Filed 11/9/23 P. v. Steele CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

CLEO STEELE, 

Defendant and Appellant.

 B314112

 (Los Angeles County

 Super. Ct. No. BA450440)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Ronald S. Coen, Judge. Affirmed in part and 

reversed and remanded in part.

Kelly C. Martin, under appointment by the Court of 

Appeal, for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Noah P. Hill and Eric J. Kohm, 

Deputy Attorneys General, for Plaintiff and Respondent. 
2

Appellant Cleo Steele, a member of the Underground Crips

gang, appeals his June 2021 convictions for two counts of murder

(Pen. Code, § 187, subd. (a)),

1 four counts of attempted murder

(§§ 664, 187, subd. (a)), related weapons charges (felon in 

possession of a handgun, § 29800, subd. (a)(1)), gang 

enhancements (§ 186.22, subd. (b)), weapons enhancements 

(§ 12022.53, subd. (e)(1)), and special circumstance allegations

(§ 190.2), all stemming from two separate gang-related shooting 

incidents in March and June 2015. On appeal, he principally 

challenges the admission of evidence and makes numerous claims

of ineffective assistance of counsel. We reverse and remand for a 

retrial of the gang enhancements and gang special circumstance 

allegations in light of Assembly Bill No. 333 (Assem. Bill 

No. 333), effective January 1, 2022. In all other respects the 

judgment is affirmed.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY2

A. Rivalry Between Crips and Hoovers.

Appellant and the victims were members of two rival 

gangs. Appellant belonged to the Rollin 100s Underground Crips. 

The victims belonged to a gang known as Hoovers, who were the 

Underground Crips’ “worst enemy.” Underground Crips were 

expected to fight Hoover members on sight, including by using a 

weapon. 

1 All statutory references are to the Penal Code unless 

otherwise noted. Unless otherwise noted, the factual summary is 

derived from trial testimony.

2 This action resulted from the consolidation of two related 

actions, Case Nos. BA450440 and BA450470.
3

B. March 12, 2015 Shooting of Cleveland Ross, Jr. 

(Ross, Jr.).

One of the murders for which appellant was convicted was 

the March 12, 2015 shooting of Cleveland Ross, Jr. 

1. Prosecution Case.

On the day of the shooting, Quincy Jefferson, a member of 

the Underground Crips, was at his girlfriend’s house near 105th 

Street and Normandie Avenue in Los Angeles. While there, 

Jefferson encountered appellant and other Underground Crips: 

Bill Shepard, Johnnie Johnson, and another person known as 

Demetrius. A car arrived with additional Underground Crips 

members whose gang monikers are “Infant Toon” and “Baby 

Hound.” They told the group that they had just seen Ross, Jr. at a 

nearby AutoZone store. Ross, Jr. was well known in the 

neighborhood.

The AutoZone store was approximately 5 to 10 minutes 

away near the intersection of Century Boulevard and Hoover

Street, and was in Hoover territory, Appellant asked the group 

what they wanted to do, and they responded, “‘let’s go over 

there.’”

The group got into three cars to go the AutoZone. They

used the “car method,” a gang technique whereby the front and 

rear cars protected the middle car, which contained the gunman. 

The method ensured the safety of the gunman and facilitated 

escape from law enforcement. Infant Toon went with Jefferson in 

the lead car, which was Jefferson’s silver Chrysler 300. Johnson 

got into his BMW, and Demitrius followed in another gang 

member’s borrowed burgundy Buick. Appellant was in the Buick.
4

Ross, Jr. had gone to the AutoZone with his father, 

Cleveland Ross, Sr. (Ross, Sr.). They needed to fix the battery on 

Ross, Jr.’s car and were parked near the front door. 

After arriving at the AutoZone, Jefferson circled the 

parking lot a couple of times. He saw Johnson’s BMW and the 

Buick arrive. The three cars parked in the AutoZone lot. 

Jefferson saw Ross, Jr. in the parking lot attempting to start his 

car. Jefferson got out of his car and walked towards Johnson’s 

BMW. 

Jefferson saw appellant reach over the Buick and shoot 

Ross, Jr. with a .357 revolver. Jefferson ran back to his car and 

followed the Buick out of the lot.3

Ross, Jr. was shot outside the AutoZone. Ross, Sr., who was 

still in the store when shots rang out, found Ross, Jr. on the 

ground next to his BMW.

Derrick Jones, who was in line in the AutoZone, heard 

about seven shots and looked up and saw the shooter. Jones 

described the shooter as a bald, “brown-skinned” African 

American. Jones recognized appellant in court as the shooter, 

although he had previously been unable to identify appellant 

from a police photo array containing appellant’s picture.

Bystanders Michael Marlete and his wife Daniella Rangel 

described hearing multiple gunshots. One witness observed the 

shooter had a “Clint Eastwood” style gun, and that the shooter 

3 Jefferson was initially charged with murder and conspiracy 

to commit murder for the offenses committed on March 12, 2015, 

in Case No. BA450470. At first, he denied his involvement to

police. Jefferson later pleaded no contest to voluntary 

manslaughter and received an 11-year sentence. At the time of 

trial, Jefferson was no longer a member of the Rollin 100s 

Underground Crips and testified against appellant.
5

was aiming at Ross, Jr.’s car. The shooter was described as dark 

(black or Mexican), about 40 years old, bald, with round glasses. 

However, neither Marlete nor Rangel could identify appellant 

from a six-pack photo array, and Rangel claimed she did not see 

the shooter.

After the shooting, the three cars returned to the home of 

Jefferson’s girlfriend.

Police obtained surveillance videos from nearby businesses. 

A car wash video showed the three cars entering the AutoZone 

parking lot. Cell phone data established appellant was in the 

area of the house where the Underground Crips gathered before 

and after the shooting. Data from the day of the shooting showed 

appellant’s phone in the general area of 105th and Normandie at 

about 4:20 p.m.; near the crime scene at 4:40 p.m.; and near 

105th and Normandie at 5:15 p.m.

C. The June 10, 2015 Shooting of Mykiel 

Washington, Michael Baptist, Larail Williams, Kevin Carr, 

and Lisa Jack at the Monarch Liquor Store.

On June 10, 2015, a shooting occurred at the Monarch 

Liquor Store in the area of 88th Street and Vermont Avenue in 

Los Angeles.

1. Victim and Eyewitness Testimony.

Michael Baptist was in his Dodge Dart at a liquor store 

with his friends Mykel Washington, Larail Williams, and Kevin 

Carr. While Baptist went into the liquor store to get some 

cigarettes, Washington got out of the car and went across the 

street to speak with someone.

Baptist got back into his car and saw a car drive by with 

three men who were not from the area. He told Washington they 
6

needed to leave and heard shots. Baptist put his car in reverse, 

but a white Chevy Malibu and another car sandwiched him in. 

Baptist heard more shots. A bullet went through the door of his 

car, hit his leg, and struck the gear shift. Baptist could not move 

his car because the gear shift had shattered. The Chevy Malibu 

drove away. Carr got out of the car and ran. 

Baptist ducked for cover and was shot twice more in the leg 

and twice in the back. He heard someone say, “you next,” before 

he was shot in the cheek. Baptist did not see who shot him.

Baptist saw Washington across the street, staggering. 

Washington died from multiple gunshot wounds.

Lisa Jack was sitting nearby, reading a book, when she 

heard gunshots. She got on the ground, saw blood on her hand, 

and realized she had been shot in the hip. Jack did not see the 

shooter. 

Kevin Carr, a Hoover, was shot in the leg. He went to the 

hospital and had surgery. Later, he stated he did not remember 

the shooting. Carr also stated he did not remember meeting with 

Detective Hecht or identifying anyone from a photographic array. 

Carr said he did not know appellant.4 However, Detective Hecht 

testified at trial that he met with Carr at the hospital, and Carr 

told him that he was sitting in the car at the Monarch Liquor 

Store when he saw someone wearing gold rimmed glasses and 

dressed in a hoodie running toward him. Several months later, 

Carr identified appellant as the shooter from a photographic 

array. 

A bus driver was driving the Vermont line on the day of the 

shooting. He stopped at the red light at 88th and Vermont near 

4 Carr was unavailable at trial, and his preliminary hearing 

testimony was read to the jury.
7

the Monarch Liquor Store. He heard gunfire and saw a male with 

gold-framed glasses jump into the front passenger seat of a brown 

car. As the car drove past the bus, he saw appellant. The bus 

driver identified appellant as the shooter from a photographic 

array and at trial. However, he conceded on cross-examination he 

had not identified appellant at the preliminary hearing, instead 

identifying a co-defendant. 

2. Patrick Bell’s Testimony.

5

Patrick Bell drove the White Malibu that sandwiched in 

Baptist’s car at the Monarch Liquor Store the day of the shooting. 

Bell had been a member of the Rollin 100s Underground Crips. 

Bell knew appellant because they were cousins by marriage and 

had gone to school together. Although members of the same gang, 

they did not hang out. The area of the shooting was in Hoover 

and Eight Trey Gangster territory. Both gangs were enemies of 

the Underground Crips. 

The afternoon of the shooting, Bell was in the area to visit 

his grandmother. He saw two cars he recognized—a brown car 

belonging to Edward Furdge (a Saturn), an Underground Crip, 

and a Chevrolet Monte Carlo belonging to Wychane Randle.

6 Bell, 

who was traveling in the opposite direction, saw someone in one 

of the cars wave to him to come over. Bell did a U-turn and got 

5 Bell was initially charged with murder but obtained a plea 

bargain in exchange for his testimony against appellant.

6 In case No. BA450550, appellant, along with co-defendants 

Wychane Randle, Marcus Broadnax, and Edward Furdge, was 

charged with murder, conspiracy to commit murder, and four 

counts of attempted murder. These co-defendants either reached 

dispositions of their cases, or the proceedings were severed.
8

behind the two cars and started to follow them. The cars moved 

into Hoover territory.

Bell followed the cars to see what they were doing, not 

necessarily to lend assistance in the rival gang territory. They 

stopped at a light as they traveled on 88th Street. Bell saw 

appellant, wearing a hoodie, get out of one of the cars, and start 

shooting at people with a “20-shot clip” handgun. Bell backed up 

and got out of the way. Although he admitted he pulled up next 

to a Dodge Dart, Bell denied sandwiching in any of the cars.

Bell went back to the “hood.” Detectives questioned Bell 

about the shooting and told him they had video of his license 

plate. Bell, who had 10 brothers, claimed multiple people drove 

his car. Bell did not want to be a “snitch.”

After Bell realized other people were talking to police and 

had told police Bell was present at the shooting, he realized he 

could not lie anymore. He said police had raided his house and 

told him the Department of Children and Family Services would 

take his children.

Ultimately, Bell was charged as an accessory and decided 

to talk to police. He told them he was at the shooting and knew 

the shooter. Police circulated a sketch with appellant’s likeness 

and Bell recognized appellant as the shooter. Bell told police that 

Furdge was driving and Marcus Broadnax was in the back seat.

At trial, Bell asserted he identified appellant to get out of 

custody. He said police offered him money and release from 

custody after he identified appellant. Further, after Bell 

identified appellant at the preliminary hearing, he received 

relocation assistance and financial support of approximately 

$17,000.
9

3. Police Investigation.

Sheriff’s deputies recovered nine-millimeter shell casings 

and several bullet fragments in the street near the scene of the 

Monarch Liquor Store shooting. A Dodge Dart parked on 88th

Street had eight bullet impacts to its exterior and interior. After 

impounding the car, police examined the car and found two bullet 

holes on the driver’s door, blood on the driver’s side door, and 

three bullet fragments inside the car. A brown car, a Saturn, was 

examined, and DNA found on an interior door handle matched 

Broadnax. A water bottle from the center console contained 

Furdge’s DNA, and DNA on an orange soda bottle in the trunk 

matched Randle.

Over 20 spent 9-millimeter casings, all fired from the same 

gun, were recovered from the crime scene and the Dart. Bullets 

recovered from Washington’s body and Carr were fired from the 

same weapon.

Cell phone records showed that just before 1:00 p.m. on 

June 10, 2015, appellant’s cell phone was near the same house as 

it had been before and after Ross, Jr.’s murder. Between 12:00 

p.m. and 12:39 p.m., Broadnax’s phone was at the same location. 

Randle’s phone was also located near the house and at the 

Monarch Liquor Store. 

D. Gang Testimony.

Deputy Sheriff Ernie Castaneda, a gang expert, testified 

that gangs value loyalty; “loyalty is everything.” Further, 

“snitching” would result in “violent repercussions.” The 

Underground Crips and Hoovers were “bitter rivals.” 

Gangs require members to “put in work,” such as bringing 

in money and committing violent crimes against rival gang 
10

members. Further, gang members must put in work to help 

create a violent reputation for their gang to garner “respect.”

Gang territory is the area the gang claims for itself. To 

protect its territory, a gang will use graffiti and carry firearms. 

Often, a gang member will “go on a mission,” meaning the gang 

member will enter rival territory to commit a crime against a 

rival gang member.

Ross, Jr. was well known by his fellow gang members and 

rivals. The Hoovers controlled the area where Ross, Jr. was shot, 

while the Hoovers and an ally, the 8-Trey Gangster Crips, 

controlled the area where Washington was shot. Ross, Jr. was a 

Hoover and Washington was a member of the 8-Trey Gangsters.

The area of 105th Street and Normandie was claimed by the 

Underground Crips, while the area to the east was claimed by the 

Hoovers.

Deputy Castaneda knew Johnson, Broadnax, Furdge, 

Randle, and appellant were all Underground Crips.

As discussed more thoroughly post, Castaneda reviewed 

appellant’s Facebook posts and analyzed the meaning of the 

slang used in them. According to Castaneda, appellant’s tattoos 

indicated he was an Underground Crip, and his tattoos and the 

nature of his Facebook posts indicated he was actively involved 

with his gang.

In a hypothetical based on the facts of the shootings in this 

case, Castaneda opined that the shootings 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, or assist 

gang members in criminal conduct. Castaneda believed the 

shootings benefited the gang because their commission in rival 

territory in broad daylight created a violent reputation for the 
11

gang among members of rival gangs and the general community, 

allowing the gang to get away with future crimes by intimidating 

the community. People aware of the crimes are afraid to report 

them because they remember the murders the gang committed.

A gang that commits a crime might expand its territory, 

resulting in more income, respect, and the boosting of the gang’s

reputation. Rival gang members will know that if they do 

anything to the gang, something “really bad” will happen to 

them. The shootings also increased the shooter’s stature in the 

gang, which leads to becoming a shot caller who receives proceeds 

from the gang’s crimes.

Further, in Castaneda’s opinion, the crimes in this case 

were committed in association with a gang because three vehicles 

were involved and each vehicle had a separate role; gang 

members commit crimes with other people they trust because 

this helps them evade law enforcement, and they want other 

members to witness the crime so they can increase their respect 

within the gang.

Appellant’s counsel stipulated that the Underground Crips 

were a criminal street gang as defined in sections 186.22 and 

190.2, subdivision (a)(22).

E. Defense Case.

Johnnie Johnson testified he had known appellant a long 

time. On March 12, 2015, Johnson drove into the AutoZone, 

following Jefferson’s Chrysler. Johnson parked next to the wall 

and remained in his car. Johnson heard shots and saw the 

shooter. He did not recognize him, and he testified it was not 

appellant. During a police interview, Johnson claimed he did not 

know appellant. Johnson later admitted knowing appellant. 
12

Johnson told police the cars involved in the shooting were a red 

Buick, silver Chrysler, and his car.

Johnson admitted he lied to police when he told them he 

did not know appellant. Johnson would not “snitch” on appellant. 

He denied going to the AutoZone to kill Ross, Jr. Instead, he had 

seen Jefferson’s car, so he followed it to the AutoZone.

Johnson and appellant appear in photographs on Johnson’s 

Facebook page. An Instagram post that included both Johnson 

and appellant included gang code meaning “Hoover Killer.” In 

September 2015, Johnson and appellant were convicted of 

committing a home invasion robbery. Johnson stated he believed 

appellant was innocent of the charges. 

F. Information, Verdict and Sentencing.

The amended Information filed June 10, 2015 in 

consolidated case Nos. BA450440 and BA450470, alleged as 

follows:

Count Section Gang 

Enhancement

Offense Date Victim

1 187 190.2, subd. 

(a)(22)

186.22, subd. 

(b)(1)(C)

12022.53, subds. 

(d) & (e)(1)

Murder 6/10/15 Mykiel 

Washington

2 182/187 186.22, subd. 

(b)(1)(C)

12022.53, subds. 

(d) & (e)(1)

Conspiracy 

to Commit 

Murder

6/10/15 Mykiel 

Washington
13

Count Section Gang 

Enhancement

Offense Date Victim

3 29800, 

subd. 

(a)(1)

186.22, subd. 

(b)(1)(A)

Felon in 

possession 

of a 

firearm

6/10/15

4 664/187 186.22, subd. 

(b)(1)(C)

12022.53, subds. 

(d) &(e)(1)

Attempted 

Murder

6/10/15 Michael 

Baptist

5 664/187 186.22, subd. 

(b)(1)(C)

12022.53, subds.

(d) & (e)(1)

Attempted 

Murder

6/10/15 Lisa Jack

6 246 186.22, subd. 

(b)(1)(C)

12022.53, subds. 

(d) & (e)(1)

Shooting 

at an 

Occupied 

Vehicle

6/10/15

7 664/187 186.22, subd. 

(b)(1)(C)

12022.53, subds. 

(d) & (e)(1)

Attempted 

Murder

6/10/15 Kevin Carr

8 664/187 186.22, subd. 

(b)(1)(C)

12022.53, subds. 

(d) & (e)(1)

Attempted 

Murder

6/10/15 Larail 

Williams

9 187 190.2, subd. 

(a)(22)

186.22, subd. 

(b)(1)(C)

Murder 3/12/15 Cleveland 

Ross, Jr.
14

Count Section Gang 

Enhancement

Offense Date Victim

12022.53, subds. 

(d) & (e)(1)

10 182/187 186.22, subd. 

(b)(1)(C)

12022.53, subds. 

(d) & (e)(1)

Conspiracy 

to Commit 

Murder

3/12/15 Cleveland

Ross, Jr.

11 29800, 

subd. 

(a)(1)

186.22, subd. 

(b)(1)(A)

Felon in 

Possession 

of Firearm

3/12/15

In addition to the multiple murder, gang special 

circumstance, and gang allegations, a prior serious felony 

conviction was also alleged. (§ 1170.12, subd. (b).)

A jury found appellant not guilty of the conspiracy 

allegations (Counts 2 and 10). The jury found appellant guilty of 

all other charges, and found the attempted murders of Baptist, 

Carr, and Williams were willful and premeditated. All gun 

enhancements and special circumstances were found true. The 

trial court found the prior conviction allegation true. 

The trial court selected Count 5 (attempted murder of Jack) 

as the base count and imposed the midterm of 7 years, doubled to 

14 years based on the prior strike, plus 25 years to life for the 

gun enhancement and 10 years for the gang enhancement. 

The court imposed sentences of life without parole on 

Counts 1 and 9, plus an additional 30 years for the enhancements 

on those counts. On Counts 3 and 11, the court sentenced 

appellant to 28 months on each count, consisting of the midterm, 

doubled, plus a 1-year gang enhancement. On Counts 4, 7, and 8, 

the court sentenced appellant to 3 terms of life imprisonment 
15

with a minimum parole eligibility term of 15 years, doubled to 30 

years, plus an additional 30 years for the enhancements on each

count. The court imposed and stayed sentence on Count 6, and 

ordered all sentences, other than on Counts 5 and 6, to run 

consecutively. 

DISCUSSION

I. MARSDEN MOTIONS

Appellant contends the trial court failed to sufficiently 

inquire into his conflicts with his appointed counsel and his 

complaints about counsel’s performance. He also asserts this

error was prejudicial because counsel ultimately rendered 

ineffective assistance. 

A. Factual Background.

At trial, appellant made two Marsden7 motions. The trial 

court denied both motions. 

1. First Marsden Motion. 

At the first Marsden motion, appellant complained he was 

uncomfortable with his appointed counsel and did not get along 

with them. During jury selection, appellant expressed concern 

about continuances given the age of his counsel (over 75 years

old). The court responded it had known the lawyers for decades 

and they were “really very good” attorneys. The court informed 

appellant that issues with whether he could continue to be 

charged with the death penalty and COVID-19’s effect on jury 

selection were going to cause unavoidable delays in starting trial. 

The court explained that even if it appointed a younger attorney 

7 People v. Marsden (1970) 2 Cal.3d 118.
16

to represent appellant, a new lawyer would ask for and receive a 

couple of years to prepare for trial. 

Subsequently, the court granted a continuance in light of 

the severity of COVID-19, the number of positive cases, and its 

concern for all parties. A jury pool would not be available under 

the circumstances. Appellant objected to the continuance because 

he still had concerns about the age of his counsel. The court 

advised appellant that no trials were being held. The trial court 

reiterated that “you’ve got the best. Right now, you have the best 

lawyers because of the nature of this case. You have the best 

lawyers that the state can give you.” 

The court told appellant that a continuance would be 

advantageous to him considering the likelihood that the 

prosecutor would forego the possibility of the death penalty. 

Appellant then consented to the continuance, and the prosecutor 

eventually stated that she would no longer be seeking the death 

penalty.

As jury selection proceeded, appellant made another

Marsden motion. The court asked appellant if he wanted a 

different attorney, and appellant confirmed he did. When the 

court asked for his reasons, he responded he was uncomfortable,

and he did not get along with his attorney. When the court asked 

appellant to explain, he answered there were “plenty of things

[he had] seen in this case” and claimed his attorney had “no 

witnesses for [him] or anything.” Further, appellant did not like 

counsel’s questions during voir dire. The court inquired what 

appellant thought should be asked, to which appellant answered, 

“A lot of things.” When the court gave him the opportunity to 

provide specifics, appellant replied that counsel should be asking 

more than just “because [appellant] is a gang member, can you 
17

say ‘not guilty?’ It’s far more things besides me being a gang 

member.” Appellant further complained that counsel asked the 

same questions of all the jurors. 

The court asked appellant which witnesses he would like 

his counsel to call, and appellant stated he wanted experts. 

“There’s going to be witnesses here that say I did the crime. 

There’s witness experts that would help him . . . . They’re going to 

have experts, I guarantee. I don’t have no one there to help me 

with this, man. I don’t feel he’s good enough at all. I am going up 

there with nothing. I could represent myself and not throw my 

life away.”

The court denied appellant’s Marsden motion, finding 

“[t]here is no constitutional right to a meaningful relationship 

between the defendant and his counsel. . . . . The fact that you 

don’t trust your attorney and you don’t get along with him is not 

sufficient to substitute an attorney. You don’t have to get along 

with the lawyer. . . . [T]he fact that you disagree with the 

attorney regarding the trial tactics does not compel a change of 

attorneys. It’s the attorney [who is] in charge.” The court added, 

“I’ve known your lawyer for a long time . . . He knows what he’s 

doing.”

2. Second Marsden Motion. 

Later during jury selection, appellant made another 

Marsden motion. Defense counsel told the court that appellant 

“just did say he doesn’t like all the jurors.” When the court asked 

about the problem, appellant stated his attorney was 

“uncoordinated when it comes to the jury things.” Counsel could 

not keep track of juror numbers, and there were jurors appellant 

did not want on the jury.
18

During voir dire, several jurors revealed they had ties to 

law enforcement, were the victims of crimes, or had close 

relatives who were the victims of crimes. 

On appeal, appellant complains about the following jurors: 

(1) Juror No. 7 (Badge No. 9432). Juror No. 7 was a 

volunteer military police officer for the “State Guard.” The juror 

stated he could be fair and impartial, lived in Los Angeles, was 

employed as an intermediate clerk for the Los Angeles County 

Public Health Department, was unmarried, and had never served 

as a juror.

Juror No. 7 confirmed that if he was not convinced beyond 

a reasonable doubt that appellant was guilty, he would acquit. He 

further confirmed he would not convict appellant based on 

appellant’s being a gang member. However, after hearing the 

witnesses on the first day, Juror No. 7 had made up his mind. 

The court advised the parties that it intended to remove Juror 

No. 7 from the jury, and defense counsel stated, “I am not 

objecting if his mind is made up that [appellant] is guilty. If his 

mind is made up that [appellant] is not guilty . . . I am objecting 

and submitting.” The court explained that discharge from a jury 

was appropriate where a juror prejudges a case without hearing 

all of the evidence. Juror No. 7 was excused.

(2) Juror No. 12 (Badge No. 3088). Juror No. 12’s best 

friend’s father had recently retired from the Los Angeles Police 

Department. The prospective juror did not believe that 

relationship would cause her to be unfair. The juror confirmed 

she would not convict based on the facts that appellant was 

charged with two murders and was a gang member. 

(3) Juror No. 1 (Badge No. 2447). Juror No. 1’s brother 

was a sergeant for the Long Beach Police Department, but he did 
19

not think anything about his brother’s occupation would cause 

him to be unfair as a juror. He confirmed that he would not 

convict based on the facts that appellant was charged with two 

murders and was a gang member. The juror agreed that it was 

not part of his job to consider the consequences of finding 

someone guilty. 

(4) Juror No. 3 (Badge No. 2922). Juror No. 3 had a 

murdered relative. She did not think that the murder would 

cause her to be unfair. In addition, the juror explained that she 

was employed as a dental assistant, had never served on a jury, 

was married to a truck driver, and had two children. Juror No. 3 

understood that being charged with a crime did not equate to 

guilt. She further understood she could only convict if she was 

convinced someone was guilty beyond a reasonable doubt. Juror 

No. 3 stated that appellant’s gang status would not cause her to 

find him guilty if the evidence did not satisfy the beyond a 

reasonable doubt standard.

(5) Juror No. 4 (Badge No. 1815). Juror No. 4’s uncle was a 

police officer in Korea, but nothing about his uncle’s occupation 

would cause him to be unfair. In addition, he explained that he 

lived in Burbank, worked as a medical assistant, was unmarried, 

had no children, and had never served on a jury. In response to a 

question from the prosecutor, Juror No. 4 stated that he would be 

able to reach a verdict with the other jurors based only on the 

evidence heard in court.

3. Trial Court Ruling.

The court denied the Marsden motion, explaining that 

defense counsel “chooses the jury.” With respect to counsel’s 

keeping track of juror numbers, the court explained, “because of 

COVID. . . . [W]e had brought in jurors in the morning and the 
20

night and in the afternoon for voir dire for over a week. That’s 

called the Batch System. And I wouldn’t—it’s not like the old 

days, where you had everybody in the box and all the jurors are 

present. Because of that, it’s hard to keep track of all the jurors. 

You can see even the People, the DA, had to ask which day the 

juror was here.”

The court continued, “When you say he is uncoordinated, I 

don’t know what that means. He has jurors separated by days, 

and A.M. and P.M., and it’s hard because not all jurors showed 

up at one time. It was unknown which jurors were from which 

group.” Defense counsel added, “this is the best defense jury I 

have seen in years. I try one murder case after another, and this 

is one of the best.”

B. Discussion.

Under People v. Marsden, supra, 2 Cal.3d 118, a defendant 

may request that the trial court replace appointed counsel upon a 

showing that the defendant has been denied effective 

representation of counsel. (Id. at pp. 123–124.) The rules 

governing Marsden motions are well established. When a 

defendant seeks substitution of appointed counsel pursuant to 

Marsden, “‘the trial court must permit the defendant to explain 

the basis of his contention and to relate specific instances of 

inadequate performance. A defendant is entitled to relief if the 

record clearly shows that the appointed counsel is not providing 

adequate representation or that defendant and counsel have 

become embroiled in such an irreconcilable conflict that 

ineffective representation is likely to result.’” (People v. Taylor

(2010) 48 Cal.4th 574, 599.) We review the denial of a Marsden

motion for abuse of discretion. Denial is not an abuse of 

discretion unless the defendant has shown that a failure to 
21

replace counsel would substantially impair the defendant’s right 

to assistance of counsel. (Ibid.; People v. Streeter (2012) 54 

Cal.4th 205, 230.)

During a Marsden hearing, the court ascertains the nature 

of defendant’s allegations regarding counsel’s performance, and 

determines whether the allegations have sufficient substance to 

warrant replacement of counsel. (People v. Gutierrez (2009) 45 

Cal.4th 789, 803.) There is no absolute right to substitute 

counsel. A trial court is required to substitute counsel in a 

situation where the record clearly shows that the first appointed 

counsel is not adequately representing the accused. (Ibid.) The 

trial court must also substitute counsel where it is demonstrated 

that counsel and defendant are embroiled in an irreconcilable

conflict. (People v. Abilez (2007) 41 Cal.4th 472, 488.) We evaluate 

whether the error prejudiced defendant under the Chapman

standard, and consider whether any error was harmless beyond a 

reasonable doubt. (People v. Loya (2016) 1 Cal.App.5th 932, 945; 

Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 

L.Ed.2d 705].)

Here, the record does not reflect that counsel was 

inadequately representing appellant. Nor does it demonstrate

counsel and defendant were embroiled in an irreconcilable

conflict. Further, the record does not show that failure to replace 

counsel would impair appellant’s right to assistance of counsel. 

After defendant’s first request, the trial court made a 

detailed inquiry into appellant’s reasons. Appellant complained 

counsel was not going to call witnesses, and counsel was not 

asking the “right” questions during voir dire. The court inquired 

of the questions appellant wanted counsel to ask. Appellant 

stated “a lot of things,” but when pressed for more specifics, he 
22

had none. Given appellant’s stated reasons for discharging his 

counsel, the court was within its discretion to deny the motion. 

Regarding appellant’s second motion, the record 

demonstrates defense counsel was not deficient in his handling of 

voir dire. Defense counsel stated it was one of the best juries he 

had obtained. Second, there is nothing in the voir dire transcript 

to indicate any of the remaining jurors should have been 

challenged for cause. Juror No. 7 was removed after indicating he 

would prejudge the case. The remaining jurors all indicated that 

despite their ties to law enforcement, they would not prejudge the 

case or convict appellant solely because he was a gang member. 

The questioning and discussion were sufficient to expose 

potential bias. 

As discussed at length post, we have concluded appellant 

did not receive ineffective assistance of counsel. 

II. SUFFICIENCY OF EVIDENCE ON COUNT 5, 

ATTEMPTED MURDER OF LISA JACK.

Appellant contends the evidence did not establish he 

specifically intended to kill Jack because she was a bystander, 

not appellant’s intended target. We disagree.

“To prove the crime of attempted murder, the prosecution 

must establish ‘the specific intent to kill and the commission of a 

direct but ineffectual act toward accomplishing the intended 

killing.’” (People v. Canizales (2019) 7 Cal.5th 591, 602.) The 

mental state required for attempted murder differs from that 

required for murder. Attempted murder requires a showing of 

express malice. Murder does not require intent to kill as implied 

malice—a conscious disregard for life—is sufficient. However, 

attempted murder requires the specific intent to kill. (People v. 

Smith (2005) 37 Cal.4th 733, 739.)
23

We review the whole record in the light most favorable to 

the judgment to determine whether any reasonable trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) 

We presume the existence of every fact the jury could reasonably 

have deduced from the evidence in support of the judgment and 

“‘accept logical inferences that the jury might have drawn from 

the circumstantial evidence.’” (Id. at p. 357.) We reverse for 

insufficient evidence only where “‘“upon no hypothesis whatever 

is there sufficient substantial evidence to support”’ the jury’s 

verdict.” (Ibid.)

Here, appellant argues, Jack testified she was looking at 

her book when she was suddenly hit by a bullet; yet there was no 

evidence she belonged to a gang, looked like she was a member of 

a gang, or was the target of the shooting. Rather, the shooter shot 

at Washington as he moved towards the Dart, and fired at 

Washington’s companions, all gang members. This evidence, he 

contends, establishes Jack was nothing more than a bystander 

and he never harbored any express malice towards her.

We agree with respondent that there is sufficient evidence 

in the surveillance video to support an inference that appellant 

acted with specific intent to kill. The video shows appellant raise 

his gun, aim at Jack, and shoot the gun. Additionally, the 

evidence established appellant had entered rival gang territory 

with intent to shoot rival gang members; as a result, the jury 

could have concluded that Jack, given her physical proximity to 

such gang members, was also appellant’s intended target.

III. CROSS-EXAMINATION OF PATRICK BELL.

Appellant contends Patrick Bell had a history of lying, yet 

the trial court improperly restricted appellant’s cross-
24

examination of Bell, and the error was prejudicial because Bell 

was the “most damaging” witness on Count 1. He further argues

the omission of the evidence violated his Sixth Amendment right 

to confront witnesses, such federal constitutional issues were 

preserved, and if not, counsel was ineffective for failing to 

adequately preserve them.

A. Factual Background.

At the outset of trial, appellant told the court he wanted to 

impeach Bell with evidence of Bell’s conviction in 2000 for felony 

possession of marijuana, a 2005 conviction for felony seconddegree burglary, and a 2001 conviction for receiving stolen 

property. Additionally, appellant wanted to introduce evidence 

that Bell lied to police on two separate occasions about the date of 

his birth. The first took place in February 2009 during a traffic 

stop on a misdemeanor warrant (driving with a suspended 

license) and the second took place in June 2009 during a traffic 

stop (driving without a license).

The prosecution objected that the evidence would be 

confusing and thus more prejudicial than probative. The court 

admitted the three (2000, 2001, and 2005) convictions, but 

excluded the two incidents of Bell’s falsehoods about his age.

During opening statement, defense counsel observed that 

Bell was a liar and failed to identify appellant as the shooter 

until the police caught him lying. During trial, Bell admitted to 

lying for an entire year until the police caught him in his lies. He 

did not tell the truth until arrested as an accessory, and only 

after he feared his children would be taken away. Bell admitted 

the truth when confronted with a recorded telephone 

conversation where he made inculpatory statements.
25

B. Discussion.

1. Exclusion Under Evidence Code Section 352.

Evidence Code section 352 gives the trial court discretion to 

exclude evidence “it deems irrelevant, cumulative, or unduly 

prejudicial or time-consuming.” (People v. Pride (1992) 3 Cal.4th 

195, 235.) To establish an abuse of discretion, a defendant must 

demonstrate that the trial court’s decision was so erroneous that 

it falls outside the bounds of reason. A merely debatable ruling 

cannot be deemed an abuse of discretion; rather, an abuse of 

discretion will be established by a showing the trial court 

exercised its discretion in an arbitrary, capricious, or patently 

absurd manner that resulted in a manifest miscarriage of justice. 

(People v. Johnson (2022) 12 Cal.5th 544, 605–606.)

People v. Sapp (2003) 31 Cal.4th 240 (Sapp), is instructive 

on the issue of impeachment evidence other than felony 

convictions. In Sapp, the prosecution called an expert in the 

penalty phase to rebut defense evidence that the defendant 

suffered from brain abnormalities and organic dysfunction at the 

time of the offenses. (Id. at pp. 287–289.) The defendant sought to 

impeach the expert’s credibility by cross-examining him 

regarding charges of Medi-Cal fraud brought against him four 

years earlier and subsequently dismissed. (Id. at p. 289.) The 

trial court disallowed the cross-examination under Evidence Code

section 352, concluding it involved a collateral matter that was 

more prejudicial than probative and would consume too much 

time and divert the jury from its primary purpose of deciding the 

appropriate penalty. (Id. at p. 289.) 

In rejecting the defendant’s claim that the court erred by 

disallowing the proposed cross-examination, Sapp explained that 

trial courts have broad discretion “‘to prevent criminal trials from 
26

degenerating into nitpicking wars of attrition over collateral 

credibility issues . . . .[¶] . . .[I]mpeachment evidence other than 

felony convictions entails problems of proof, unfair surprise, and 

moral turpitude evaluation which felony convictions do not 

present. Hence, courts may and should consider with particular 

care whether the admission of such evidence might involve undue 

time, confusion, or prejudice which outweighs its probative 

value.’” (Sapp, supra, 31 Cal.4th at p. 289.)

Here, the trial court was within its discretion when it 

concluded additional evidence of Bell’s falsehoods to police was of 

limited additional relevance and could confuse the jury. In any 

event, appellant cannot show prejudice where, as here, there was 

repeated testimony about Bell’s predilection for prevarication. 

Bell admitted to his own untruthfulness concerning his 

knowledge of the shooting. Thus, it is not reasonably likely that 

had the additional evidence been admitted, appellant would have 

obtained a more favorable result at trial. (People v. Watson (1956) 

46 Cal.2d 818, 836.) 

2. Federal Constitutional Issues.

“‘The federal Constitution’s confrontation right is not 

absolute; it leaves room for trial courts to impose reasonable 

limits on a defense counsel’s cross-examination of a witness.’” 

(Delaware v. Van Arsdall (1986) 475 U.S. 673, 679 [106 S.Ct. 

1431, 89 L.Ed.2d 674]; People v. Pearson (2013) 56 Cal.4th 393, 

454.) Here, the trial court’s reasonable application of the rules of 

evidence to exclude evidence inadmissible under Evidence Code 

section 352 did not deprive appellant of his constitutional rights. 

(People v. Turner (2020) 10 Cal.5th 786, 818.) Where counsel’s 

performance was not deficient, there can be no ineffective 
27

assistance claim. (Strickland v. Washington (1984) 466 U.S. 668, 

694 [104 S.Ct. 2052, 80 L.Ed.2d 674].) 

IV. ADMISSION OF FACEBOOK POSTS.

Appellant made numerous Facebook posts with the 

username “Tiny Ug Fly.” The posts referenced the shootings by 

using slang expressions employing rhythm, meter, and figurative 

speech. Appellant contends these posts were erroneously 

admitted at trial. 

A. Retroactivity of Evidence Code Section 352.2

Appellant contends his convictions must be reversed and 

the matter remanded for a new trial so the trial court can apply 

newly enacted Evidence Code section 352.2 (Section 352.2), 

effective January 1, 2023, to determine whether to admit the 

Facebook posts. Although there is a split of authority on whether 

Section 352.2 is retroactive, we need not decide the issue because 

appellant suffered no prejudice from the absence of its 

application. 

1. Evidence Code Section 352.2

Last year, Assembly Bill No. 2799 (Stats. 2022, ch. 973, § 2) 

added section 352.2 to the Evidence Code. Section 352.2 is 

designed to address problems with racial bias and stereotypes 

through the admission of rap videos. The Legislature found 

“[e]xisting precedent allows artists’ creative expression to be 

admitted as evidence in criminal proceedings without a 

sufficiently robust inquiry into whether such evidence introduces 

bias or prejudice into the proceedings.” (Stats. 2022, ch. 973, § 1, 

subd. (a).) Section 352.2 “provide[s] a framework by which courts 

can ensure that the use of an accused person’s creative 
28

expression will not be used to introduce stereotypes or activate 

bias.” (Id. at § 1, subd. (b).) 

Section 352.2, subdivision (a) provides, “In any criminal 

proceeding where a party seeks to admit as evidence a form of 

creative expression, the court, while balancing the probative 

value of that evidence against the substantial danger of undue 

prejudice under Section 352, shall consider, in addition to the 

factors listed in Section 352, that: (1) the probative value of such 

expression for its literal truth or as a truthful narrative is 

minimal unless that expression is created near in time to the 

charged crime or crimes, bears a sufficient level of similarity to 

the charged crime or crimes, or includes factual detail not 

otherwise publicly available; and (2) undue prejudice includes, 

but is not limited to, the possibility that the trier of fact will, in 

violation of [Evidence Code] Section 1101, treat the expression as 

evidence of the defendant's propensity for violence or general 

criminal disposition as well as the possibility that the evidence 

will explicitly or implicitly inject racial bias into the proceedings.” 

2. Split of Authority on Retroactive Application.

“[W]hen there is nothing to indicate a contrary intent in a 

statute it will be presumed that the Legislature intended the 

statute to operate prospectively and not retroactively.” (In re 

Estrada (1965) 63 Cal.2d 740, 746 (Estrada).) In evaluating 

retroactive application, “[c]ourts look to the Legislature’s intent 

in order to determine if a law is meant to apply retroactively.” 

(People v. Frahs (2020) 9 Cal.5th 618, 627 (Frahs).) When 

Estrada’s retroactivity principle is applicable, it covers “all cases 

that are not yet final as of the legislation’s effective date.” (People 

v. Esquivel (2021) 11 Cal.5th 671, 675.)
29

Here, neither the text of Section 352.2 itself, nor the 

Legislature’s findings and declarations, give any express 

indication that the Legislature intended Section 352.2 to apply 

retroactively to nonfinal cases. However, the general rule that 

new statutes operate prospectively will not apply where a 

criminal statute provides an ameliorative effect. In People v. 

Venable (2023) 88 Cal.App.5th 445 (Venable), the court held 

Section 352.2 applied retroactively. There, the defendant was 

driving a vehicle from which the passenger shot a rival gang 

member. (Id. at p. 452.) During trial, the prosecution introduced 

evidence of a “rap video” on YouTube that featured the defendant 

flashing gang signs while displaying guns, drugs, and money. The 

rap lyrics referred to the shooting and contained racial slurs. (Id.

at pp. 452–453.)

Venable found admission of the rap video without 

consideration of Section 352.2’s safeguards was prejudicial and 

reversed for a new trial. (Venable, supra, 88 Cal.App.5th at 

p. 458.) Venable principally relied on two cases: (1) Frahs, supra, 

9 Cal.App.5th at pp. 627–628, in which a new provision granting 

diversion for mental health disorder was deemed ameliorative 

and thus retroactive because it carried the potential for a 

reduction in punishment (Id. at p. 631), and (2) People v. Superior 

Court (Lara) (2018) 4 Cal.5th 299 (Lara), in which the court 

considered the retroactivity of Proposition 57, which prohibited 

prosecutors from directly charging minors as adults and gave 

discretion to the juvenile court to determine the issue. (Id. at p. 

308.) Lara, like Frahs, found the new provisions ameliorative 

because the new provisions could possibly reduce punishment, as

the defendant would be treated like a juvenile and receive 

different and more lenient treatment. (Id. at p. 303.) 
30

Finding the possibility of reduced punishment sufficient for 

retroactive application, Venable held Section 352.2 retroactive. 

However, taking a different view is People v. Ramos (2023) 90 

Cal.App.5th 578. There, the court emphasized that retroactivity 

under the Estrada rule applied where newly enacted legislation 

lessened punishment or reduced criminal liability. (Id. at p. 594.) 

Finding that Section 352.2—while it may be beneficial to a 

criminal defendant—did not reduce punishment or criminal 

liability, Ramos distinguished Frahs and Lara on the basis those 

cases examined statutory enactments resulting in potentially 

more lenient punishments, “which is not the effect of Evidence 

Code section 352.2.” (Id. at pp. 595–596.) Ramos concluded 

“[c]urrent precedent from our Supreme Court does not support an 

extension of the Estrada rule to a statutory change that may 

possibly benefit a criminal defendant but that does not redefine 

the conduct subject to criminal sanctions or, at least potentially, 

reduce or eliminate the applicable punishment.” (Id. at p. 596.) 

3. We Need Not Decide if Section 352.2 Applies 

Retroactively Because it is Not Reasonably Probable the Result 

Would Have Been Different.

Here, we need not decide whether Section 352.2 is 

retroactive because any error in the admission of appellant’s 

Facebook evidence was harmless. (People v. Watson (1956) 46 

Cal.2d 818, 836.) Where, as here, the evidence of guilt on the 

relevant charges is “overwhelming,” it is unlikely appellant was 

harmed by the format of the trial. (See People v. Pinholster (1992) 

1 Cal.4th 865, 931 [concluding the failure to bifurcate was 

harmless under the Watson standard because “[t]here was 

overwhelming evidence of defendant’s guilt”].) As discussed 

above, there was abundant evidence of guilt based on substantial 
31

eyewitness evidence and surveillance evidence linking appellant 

to both shootings. Thus, even if consideration of the factors in 

Section 352.2 led to the exclusion of appellant’s Facebook posts, it 

is not reasonably likely the jury would have reached a different 

verdict. 

B. Warrant for Appellant’s Facebook Records 

Appellant contends the trial erred in failing to quash the 

warrant for his Facebook records on the basis it lacked probable 

cause. Specifically, he asserts the warrant relied on untested 

information from informants lacking sufficient corroboration, and 

that the good faith exception did not apply. We disagree. 

1. Factual Background. 

In August 2015, the Sheriff’s Department sought a warrant 

for appellant’s Facebook posts. The warrant’s statement of 

probable cause recited that Deputy Peter Tovar, the deputy 

seeking the warrant, was aware of a recent increase in gang 

violence in the “Vermont Corridor,” an area of Los Angeles 

bordered by Van Ness Avenue on the west, Vermont Avenue on 

the east, El Segundo Boulevard on the south, and Manchester 

Avenue on the north. Investigators had confirmed the acts of 

violence in and around the Vermont Corridor were the result of 

an ongoing gang war between members of the Hoovers, Eight 

Trey Gangster Crips, and the Rolling 100s.

The warrant’s affidavit detailed a surveillance video of the 

Monarch Liquor Store at the time of the shooting. In the video, a 

2013 Dodge Dart is parked adjacent to the Monarch Liquor Store 

on 88th Street. The victim (Washington) got out of the Dart and 

walked across the street. Two vehicles, a Saturn belonging to 

Furdge and a Monte Carlo belonging to Randle, approached 
32

Vermont Avenue going eastbound on 88th Street and appear to 

stop at a traffic light. Washington crossed the street towards the 

two vehicles when a passenger from the Saturn got out of the car 

holding a black and silver automatic handgun. The passenger ran 

towards Washington, fired multiple rounds at him, and fired at 

the occupants in the Dodge Dart. The passenger got back into the 

Saturn and drove off. The shooter was wearing wire framed 

glasses. 

The warrant also detailed statements by victim Carr, who 

stated the shooter wore oval silver-framed glass, and the 

Vermont Line bus driver, who stated the shooter’s glasses were 

gold-framed. The bus driver described the shooter as 17-25 years 

old, about 5 foot 6 to 5 foot 7.

Investigators spoke to informants who told them they had 

heard the shooter was an individual in the Underground Crips 

known as “Tiny Fly” or “Fly.” Investigators knew appellant as 

“Tiny Fly,” and appellant resembled the shooter in the 

surveillance video, having the same body type, shape of face, skin 

tone, and type of glasses. Appellant’s Facebook username 

contained “Ug,” which meant “Underground Crips.” Deputy Tovar 

believed the Facebook pages would provide evidence of 

appellant’s involvement in Washington’s murder.

Appellant made an oral motion to quash the warrant, 

asserting it relied on anonymous sources. The trial court denied 

the motion, finding, “there is more to this affidavit than just a 

person giving anonymous information. There is a video which 

shows a person resembling the defendant wearing gold rimmed 

glasses. That, together with the information received[,] is 

sufficient for the search warrant. . . . I [also] would find there is a 

good faith exception to the search warrant rule.”
33

2. Discussion.

(a) Probable Cause Supported the 

Affidavit.

Evidence obtained in violation of the Fourth Amendment is 

inadmissible. (Mapp v. Ohio (1961) 367 U.S. 643, 650 [81 S.Ct. 

1684, 6 L.Ed.2d 1081].) A defendant may move to suppress 

evidence on the ground that a search or seizure with a warrant 

was unreasonable. (§ 1538.5, subd. (a)(1)(B)(i)–(v).) “‘In 

California, issues relating to the suppression of evidence derived 

from governmental searches and seizures are reviewed under 

federal constitutional standards.’” (People v. Macabeo (2016) 

1 Cal.5th 1206, 1212.)

The question facing a reviewing court asked to determine 

whether probable cause supported the issuance of the warrant is 

whether the magistrate had a substantial basis for concluding a 

fair probability existed that a search would uncover wrongdoing. 

“‘The test for probable cause is not reducible to “precise definition 

or quantification.”’ [Citation.] But . . . it is ‘less than a 

preponderance of the evidence or even a prima facie case.’” 

(People v. Westerfield (2019) 6 Cal.5th 632, 659–660.) The issuing 

magistrate must make a practical, commonsense decision 

whether, given all the circumstances set forth in the affidavit 

before the court, there is a fair probability that contraband or 

evidence of a crime will be found in a particular place. The 

magistrate’s determination of probable cause is entitled to 

deferential review, and the warrant will be overturned only if the 

affidavit fails as a matter of law to set forth sufficient competent 

evidence supporting the finding of probable cause. (Ibid.) 

“‘Although in a particular case it may not be easy to determine 

when an affidavit demonstrates the existence of probable cause, 
34

the resolution of doubtful or marginal cases in this area should be 

largely determined by the preference to be accorded to warrants.’” 

(People v. Weiss (1999) 20 Cal.4th 1073, 1082–1083.)

The California Supreme Court “‘ha[s] distinguished 

between those informants who “are often criminally disposed or 

implicated, and supply their ‘tips’ . . . in secret, and for pecuniary 

or other personal gain” and victims or chance witnesses of crime 

who “volunteer their information fortuitously, openly, and 

through motives of good citizenship.”’” (People v. Scott (2011) 52 

Cal.4th 452, 475, quoting People v. Ramey (1976) 16 Cal.3d 263, 

268–269 (Ramey).) There is no requirement that information 

provided by a citizen informant be corroborated for it to 

constitute probable cause supporting the issuance of a warrant. 

(People v. Smith (1976) 17 Cal.3d 845, 852 [“an untested citizeninformant who has personally observed the commission of a crime 

is presumptively reliable”].) 

Corroboration includes any facts, sources, and 

circumstances which reasonably tend to provide independent 

support for an informant. (People v. Gotfried (2003) 107 

Cal.App.4th 254, 263–264.) In a police investigation the 

information given by informants, even where the informant’s 

reliability is not complete, can nevertheless be sufficient to 

establish the requisite probable cause if it is corroborated in 

essential respects by other facts, sources, or circumstances. 

(People v. Fein (1971) 4 Cal.3d 747, 753.) The purpose served by 

corroboration in this situation is “to establish that the 

information provided by the informant did not constitute a madeup story, one fabricated out of whole cloth. Corroboration of part 

of the information provided by the informant [gives] credibility to 

the remainder of the information.” (People v. Medina (1985) 165 
35

Cal.App.3d 11, 20.) It is sufficient if an informant’s statements 

are corroborated in a number of key respects, and a piecemeal 

approach is not required. (Ibid.)

For corroboration to be adequate, it must pertain to the 

alleged criminal activity, and it is sufficient if police investigation 

has uncovered probative indications of criminal activity along the 

lines suggested by the informant. (People v. Gotfried, supra, 107 

Cal.App.4th at pp. 263–264; People v. Kershaw (1983) 147 

Cal.App.3d 750, 758–759.) “It is only where . . . neither the 

veracity nor basis of knowledge of the informant is directly 

established, or the information is not so detailed as to be selfverifying, or there is no logistical or other reason verification 

from other sources cannot be achieved, that the failure to 

corroborate may be indicative that it was objectively 

unreasonable for the officer to believe in the existence of probable 

cause.” (People v. Maestas (1988) 204 Cal.App.3d 1208, 1220–

1221, fn. omitted.) Ultimately, the information in a search 

warrant affidavit which has been supplied by an informant and 

corroborated by investigation conducted by law enforcement need 

only give the officers reasonable grounds to believe that the 

informant is truthful. (People v. Lara (1967) 67 Cal.2d 365, 374–

375.)

Here, appellant asserts the affidavit stated informants had 

heard Tiny Fly was the shooter. He complains these tipsters had 

no personal knowledge of the shooting, and the identity of these 

informants was unknown; thus, this information was insufficient 

to support a probable cause finding. Further, the description of 

appellant (light skinned black male about 17-25 years of age and 

wearing wire framed glasses) was far too general to provide 

probable cause; Carr’s description differed from the Vermont line 
36

bus driver’s description (silver versus gold-framed glasses); and 

similarity in body type and skin color was too vague to constitute 

probable cause.

We disagree. Here, there was a network of facts tying 

appellant to the offenses. The surveillance video’s images of 

appellant, coupled with the detailed eyewitness descriptions of 

Carr and the bus driver that tracked the video, placed him at the 

Monarch Liquor Store scene. This information, combined with the 

information that appellant went by “Tiny Fly,” and was an 

Underground Crip, provided a sufficient basis for a warrant 

seeking appellant’s Facebook posts. 

(b) The Good Faith Exception Applied. 

“[W]hen . . . the police do obtain a warrant, that warrant is 

presumed valid.” (People v. Amador (2000) 24 Cal.4th 387, 393.) 

“Because a search conducted pursuant to a search warrant is 

presumed lawful, the burden of establishing the invalidity of the 

search warrant rests upon the defendant.” (People v. Lazalde

(2004) 120 Cal.App.4th 858, 865.)

Under the good faith exception to the exclusionary rule, 

“[e]vidence obtained by police officers acting in reasonable 

reliance on a search warrant issued by a detached and neutral 

magistrate is ordinarily not excluded under the Fourth 

Amendment, even if a reviewing court ultimately determines the 

warrant is not supported by probable cause.” (People v. French 

(2011) 201 Cal.App.4th 1307, 1323.) However, the good faith 

exception will not apply if the affidavit is so lacking in indicia of 

probable cause that the officer’s reliance on the warrant is 

objectively unreasonable. (Ibid.)

Indeed, “[i]n the ordinary case, an officer cannot be 

expected to question the magistrate’s probable-cause 
37

determination or his [or her] judgment that the form of the 

warrant is technically sufficient.” (United States v. Leon (1984) 

468 U.S. 897, 921 [104 S.Ct. 3405, 82 L.Ed.2d 677] (Leon).) Leon 

observed that marginal or nonexistent benefits produced by 

suppressing the evidence obtained did not justify the substantial 

costs of exclusion because the exclusionary rule is designed to 

deter police misconduct rather than to punish the errors of judges 

and magistrates. (Ibid.) In considering the issue, we apply the 

objective test of “‘“whether a reasonably well-trained officer 

would have known that the search was illegal despite the 

magistrate’s authorization.”’ (Leon, supra, 468 U.S. at p. 922, fn.

23.) We review the trial court’s application of the good faith 

exception de novo.” (People v. Lazarus (2015) 238 Cal.App.4th 

734, 766–767.)

Here, even assuming that the warrant was not supported 

by probable cause, appellant has not shown that a “reasonably 

well-trained officer would have concluded the information in the 

affidavits was fatally unreliable as being so lacking in indicia of 

reliability, or that the magistrate issuing the warrant was misled 

by any information.” (Leon, supra, 468 U.S. at p. 922, fn. 23.) On 

the contrary, the information in the affidavit was logically 

connected, with each fact confirming the others. The statements 

from Carr and the bus driver matched appellant’s description, 

and the surveillance video depicted the shooting in detail. 

C. Admission of Appellant’s Facebook Posts Under 

the Business Records Exception to the Hearsay Rule.

Appellant contends the trial court erroneously admitted his 

Facebook photographs and posts based upon stipulated testimony 

that was insufficient to establish the business records exception

to the hearsay rule applied. He contends the error deprived him 
38

of due process, the error was prejudicial, and if any federal error 

was forfeited, counsel was ineffective. Respondent counters that 

appellant forfeited the issue by failing to adequately object in the 

trial court and invited error by entering into the stipulation 

concerning the records. 

1. Procedural Background.

During pretrial proceedings, the prosecution moved to 

introduce the Facebook records obtained pursuant to the warrant 

under the business records exception to the hearsay rule.8 The 

records included photographs of appellant in gold-rimmed 

glasses, posting of gang photographs, posts in which appellant 

pledged his loyalty to the Underground Crips, posts alluding to 

revenge, and posts referring to the Hoovers by derogatory names. 

The prosecution asserted the evidence was probative on the 

issues of identity, motive, and intent.

At trial, the prosecution wanted to call Detective 

Timmerman to lay a foundation for the Facebook records unless 

the parties were able to reach a stipulation concerning their 

admission. Accordingly, the court asked appellant’s counsel if he 

would stipulate that “Detective Thorston Timmerman received 

8 Evidence Code section 1271 provides, “Evidence of a 

writing made as a record of an act, condition, or event is not 

made inadmissible by the hearsay rule when offered to prove the 

act, condition, or event if: [¶] (a) The writing was made in the 

regular course of a business; [¶] (b) The writing was made at or 

near the time of the act, condition, or event; [¶] (c) The custodian 

or other qualified witness testifies to its identity and the mode of 

its preparation; and [¶] (d) The sources of information and 

method and time of preparation were such as to indicate its 

trustworthiness.”
39

appellant’s Facebook records, and that Detective Timmerman 

would have testified, if duly sworn, that these records were 

produced in the regular course of business; that these records 

were generated at or near the time of the events; and that he is 

familiar with the process by which Facebook maintained and 

generates and produces these Facebook records?” Counsel 

responded, “Yes, I stipulate that would have been his testimony.” 

Counsel did not object to the admission of the Facebook posts on 

hearsay grounds.

2. Discussion.

Appellant argues the stipulated testimony was insufficient 

to establish the business records exception applied because 

Detective Timmerman did not testify about the mode of 

preparation. Specifically, appellant contends that although 

Detective Timmerman was familiar with how such records were 

maintained, generated, and produced, he did not testify that the 

records conformed to those procedures and there was no 

information that he had personal knowledge of any of these facts. 

Further, there was no affidavit accompanying the return on the 

search warrant pursuant to Evidence Code section 1561.

We need not decide the issue, because even if it were error 

to admit the evidence, appellant invited such error. (People v. 

Harrison (2005) 35 Cal.4th 208, 237.) “‘The doctrine of invited 

error is designed to prevent an accused from gaining a reversal 

on appeal because of an error made by the trial court at his 

behest. If defense counsel intentionally caused the trial court to 

err, the appellant cannot be heard to complain on appeal.’” 

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.) 

Any objection to the admission of evidence must be 

particularly stated. (Evid. Code, § 353; Kiler v. Kimbal (1858) 10 
40

Cal. 267, 267.) “A verdict or finding shall not be set aside, nor 

shall the judgment or decision based thereon be reversed, by 

reason of the erroneous admission of evidence unless: [¶] 

(a) There appears of record an objection to or a motion to exclude 

or to strike the evidence that was timely made and so stated as to 

make clear the specific ground of the objection or motion.” (Evid. 

Code, § 353.) “In accordance with this statute, we have 

consistently held that the ‘defendant’s failure to make a timely 

and specific objection’ on the ground asserted on appeal makes 

that ground not cognizable.” (People v. Seijas (2005) 36 Cal.4th 

291, 302.) 

This objection requirement is necessary in criminal cases 

because a “contrary rule would deprive the People of the 

opportunity to cure the defect at trial and would ‘permit the 

defendant to gamble on an acquittal at his trial secure in the 

knowledge that a conviction would be reversed on appeal.’” 

(People v. Rogers (1978) 21 Cal.3d 542, 548.) “[The rule] allows 

the trial judge to consider excluding the evidence or limiting its 

admission to avoid possible prejudice. It also allows the 

proponent of the evidence to lay additional foundation, modify the 

offer of proof, or take other steps designed to minimize the 

prospect of reversal.” (People v. Morris (1991) 53 Cal.3d 152, 187–

188.)

Here, appellant invited any error and the issue is not 

cognizable on appeal due to appellant’s failure to object to the 

evidence. Appellant was aware the prosecution, absent a 

stipulation from the defense, needed to call a witness to lay a 

foundation for the Facebook records. After entering into the 

stipulation, appellant did not object to the records. This lack of 

objection deprived the prosecution of an opportunity to cure any 
41

defect in meeting the requirements of the business records 

exception to the hearsay rule, or in laying an appropriate 

foundation. 

Finally, we reject appellant’s contention that his counsel

rendered ineffective assistance due to counsel’s failure to object 

on federal constitutional grounds and argue that admission of the 

Facebook posts would violate his due process rights and render 

the trial unfair. 

The right to effective assistance of counsel derives from the 

Sixth Amendment right to assistance of counsel. (Strickland v. 

Washington, supra, 466 U.S. at pp. 686–694; see also Cal. Const., 

art. I, § 15.) To demonstrate ineffective assistance, appellant 

must show (1) “counsel’s [conduct] was deficient when measured 

against the standard of a reasonably competent attorney,” and 

(2) prejudice resulting from counsel’s performance “‘so 

undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a just 

result.’” (People v. Mayfield (1997) 14 Cal.4th 668, 784.) “If it is 

easier to dispose of an ineffectiveness claim on the ground of lack 

of sufficient prejudice . . . that course should be followed.” 

(Strickland v. Washington, supra, at p. 697.)

“‘[T]he relevant inquiry under Strickland is not what 

defense counsel could have pursued, but rather whether the 

choices made by defense counsel were reasonable.’” (Babbitt v. 

Calderon (9th Cir. 1998) 151 F.3d 1170, 1173.) Prejudice is shown 

where there is a reasonable probability, but for counsel’s errors, 

that the result of the proceeding would have been different. (In re 

Harris (1993) 5 Cal.4th 813, 833.) Further, prejudice must be 

established as “‘“a demonstrable reality,” not simply speculation 

as to the effect of the errors or omissions of counsel.’” (In re Clark 
42

(1993) 5 Cal.4th 750, 766.) Our review of counsel’s performance is 

deferential, and strategic choices made after a thorough 

investigation of the law and facts are “virtually unchallengeable.” 

(In re Cudjo (1999) 20 Cal.4th 673, 692.)

Here, appellant cannot show that such an objection would 

have been sustained, given the stipulation he previously entered

regarding admission of the Facebook posts. Thus, where, as here, 

counsel’s trial tactics or strategic reasons for challenged decisions 

do not appear on the record, we will not find ineffective 

assistance of counsel on appeal unless there could be no 

conceivable reason for counsel’s acts or omissions. (People v. 

Weaver (2001) 26 Cal.4th 876, 926.)

D. Admission of Prison Photographs 

Appellant contends the trial court abused its discretion in 

admitting Facebook photographs that depict him in prison; 

further, counsel was ineffective for failing to object on 

appropriate grounds and the error deprived him of due process.

1. Factual Background. 

Appellant objected on Evidence Code section 352 grounds to 

the Facebook records showing him in a prison cell. The photos 

(Facebook pages 324, 388, and 472) at issue depict appellant in 

various poses, displaying his tattoos and wearing his glasses. The 

court admitted the photographs, finding them relevant to 

showing appellant with gang tattoos and wearing his glasses.

2. Discussion.

We review the trial court’s decision to admit the 

photographs for abuse of discretion. (People v. Scully (2021) 11 

Cal.5th 542, 590.) “‘To determine whether there was an abuse of 
43

discretion, we address two factors: (1) whether the photographs 

were relevant, and (2) whether the trial court abused its 

discretion in finding that the probative value of each photograph 

outweighed its prejudicial effect.’” (People v. Lewis (2009) 46 

Cal.4th 1255, 1282.) 

Under Evidence Code section 352, the evidence was highly 

probative to establish appellant was the shooter the witnesses 

had described, as well as establish his motivation as a gang 

member to commit violent acts for the Underground Crips. He is 

wearing glasses, displaying his gang tattoos, or holding up what 

appears to be a shirt with the letter “U.” 

Moreover, the photographs were not unduly prejudicial 

such that exclusion was required under Evidence Code section 

352. There was no danger of confusing the issues, or of 

misleading the jury. (See People v Chhoun (2021) 11 Cal.5th 1,

26.) The prejudice that Evidence Code section 352 is designed to 

avoid “‘is not the prejudice or damage to a defense that naturally 

flows from relevant, highly probative evidence.’” (People v. Baker

(2021) 10 Cal.5th 1044, 1089.) Rather, it generally refers to 

evidence “that prompts an emotional reaction against the 

defendant and tends to cause the trier of fact to decide the case 

on an improper basis.” (People v. Walker (2006) 139 Cal.App.4th 

782, 806.)

Here, the photographs would not invoke undue prejudice. 

Appellant appears in several poses facing the camera and in one 

picture displays his gang tattoos. It is not necessarily apparent 

that he is in prison; he is not displaying weapons or throwing 

gang signs. Thus, there is nothing about these photographs that 

would prompt an emotional reaction or cause the jury to decide 

the case on an improper basis, namely, to convict defendant
44

simply because he was gang member. Because there is no 

statutory error, appellant’s constitutional claim fails. (People v. 

Fuiava (2012) 53 Cal.4th 622, 670.)

For these reasons, as appellant cannot demonstrate 

improper admission of the photographs, his ineffective assistance 

claims fail. 

E. Ineffective Assistance of Counsel: Admission of 

Facebook Pages. 

Appellant contends counsel was ineffective for failing to 

object, until the gang expert had testified at length, to the 

Facebook records on foundational and hearsay grounds. 

1. Factual Background.

Deputy Castaneda testified at trial that he reviewed 

portions of appellant’s Facebook postings. He opined that “HK” 

referred to “Hoover Killer.” Also, he continued, if a post said 

“strapped,” that meant carrying a weapon, and “CC” meant 

Crips, because “CK” meant “Crip Killer.” He further explained 

that Crips, including Underground Crips, would not put a “K” 

after a “C” because they would not want to refer to themselves as 

a “Crip Killer.” Therefore, they replace a “K” with a “C.” Where 

appellant posted “Snoova Remover,” appellant claimed he was 

someone who got rid of Hoovers.

One post stated, “[T]he countdown has officially begun. The 

lift off is coming soon. Real soon.” The word “the” had a “K” after 

the “H.” Underground Crips often refer to themselves as “Hoover

killers,” so after every “H” there was a “K,” which meant “Hoover 

Killer.” Another post said, “the time has come for the 

underground king to reclaim my spot. Heard it’s a few of my own 

that feel otherwise, so I say to you . . . ‘let’s play ball, because it 
45

will be you.’ I’m coming at first forever grounded darula, [sic] 

Tiny Fly.” Another post stated, “I’m strapped up . . . fucc a gun 

law . . . . See me walking with a limp. That’s my gun walk.” 

Deputy Castaneda explained, as noted above, that “strapped”

meant carrying a firearm. The spelling of the expletive as “fucc” 

was because Underground Crips never put a “K” after a “C”

because that meant “Crip Killers.”

Further posts said, “I was a regular with DA burner on my 

hip in case a Snoova felt lucky. But I forgot they were scared to 

hit Normandie back then. Now they regulars. LOL.” A “burner” is 

a street term for a firearm. Another post also stated, “Bitch, stop 

playing U. It like U-G’s U, (snoova, tramp, and slobs).” Castaneda 

interpreted this as a threat toward rivals, because “tramp” is 

derogatory toward Eight Trey Gangsta Crips and “slobs” is 

derogatory toward Bloods.

2. Discussion. 

Appellant contends trial counsel did not object to this gang 

testimony on hearsay or foundational grounds, thereby depriving 

him of effective assistance of counsel. He points out that gang 

experts are not allowed to relate case-specific hearsay to the jury.

(See, e.g., People v. Sanchez (2016) 63 Cal.4th 665, 676–679

(Sanchez).) Furthermore, he contends that although a party’s 

admissions are generally admissible under Evidence Code section 

1220, the statements here did not qualify as appellant’s 

admissions because the Facebook posts in which they were 

contained did not meet the foundational requirements of the 

business records exception. Finally, he asserts counsel had no 

tactical reason for failing to object because counsel had previously 

objected to the evidence.
46

Although appellant is correct there is a foundational 

requirement for the Facebook admissions to show it was 

appellant who made the statements, appellant invited any error 

by failing to object to the application of the business records 

exception before the gang expert began his testimony. As a result, 

counsel cannot be deemed ineffective for failing to raise the 

argument again, as any objection would have been pointless. 

Defense counsel cannot be considered ineffective for failing to 

make futile objections. (People v. Boyette (2002) 29 Cal.4th 381, 

437.)

The Facebook statements are admissible as party 

admissions regardless of whether the statements qualified as 

business records. Under Evidence Code section 1220, “[e]vidence 

of a statement is not made inadmissible by the hearsay rule when 

offered against the declarant in an action to which he is a 

party. . . .” (People v. Rodriguez (2014) 58 Cal.4th 587, 637.)

Finally, appellant’s objection under Sanchez, supra, 63 Cal.4th 

665, is thus not well taken. Sanchez observed that while an 

expert cannot relate as true case-specific facts asserted in 

hearsay statements, such statements can be independently 

admissible if proven by competent evidence or covered by a 

hearsay exception. (Id. at p. 687.) The Facebook posts here 

qualified as party admissions. 

Finally, because the Facebook posts properly came in under 

several exceptions to the hearsay rule, any further objection to 

their contents would have been futile. Thus, counsel’s 

performance was not deficient, and there can be no ineffective 

assistance claim. (Strickland v. Washington, supra, 466 U.S. at 

p. 694.)
47

V. IN-COURT IDENTIFICATION OF APPELLANT.

Appellant contends defense counsel improperly elicited in 

court from witness Derrick Jones testimony that he recognized 

appellant as Ross, Jr.’s shooter, and that this error deprived him 

of effective assistance of counsel.

A. Factual Background.

Jones, who witnessed the shooting at the AutoZone store, 

testified on direct examination for the prosecution that he was 

inside the store and saw Ross, Jr. in line. After Ross, Jr. left the 

store, Jones heard shots fired. Jones looked out the window, and 

saw a person with a handgun. The man was bald, wore glasses, 

looked to be about 41 or 42 years old, and was African American. 

Later, police showed Jones a photo array, but Jones was not able 

to identify appellant.

On cross-examination, Jones reiterated that he did not 

recognize appellant when shown a photo array. Defense counsel 

asked, “You don’t recognize [appellant] as the shooter, correct?” 

Jones responded, “I do recognize him as the shooter at the time of 

the incident when it occurred.” Counsel asked, “You recognize 

him now?” Jones responded, “Yes I do.” Jones testified that he did 

not know appellant and had never seen him before. However, 

Jones got a good look at the shooter the day of the incident.

Although Jones had not seen appellant since the day of the 

shooting, he recognized him in court. Jones did not recognize 

appellant in the photo array because appellant’s picture was not 

in the array. Counsel inquired, “you do agree that your memory 

seven months after the [shooting] was better . . . than it is now 

five years later?” Jones responded, “No, I say he’s still the same.” 
48

On redirect, Jones reiterated that he got a 30-second look 

at the shooter. Jones realized appellant was the shooter when he 

stepped on the stand to testify.

B. Discussion.

In evaluating a claim of ineffective assistance, we indulge a 

presumption that counsel’s performance fell within the wide 

range of professional competence and that counsel’s actions and 

inactions can be explained as a matter of sound trial strategy. 

(People v. Gamache (2010) 48 Cal.4th 347, 391.)

Where, as here, counsel inadvertently elicits damaging 

testimony, “[i]t is all too tempting for a defendant to second-guess

counsel’s assistance after conviction or adverse sentence, and it is 

all too easy for a court, examining counsel’s defense after it has 

proved unsuccessful, to conclude that a particular act or omission 

of counsel was unreasonable. [Citation.] A fair assessment of 

attorney performance requires that every effort be made to 

eliminate the distorting effects of hindsight, to reconstruct the 

circumstances of counsel’s challenged conduct, and to evaluate 

the conduct from counsel’s perspective at the time.” (Strickland v. 

Washington, supra, 466 U.S. at p. 689.)

Thus, even where defense counsel has elicited damaging

testimony, we will not second guess counsel’s tactical choice of 

questions that led to such testimony. (People v. Williams (1997) 

16 Cal.4th 153, 217.) Here, counsel made a plausible tactical 

decision to attempt to establish that Jones could not identify 

appellant. Jones had testified on direct that he did not and could 

not identify appellant, and defense counsel sought to underscore 

that testimony. There was no reason for defense counsel to expect

this testimony to suddenly change. (Cf. In re Jones (1996) 13 

Cal.4th 552, 570–571 (Jones).) In Jones, defense counsel elicited 
49

damaging testimony on cross-examination that the defendant

was the killer. However, unlike here, in Jones, defense counsel 

had no reason to believe this testimony was not forthcoming. 

(Ibid.) 

VI. ADMISSION OF EVIDENCE APPELLANT 

COMMITTED A HOME INVASION ROBBERY.

Appellant contends the trial court erroneously admitted 

evidence he committed a home invasion robbery with witness 

Johnson shortly after the Ross, Jr. shooting. Appellant asserts 

this evidence was inadmissible under Evidence Code section 786 

as an improper attack on a witness’s credibility, improper 

character evidence under Evidence Code section 1101, and his 

counsel was ineffective for failing to object on all appropriate 

grounds. Respondent asserts appellant forfeited the claim and 

has failed to show that counsel did not have a reasonable tactical 

basis for objecting on this ground after the trial court had already 

overruled an objection under Evidence Code section 352.

A. Factual Background.

Before Johnson, a defense witness who would testify 

appellant was not the shooter, testified, the prosecution sought to 

admit evidence that after participating in the AutoZone shooting, 

Johnson and appellant committed a home invasion robbery for 

which they were both convicted. Defense counsel objected that 

this evidence was inadmissible because it had no bearing on the

charges in this case and would be more prejudicial than probative 

under Evidence Code section 352. 

The trial court admitted the evidence, finding the evidence 

probative of Johnson’s bias and credibility because appellant and 
50

Johnson were connected by both their joint gang membership and 

the commission of a crime together. 

On direct examination as a defense witness, Johnson 

testified that appellant was not the man he saw getting into the 

Buick after the shooting at the AutoZone. On cross-examination,

the prosecution asked if Johnson had committed another crime 

with appellant in September 2015. Johnson admitted he had 

participated in a home invasion robbery with appellant, and had 

been convicted of the offense. Johnson claimed, however, that 

appellant was innocent in that case, and Johnson denied being in 

the vehicle on the way to the robbery. 

B. Discussion.

Here, the evidence was relevant to prove Johnson’s 

allegiance to appellant as a fellow gang member and partner in 

crime, and thus damage Johnson’s credibility. As such, the 

testimony was highly probative. Further, it was not unduly 

prejudicial. The “prejudice” referred to in Evidence Code section 

352 applies to evidence which uniquely tends to evoke an 

emotional bias against the defendant as an individual and which 

has very little effect on the issues. (People v. Bryant, Smith & 

Wheeler (2014) 60 Cal.4th 335, 408.) Johnson’s prior act evidence 

was directed at his credibility and did not involve weapons, gang 

activity, a shooting, or anything else likely to invoke undue 

prejudice. 

Although appellant did not raise objections under Evidence 

Code sections 786 and 1101 at trial, thereby forfeiting those 

objections under Evidence Code section 353, subdivision (a), we 

address them nonetheless to dispose of his ineffective assistance 

claims.
51

First, sections 786 through 790 govern the admissibility of 

character trait evidence to attack or support the credibility of a 

witness. (People v. Thompson (1979) 98 Cal.App.3d 467, 475.) In 

general, a party may cross-examine a witness about the witness’s 

motive and bias. (Evid. Code, § 780, subd. (f).) “Crossexamination is the principal means by which the believability of a 

witness and the truth of his testimony are tested. Subject always 

to the broad discretion of a trial judge to preclude repetitive and 

unduly harassing interrogation, the cross-examiner is not only 

permitted to delve into the witness[’s] story to test the witness[’s]

perceptions and memory, but the cross-examiner has 

traditionally been allowed to impeach, i.e., discredit, the witness,” 

including by “cross-examination directed toward revealing 

possible biases, prejudices, or ulterior motives of the witness.” 

(Davis v. Alaska (1974) 415 U.S. 308, 316 [94 S.Ct. 1105, 39 

L.Ed.2d 347].) “The partiality of a witness is subject to 

exploration at trial, and is ‘always relevant as discrediting the 

witness and affecting the weight of his testimony.’” (Ibid.)

Evidence Code section 789, which appellant cites on appeal, 

generally limits witness character-credibility evidence to honesty 

and veracity and their opposites because those are the only four 

traits relevant to that issue. (People v. Knox (1979) 95 Cal.App.3d 

420, 434.) Where, however, a specific instance of conduct is 

relevant to prove a witness’s bias or improper motive, apart from 

any relevancy it has to prove a character trait, it is admissible. 

“[E]vidence contradicting the testimony of a witness, even if it 

consists of proof of other wrongful acts, is proper if it is relevant 

to an issue in the case.” (Id. at p. 434.) Here, Johnson’s prior act 

in assisting appellant in committing a crime was relevant to his 
52

bias on the stand and motive to defend appellant by repudiating

his earlier identification of appellant as the shooter. 

Evidence Code section 1101, subdivision (a), which 

prohibits character evidence in general, permits such evidence 

where relevant to establish “motive, opportunity, intent, 

preparation, [or] plan.” (Evid. Code, § 1101, subd. (b).) 

For these reasons, we conclude that admission of the 

evidence did not unduly prejudice appellant. As a result, no 

ineffective assistance of counsel claim lies. (Strickland v. 

Washington, supra, 466 U.S. at p. 697.) Further, counsel may 

have had a tactical basis for declining to make further objections, 

given that the trial court admitted the evidence under Evidence 

Code section 352. (See People v. Gamache, supra, 48 Cal.4th at 

p. 391.) 

VII. PROSECUTORIAL MISCONDUCT.

Appellant contends the prosecution argued facts not in 

evidence when it improperly vouched for the key witness Bell, 

and such misconduct was prejudicial because Bell’s testimony 

was essential to appellant’s identification as the shooter at the 

Monarch Liquor Store. Appellant further contends counsel was 

ineffective for failing to object to this evidence. Respondent 

counters that this claim was forfeited due to defense counsel’s 

failure to object, but even assuming the comments were 

improper, they were not prejudicial. 

A. Factual Background. 

During closing argument, the prosecution told the jury “[i]t 

was decided that there was not enough evidence to convict 

Patrick Bell.” The trial court instructed the jury that it was not to 

speculate why Bell was not being prosecuted or whether he would 
53

be prosecuted in the future, and admonished the jury that it must 

determine whether Bell was an accomplice. The court also 

instructed the jury that arguments of counsel were not evidence.

B. Discussion.

A prosecutor commits misconduct when his or her conduct 

either infects the trial with such unfairness as to render the 

subsequent conviction a denial of due process or involves 

deceptive or reprehensible methods employed to persuade the 

trier of fact. (People v. Silveria & Travis (2020) 10 Cal.5th 195, 

306.) When attacking the prosecution’s remarks to the jury, the 

defendant must show that in the context of the whole argument 

and the instructions there was a reasonable likelihood the jury 

understood or applied the complained-of comments in an 

improper or erroneous manner. (Ibid.) “‘As a general rule a 

defendant may not complain on appeal of prosecutorial 

misconduct unless in a timely fashion—and on the same 

ground—the defendant made an assignment of misconduct and 

requested that the jury be admonished to disregard the 

impropriety.’” (Ibid; People v. Powell (2018) 6 Cal.5th 136, 171.) 

Although appellant forfeited his argument by failing to 

object to the prosecutor’s statements, we find no prejudice from 

the prosecution’s isolated comment. The comment itself was brief;

although Bell was a primary witness to the shootings, there was 

also extensive other evidence of appellant’s involvement in the 

Monarch Liquor Store shooting (eyewitness testimony, including 

Carr and the bus driver) as well as Bell’s tendency to lie. Further, 

the trial court specifically admonished the jury regarding this 

comment and that arguments of counsel were not evidence. Thus, 

it is not reasonably probable that absent the prosecutor’s 

comments, the result at trial would have been different.
54

For these reasons, we find no ineffective assistance claim. 

We need not determine whether counsel was deficient for failing 

to object, because without any prejudice from counsel’s failure, 

there can be no ineffective assistance. (Strickland v. Washington, 

supra, 466 U.S. at p. 697; see also In re Crew (2011) 52 Cal.4th 

126, 150 [“If a claim of ineffective assistance of counsel can be 

determined on the ground of lack of prejudice, a court need not 

decide whether counsel’s performance was deficient”].)

VIII. CUMULATIVE ERROR.

Appellant argues the combined errors deprived him of a 

fair trial. He asserts the jury heard several inadmissible and 

inflammatory messages from his Facebook page and he was 

unable to fully confront Bell, a key prosecution witness; his 

Marsden motion was denied even though his counsel left at least 

one biased juror on the case; his counsel failed to object to 

prosecutorial vouching; and his counsel failed to properly argue 

evidentiary rulings. Appellant’s argument lacks merit because we 

have rejected each of appellant’s individual claims. Thus, they 

“cannot logically be used to support a cumulative error claim 

[where] we have already found there was no error to cumulate.” 

(In re Reno (2012) 55 Cal.4th 428, 483.)

IX. GANG ENHANCEMENTS, ASSEM. BILL NO. 333.

Appellant argues the gang enhancements and gang special 

circumstances must be reversed because the jury was not 

instructed with the new requirements of section 186.22, as 

amended effective January 1, 2022. While conceding that Assem. 

Bill No. 333 applies retroactively to the gang enhancements, 

respondent asserts that those amendments do not apply to the 
55

gang-murder special circumstance findings (§ 190.2, subd. 

(a)(22)). We disagree.

A. Factual Background.

During trial, counsel stipulated that the Underground 

Crips was a criminal street gang as defined in sections 186.22 

and 190.2, subdivision (a)(22). The parties also stipulated to 

predicate acts. However, because trial predated the effective date 

of Assem. Bill No. 333, the jury was not instructed with the 

changes in the law applicable to the gang enhancements or the 

special circumstance allegation. 

The jury found true the section 12022.53, subdivision (b)-

(e)(1) enhancements, which require a true finding on the 

underlying gang enhancement. Finally, the jury found true the 

gang special circumstance alleged regarding each murder.

B. Analysis.

1. Assem. Bill No. 333 Modified Section 186.22 to 

Require Additional Proof, Requiring Remand.

In 2021, the Legislature enacted Assem. Bill No. 333, which 

amended section 186.22 to impose new substantive and 

procedural requirements for gang allegations. (Assem. Bill No. 

333 (Reg. Sess.) § 3.) Assem. Bill No. 333 found “[g]ang 

enhancement evidence can be unreliable and prejudicial to a 

jury” because such evidence “is lumped into evidence of the 

underlying charges[,] further perpetuat[ing] . . . convictions of 

innocent people.” (Stats. 2921, ch. 699, § 2(d)(6)); see People v. 

Ramos (2022) 77 Cal.App.5th 1116, 1129.) Therefore, Assem. Bill 

No. 333 modified the evidentiary standard for admission of gang 

evidence and provided for bifurcation of trials to separate the 
56

gang evidence from the underlying charges. The statute is silent 

about retroactivity. (People v. Rodriguez (2022) 75 Cal.App.5th 

816, 822.)

The amendments to section 186.22 “require proof of 

additional elements to establish a gang enhancement.” (People v. 

Lopez (2021) 73 Cal.App.5th 327, 343.) Among other things, 

Assem. Bill No. 333 amended the definitions of “criminal street 

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

(§ 186.22, subd. (e)(1)), and clarified the evidence needed to 

establish that an offense benefits, promotes, furthers, or assists a 

criminal street gang. (See People v. E.H. (2022) 75 Cal.App.5th 

467, 477–478.)

Most notably, the new law defines “to benefit, promote, 

further, or assist” as “to provide a common benefit to members of 

a gang where the common benefit is more than reputational. 

Examples of a common benefit that are more than reputational 

may include, but are not limited to, financial gain or motivation, 

retaliation, targeting a perceived or actual gang rival, or 

intimidation or silencing of a potential current or previous 

witness or informant.” (§ 186.22, subd. (g).) In addition, the new 

law imposes a stricter requirement for proof of a predicate 

offense, namely “a pattern of criminal gang activity,” which is 

necessary to prove that the group with which the defendant is 

associated is indeed a criminal street gang. (See § 186.22, subd. 

(f).) The current offense cannot be used as one of the two 

predicate offenses. (§ 186.22, subd. (e)(2).) Finally, both predicate

offenses must have been committed “within three years of the 

date the current offense is alleged to have been committed,” by 

gang “members,” and must have been for the “common[ ] 

benefit[ ] [of] a criminal street gang.” (§ 186.22, subd. (e)(1).)
57

Thus, in summary, pursuant to the new legislation, 

imposition of a gang enhancement requires proof of the following 

additional requirements with respect to predicate offenses: (1) the 

offenses must have “commonly benefited a criminal street gang” 

where the “common benefit[ ] . . . is more than reputational”; 

(2) the last predicate offense must have occurred within three 

years of the date of the currently charged offense; (3) the 

predicate offenses must be committed on separate occasions or by 

two or more gang members; and (4) the charged offense cannot be 

used as a predicate offense. (Assem. Bill No. 333 (Reg. Sess.) § 3, 

§ 186.22, subd. (e)(1)–(2).)9

Respondent concedes and the parties do not dispute the 

new section 186.22 applies retroactively to cases not yet final on 

appeal. (People v. Lopez, supra, 73 Cal.App.5th at p. 344.) The 

same standards apply to challenges to the evidence underlying a 

true finding on a special circumstance as to any other evidence. 

(People v. Edwards (2013) 57 Cal.4th 658, 715.)

Here, we find the true findings on the gang enhancements 

and gang-related gun enhancements must be reversed and 

remanded for retrial because the jury was not instructed in 

accordance with the additional proof requirements of Assem. Bill 

No. 333, namely, that the benefit to the gang is more than 

9 Assem. Bill No. 333 also added section 1109, which 

provides that, upon the defendant’s request, the trial court must 

bifurcate an enhancement charged under section 186.22, 

subdivision (b), from the underlying charges. (§ 1109, subd. (a).) 

In addition, such separate proceedings must be held after the 

determination of the defendant’s guilt in the underlying offenses. 

(§ 1109, subd. (a).) Appellant does not argue that this provision is 

retroactive or that it should apply to his case.
58

reputational, the last predicate offense occurred within three 

years of the date of the currently charged offense, and the 

predicate offenses must be committed on separate occasions or by 

two or more gang members. Respondent concedes this point.

2. Assem. Bill No. 333 Did Not Unconstitutionally 

Amend Proposition 21.

Appellant contends the jury’s true finding regarding the 

gang-murder special circumstance allegations (§ 190.2, subd. 

(a)(22)) must also be vacated under the law as amended by 

Assem. Bill No. 333. Respondent argues Assem. Bill No. 333’s 

amendment of the gang-murder special circumstance is 

unconstitutional. 

Section 190.2 sets forth a list of special circumstances in 

which the punishment for first degree murder is death or life 

without the possibility of parole. (§ 190.2, subd. (a).) Section 

190.2, subdivision (a)(22), provides for a special circumstance

where the “defendant intentionally killed the victim while the 

defendant was an active participant in a criminal street gang, as 

defined in subdivision (f) of Section 186.22, and the murder was 

carried out to further the activities of the criminal street gang.” 

Proposition 21, enacted by California voters in 2000, added 

this special gang circumstance to this list. (Voter Information 

Guide, Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 11, pp. 

121-122.) However, Assem. Bill No. 333 amended the definition of 

a “criminal street gang” in section 186.22, subdivision (f), by 

narrowing that definition. Authority is split on whether Assem. 

Bill No. 333 unconstitutionally amended section 190.2, 

subdivision (a)(22). We recently held in People v. Lee (2022) 81 

Cal.App.5th 232 (Lee), review granted Oct. 19, 2022, S275449, 

that Assem. Bill No. 333’s amendments are constitutional. 
59

However, People v. Rojas (2022) 80 Cal.App.5th 542 (Rojas), 

review granted Oct. 19, 2022, S275835, reached the opposite 

result. 

In Rojas, a divided panel in the Fifth Appellate District 

held that Assem. Bill No. 333 is unconstitutional to the extent it 

narrowed the scope of conduct made punishable under section 

190.2, subdivision (a)(22). (Rojas, supra, 80 Cal.App.5th at p. 

555.) The Rojas majority concluded that the legislative 

amendment was unconstitutional as applied because California 

voters had restricted the Legislature’s ability to amend the 

provisions of Proposition 21 by stating it could only do so with a 

two-thirds vote in each house or by a statute that becomes 

effective only when approved by the voters. (Id. at p. 553; Voter 

Information Guide, Primary Elec., supra, text of Prop. 21, § 39, p. 

131.) Because Assem, Bill No. 333 did not comply with that 

requirement, and effectively narrowed the scope of section 190.2, 

subdivision (a)(22), the Rojas majority held the amendment 

unconstitutional as applied. (Rojas, supra, at pp. 557–558.)

In Lee, we reached the opposite result and rejected the 

argument that Assem. Bill No. 333 impermissibly narrowed the 

scope of section 190.2, subdivision (a)(22), by amending the 

definition of a “criminal street gang” in section 186.22. (Lee, 

supra, 81 Cal.App.5th at p. 241.) Focusing on the voter’s intent as 

expressed in the language of Proposition 21, we found no 

indication that voters intended to prohibit any future amendment 

of section 186.22, subdivision (f), from being incorporated into the 

gang-murder special circumstance. (Lee, supra, at pp. 241–242.) 

We noted in Lee that in enacting Proposition 21, voters “clearly 

knew how to express the intent to freeze a statutory definition” 

by changing the ““‘lock-in’”” date for determining the existence of 
60

qualifying offenses under the “Three Strikes” law. (Lee, supra, at 

p. 243.) “Proposition 21 provided that ‘for all offenses committed 

on or after the effective date of this act, all references to existing 

statutes in [sections 667, subdivisions (c)-(g), and 1170.125] are to 

those statutes as they existed on the effective date of this act, 

including amendments made to those statutes by this act.’” (Ibid.) 

Given these express time-specific references, we concluded that 

“had the voters also intended section 11 of Proposition 21 to make 

a time-specific incorporation of section 186.22, subdivision (f), 

they would ‘have said so in readily understood terms.’” (Ibid.)

We find our reasoning in Lee to be persuasive and apply it 

here. Assem. Bill No. 333 is not unconstitutional as applied to the 

gang-murder special circumstance. The jury’s true finding 

regarding the gang-murder special circumstance allegations 

under section 190.2, subdivision (a)(22) must be reversed and 

remanded.

X. RESTITUTION AWARD.

Appellant contends the record does not support the 

restitution award, and the trial court failed to make a clear 

statement of the calculation method used. Further, he argues, the 

documents on which the trial court relied do not support the 

order, and counsel was ineffective for failing to object to those 

documents. Respondent asserts appellant forfeited this challenge, 

and in any event, there was no error in calculating restitution.

A. Factual Background.

At the sentencing hearing, the prosecution introduced 

standard restitution form documents seeking a restitution award

of $11,098.14 ($5,000, the “upper limit” for funeral expenses, for 
61

Washington’s funeral expenses and $6,098.14 for Baptist’s lost 

income).

At the July 15, 2021 restitution hearing, the prosecution 

stated it was seeking direct restitution to the victim. Appellant’s 

counsel stated, “we’re not contesting what is in their request.” 

However, appellant stated he did not agree to the amount of 

restitution. In response, the court stated, “the [P]eople may prove 

it up at this time.” The prosecution submitted two documents, 

both of which were entered as exhibits. One indicated $5,000 for 

funeral and burial expenses for victim Mykiel Washington, and 

the other document indicated income loss in the amount of

$6,098.14. The court stated, “I have considered it and I do find 

that the amount will be justified, and that will be ordered.”

B. Discussion.

Section 1202.4, subdivision (f)(3)(H), provides “the 

restitution order shall be prepared by the sentencing court, shall 

identify each victim and each loss to which it pertains, and shall 

be of a dollar amount that is sufficient to fully reimburse the 

victim or victims for every determined economic loss incurred as 

the result of the defendant’s criminal conduct . . . .” A trial court 

may compensate a victim for any economic loss which is proved to 

be the direct result of the defendant’s criminal behavior. (People 

v. Henderson (2018) 20 Cal.App.5th 467, 472–473.) “Restitution 

may be imposed in such cases only to the extent the defendant’s 

criminal conduct played a ‘substantial factor’ in causing the 

victim’s economic loss. [Citation.] To be a substantial factor, the 

defendant’s criminal conduct must be more than a ‘trivial or 

remote’ factor contributing to the victim's loss, but it need not be 

the ‘sole’ cause of the loss.” (In re S.O. (2018) 24 Cal.App.5th 

1094, 1101.)
62

“At a victim restitution hearing, a prima facie case for 

restitution is made by the People based in part on a victim’s 

testimony on, or other claim or statement of, the amount of his or 

her economic loss. [Citations.] ‘Once the victim has [i.e., the 

People have] made a prima facie showing of his or her loss, the 

burden shifts to the defendant to demonstrate that the amount of 

the loss is other than that claimed by the victim.” (People v. 

Millard (2009) 175 Cal.App.4th 7, 26.) No abuse of discretion will 

be found where there is a rational and factual basis for the 

amount of restitution ordered, and the standard of proof at a 

restitution hearing is by a preponderance of the evidence, not 

proof beyond a reasonable doubt. Section 1202.4 does not, by its 

terms, require any particular kind of proof. (People v. Gemelli 

(2008) 161 Cal.App.4th 1539, 1542–1543.) We review a 

restitution order for abuse of discretion. (People v. Millard, 

supra, 175 Cal.App.4th at p. 26.)

Here, the victims submitted restitution requests on 

standard forms specifying an upper and lower limit for such 

requests. Neither of these amounts is outside the specified limits, 

supporting a rational basis for the awards. Further, the amounts 

were not challenged by appellant on any basis other than that he 

disagreed. On this record, we find no abuse of discretion. 
63

DISPOSITION

The gang enhancements, gang-related gun enhancements,

and special circumstance findings are reversed. In all other 

respects, the judgment is affirmed. On remand, the prosecution 

shall have the option to retry the appellant on these allegations, 

and the trial court shall resentence appellant. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, P. J.

We concur: 

COLLINS, J.

MORI, J.