Filed 2/5/14 P. v. Russell CA2/2 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION TWO 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

CHERNOBY RUSSELL et al., 

 Defendants and Appellants. 

 B243631 

 (Los Angeles County 

 Super. Ct. No. BA371243) 

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

E. Edwards, Judge. Affirmed. 

J. Kahn, under appointment by the Court of Appeal, for Defendant and Appellant 

Chernoby Russell. 

Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant 

and Appellant James Evans, Jr. 

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Kimberley J. 

Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent. 
2 

 Defendants and appellants Chernoby Russell and James Evans, Jr. (Russell and 

Evans individually, and defendants collectively) appeal from judgments entered after 

they were convicted of gang related murder and attempted murder. They contend that the 

trial court erred in the following respects: admitting telephone records and photographs 

stored on cell phones; failing to instruct the jury sua sponte with CALCRIM No. 1403; 

refusing to bifurcate trial of the gang allegation; and curtailing cross-examination 

regarding third-party culpability. Defendants also contend that the gang finding was not 

supported by substantial evidence, and that Penal Code section 12022.531 violates their 

constitutional right to equal protection. In addition, Evans contends that his identity as a 

participant in the crimes was not supported by substantial evidence, and that the trial 

court erroneously admitted unauthenticated text messages and evidence of a rifle found in 

the trunk of the car used in the crimes. 

Both defendants contend that their convictions must be reversed due to cumulative 

error and that the errors resulted in constitutional violations; and each defendant joins in 

any applicable arguments made by the other. Defendants assert for the first time on 

appeal as to every claim raised here that the error or misconduct had the additional 

consequence of violating constitutional rights, such as the right to confrontation, due 

process, or a fair trial. As we find no merit to any of defendants’ underlying assignments 

of error, we affirm the judgments without addressing the additional constitutional issues.2

BACKGROUND 

Procedural history 

Defendants were charged in count 1 of a two-count information with the murder of 

Kendall Williams (Williams), in violation of section 187, subdivision (a), and in count 2, 

with the willful, deliberate, and premeditated attempted murder of Marcus Barnes 

(Barnes), in violation of sections 664 and 187, subdivision (a). The information specially 

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

2 See People v. Boyer (2006) 38 Cal.4th 412, 441, footnote 17; People v. Partida

(2005) 37 Cal.4th 428, 433-439. 
3 

alleged that a principal personally and intentionally used and discharged a firearm within 

the meaning of section 12022.53, subdivisions (b), (c), (d) and (e), which caused great 

bodily injury and death to Williams and Barnes within the meaning of section 12022.53, 

subdivision (e)(1). The information further alleged that the offenses were committed for 

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

meaning of section 186.22, subdivision (b)(1). 

Defendants were tried together.3 The jury found defendants guilty as charged, 

found the murder to be in the first degree, and found the attempted murder to be willful, 

deliberate, and premeditated. In addition, the jury found true the firearm and gang 

allegations. On August 24, 2012, the trial court sentenced each defendant to a total of 75 

years to life in prison, computed as follows: 25 years to life as to count 1, the base term, 

plus 25 years to life pursuant to section 12022.53, subdivision (d); and a life term as to 

count 2, plus 25 years to life pursuant to section 12022.53, subdivision (d). Each 

defendant was given credit for 834 days of actual presentence custody. 

Defendants filed timely notices of appeal. 

Prosecution evidence 

The shooting and flight from police

On Saturday evening, March 27, 2010, a group of young people attended a party at 

the home of relatives near 68th Street and Vermont Avenue. At about 10:00 p.m., several 

of them were walking back from the corner store while others waited, watching from the 

front yard of the relatives’ apartment building. Among those walking were Barnes, his 

brothers, Traveon and Tyler Griffith, his cousins Mychal Lee (Lee), Deanna Graves, and 

Depaul Graves, and some friends, including Williams.4 A black sedan moved slowly 

past, made a U-turn, pulled alongside them, and one or more of the passengers opened 

 3 The information named a third defendant, Deanthony Joe Miller (Miller), but he 

was dismissed from the case prior to trial. 

4 To avoid confusion, we henceforth refer to Traveon and Tyler Griffith by their 

first names, and to Deanna and Depaul Graves by their first names. 
4 

fire on the group, killing Williams and striking Barnes in his hip and lower leg. Barnes 

later underwent two surgeries and remained in the hospital for a week. At the time of 

trial he was still in pain, undergoing frequent treatment, and still walking with a limp. 

Barnes and Deanna testified at trial that they heard gunfire and saw a muzzle flash 

emanating from the passenger side window of the black sedan. Barnes identified a 

photograph of the car and pointed it out in a surveillance video of the shooting. Lee also 

identified the shooters’ car in court from a surveillance video, adding that the passenger 

window was down. He then saw the shooter stick a large caliber gun out the window and 

heard more than five gunshots. Lee lived in the neighborhood where the shooting 

occurred and knew it to be a Crip gang area.5 Tyler saw the black car approach with the 

back passenger window all the way down, saw a passenger fire a chrome revolver which 

he thought was a .44-caliber, and heard about four to six gunshots. Tyler described the 

shooter as a dark-skinned male African-American in his 20’s, wearing braids, a white 

shirt and no hat. Depaul also saw a bright flash coming from the car and heard three 

shots, followed by at least 10 more. 

Traveon testified he saw the car approach the group, and then saw an occupant of 

the car roll down the window and start shooting. Traveon heard 6 to 10 gunshots in all, 

and saw a muzzle flash from the passenger side. Traveon could not describe the car, and 

gave conflicting testimony regarding the identity of the shooter and the gun. He denied 

making some of the statements he gave to detectives, claiming that he merely passed on 

information given to him by his brother Tyler; but admitted that he saw the shooter’s eyes 

as his face was visible from the top lip upward. Traveon testified that although he did not 

live in the area, he often visited the neighborhood around 68th Street and Vermont 

Avenue, and knew it to be the territory claimed by the 65 Menlo Crip gang. It became 

known in the neighborhood that the shooting was gang related. Traveon denied being 

 5 Barnes, Traveon Tyler, Lee, Depaul and Deanna all denied ever having been 

associated with a gang, and testified that no one in the group had ever associated with a 

gang. 
5 

afraid to testify, but admitted that he knew what a “snitch” was, and in gang culture 

snitches were murdered. He did not want to be a snitch. 

 Officers Anthony Daniel and Scott Coffey of the Los Angeles Police Department 

(LAPD), were on patrol that evening in the area of South Vermont Avenue and 68th 

Street, when they heard the gunfire. When they looked in the direction of the sound they 

saw a muzzle flash coming from the passenger compartment of a black four-door Nissan 

Maxima (Nissan), which then moved away westbound. The officers followed the Nissan, 

broadcast their location, and requested backup. At 66th Street and Kansas Avenue, the 

Nissan abruptly stopped and three African-American men got out and fled on foot. The 

officers described one of the suspects as wearing dark clothing and another as wearing a 

white shirt and tan pants. The third man to exit the car was in dark clothing and wore his 

hair in cornrow braids. The suspects left the car doors open when they fled, and Officer 

Daniel found a glove on the street next to an open car door. 

 LAPD Officer Matthew Fryer also heard the gunfire while on patrol. He testified 

that the gunshots sounded like they came from a large caliber handgun such as a .44- or 

.45-caliber. He and his partner followed Officers Coffey and Daniels and joined the foot 

chase after the Nissan stopped. Officer Fryer also described the third person to flee the 

Nissan as an African-American man with his hair in cornrows. 

The officers lost sight of the suspects when they turned onto 65th Place from 

Kansas Avenue. A perimeter was set up as other police officers and a K9 unit joined the 

search. The suspects were not found within the perimeter, but clothing and a gun were 

found along the route of the foot pursuit. Two light-colored shirts were recovered, as 

well as a black jacket resembling the jacket worn by the suspect with cornrows.6

The crime scene investigation and recovery of additional evidence

Investigating officer, LAPD Detective David Dilkes, testified that he went to the 

location where the Nissan was abandoned and saw that the front and rear passenger 

 6 Several officers later identified former codefendant Miller as one of the occupants 

of the Nissan. 
6 

windows were down and the key was still in the ignition. He found the registration, in 

the name of Aisha Hill (Hill), later determined to be related to Russell. In a carport on 

66th Street, in the area of the suspects’ escape route, Detective Dilkes recovered a 

.44-caliber chrome handgun loaded with three live rounds. Other officers found black 

clothing containing a set of keys and a knit cap (a “do-rag”) in the pocket of the black 

jacket. 

The Nissan was impounded and then searched, swabbed for DNA, and adhesive 

fingerprint lifts were taken. Three cell phones were found in the center console, while a 

pair of black knit gloves and a stainless steel .357-caliber revolver were found on the 

floorboard of the front passenger seat containing six empty casings. A blue bandana was 

found on the passenger side next to a white cell phone. In the trunk, officers found a 

loaded rifle and a black knit glove similar to the other gloves recovered. In the passenger 

compartment of the car, officers found a CD case, two disposable cameras, a pair of gold 

glasses, and two backpacks, one with $55 cash, a paper bearing Russell’s name, and a 

paper addressed to Arshae Henderson (Arshae). A photograph of Russell wearing gold 

glasses was later extracted from one of the cell phones. The keys found in the ignition 

were specific to that particular car and had not been “shaved.” Detective Dilkes 

explained that car thieves would often shave a key to make it fit into the ignition of the 

same model car. 

DNA and fingerprint analysis

LAPD DNA analyst Sherille Lynn Cruz (Cruz) testified that she processed 

epithelial cells collected from defendants, Miller, and Williams, and swabs or cuttings 

taken from the items in evidence, before feeding them into a machine to obtain a 

repeating pattern of numbers called alleles. Cruz explained that a DNA profile consists 

of a pair of alleles in 15 locations on a DNA strand. One number in the pair is inherited 

from the contributor’s father and the other from the mother. A DNA “match” occurs 

when the same alleles in a single-source profile are in the same position as the sample 

profile. A single-source profile can be compiled for the major contributor of DNA to 

items having more than one contributor. Without a major profile from a DNA mixture, a 
7 

comparison to the number and locations of alleles can still produce what is considered a 

possible match. 

In the course of her analysis of the items in evidence, Cruz found a match to 

Russell’s DNA profile on two gloves and the white shirt. Among the items with several 

contributors, Evans was a possible match to the DNA mixture profiles obtained from 

other gloves, the bandana, a brown shirt, and a .357-caliber handgun. Russell was a 

possible match to the DNA mixture profiles obtained from the steering wheel, the plaid 

shirt, the .357-caliber handgun, and the .44-caliber handgun. The DNA on the gearshift 

showed one identical allele at every location in Russell’s DNA, but the major contributor 

was female. The analysis of the remaining items in evidence either excluded Russell and 

Evans or was inconclusive. 

 Forensic print specialist Celine Dove compared the fingerprints in evidence to 

those taken from Evans, and determined that the print lifted from the outside door frame 

of the back passenger door belonged to him. 

The cell phones 

Detective Dilkes testified that he executed search warrants for subscriber 

information and activity for the three cell phones recovered from the Nissan. The white 

cell phone (item No. 7), was registered to Hill, the owner of the Nissan; the purple cell 

phone (item No. 9), was registered to Russell; and the black cell phone (item No. 11), 

was registered to Evans. Only the purple cell phone was active on the day of the shooting 

as service to the two others had been discontinued earlier in March due to nonpayment. 

Russell’s phone records showed more than 50 text messages to Arshae’s phone number 

on March 27, 2010. Evans’s phone records showed many previous texts to Arshae. 

Arshae testified that Detective Dilkes and his partner interviewed her in April 

2010 about the text messages, which had been exchanged between 9:00 a.m. and 

9:00 p.m. on March 27, 2010. After initial denials, she admitted that she was acquainted 

with defendants and had texted Evans about going to the beach that day. After the 

prosecutor played a recording of her interview, Arshae admitted she knew Russell as 

“Bashin,” a member of the 11-Deuce Broadway Crip gang, and that she knew that Evans 
8 

was using Bashin’s cell phone that day to exchange texts with her. Arshae thought Evans 

was called “Tiny Zag” after his older brother, who was known as “Zigzag.” 

Detective Brian Calicchia testified about his examination of the purple and the 

black cell phones. He turned them on and found user names for the phones were “Tiny 

Zag 112” and “B.G. Finest.” Detective Brian Collins, who specialized in extracting and 

analyzing information from electronic memory devices, extracted emails, call logs, and 

contact lists, as well as the photographs stored on memory cards in the purple and black 

cell phones. 

The search of Evans’s home 

Detective Dilkes testified that that after Arshae identified a photograph of Russell, 

he obtained a search warrant for Evans’s address. Both Evans and Russell were there at 

the time the warrant was executed. Officers recovered Evans’s social security card, a 

holster later determined to fit the recovered .44-caliber revolver, a speed reloader for a 

.44-caliber revolver, .44-caliber and other ammunition, a photograph of Evans at a 

shooting range, a firearm safety pamphlet, and other items. 

Defendants’ gang membership, activities, and tattoos 

LAPD Gang Enforcement Officer Warner Carias testified that between 2008 and 

2011 he was assigned to monitor three gangs in his area, including the 11-Deuce 

Broadway Gangster Crip gang.7 During the evening of November 2, 2008, Officer 

Carias was assigned to observe the Broadway Gangster Crip gang’s “Hood Day” party, 

which took place in the gang’s territory on 109th Place, just west of Main Street.8 The 

 7 Throughout the trial, witnesses called the gang by its full name, the 11-Deuce 

Broadway Gangster Crip gang, or abbreviated the gang’s name in various ways, such as 

the 112th Broadway Gangster Crips, the 112 Broadway Gangster Crip gang, or simply 

the Broadway Gangsters. We will refer to it as the Broadway Gangster Crip gang and to 

its members collectively as the Broadway Gangster Crips. 

8 Officer Carias explained that a Hood Day is a gang’s day of celebration, and the 

date chosen usually reflected the name of the neighborhood or the gang. Thus, 11-Deuce, 

which refers to 112th Street, used November 2. 
9 

majority of attendees, more than 15, were members of the Broadway Gangster Crip gang 

or its subsets, including the 5-Deuce Broadway Gangster set.9 There were no children or 

older people present. 

Defendants attended the party that day together and with a third person, Lamont 

Sessions (Sessions). Officer Carias took photographs of all of the attendees, gathered as 

much information about them as he could, and documented the information. Evans was 

“dressed down” in the gang’s color, wearing a blue shirt and blue pants. Russell was also 

wearing blue: a blue T-shirt; a blue bandanna; and a blue baseball cap with the letter “B” 

for Broadway Gangsters on it. Both of the defendants and Sessions, each admitted to 

being a member of the 5-Deuce Broadway Gangster set. Sessions told Officer Carias that 

his moniker was “Way Out.” Neither Russell nor Evans indicated a moniker. 

LAPD Officer Eduardo Mercado also came into contact with Russell the night of 

the 2008 Hood Party, not far from 109th Place and Main Street. Russell admitted to 

being a member of the Broadway Gangster Crip gang and gave his moniker as Bashin. 

He was in the company of M. Bruce and D. Russell, both members of the Broadway 

Gangster Crip gang. Officer Mercado documented the contact on a field identification 

card (F.I. card). 

In March 2009, LAPD Officer Collin Brennan stopped a car driven by Evans in 

the company of Sessions, and documented their conversation on an F.I. card. Evans 

provided his driver’s license number, admitted he was a gang member, and said his 

moniker was “Lil Tiny.” 

Detective Dilkes took photographs of the tattoos on Evans and Russell, and during 

trial showed them to the jury, and explained their gang significance. Evans had a tattoo 

of a bird with money bags, a common representation of the “Get Money Squad” of the 

Broadway Gangster Crip gang. On Russell’s neck was “11-Deuce”; and on Russell’s 

 9 We henceforth refer to the 5-Deuce Broadway Gangster subset as the Broadway 

Gangster Crip gang or Broadway Gangster Crips, except where necessary to distinguish it 

from the entire 11-deuce Broadway Gangster Crip gang. 
10 

right inner forearm was “B” with wings, surrounded by “11-Deuce W.S.” and “5-Deuce 

W.T.” 

Gang expert 

LAPD Detective Patrick Flaherty testified as the prosecution’s gang expert noting 

that the gangs within his area of expertise included the Broadway Gangster Crip gang, the 

Main Street Mafia Crip gang, and several others. Detective Flaherty testified that as of 

March 2010, the Broadway Gangster Crips sometimes called themselves “Ways” or 

“Broadways.” The term “A’s, Ways, and Mains” referred to three aligned gangs which 

normally got along with one another: the Avalon Gangster Crip gang, the Broadway 

Gangster Crip gang, and the Main Street Mafia Crip gang. 

Detective Flaherty explained that the Broadway Gangster Crip gang had 

approximately 130 to 140 members, and would “throw” a common hand sign to identify 

themselves. The 5-Deuce Broadway Gangster Crip gang subset was part of the same 

gang as the 11-Deuce Broadway Gangster Crip gang, with members claiming allegiance 

to both. The gang and its subset both claimed territory that included 112th Street. The 

Broadway Gangster Crip gang’s special color was blue, and members often wore blue 

clothing, as well as hats with a “B” on them, such as Brooklyn Dodger hats. Members 

usually wore their special color at Hood Day celebrations. Sometimes gang members 

celebrated Hood Day by going into rival territory with other members to commit 

shootings. 

Detective Flaherty described tattoos commonly worn by Broadway Gangster Crip 

members: “B.G.C.”; “112”; “G.M.” which represented the “Get Money Squad”; and 

“W” for Way or Watts. Tattoos indicated dedication to the gang and could mean that a 

member had put in work for the gang. Detective Flaherty explained that “putting in 

work” meant committing crimes to benefit the gang, such as dealing drugs or guns, and 

committing shootings or robberies. Gang members must “earn the ink” by putting in 

work for the gang, and a nonmember who had not put in work would not normally wear a 

gang related tattoo, as that would place him in danger from the gang. 
11 

The gang’s preferred graffiti was “11-Deuce B.G.C.” or simply “Broadways.” 

The Broadway Gangster Crips considered the East Coast Crip gang to be their enemy, 

and disrespectfully called its members “Cheese Toast” because it sounded like East 

Coast. To demonstrate their disrespect, Broadway Gangster Crips would create graffiti of 

two X’s within a square, representing dead toast. 

Detective Flaherty testified that the primary activities of the Broadway Gangster 

Crips were tagging on walls (writing graffiti), vandalizing, dealing in narcotics, primarily 

cocaine and marijuana, unlawful firearm possession, shootings, robberies, including 

street robberies and armed robberies, drive-by shootings, and murder. He presented 

certified conviction records of other Broadway Gangster Crip gang members. One was 

for Akeeda Joshua (Joshua), who was convicted of possession for sale of cocaine base 

and assault with a firearm on a peace officer, committed in August 2009 while a member 

of the Broadway Gangster Crip gang. Detective Flaherty was acquainted with Joshua, 

who had admitted being a member of the gang. Another record was for Jamar Louie 

Henry (Henry), who was convicted of assault with a firearm on a police officer 

committed in November 2006. Henry admitted that his crime was gang related. 

Detective Flaherty knew Henry and knew that he was a member of the Broadway 

Gangster Crip gang at the time of the offense. 

Detective Flaherty was also acquainted with Deondre Stone (Stone), another 

Broadway Gangster Crip gang member, who he knew to be a high-ranking “top level 

guy” in the gang: a “shot caller” who would give orders to the younger members to put 

in work for the gang. 

The photographs extracted from the cell phones registered to Russell and Evans 

were shown to the jury. Detective Flaherty explained the gang images seen in some of 

them.10 Photographs from Evans’s cell phone included images of a street sign reading, 

“Watch for Broadwayz” with a reference to 5-Deuce and 11-Deuce, Cheese Toast with 

 10 Photographs from Russell’s purple phone, item No. 9, were admitted as exhibits 

84 and 85. Photographs from Evans’s black phone, item No. 11, were admitted as 

exhibits 86, 87, 88, and 89. 
12 

the eyes crossed out, and an unhappy face. Other photographs included one depicting the 

words “Highly Active Crip Zone”; another with a T-shirt reading “Zigzag” and “B.G.C.”; 

and one with the image of Evans forming a gang sign with his fingers, a “2” for Deuce. 

Photographs from Russell’s cell phone included: images of dollar bills lined up to form 

“112”; the Bentley automobile emblem -- a “B” with wings, possibly a reference to 

Broadways; a T-shirt depicting a cheese toast with squinting eyes and an unhappy face; 

and a belt with the letters “B.G.C.” 

Detective Flaherty testified that gang members would accompany one another on a 

“mission” to provide witnesses who could report back that the perpetrators had put in 

work for the gang by committing crimes. He explained that a mission was criminal 

activity required by the gang, anything from a drive-by shooting to a robbery. Detective 

Flaherty also explained the concept of respect in gang culture. Gang members believed 

that they earned the community’s respect by gaining a reputation for violent retribution, 

and that such respect would cause witnesses to refrain from cooperating with the police, 

thus allowing the gang to operate in the neighborhood and commit their crimes with 

impunity. The more brazen and vicious the crime, the greater the respect and status 

earned by the perpetrator within the gang. 

Any person who cooperated with the police would be labeled a “snitch” and dealt 

with by violence. A snitching gang member would be ousted or killed, while other 

snitches could receive death threats or have their homes subjected to drive-by shootings 

until they stopped cooperating. 

Gang members normally did not enter rival gang territory unprepared for a 

possible assault. For a mission, preparation would mean carrying weapons, whereas a 

party or business meeting would require a disguise or covering tattoos. Detective 

Flaherty was familiar with the area of West 68th Street and South Vermont Avenue, 

which was near the territory claimed by the 67 Neighborhoods gang, a rival of the 

Broadway Gangster Crip gang. Members of the Broadway Gangster Crip gang would 

normally arm themselves before going into the territory of the 67 Neighborhoods gang, 

which was aligned with the East Coast Crip gang. 
13 

Detective Flaherty was able to assume the following hypothetical facts and then 

give his opinion: Broadway Gangster Crip gang members enter the area near West 68th 

Street and South Vermont Avenue in a car; in the car, they have two loaded revolvers, 

two pairs of gloves, a bandana, and a semiautomatic rifle in the trunk; they pass a group 

of young people, make a U-turn, come around, pull up to the group, and without saying 

anything, start shooting at them. Detective Flaherty opined that the shooting was gang 

related as the gang members went into a rival gang’s neighborhood prepared to shoot 

someone, which would qualify as putting in work for their gang. Regardless of whether 

the victims were gang members, such a shooting would benefit the Broadway Gangster 

Crip gang by spreading fear and intimidation through the community, thus enhancing its 

reputation and providing the respect necessary to allow the gang to control the 

community and operate with impunity. 

Detective Flaherty testified that gang members were proud of their gangs and 

willingly admit their gang affiliations to the police for that reason. Investigations showed 

that during drive-by shootings, the shooters would sometimes call out their gang’s name 

in order to take responsibility and to demonstrate pride in the gang. However, in Officer 

Flaherty’s last four or five investigations of gang related shootings, he found that there 

was no calling out of gang names, apparently in an effort to distract law enforcement. 

Even without giving the name, such a shooting would still benefit the gang as the 

participating gang members would report to their gang, describe what happened and brag 

about it in order to gain respect and standing within their gang. The community would 

then learn who was responsible by word of mouth, and respect for the gang would thus be 

enhanced. 

Detective Flaherty concluded that the hypothetical shooting was committed for the 

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

gained was the fear and intimidation of the community, preventing witnesses and victims 

from coming forward and allowing the gang to operate freely; the association element 

consisted of gang members coming together to commit a crime to benefit the gang. 
14 

Defense evidence

Kenya Blackmon testified about a conversation with Detective Dilkes in April 

2010, about an acquaintance she knew as “Green Eyes” and with whom she exchanged 

text messages the month before. When Detective Dilkes showed her a photograph of 

Russell, she denied that he was “Green Eyes” and claimed that “Green Eyes” was named 

Deanthony, and was not one of the defendants. 

LAPD Officer Chris Giargiari was the prosecution’s gang expert at the 

preliminary hearing, where he testified that Miller was a member of the Main Street Crip 

gang, a separate gang from the Broadway Gangster Crip gang. Officer Giargiari was not 

familiar with Miller before this case and testified that he was a member of the Main 

Street Crip gang based on an F.I. card prepared by another officer. Officer Giargiari had 

heard of the 65 Menlo gang, and testified at the preliminary hearing that he thought the 

65 Menlo gang was not a rival of the Broadway Gangster Crip gang, but at trial he 

acknowledged that he did not know that and had never been assigned to investigate the 

65 Menlo gang. Officer Giargiari also testified that the area of 947 West 68th street was 

within Menlo territory, which borders on the territory of the Broadway Gangster Crip 

gang. The territory of the Broadway Gangster Crip gang shared a border with the Main 

Street Gangster Crip gang, and the two gangs were friendly most of the time. 

Russell’s mother, Hill, testified that she and Russell both attended I.C.D.C College 

and usually went there together in her black Nissan Maxima, which she reported stolen 

on March 27, 2010. She identified Evans as her nephew who was also enrolled at 

I.C.D.C. Hill claimed they rode together to school in the Nissan every day, and that she, 

Russell, and Evans had all gone to school together on Friday, March 26, 2010. Later, 

Hill testified that Evans was in the car almost every weekend. 

Russell lived with Hill intermittently and she saw him only when they went to 

school. Hill denied that Russell ever drove the Nissan, and claimed she had only two 

keys for the car, one that she used and one that she kept in a safe. Hill said she did not 

have an electronic key and that the alarm system on the Nissan had been deactivated 
15 

because it drained the battery when the alarm sounded. She told the police that she did 

not recognize the key recovered in the investigation. 

Hill also testified that she parked the Nissan on “La Fayette” between 6:00 p.m. 

and 7:00 p.m. on March 26, out of view from her apartment building on Beverly 

Boulevard. She last saw the car there between 11:00 a.m. and noon on March 27, when 

she went to retrieve her white cell phone, which she left in the Nissan because it was not 

charged. She also saw the purple cell phone in the Nissan and left it there too. Hill 

claimed the purple cell phone belonged to her daughter but was in Russell’s name 

because she was only five or six years old at the time, and also because T-Mobile did not 

permit Hill to have more than four accounts. Hill identified the black cell phone 

recovered from the car as belonging to Evans, which she saw on the back seat when she 

parked the Nissan the evening of March 26, 2010. 

Hill claimed she discovered the car missing later that night, between 10:15 and 

10:20 p.m., and reported the theft to the police sometime after 10:30 p.m. Hill was 

unable to explain why an aerial photograph showed her car parked at the curb on Beverly 

Boulevard at 4:00 a.m. on March 27. Hill was also unable to explain why someone was 

texting on the purple cell phone after 7:00 p.m. March 26, as well as every hour of the 

day of March 27 until 7:00 p.m. Hill did not know that contact information for Sessions 

was in her white cell phone under “I’m so Way Out 5253.” She explained she knew 

Sessions’s mother and thought her telephone number was in Hill’s contacts list. 

Although Arshae’s name appeared in Hill’s contacts, Hill testified that she did not know 

the girl. Two email addresses were listed for Russell: one as “BGFinest” and the other 

with the user name, “Bashin112.” Hill testified she knew Stone, another contact in her 

cell phone, and acknowledged living with him at one time. Hill identified a photograph 

of Evans and Stone taken in her backyard at a July 4, 2010 family function. Hill’s 

children called Stone “uncle.” 

Prosecution rebuttal

LAPD Officer Stephen Dolan, who was responsible for maintaining the License 

Plate Recognition System, explained that two cameras were mounted on police vehicles; 
16 

one which took photographs of license plates and another which took photographs of an 

entire vehicle. The license plate was then read by a computer which provided 

information such as whether the car had been reported stolen, as well as global 

positioning system (GPS) coordinates. The location, date, and time would then be 

stamped on the photograph. The system scanned the Nissan’s license plate on March 26, 

2010, at 4:26 p.m. near the intersection of the 105 and 110 freeways, and again on March 

27, 2010, at 3:56 a.m., while it was parked at the curb on Beverly Boulevard between 

Benton Way and Occidental Boulevard. 

LAPD Detective Sean Hansen, who was assigned to the Cellular Analysis Survey 

Team -- an FBI task force -- analyzed call records for the cell phones registered to 

Russell and Hill. He determined the location of T-Mobile cell towers that calls and texts 

went through and estimated the area in which the cell phone was located at such times. 

Among others, calls on Russell’s cell phone went through a tower located at 1223 West 

68th Street, near the scene of the shooting on March 27, 2010, at 11:01 a.m. and again at 

4:21 p.m. At 7:30 p.m. on March 27, 2010, a call was made to Hill’s cell phone using a 

cell tower located near Hill’s former residence. 

Detective Dilkes testified that during his interview of Blackmon on April 29, 

2010, she selected a photograph of Miller from a photographic lineup and identified him 

as “Green Eyes,” saying that she knew Miller from high school. 

Detective Dilkes interviewed Hill on April 15, and again on April 27, 2010, 

ostensibly regarding the theft of her car. Hill repeatedly told him and his partner that the 

last time she saw her black Nissan was at noon on March 27, 2010, and never said it was 

between 11:00 a.m. and 12:00 p.m. Hill told the detectives she had gone out to her car 

the night of March 27, because she needed to pick up her grandmother from bingo when 

no one else had done so. Hill never showed Detective Dilkes two keys for the Nissan at 

the same time. When he showed her the key retrieved from the Nissan’s ignition, Hill 

claimed she had never seen it before. Hill said she would give the defendants occasional 

rides and drove them to family functions, but did not tell Detective Dilkes that she drove 
17 

them to school, or that Evans had been in the Nissan on March 26, 2010. She said that 

Evans had not been in the Nissan for one or two weeks prior to the theft. 

Detective Dilkes testified that Evans had been issued a traffic citation on February 

20, 2010, while he was a passenger in the Nissan. He also testified that the photograph of 

Evans shown to Hill at trial had been developed from the disposable camera found in the 

Nissan during the investigation. 

DISCUSSION

I. Substantial evidence of Evans’s identity 

 Evans contends that the evidence was insufficient to prove beyond a reasonable 

doubt that he was involved in the shooting or to establish his identity as one of the 

occupants of the Nissan at the time of the shooting. 

 “The test on appeal is whether there is substantial evidence to support the 

conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable 

doubt. [Citation.]” (People v. Redmond (1969) 71 Cal.2d 745, 755.) When a criminal 

conviction is challenged as lacking evidentiary support, “the court must review the whole 

record in the light most favorable to the judgment below to determine whether it discloses 

substantial evidence -- that is, evidence which is reasonable, credible, and of solid value 

-- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable 

doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see also Jackson v. Virginia

(1979) 443 U.S. 307, 318-319.) We must presume in support of the judgment the 

existence of every fact the jury could reasonably deduce from the evidence. (People v. 

Kraft (2000) 23 Cal.4th 978, 1053.) “The same standard applies when the conviction 

rests primarily on circumstantial evidence. [Citation.]” (Ibid.) We do not reweigh the 

evidence or resolve conflicts in the evidence. (People v. Young (2005) 34 Cal.4th 1149, 

1181.) Reversal on a substantial evidence ground “is unwarranted unless it appears ‘that 

upon no hypothesis whatever is there sufficient substantial evidence to support [the 

conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) 

“Perhaps the most fundamental rule of appellate law is that the judgment 

challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively 
18 

demonstrate error. [Citation.]” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 

1573.) A defendant does not meet his burden to show that the evidence is insufficient 

“by citing only his own evidence, or by arguing about what evidence is not in the record, 

or by portraying the evidence that is in the record in the light most favorable to himself.” 

(Ibid.) Nor does the defendant meet his burden by demonstrating that the evidence or 

some of it can be as reasonably reconciled with a finding of innocence as guilt. (People 

v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.) His “focus [must be] on the whole record 

of evidence presented to the trier of fact, rather than on ‘“isolated bits of evidence.”’ 

[Citation.]” (People v. Cuevas (1995) 12 Cal.4th 252, 261, quoting People v. Johnson, 

supra, 26 Cal.3d at p. 577.) Evans’s summary fails in all these respects. 

For example, Evans contends that the evidence showed that the only person 

identified as fleeing from the Nissan was Miller, who was not a member of defendants’ 

gang, and that his gang was not known to “clique up” to commit crimes with the 

Broadway Gangster Crip gang. Evans fails to reveal the following: that although several 

officers identified photographs of Miller as one of the occupants of the Nissan, his 

participation was not established; that the evidence that Miller’s affiliation with the Main 

Street Crip gang consisted of Officer Giargiari’s review of one F.I. card prepared by 

another officer in a different division; or that Officer Giargiari merely testified he did not 

recall any crimes committed jointly by defendants’ gang and the Main Street Crips. 

Evans’s claim that the evidence showed that gangs used stolen cars to commit shootings 

is merely inferred from Detective Flaherty’s testimony that stolen cars are sometimes

used. Evans also infers from inconclusive DNA evidence, and from scientific evidence 

that was not presented at trial, that his DNA found in the Nissan was equally consistent 

with evidence that Evans regularly rode in the car because he was the owner’s nephew. 

Finally, Evans discounts the evidence of his owning guns, accessories, and the 

photograph of himself at a shooting range as showing only that he was interested in 

firearms. 

Summarizing the evidence in the light most favorable to the judgment, drawing all 

reasonable inferences in support of the jury’s findings, we find more than substantial 
19 

evidence to support a finding that both Evans and Russell were in the Nissan at the time 

of the shooting and were principals in the crimes.11 As Evans concedes, the evidence 

established that the car used in the shooting was the black Nissan registered to Russell’s 

mother. There were at least three African-American men in the Nissan at the time, as 

officers saw them flee. Mychal told officers that the shooter was a dark-skinned AfricanAmerican, and Arshae testified that Evans was dark-skinned. Defendants were cousins 

and frequently associated with each other, as shown by the testimony of Russell’s 

mother that she often gave them rides in her Nissan, as well as their affiliation with the 

same gang, their attendance together at the gang’s Hood Day celebration, and their 

presence together during the search of Evans’s home. Evidence showing that defendants 

were together during the day of the shooting included the numerous text messages that 

Evans and Arshae sent to each other using Russell’s cell phone, and cell phone records 

which placed Russell’s phone near the crime scene that morning. Later, Evans’s 

fingerprint was found outside the door frame of the back passenger door. 

Evidence connected both defendants to the weapons most likely used in the 

shooting and items in or near the Nissan. Officer Fryer heard the gunshots during the 

shooting, and testified that they sounded like they came from a .44- or .45-caliber 

handgun. A .44-caliber handgun was found in a carport located on the perpetrators’ 

escape route, and in a later search of Evans’s bedroom, officers found a holster which fit 

the .44-caliber handgun, as well as a speed reloader for .44-caliber ammunition. A DNA 

analyst determined that Evans was a possible match to the DNA mixture profiles 

obtained from gloves, the bandana, and the .357-caliber handgun found in the car. 

Russell’s DNA profile matched the DNA profile found on the two gloves and the white 

 11 “All persons concerned in the commission of a crime, . . . whether they directly 

commit the act constituting the offense, or aid and abet in its commission . . . are 

principals in any crime so committed.” (§ 31.) “[A] person aids and abets the 

commission of a crime when he or she, acting with (1) knowledge of the unlawful 

purpose of the perpetrator; and [with] (2) the intent or purpose of committing, 

encouraging, or facilitating the commission of the offense, (3) by act or advice aids, 

promotes, encourages or instigates, the commission of the crime.” (People v. Beeman

(1984) 35 Cal.3d 547, 561.) 
20 

shirt. And Russell was a possible match to the DNA mixture profiles obtained from the 

steering wheel, another shirt, the .357-caliber handgun, and the .44-caliber handgun. 

 Evidence of a gang motive also supported a reasonable inference that Evans and 

Russell committed the crimes together. First, Detective Flaherty testified that criminal 

street gangs generally require their members to commit crimes for the benefit of the gang, 

and the primary activities of the Broadway Gangster Crip gang included drive-by 

shootings and murder. Thus an active member of the Broadway Gangster Crip gang 

would be expected to put in work for the gang by committing a shooting in rival gang 

territory. The shooting occurred near the territory claimed by the 67 Neighborhoods 

gang, which was a rival of defendants’ gang and aligned with the East Coast Crips, a 

gang loathed by Broadway Gangster Crips, who disrespectfully referred to them as 

“Cheese Toast.” In addition, the following evidence showed that defendants were 

devoted members of the Broadway Gangster Crip gang and took pride in their gang: they 

admitted their affiliation with the gang to law enforcement officers; they had gang related 

tattoos, suggesting they had put in work for the gang; their cell phones contained gang 

related images, including the symbol for dead Cheese Toast; and both defendants 

celebrated their gang’s Hood Day while “dressed down” in blue, their gang’s color. 

 We conclude that Evans has not met his burden to show error, and further, we 

conclude from our review of the whole record of evidence that substantial evidence 

supports defendants’ convictions. 

II. Substantial evidence of gang finding

 Defendants contend that the jury’s finding the crimes were gang related was not 

supported by substantial evidence. 

 Section 186.22, subdivision (b)(1), authorizes a sentencing enhancement for 

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

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

conduct by gang members . . . .” A gang enhancement finding is reviewed under the 

same substantial evidence standard as any other conviction. (See People v. 

Albillar (2010) 51 Cal.4th 47, 59-60.) Thus, “we review the entire record in the light 
21 

most favorable to the judgment to determine whether it contains substantial evidence -- 

that is, evidence that is reasonable, credible, and of solid value -- from which a 

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. 

[Citation.] We presume every fact in support of the judgment the trier of fact could have 

reasonably deduced from the evidence. [Citation.] If the circumstances reasonably 

justify the trier of fact’s findings, reversal of the judgment is not warranted simply 

because the circumstances might also reasonably be reconciled with a contrary finding. 

[Citation.] ‘A reviewing court neither reweighs evidence nor reevaluates a witness’s 

credibility.’ [Citation.] (Ibid.) 

 The jury may reasonably infer the association element from the very fact that the 

defendant committed the charged crime with another gang member, and the jury may 

fairly infer from substantial evidence that the defendant committed the crime in 

association with a known gang member that he had the specific intent to promote, further, 

or assist criminal conduct by gang members. (Albillar, supra, 51 Cal.4th at pp. 61-62, 

67-68.) We have already determined that substantial evidence supported a finding that 

defendants were gang members, known to each other to be gang members, and that they 

committed the crimes together, thus satisfying the two elements of the enhancement. 

In addition, “[e]xpert opinion that particular criminal conduct benefited a gang by 

enhancing its reputation for viciousness can be sufficient to raise the inference that the 

conduct was ‘committed for the benefit of . . . a[ ] criminal street gang’ within the 

meaning of section 186.22(b)(1). [Citation.]” (Albillar, supra, 51 Cal.4th at p. 63.) 

Detective Flaherty’s expert testimony in this case sufficiently demonstrated the benefit 

the gang would derive from defendants’ crimes. He testified that the Broadway Gangster 

Crip gang was a violent criminal street gang, and that its primary activities included 

unlawful firearms possession, shootings, including drive-by shootings, and murder. He 

supported his opinion with the certified records of conviction of two other members of 

the gang for assault with a firearm on a police officer. Detective Flaherty testified that 

gang members gained respect from their gang by committing crimes for the gang’s 

benefit, and the more brazen and vicious the crime, the greater the respect and status 
22 

earned by the perpetrator. He testified that violent crime benefitted criminal street gangs 

by spreading fear and intimidation throughout the community, thereby allowing them to 

operate with impunity. 

Defendants contend that Detective Flaherty’s opinion that the crimes were gang 

related was not sufficiently supported by other evidence in the record. They rely on a 

line of cases to argue that a gang expert’s opinion must be supported by additional 

evidence demonstrating that the crime was committed to benefit a gang. (See People v. 

Ochoa (2009) 179 Cal.App.4th 650, 657 [“gang expert’s testimony alone is insufficient 

to find an offense gang related”]; People v. Ramon (2009) 175 Cal.App.4th 843, 851 [the 

gang “expert simply informed the jury of how he felt the case should be resolved”];

People v. Albarran (2007) 149 Cal.App.4th 214, 219 [no percipient witness or direct 

evidence that crime was gang related]; In re Frank S. (2006) 141 Cal.App.4th 1192, 1199 

[“expert simply informed the judge of her belief of the minor’s intent”]; People v. 

Killebrew (2002) 103 Cal.App.4th 644, 647 [handgun possession improperly based on 

expert’s opinion that gang members possessed guns in common], disapproved in part in 

People v. Vang (2011) 52 Cal.4th 1038, 1047 & fn. 3, 1048.) 

The continuing vitality of the view represented by these cases is in question, as the 

California Supreme Court has more recently rejected similar arguments, concluding: 

“‘Expert opinion that particular criminal conduct benefited a gang’ is not only 

permissible but can be sufficient to support the Penal Code section 186.22, subdivision 

(b)(1), gang enhancement. [Citation.]” (People v. Vang, supra, 52 Cal.4th at p. 1048; 

Albillar, supra, 51 Cal.4th at p. 63.) 

We conclude that substantial evidence established that defendants were gang 

members, known to each other to be gang members, who committed the crimes together, 

and the crimes were of the kind that benefitted the gang. Thus, defendants committed the 

crimes in association with a gang with the specific intent to assist in any criminal conduct 

by gang members. (See § 186.22, subd. (b)(1); Albillar, supra, 51 Cal.4th at pp. 61, 67-

68.) 
23 

III. Admissibility of cell phone records

Defendants contend that the trial court erred in admitting T-Mobile records for the 

three cell phones after overruling objections on the grounds of hearsay and lack of 

foundation. 

“A trial court has broad discretion in determining whether a sufficient foundation 

has been laid to qualify evidence as a business record. On appeal, we will reverse a trial 

court’s ruling on such a foundational question only if the court clearly abused its 

discretion. [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1011, fn. omitted.) 

A printout of telephone call data may be admitted as a business record exception to the 

hearsay rule. (People v. Zavala (2013) 216 Cal.App.4th 242, 244.) That exception is set 

forth in Evidence Code section 1271: “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.” 

Detective Dilkes testified that the call records were supplied in response to a 

search warrant. T-Mobile authenticated the material as a business record with a written 

certificate from the custodian of records though the certificate was not submitted 

simultaneously with the records and was not attached to them. T-Mobile faxed the 

certificate directly to the trial court after the call records had been admitted into evidence. 

Prior to the trial court’s receipt of the certificate, Evans objected to Detective Dilkes’s 

testimony regarding the identity of the subscriber on the account of each of the three cell 

phones, on the grounds of hearsay and lack of foundation. After the custodian’s 

certificate was filed, Evans’s counsel conceded that the certificate adequately laid out all 

the elements required by the Evidence Code, but objected to its admission on the ground 

that there was a break in the chain of evidence because it had not been attached to the call 

records. Russell’s counsel did not object to the testimony of Detective Dilkes, the 
24 

admission of the call records, or the admission of the certificate. Russell’s counsel 

expressly informed the trial court that he had no objection to the admission of the 

certificate. 

Russell now contends that the authentication was inadequate because the custodian 

did not give live testimony and the records were not delivered directly to the court under 

double seal as provided in Evidence Code section 1560, subdivision (c). Russell further 

contends that because neither procedure was followed in this case, all the T-Mobile 

records, in particular those relating to text messages to and from Arshae, should have 

been excluded as hearsay. 

As respondent points out, Russell’s failure to object to the T-Mobile records or the 

custodian’s certification resulted in a forfeiture of his contentions. “[A]s a general rule, 

‘the failure to object to errors committed at trial relieves the reviewing court of the 

obligation to consider those errors on appeal.’ [Citations.] This applies to claims based 

on statutory violations, as well as claims based on violations of fundamental 

constitutional rights. [Citations.]” (In re Seaton (2004) 34 Cal.4th 193, 198.) To 

preserve a claim of inadequate foundation for review, a defendant must object on that 

ground and state the basis of the inadequacy. (People v. Diaz (1992) 3 Cal.4th 495, 527-

528.) 

Russell claims the objections made by Evans’s counsel as his own, but he did not 

join in those objections. In general, the failure to join in the objection of a codefendant 

results in a forfeiture of the issue on appeal unless doing so would be futile. (People v. 

Wilson (2008) 44 Cal.4th 758, 792.) To argue that there was no forfeiture, Russell relies 

on the rule that failure to press for a ruling does not waive an issue raised by the trial 

court by interposing, in effect, its own objection. (See People v. Collins (2010) 49 

Cal.4th 175, 226-227.) Here, the trial court neither raised a foundation issue nor failed to 

rule on Evans’s objections. 

Russell also relies on the rule that instructional error may be reviewed without 

objection if it affected the defendant’s substantive rights. (§§ 1259, 1469; People v. 

Harris (1981) 28 Cal.3d 935, 956-957.) The admission of evidence without the required 
25 

foundation is not instructional error. The appellate court may review any question of law 

involved in the admission of evidence only when the defendant objected to the evidence, 

the trial court considered the objection, and the ruling affected the defendant’s substantial 

rights. (§§ 1259, 1469; Evid. Code, § 353.) Further, an objection does not preserve an 

issue for review unless the specific ground for it was made clear to the court. (Evid. 

Code, § 353.) Even then, the appellate court’s review is limited to the ground stated for 

the objection. (People v. Kennedy (2005) 36 Cal.4th 595, 612, overruled in part on 

another ground in People v. Williams (2010) 49 Cal.4th 405, 459; Evid. Code, § 353.) 

Thus, even assuming that Russell is entitled to appellate review based upon 

Evans’s objections, we note that Evans did not object to the T-Mobile records on the 

ground that the custodian did not give live testimony, or that the records were not 

delivered directly to the court under double seal as provided in Evidence Code section 

1560, subdivision (c). The only objection Evans made to the custodian’s foundational 

certificate was that it was not attached, and thus there was a break in the chain of custody. 

However, neither Evans nor Russell pursues this issue on appeal. 

In any event, defendants have not demonstrated any prejudice caused by the 

admission of Detective Dilkes’s testimony regarding the ownership of the cell phones, 

and we may not reverse the judgment due to the erroneous admission of evidence unless 

the error resulted in a miscarriage of justice. (Evid. Code, § 353; Cal. Const., art. VI, 

§ 13.) As respondent observes, the T-Mobile records were not the only evidence of the 

ownership of each cell phone. The cell phones were found in the car used for the 

shooting, and Hill identified the user and registered owner of each cell phone. Detective 

Calicchia testified that when he searched the contents of defendants’ cell phones he found 

the user names, Tiny Zag 112 and B.G. Finest. Detective Collins testified that he 

extracted emails, call logs, contact lists, and photograph data directly from the two cell 

phones. Russell’s email address in Hill’s contact list included the user name, BGFinest, 

and Arshae also appeared in Hill’s contact list. As other evidence established the 

ownership of the cell phones and contact with Arshae without reference to the T-Mobile 

records, Detective Dilkes’s testimony did not result in a miscarriage of justice. 
26 

IV. Photographs extracted from the cell phones 

Authentication 

Defendants contend that the trial court erred in admitting photographs from their 

cell phones over their objections on the ground they were not properly authenticated. 

“Authentication of a writing is required before it may be received in evidence.” 

(Evid. Code, § 1401, subd. (a).) A “writing” includes a photograph. (Evid. Code, § 250.) 

A photograph may be authenticated with sufficient evidence to sustain a finding that it is 

what the proponent claims it to be, or by establishing “such facts by any other means 

provided by law.” (Evid. Code, § 1400; see also § 1410.) “We review a trial court’s 

ruling on the sufficiency of the foundational evidence under an abuse of discretion 

standard. [Citation.]” (People v. Tafoya (2007) 42 Cal.4th 147, 165.) The trial court’s 

discretion in admitting or excluding evidence “will not be disturbed except on a showing 

the trial court exercised its discretion in an arbitrary, capricious, or patently absurd 

manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. 

Rodriguez (1999) 20 Cal.4th 1, 9-10.) 

Images on Evans’s cell phone included street signs reading, “Watch for 

Broadwayz” and “Highly Active Crip Zone,” and a T-shirt reading “Zigzag” (the gang 

moniker of Evans’s brother). Russell’s cell phone also contained gang related images, as 

well a photograph depicting Russell wearing gold glasses similar to those recovered from 

the Nissan.12

Detective Collins testified outside the presence of the jury after defendants 

objected to the admission of the photographs. He had extracted and analyzed the 

photographs, and was able to determine that some had been downloaded from the internet 

or emailed, and others had been taken by the cameras within the cell phones. He 

explained that because the paths were distinguishable, and computer files had creation 

dates as well as the dates the files were accessed or modified, he would be able to tell if 

they had been modified. Detective Collins concluded that the photographs had not been 

 12 Defense counsel informed the trial court that defendant did not object to the 

photograph of Russell in gold glasses. 
27 

modified, and were downloaded or taken at the times indicated in the cell phone memory. 

He noted however, that a user with exceptional skill could manipulate the storage device 

to modify the photographs, dates, and times, and he would not be able to discern the 

manipulation. 

The court found adequate authentication, noting Detective Collins’s opinion that 

the photographs had not been modified and that only a very sophisticated user might have 

been able to make modifications. 

Defendants complain that the evidence failed to establish who took the pictures, 

where they were taken, or whether they were accurate representations of their subject 

matter. Contrary to the suggestion in such argument that a photograph must always be 

authenticated by a witness who was present when it was taken, an expert witness may 

provide the necessary authentication. (People v. Bowley (1963) 59 Cal.2d 855, 859, 

citing People v. Doggett (1948) 83 Cal.App.2d 405, 410 (Doggett).) Thus, when there is 

no witness who can authenticate a photograph from personal observation, expert 

testimony that “the picture was not a composite and had not been faked” will provide a 

sufficient foundation. (People v. Beckley (2010) 185 Cal.App.4th 509, 515; see also 

People v. Bowley, supra, at p. 862; Doggett, supra, at p. 410.) Further, the photograph 

may be shown to be genuine through circumstantial evidence. (People v. Valdez (2011) 

201 Cal.App.4th 1429, 1435 (Valdez).) 

Quoting from Doggett and adding emphasis to the quote, Russell suggests that the 

expert testimony must establish “an entire absence of anything which might tend to raise 

the slightest doubt about the matter.” (Doggett, supra, 83 Cal.App.2d at p. 410.) The 

Doggett court found that the expert testimony had that effect in that case, but did not 

enunciate a rule regarding the degree of proof required for authentication. Evidence of 

authenticity must be “sufficient to permit the jury to find the preliminary fact true by a 

preponderance of the evidence. [Citations.]” (People v. Marshall (1996) 13 Cal.4th 799, 

832-833; see Evid. Code, § 403, subd. (a)(3).) Thus, the prosecutor’s burden was “not to 

establish validity or negate falsity in a categorical fashion, but rather to make a showing 
28 

on which the trier of fact reasonably could conclude the proffered writing is authentic.” 

(Valdez, supra, 201 Cal.App.4th at p. 1437.) 

Defendants note that because it is possible to change memory cards and 

manipulate the photographs on a cell phone, someone else could have manipulated the 

images or placed them on the phones. They conclude that merely establishing the date, 

time, and absence of alteration of the photographs provided an insufficient foundation. 

They stress that in Doggett, there was, in addition to the expert opinion that the 

photographs had not been faked, items in the images connecting the defendants with the 

photographs; and in Valdez, material on an internet web page was sufficiently connected 

to the defendant, because the website could be accessed only with a password. (See 

Doggett, supra, 83 Cal.App.2d at p. 410; Valdez, supra, 201 Cal.App.4th at p. 1436.) 

The photographs in this case were not loose prints as in Doggett. (See Doggett, 

supra, 83 Cal.App.2d at pp. 407-408, 410 [boxes of photographs].) The photographs 

were not on an internet web page that could be accessed remotely, as described in Valdez, 

supra, 201 Cal.App.4th at page 1434. Here, the photographs were on the memory cards 

inside the cell phones themselves. As the defendants’ ownership of the cell phones had 

already been established, they had been sufficiently connected to defendants. “‘The fact 

conflicting inferences can be drawn regarding authenticity goes to the document’s weight 

as evidence, not its admissibility. [Citations.]’ [Citation.]” (Valdez, supra, 201 

Cal.App.4th at p. 1435.) Once sufficient evidence supports a finding of authenticity, the 

issue becomes a question of fact for the jury. (McAllister v. George (1977) 73 

Cal.App.3d 258, 262.) 

In addition, the adequacy of the authentication is measured by the purpose for 

which the writing is admitted. (See People v. Mayfield (1997) 14 Cal.4th 668, 747.) 

Here, the prosecution’s offer of proof was to show that defendants kept the images in the 

cell phones that belonged to them, and that the images could be identified as gang related. 

When, where, and how the images were originally created or whether they were modified 

before they were placed on the cell phones would not have affected that purpose. The 

required foundation was thus to show that the photographs in the cell phones’ memories 
29 

correctly depicted the images as they appeared when taken by the phones’ camera, 

inserted into the camera on a removable memory card, or downloaded from elsewhere. 

Measured by this purpose, Detective Collins’s testimony sufficiently authenticated the 

photographs. The possibility that a very skilled user might have manipulated the data 

was an issue of weight, not admissibility, and became a question for the jury to resolve.13 

(See Valdez, supra, 201 Cal.App.4th at pp. 1435, 1437; McAllister v. George, supra,73 

Cal.App.3d at p. 262.) 

 Evidence Code section 352

 Defendants contend that the photographs from the cell phones should have been 

excluded under Evidence Code section 352 (section 352), which permits the trial court to 

exclude “evidence if its probative value is substantially outweighed by the probability 

that its admission will . . . create substantial danger of undue prejudice, of confusing the 

issues, or misleading the jury.” 

 Initially, we observe that Russell does not claim to have made an objection under 

section 352 and we have found none. To preserve a claim under section 352, a party 

must make a specific objection on that ground in the trial court. (Evid. Code, § 353, subd. 

(a); People v. Jones (2012) 54 Cal.4th 1, 61.) The objection made by counsel for Evans 

was merely that three of the photographs extracted from Evans’s cell phone were 

irrelevant to the prosecutor’s offer of proof.14 However, as the trial court weighed the 

probative value against the probable prejudicial effect on its own initiative, we consider 

the trial court’s discretion. 

 Defendants contend that the photographs were probative only of defendants’ gang 

membership, and that they were prejudicial because gang membership was evidence of 

 13 Defendants had the opportunity to cross-examine Detective Collins later when he 

testified at length before the jury. 

14 One of the three photographs was of the T-shirt with “Zigzag” on it, and counsel 

objected because that was not Evans’s moniker. Another photograph showed Evans 

making a hand sign, but a gang officer had testified that he did not recognize the sign. 

The third photograph was a sign or drawing with a reference to “Cheese Toast” which 

counsel did not believe to have any relevance to this case. 
30 

bad character likely to provoke an emotional reaction in the jurors, inviting them, in 

effect, to convict defendants solely because they were gang members. In essence, 

defendants believe that the photographs should have been excluded as inadmissible 

character evidence; however, as they neither mentioned Evidence Code section 1101 nor 

objected to the photographs on such a ground, they did not preserve this contention for 

review. (People v. Valdez (2012) 55 Cal.4th 82, 130.) 

 Relevant evidence may be excluded only if its probative value is substantially 

outweighed by its potential to cause undue prejudice. (People v. Valdez, supra, 55 

Cal.4th at p. 138.) Evidence is not prejudicial in this context simply because it is 

inconvenient or damaging to the defense. (People v. Scott (2011) 52 Cal.4th 452, 490-

491.) “‘[A]ll evidence which tends to prove guilt is prejudicial or damaging to the 

defendant’s case. . . . 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. . . .’ [Citation.]” (People v. 

Karis (1988) 46 Cal.3d 612, 638, italics added.) 

 The gang membership of both defendants was quite relevant to the gang 

enhancement, as defendants’ commission of the crime together, knowing the other was a 

gang member, raised the reasonable inference that they committed the crimes in 

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

assist in any criminal conduct by gang members. (See § 186.22, subd. (b)(1); Albillar, 

supra, 51 Cal.4th at p. 68.) 

Contrary to defendants’ contention that the photographs had little value to prove 

motive, the gang related photographs provided persuasive evidence of motive by 

establishing their active gang membership, their pride in their gang, and their hatred of 

rivals. As active gang members, defendants were expected to put in work for the gang, 

such as by committing a shooting in rival gang territory. The shooting occurred near the 

territory claimed by 67 Neighborhoods gang, which was a rival of defendants’ gang and 

aligned with the East Coast Crip gang. Broadway Gangster Crip members hated 

members of the East Coast Crip gang, and disrespectfully referred to them as Cheese 
31 

Toast. The symbol for dead cheese toast and an unhappy face appeared in a photograph 

on each cell phone. The photographs demonstrated defendants’ pride in the gang and 

their mutual hatred for rivals, suggesting that they committed the crimes to benefit their 

gang or because it was expected by the gang. 

Gang evidence is not rendered inadmissible simply because it is inflammatory.

(People v. McKinnon (2011) 52 Cal.4th 610, 655.) The prosecution is entitled to present 

relevant gang evidence unless it is unduly inflammatory, and the trial court is given wide 

latitude in admitting such evidence. (Ibid.; see People v. Heard (2003) 31 Cal.4th 946, 

977-978.) Gang evidence is unduly inflammatory when there is a substantial likelihood 

the jury will use it not to logically evaluate the point upon which it is relevant, but to 

reward or punish one side due to the jurors’ emotional reaction. (People v. Scott, supra, 

52 Cal.4th at p. 491.) Whether gang evidence is unduly inflammatory is a discretionary 

determination by the trial court, and its discretion will not be disturbed unless it was 

exercised in an “‘“arbitrary, capricious or patently absurd manner that resulted in a 

manifest miscarriage of justice.”’ [Citations.]” (People v. Ochoa (2001) 26 Cal.4th 398, 

437-438, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125 (Rodrigues).) 

The photographs had references to 5-Deuce, 11-Deuce, B.G.C., a hand sign for 

deuce, dollar bills forming 112, and a B with wings. Several of the images on the cell 

phones were similar and no more inflammatory than defendants’ tattoos: Evans had a 

tattoo of a bird with money bags; and Russell had tattoos including representations of 

11-Deuce, a B with wings, and 5-Deuce. Russell did not object to the photographs of his 

tattoos, and after the prosecutor agreed not to claim that a blurry one was gang related, 

Evans did not object to the photographs of his tattoos, either. Under these circumstances, 

defendants’ claim that a few additional similar images uniquely tended to evoke an 

emotional bias against them is “untenable.” (People v. Valdez, supra, 55 Cal.4th at p. 

134.) For the same reason, defendants cannot show that a few additional images resulted 

in a miscarriage of justice, nor can they show any reasonable probability that defendants 

would have had a better result if they had been excluded. We thus find no abuse of 
32 

discretion and no prejudice. (See Rodrigues, supra, 8 Cal.4th at pp. 1124-1125; People v. 

Watson (1956) 46 Cal.2d 818, 836 (Watson.) 

V. Arshae’s text messages

 Evans contends that the trial court should have excluded Arshae’s testimony 

regarding text messages she sent to Russell’s cell phone number, because the prosecutor 

failed to authenticate the messages by establishing that Evans in fact was the recipient. 

Defense counsel objected to Arshae’s testimony regarding her exchange of text 

messages with Evans, on the ground that it would be irrelevant without proof she was in 

fact communicating with Evans, and not someone else. The prosecutor represented that 

she would not seek to introduce the messages themselves, that Arshae would testify that 

Evans identified himself to her during the exchange, and that the subject of the messages 

showed that they were related to an activity that Arshae was planning with him. The 

objection was overruled. 

We review the trial court’s ruling for an abuse of discretion. (People v. Tafoya, 

supra, 42 Cal.4th at p. 165.) The trial court’s discretion in admitting or excluding 

evidence “will not be disturbed except on a showing the trial court exercised its discretion 

in an arbitrary, capricious, or patently absurd manner that resulted in a manifest 

miscarriage of justice. [Citation.]” (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.) 

It was not the prosecutor’s burden to establish the identity of the recipient “in a 

categorical fashion” as Evans suggests. (Valdez, supra, 201 Cal.App.4th at p. 1437.) 

Arshae confirmed her police interview in which she said that the recipient of the 

messages identified himself as “James”; and she testified she knew Russell, knew it was 

his cell phone, had his number stored in her cell phone memory, and knew that she was 

communicating with Evans. They discussed a beach trip they had planned. Such 

evidence was “sufficient to permit the jury to find the preliminary fact true by a 

preponderance of the evidence. [Citation.]” (People v. Marshall, supra, 13 Cal.4th at pp. 

832-833; see Evid. Code, § 403, subd. (a)(3).) We find no abuse of discretion. 
33 

VI. Bifurcation of gang allegation 

Defendants contend that the trial court erred in denying their motions to bifurcate 

the gang allegation from the underlying charged offenses. They contend that bifurcation 

was required because the evidence of their identity was so weak and the evidence of gang 

association had such minimal relevance to issues of guilt, that the jurors were likely to 

convict based on criminal affiliation alone. 

Joint trial of issues of guilt and the gang enhancement is favored; thus the issues 

may be tried together even if the evidence necessary to prove a gang enhancement would 

be inadmissible in a trial limited to the charged offenses. (People v. Hernandez (2004) 

33 Cal.4th 1040, 1044, 1050. Bifurcation is unwarranted unless the defendant meets his 

burden to clearly establish a substantial danger that the gang evidence will be unduly 

prejudicial, either because the gang evidence does not relate to the crime or the 

defendant, or it is “of so little relevance to guilt, that it threatens to sway the jury to 

convict regardless of the defendant’s actual guilt.” (Id. at p. 1049.) We review the trial 

court’s denial of a motion to bifurcate for abuse of discretion, and our review is based 

upon the record before the court at the time of the ruling. (People v. Mendoza (2000) 24 

Cal.4th 130, 160-161.) 

Evidence of gang activity may be admissible not only to establish the elements of 

the gang enhancement, but also to establish identity and motive. (People v. Hernandez, 

supra, 33 Cal.4th at p. 1049.) In denying the motion, the trial court found the gang 

evidence inextricably intertwined with the murder evidence. The record of the 

preliminary hearing supports that finding. The evidence established that the shooters 

were in the Nissan which belonged to Russell’s mother. Facts suggesting that defendants 

were together in the Nissan at the time of the shooting included Russell’s relationship to 

the owner of the car and the presence of defendants’ cell phones in the car, as well as 

defendants’ close association with each other, shown by their membership in the same 

gang, their joint attendance at a Hood Day celebration, sharing a cell phone, and their 

mutual acquaintance with Arshae. 
34 

The same evidence, when considered with the evidence of gang membership and 

activity, was relevant to the issue of motive. Defendants’ close association with each 

other, the gang signs and symbols in their cell phones, their gang related attire, 

celebration of Hood Day, and admitting gang membership to law enforcement, all 

suggested that defendants participated in gang activities together. Officer Giargiari 

testified that the Broadway Gangster Crip gang’s primary activities included assault with 

a deadly weapon and firearms offenses, that members of criminal gangs were ordinarily 

expected to engage in such criminal activities to further the gang’s reputation or status, 

and that gang shootings were usually committed by a team of members.15 He explained 

that committing such crimes in a group tended to prove the members’ loyalty and 

trustworthiness to the gang. 

Defendants contend that the trial court’s error can be demonstrated with a 

comparison to the facts of People v. Albarran, supra, 149 Cal.App.4th 214, in which the 

gang evidence was found to be more prejudicial than probative and thus inadmissible, as 

it established that the defendant was a gang member but failed to tie him or his gang to 

the shooting. (See id. at pp. 227-228.) That case is inapposite, as it did not involve a 

motion for bifurcation of the gang allegation, and the court did not consider the 

defendant’s burden or the showing necessary for bifurcation. Moreover, the facts are not 

comparable to the facts of this case, where there was ample evidence of defendants’ 

identity as participants in the shooting. 

We conclude that the trial court reasonably found the evidence of the gang 

enhancement inextricably intertwined with the evidence of the shooting. Further, 

defendants have not established that the evidence was otherwise inadmissible or the joint 

trial resulted in gross unfairness. (See People v. Rogers (2006) 39 Cal.4th 826, 851.) We 

have already rejected defendants’ contention that there was no evidence identifying them 

 15 It was Officer Giargiari’s opinion that the shooting was gang related. He based his 

opinion in part because it occurred in neighboring gang territory, although it was territory 

claimed by the 65 Menlo Gangster Crip gang, which was not a rival of the Broadway 

Gangster Crip gang. He explained that the crime would nevertheless elevate the status of 

the shooters within their gang. 
35 

as the shooters. As defendants cite the same reason in support of their contention that the 

joint trial resulted in a guilty verdict based solely on their gang membership, we also 

reject any suggestion that the denial of the motion resulted in unfairness. At trial, the 

evidence again established Russell’s relationship to the owner of the car used in the 

shooting, the presence of defendants’ cell phones, and defendants’ close association with 

each other. Further, as respondent notes, the addition of DNA evidence, fingerprint 

evidence, and the location of cell towers used by Russell’s cell phone the day of the 

shooting, all combined to provide overwhelming evidence of identity and guilt. 

Defendants thus did not meet their burden to justify bifurcation and have not met their 

burden to show that the joint trial was unfair. 

VII. CALCRIM No. 1403 

Defendants contend that the trial court erred in failing to instruct sua sponte with 

CALCRIM No. 1403, which limits the jury’s consideration of gang evidence. Evans 

suggests that the court should have given the instruction, modified to read as follows: 

“‘You may consider evidence of gang activity only for the limited purpose of deciding 

whether: [¶] The defendant acted with the intent, purpose, and knowledge that are 

required to prove the gang-related enhancement allegations. [¶] You may also consider 

this evidence when you consider the facts and information relied on by an expert witness 

in reaching his or her opinion. [¶] You may not consider this evidence for any other 

purpose. You may not conclude from this evidence that the defendant is a person of bad 

character or that (he/she) has a disposition to commit crime.’” 

Defendants acknowledge that the California Supreme Court has held that the trial 

court has no obligation to give an instruction limiting gang evidence without a request. 

(See People v. Jones (2003) 30 Cal.4th 1084, 1116; People v. Hernandez, supra, 33 

Cal.4th at p. 1051.) They note, however, that the court recognized “a possible exception 

in ‘an occasional extraordinary case in which unprotested evidence . . . is a dominant part 

of the evidence against the accused, and is both highly prejudicial and minimally relevant 

to any legitimate purpose.’ [Citation.]” (People v. Hernandez, supra, at pp. 1051-1052, 

quoting People v. Collie (1981) 30 Cal.3d 43, 64.) Defendants contend that this is such a 
36 

case because the gang evidence was inflammatory and prejudicial, with minimal 

relevance to identification. They also contend that much of it was unnecessary to prove 

the enhancement, as defendants’ gang membership was proven with the testimony of 

officers who had contact with them in the field. 

There is no merit to defendants’ contention. As originally drafted, but omitted 

from the modification defendants suggest, CALCRIM No. 1403 permits consideration of 

evidence of gang activity to determine not only whether the defendant acted with the 

intent, purpose, and knowledge required to prove the gang related enhancement 

allegations, but also to determine whether the defendant acted with the intent, purpose, 

and knowledge required to prove the gang related crimes and whether defendant had a 

motive to commit the crimes charged. Also omitted from the suggested modification is 

the following language of CALCRIM No. 1403: “You may also consider this evidence 

when you evaluate the credibility or believability of a witness and when you consider the 

facts and information relied on by an expert witness in reaching his or her opinion.” 

As noted by respondent and discussed in the last section, the evidence of gang 

activity was relevant to identity and motive, and thus admissible to establish more than 

the elements of the gang enhancement. The instruction suggested by defendants would 

have precluded the jury from considering gang related evidence relevant to defendants’ 

motive, identity, and close association with each other. Proof of no more than 

defendants’ gang membership would not have established both elements of the gang 

enhancement without evidence that they committed the crimes together. (See § 186.22, 

subd. (b)(1); Albillar, supra, 51 Cal.4th at p. 68.) We thus conclude that this is not an 

extraordinary case and the trial court had no obligation to give the instruction. (See 

People v. Hernandez, supra, 33 Cal.4th at p. 1052.) 

VIII. “Happy Jack”

 Defendants contend that the trial court erroneously curtailed Russell’s crossexamination of Traveon by sustaining the prosecution’s hearsay objection to the 

following question: “The name that you gave to the officers that was involved in the 
37 

shooting, is that Happy Jack?” They also contend that the error resulted in a violation of 

their constitutional rights to confrontation, a fair trial, and to present a defense. 

 Defendants claim here, as they did below, that the prosecutor “opened the door” to 

the question by asking Traveon in direct examination whether he had told the detectives 

that there was talk in the neighborhood about the shooting and that people had been 

saying it was a gang shooting. Defendants contend that the Happy Jack question was 

necessary to test Traveon’s credibility and to expose his unreliability as a witness. They 

compare the issue with impeachment cases holding that when the defendant takes the 

stand, the prosecutor may contradict or refute his testimony with evidence that would 

otherwise be inadmissible due to the privilege against self-incrimination. (See, e.g., 

People v. Coffman and Marlow (2004) 34 Cal.4th 1, 72; People v. Robinson (1997) 53 

Cal.App.4th 270, 282-283; People v. Shea (1995) 39 Cal.App.4th 1257, 1264.) 

 “As the high court has explained, cross-examination is required in order ‘to expose 

to the jury the facts from which jurors . . . could appropriately draw inferences relating to 

the reliability of the witness.’ (Davis v. Alaska (1974) 415 U.S. 308, 318.) ‘[A] criminal 

defendant states a violation of the Confrontation Clause by showing that he was 

prohibited from engaging in otherwise appropriate cross-examination designed to show a 

prototypical form of bias on the part of the witness . . . .’ (Delaware v. Van Arsdall

(1986) 475 U.S. 673, 680.)” (People v. Smith (2007) 40 Cal.4th 483, 513.) 

The defendant’s right to “test the credibility, knowledge, and recollection of the 

witness . . . should be given wide latitude . . . . [Citations.]” (Watson, supra, 46 Cal.2d at 

p. 827.) “The trial court, of course, has a ‘wide latitude’ of discretion to restrict crossexamination and may impose reasonable limits on the introduction of such evidence. 

[Citation.] Thus, ‘unless the defendant can show that the prohibited cross-examination 

would have produced “a significantly different impression of [the witnesses’] credibility” 

[citation], the trial court’s exercise of its discretion in this regard does not violate the 

Sixth Amendment.’ [Citations.]” (People v. Smith, supra, 40 Cal.4th at p. 513; see also 

Delaware v. Van Arsdall, supra, 475 U.S. at p. 680.) 
38 

Defendants have not shown that a significantly different impression of Traveon 

might have resulted from testimony that he told detectives that he had heard someone 

called Happy Jack had participated in the shooting. Russell points out that the 

prosecutor’s purpose in asking Traveon whether he had heard that the shooting was gang 

related was to raise an inference that Traveon’s conflicting testimony was the result of 

fear. He further contends that Traveon’s willingness to name Happy Jack in his police 

interview would have shown that Traveon was not, in fact, afraid to name a suspect. As 

Traveon testified he was not afraid, naming Happy Jack did not contradict that testimony. 

Moreover, Traveon did not testify in direct examination that he knew or did not know 

who the shooter was, or that he told detectives who the shooter was; thus the 

identification of Happy Jack would not have contradicted his testimony. 

Evans contends that once the prosecutor elicited testimony regarding anything

Traveon told the police about the shooting, she opened the door to everything he told the 

police about the shooting. This contention, like Russell’s, does not relate to Traveon’s 

reliability or credibility, but appears to be based upon the rule that where part of a 

conversation has been admitted by one party, the opposing party may bring out the whole 

of the conversation. (See Evid. Code, § 356.) Evans does not expressly invoke that rule, 

which, in any event, has always been subject to the qualification that the court may 

exclude those portions of the conversation that are not relevant to the statement 

introduced. (People v. McCoy (1944) 25 Cal.2d 177, 187; see also Watson, supra, 46 

Cal.2d at p. 827.) Thus, although prior inconsistent statements may be admitted to 

discredit a witness, “[t]he ‘entire conversation’ rule . . . does not permit reception of other 

portions of a conversation which are not explanatory of that which has been brought out 

by the adversary, and which are intrinsically inadmissible. [Citations.]” (People v. 

Albert (1960) 182 Cal.App.2d 729, 741.) 

We agree with respondent that the question about Happy Jack called for hearsay 

and that its only apparent purpose was to introduce minimally probative evidence of 

third-party culpability. Evidence that a third person committed the crime is inadmissible 

unless it meets “minimum standards of relevance” and is capable of raising a reasonable 
39 

doubt as to defendant’s guilt. (People v. Edelbacher (1989) 47 Cal.3d 983, 1017-1018.) 

Thus, evidence of collateral or insignificant matters that merely suggest third-party 

culpability is inadmissible for that purpose. (People v. Hall (1986) 41 Cal.3d 826, 832-

834.) Further, the inability to present “weak and speculative evidence of third party 

culpability does not infringe on a defendant’s constitutional rights. [Citation.]” (People 

v. Gonzales (2012) 54 Cal.4th 1234, 1261, citing Holmes v. South Carolina (2006) 547 

U.S. 319, 326-327.) 

Evidence suggesting that some otherwise unidentified person called Happy Jack 

was a participant in the crimes did not meet any minimum standard of relevance, and was 

inadmissible, not only as hearsay, but as too weak and speculative to raise a reasonable 

doubt about defendants’ guilt. As it was incapable of raising a reasonable doubt, we also 

conclude that any error in excluding it would have been harmless under the test of either 

Chapman v. California (1967) 386 U.S. 18, 24, or Watson, supra, 46 Cal.2d at page 836. 

IX. Rifle

 Evans contends that the trial court abused its discretion by overruling his objection 

under Evidence Code section 352 and admitting evidence that a rifle was found in the 

trunk of the Nissan. 

The trial court found that the evidence was relevant to the gang enhancement, and 

that the potential for prejudice was outweighed by the probative value of the rifle to show 

that defendants’ gang was a violent gang that used weapons. Evans contends that the trial 

court erred because the rifle was not used in the shooting and there was insufficient 

evidence linking him to the rifle or the gang. He contends that the error was prejudicial 

because there was insufficient evidence identifying him as a participant in the crime. 

The trial court’s discretion under Evidence Code section 352 will not be disturbed 

unless it was exercised “‘in an arbitrary, capricious or patently absurd manner that 

resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Rodrigues, 

supra, 8 Cal.4th at pp. 1124-1125.) A trial court does not abuse its discretion merely 

because the facts “afford an opportunity for a difference of opinion. An appellate 
40 

tribunal is not authorized to substitute its judgment for that of the trial judge. [Citation.]” 

(People v. Stewart (1985) 171 Cal.App.3d 59, 65.) 

Whatever the probative value of a rifle in the trunk, it was not unduly prejudicial 

in light of ample identification evidence and defendants’ use of other guns: Evans’s 

ownership of a holster and speed loader for a .44-caliber handgun supported a reasonable 

inference that Evans owned the .44-caliber handgun used in the shooting; and the DNA 

analysis provided evidence that both Evans and Russell handled that gun as well as the 

.357-caliber handgun found in the passenger area of the Nissan. Little in the way of 

damaging or inflammatory effect could be added by a rifle in the trunk. Thus, as no 

miscarriage of justice is shown and the trial court’s reasoning was not patently absurd, 

defendants failed to demonstrate an abuse of discretion. The same facts demonstrate that 

there is no reasonable probability that the outcome would have been different if the jury 

had not heard about the rifle in the trunk. Any error in admitting the evidence would thus 

have been harmless. (See Watson, supra, 46 Cal.2d at p. 836.) 

X. Equal protection and section 12022.53 

Defendants contend that the sentence enhancement under section 12022.53, 

subdivisions (d) and (e)(1), violates their constitutional right to equal protection of the 

laws by treating aiders and abettors of shootings committed for the benefit of a criminal 

street gang differently from aiders and abettors of shootings committed in concert by 

criminal organizations or groups not defined as street gangs. When read together, 

subdivisions (d) and (e)(1) of section 12022.53 require the trial court to add a consecutive 

25 years to life term to the sentence of a defendant convicted of murder or attempted 

murder for the benefit of a criminal street gang, when the jury finds that a principal in the 

offense personally and intentionally discharged a firearm, causing death or great bodily 

injury to the victim. 

 “Broadly stated, equal protection of the laws means ‘that no person or class of 

persons shall be denied the same protection of the laws which is enjoyed by other persons 

or other classes in like circumstances in their lives, liberty and property and in their 

pursuit of happiness.’ [Citation.]” (People v. Wutzke (2002) 28 Cal.4th 923, 943.) In 
41 

making such a claim, the defendants bear the burden to show “‘that the state has adopted 

a classification that affects two or more similarly situated groups in an unequal manner.’ 

[Citations.]” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1199.) Once that burden is 

met, the statute is given “‘some level of scrutiny to determine whether distinctions 

between the two groups justify the unequal treatment.’ [Citation.]” (Id. at p. 1200.) The 

statute is subject to strict scrutiny when fundamental interests are involved, to determine 

whether it is necessary to achieve a compelling state interest. (Ibid., citing Romer v. 

Evans (1996) 517 U.S. 620, 635.) “Where . . . a statute involves neither a suspect class 

nor a fundamental right, it need only meet minimum equal protection standards, and 

survive ‘rational basis review.’ [Citation.]” (People v. Turnage (2012) 55 Cal.4th 62, 74 

(Turnage).) 

There is no fundamental interest in the specific term of imprisonment a criminal 

defendant might receive; thus, equal protection challenges based on sentencing disparities 

are subject to the rational basis test. (Turnage, supra, 55 Cal.4th at p. 74, citing People v. 

Wilkinson (2004) 33 Cal.4th 821, 838 (Wilkinson).) Under that test, similar equal 

protection challenges to section 12022.53 were rejected in People v. Hernandez (2005) 

134 Cal.App.4th 474, 480-483 (Hernandez), and People v. Gonzales (2001) 87 

Cal.App.4th 1, 12-13 (Gonzales).)16

Relying on People v. Olivas (1976) 17 Cal.3d 236 (Olivas), defendants contend 

that Hernandez and Gonzales were wrongly decided, as they applied the rational basis 

test, whereas strict scrutiny was required because sentencing involves a fundamental 

liberty interest. Defendants’ reliance is misplaced, as Olivas was decided before 

Wilkinson, in which the California Supreme Court warned that Olivas is applicable only 

to periods of confinement given to juvenile defendants convicted in adult court, and its 

narrow holding should not be “interpreted to require application of the strict scrutiny 

 16 Both cases rejected the equal protection challenge without deciding whether the 

defendants had met their burden to establish that they were similarly situated to aiders 

and abettors of murders committed by criminal organizations other than criminal street 

gangs. (See Hernandez, at p. 481; Gonzales, at p. 13.) We do the same. 
42 

standard whenever one challenges upon equal protection grounds a penal statute or 

statutes that authorize different sentences for comparable crimes . . . .” (Wilkinson, 

supra, 33 Cal.4th at p. 837; see also People v. Ward (2005) 36 Cal.4th 186, 218.) 

 We conclude that Hernandez and Gonzales properly applied the rational basis test, 

and we agree with the reasoning of those cases. The state has a legitimate interest in 

suppressing criminal street gangs and “‘the serious threats posed to the citizens of 

California by gang members using firearms’”; this provides a rational basis for greater 

punishment for those who aid and abet gang related shootings that result in death or great 

bodily injury. (Hernandez, supra, 134 Cal.App.4th at pp. 481-482, fn. omitted.) Thus 

section 12022.53 “‘is not prohibited by the equal protection clause from striking the evil 

where it is felt the most.’” (Id. at p. 482, fn. omitted; see also Gonzales, supra, 87 

Cal.App.4th at pp. 12-13.) 

XI. Cumulative error 

Defendants contend that the cumulative effect of all the errors heretofore 

discussed was to deny them a fair trial. Because “[w]e have either rejected on the merits 

defendant[s’] claims of error or have found any assumed errors to be nonprejudicial,” we 

must reject defendants’ claim of prejudicial cumulative effect. (People v. Sapp (2003) 31 

Cal.4th 240, 316.) 

DISPOSITION 

The judgments are affirmed. 

 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. 

 ____________________________, J. 

 CHAVEZ 

We concur: 

__________________________, P. J. 

BOREN 

__________________________, J. 

ASHMANN-GERST