 

there is no evidence that anyone called out a gang name or flashed gang signs[,] there is 

no graffiti . . . and none of the [victims] were gang members.” Anderson exaggerates the 

expert’s so-called “concession.” Defense counsel’s hypothetical facts did not include all 

the relevant facts in evidence as the prosecutor’s hypothetical facts did, such as the 

shooters’ membership in the same gang, the location of the crime in rival gang territory, 

the fact that the victims were a group of young men, the classic gang-style walk-up 

shooting after a disrespectful shout, and untraceable paper plates on the getaway car.

After disregarding such facts underlying the expert’s opinion, Anderson concludes 

that the gang expert’s testimony was insufficient to support the finding, because it “was 

opinion, not evidence.” In fact, a gang expert’s opinion based upon the facts in evidence

is evidence: “It is well settled that expert testimony about gang culture and habits is the 

type of evidence a jury may rely on to reach a verdict on a gang-related offense or a 

finding on a gang allegation. [Citation.]” (People v. Ferraez (2003) 112 Cal.App.4th 

925, 930; see also People v. Gardeley (1996) 14 Cal.4th 605, 618.) And expert opinion

may be sufficient to prove that a crime was gang related and committed with the intent to 

benefit a gang. (People v. Vang (2011) 52 Cal.4th 1038, 1048-1049; Albillar, supra, 51 

Cal.4th at p. 63.)

Here, the gang finding was amply supported by the expert opinions of Officers

Drenckhahn and Fransen, as well as the officers’ personal experiences with Cox, 

Anderson, and Brown in the neighborhood of the Five Tres Avalon Gangster Crip gang. 

The defendants were admitted members of the gang, and had been seen by one or both of

the officers in the company of other self-confessed members of the Five Tres Avalon 

Gangster Crip gang, wearing the gang’s colors and celebrating the gang’s special day. 
41

Both Cox and Anderson had gang related tattoos. Officer Fransen explained that in gang 

culture, publicly associating with other known members of the gang within their territory 

was a sign of allegiance to that gang. According to Officer Drenckhahn, gang related 

tattoos also demonstrated allegiance to the gang.

In addition, Officer Drenckhahn explained that when active members of criminal 

street gangs go on missions to commit crimes in rival gang territory, they typically bring 

fellow gang members with them to verify their work on behalf of the gang and for overall 

support. It is also customary to target known rivals or anyone fitting the description of a 

rival gang member. Here, defendants showed contempt for four young men in rival gang 

territory by yelling something like, “Fuck these fools,” just before they shot. In response 

to a hypothetical question mirroring the evidence in this case, Officer Drenckhahn opined 

that the crime was a classic mission-type shooting, and that such a crime would benefit 

the gang by creating an atmosphere of fear in the community, leading residents to refuse 

to cooperate with the police or to identify gang members. It made no difference that the 

gang members did not call out the gang’s name while committing the crime, as Officer 

Drenckhahn knew from experience such calling out did not always occur during gang 

missions.

We conclude that substantial evidence supported both elements of the gang 

enhancement and we are not persuaded otherwise by Anderson’s comparison to cases in 

which the evidence was insufficient.

12 Comparison with such cases is rarely helpful in a 

substantial evidence review, as every case necessarily depends on its own facts. (People 

v. Thomas (1992) 2 Cal.4th 489, 516.)

 

12 See People v. Ramon (2009) 175 Cal.App.4th 843, 851 (no evidence the crime 

committed was one of gang’s activities); People v. Albarran (2007) 149 Cal.App.4th 214, 

228 (Albarran) (no substantial evidence issue; gang evidence held irrelevant to the 

charges and extraordinarily prejudicial); In re Frank S. (2006) 141 Cal.App.4th 1192, 

1199 (crime not committed in gang territory or with another gang member); People v. 

Killebrew (2002) 103 Cal.App.4th 644, 647 (handgun possession improperly based on 

expert’s opinion that gang members possessed guns in common), disapproved in part in 

People v. Vang, supra, 52 Cal.4th at pages 1047-1048 and footnote 3.
42

VIII. New trial motions

Anderson contends that the trial court erred in denying defendants’ motions for 

new trial, because the prosecution failed to present sufficient evidence that the crimes 

were gang related before presenting unduly inflammatory gang evidence that was thus

immaterial to any issue in the case. Cox’s counsel made the oral motion for new trial in 

which Anderson’s counsel joined. Anderson relies on a comparison to Albarran, arguing 

that the prosecution failed to prove a “tie-in to gangs” or present evidence of a gang

challenge; and he again argues that the gang expert’s ambiguous “concession” to an 

incomplete hypothetical question posed by defense counsel demonstrates that the gang 

evidence was insufficient.

When the issue involves sufficiency of the evidence, the denial of a motion for 

new trial is reviewed for an abuse of discretion. (People v. Fuiava (2012) 53 Cal.4th 622, 

730.) “The court has broad discretion in ruling on a new trial motion, and the court’s 

ruling will not be overturned absent a clear and unmistakable abuse of that discretion. 

[Citation.] The court abuses its discretion, however, where it misconceives its duty, 

applies an incorrect legal standard, or fails to independently consider the weight of the 

evidence. [Citation.]” (People v. Carter (2014) 227 Cal.App.4th 322, 328.)

Citing People v. Nesler (1997) 16 Cal.4th 561, and Albarran, Anderson contends 

that we must conduct a de novo review of the trial court’s ruling. In Nesler, the 

California Supreme Court concluded that de novo review is appropriate for the denial of a 

defendant’s motion for a new trial on grounds of juror misconduct. (See Nesler, supra, at 

p. 582, fn. 5.) In Albarran, the appellate court construed Nesler as requiring de novo 

review whenever the issue implicated a significant constitutional issue, and found that the 

trial court’s partial new trial grant presented the sort of rare and unusual circumstance 

implicating such a significant constitutional issue. (Albarran, supra, 149 Cal.App.4th at 

pp. 224 & fn. 7, 232.)

It is Anderson’s position that the significant constitutional issue requiring a 

de novo review arose in this case from the trial court’s failure to bifurcate the gang 

enhancement from the rest of the trial. Anderson claims that in the jury’s consideration 
43

of highly inflammatory but insufficiently probative gang evidence on the issue of guilt

was the result of the decision. However, no motion to bifurcate was made in the second 

trial. Brown moved to sever the gang enhancement in the first trial, and defendants 

joined in the motion, but they did not renew it in the second trial. Although counsel for 

Cox mentioned the previous motion in arguing the new trial motion, his stated ground for 

the new trial motion was “the issue of the gang evidence.” Counsel cited Albarran and

argued that the gang enhancement was not supported by substantial evidence, because 

“two guys walk up, no gang names, no gang signs, no gang graffiti, nothing, two guys 

walk up and start shooting.” Counsel also complained that the prosecutor had 

represented that such evidence would be presented, but in the end, it was not.

Thus the issue was the sufficiency of the gang evidence, which we review for 

abuse of discretion. (See People v. Fuiava, supra, 53 Cal.4th at p. 730.) We find no 

error under any standard of review. We agree with the trial court’s rejection of any 

suggestion that Albarran was “some type of seminal case” holding that gang evidence is 

insufficient as a matter of law unless it includes such facts as “shout-outs” of gang names 

or the use of gang signs or graffiti. And we further agree with the trial court that the gang 

evidence was sufficient to prove the gang enhancement despite the absence of such

identifying indicia. In giving its reasons for denying the motion for new trial, the trial

court summarized evidence establishing that defendants were three gang members who 

went together in a car without license plates to a rival gang area, where one of them 

committed the kind of walk-up shooting normally associated with gang shootings.

Based upon the same evidence, we concluded in the previous section of this 

Discussion that substantial evidence supported both elements of the gang enhancement. 

For the same reason we agree that the gang evidence was properly admitted and not 

unduly prejudicial. The trial court did not abuse its discretion or otherwise err in denying 

the motion for new trial.

IX. Cumulative error

Anderson contends that the cumulative effect of all the asserted errors was to deny 

him a fair trial. Because “[w]e have either rejected on the merits defendant’s claims of 
44

error or have found any assumed errors to be nonprejudicial,” we must also reject any 

claim of prejudicial cumulative effect. (People v. Sapp (2003) 31 Cal.4th 240, 316.)

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

BOREN

__________________________, J.

HOFFSTADT