Filed 8/5/22 P. v. Frank CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY CONSTANTIN FRANK et 

al.,

Defendants and Appellants.

 D076986, D076737

 (Super. Ct. No. SCD267959)

CONSOLIDATED APPEALS1 from judgments of the Superior Court of 

San Diego County, Louis R. Hanoian, Judge. Affirmed in part as modified, 

reversed in part and remanded.

Tracy A. Rogers, under appointment by the Court of Appeal, for 

Defendant and Appellant Anthony Constantin Frank.

Patricia J. Ulibarri, under appointment by the Court of Appeal, for 

Defendant and Appellant Donte Jerome Haddock.

1 On our own motion, we consolidated these appeals for purposes of 

supplemental briefing and disposition.
2

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

Attorney General, Julie L. Garland, Eric A. Swenson and Allison V. Acosta, 

Deputy Attorneys General, for Plaintiff and Respondent.

In two separate incidents, fellow gang members Anthony Constantin 

Frank and Donte Jerome Haddock (together appellants), were charged with 

shooting to death Darris W. in 2011 and Xusha B. in 2013. A jury found 

appellants guilty of two counts of murder (Pen. Code, § 187, counts 1, 3),2 two 

counts of conspiracy to commit murder (§ 182, subd. (a)(1), count 2, 4), and 

attempting to murder Malcolm H. (§§ 664/187, subd (a), 189, count 5). The 

jury also found true gang enhancement allegations attached to each count

(§ 186.22, subds. (b)(1) & (5)), gang-related firearm enhancements

(§ 12022.53, subds. (d) & (e)(1)), and a lying in wait special circumstance 

enhancement for both murders (§ 190.2, subd. (a)(15)). As to count 3, the jury 

also found true allegations that multiple murders occurred (§ 190.2, subd. 

(a)(3)) and that a firearm was discharged from a vehicle (§ 190.2, subd. 

(a)(21)). The court sentenced appellants to a total prison sentence of two 

consecutive life terms without the possibility of parole, plus 82 years to life 

for Haddock and 90 years to life for Frank.

On appeal, appellants contend the trial court erred when it: (1) denied 

their motion to sever the two murder counts; (2) admitted gang evidence, 

including a rap song; (3) admitted uncharged acts evidence; and (4) 

instructed the jury regarding the conspiracy to commit murder charge. Both 

contend that the evidentiary errors were prejudicial individually and 

cumulatively. Haddock also asserts the trial court erred when it denied his 

motion to sever his trial from Frank’s trial. 

2 Undesignated statutory references are to the Penal Code. 
3

Appellants challenge all fines, fees, and assessments imposed by the 

trial court under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas) and 

claim the trial court erred by failing to hold an ability to pay hearing before it 

imposed various assessments, fees, and fines. They assert a remand is 

necessary to allow the trial court to exercise its discretion regarding striking 

their firearm enhancements. Finally, appellants contend that recently 

enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assem. Bill 333) 

requires reversal of the true findings on the gang enhancement allegations

(§ 186.22, subd. (b)(1) & (5)) and the gang-related firearm enhancements

(§ 12022.53, subds. (d) & (e)(1)) attached to all counts because the new law 

increased the proof requirements under the gang statute (§ 186.22).3 

Haddock requests that we conduct an in camera review of material 

sealed by the trial court. He also asserts that the abstract of judgment must 

be corrected regarding his custody credits and that his parole revocation fine 

must be stricken. The People agree that we should review the sealed 

materials in camera and concede the errors regarding Haddock’s custody 

credits and parole revocation fine. 

We reject appellants’ challenges to the trial court’s rulings regarding 

severance, admissibility of evidence, and instructing the jury. We agree that the 

true findings on appellants’ gang enhancement allegations (§ 186.22, subd. (b)(1)

& (5)) must be reversed following the passage of Assem. Bill 333, which 

retroactively applies to their nonfinal judgments of conviction. All parties agree 

that reversal of the gang enhancement allegations requires reversal of the gang3 We allowed the parties to file supplemental briefing on the impact of 

Assem. Bill 333, and what impact reversal of the gang enhancement 

allegations had on the gang-related firearm enhancements attached to all 

counts. We received and considered these submissions. 
4

related firearm enhancements. (§ 12022.53, subds. (d) & (e)(1).) The matter is 

remanded and the People shall have the opportunity to retry appellants on these 

enhancements. Should the firearm enhancements be found true after a retrial, 

the trial court shall consider all sentencing options under section 12022.53. On 

remand, the trial court shall also exercise its informed discretion to resentence 

the section 12022.23, subdivision (d) firearm enhancements.

We also modify the judgments to vacate one of the imposed fees based on a 

recent change in the law. On remand, the trial court is directed to redetermine 

its award of Haddock’s custody credits in accordance with the views expressed 

herein and strike Haddock’s parole revocation restitution fine imposed pursuant 

to section 1202.45. In all other respects, we affirm the judgments as modified.

I. FACTUAL BACKGROUND4

A. Background to the Crimes

The San Diego Lincoln Park Bloods (LPB) and the Skyline Piru Bloods 

(Skyline) are rival criminal street gangs with a history of back-and-forth 

shootings. Appellants were LPB gang members, although Frank had initially 

been a part of another gang called the 5-9 Brims, a gang aligned with LPB. 

Glenn G. and Donny L. were LPB gang members. Gang monikers follow a

generational hierarchy such as the original name “Fatal” is followed in order 

with Lit Fatal, Baby Fatal, and Tiny Fatal. Glenn’s gang moniker was Lil 

Fatal, Donny’s was Baby Fatal, and Frank’s was Tiny Fatal. Lower named 

individuals, such as Frank, commit crimes for the gang to receive status 

within the gang and the respect of older gang members, such as Glenn and 

Donny. 

4 This section provides a general background regarding events leading to 

the murders and appellants’ crimes. The facts related to the specific claims 

at issue in these appeals will be discussed in each discussion section.
5

Brothers Andre P., Keshawn P. and Marcel P. were members of Skyline 

and its closely-affiliated O’Farrell Park Banksters gang (O’Farrell). Malcolm

H. was a good friend and cousin of Andre and Keshawn, and an associate of 

the O’Farrell criminal street gang. Appellants had been involved in an 

ongoing feud with Keshawn, Andre, and Malcolm for several years. In 2010 

and 2011, a series of uncharged shooting took place between rival gang 

members.

In early February 2010, Andre was shot, but he refused to speak to the 

police. In mid-February 2010, during a celebration at the P. family home, the 

partygoers heard gunshots outside. Andre and Keshawn’s friend reported 

that Haddock, Gerald H., Roshawn B., and someone else had driven up and 

shot him in the arm. When police searched the area, they found a .45 caliber 

shell casing.

That same night, based on a call about a possible drunk driver, the 

police stopped a vehicle driven by Devin G., with passengers Haddock, 

Gerald, and Roshawn. An inventory search of the vehicle revealed two 

firearms, a .45 caliber JHP Hi-Point with six rounds in the magazine and a 

.40 caliber Beretta with 10 rounds in the magazine. Police arrested the four 

occupants. A few days later, based on information provided by Andre and 

Keshawn’s mother, police connected the alleged shooters with the individuals 

who had been arrested in the vehicle.

In February 2011, Haddock began dating Andre’s former girlfriend,

Lashayla. Andre became jealous. In mid-February 2011, Lashayla and her 

sister were in a car with Haddock when Andre pulled up beside them and 

pointed a gun at them. Lashayla’s sister immediately called the police. They 

dropped off Haddock at Gerald’s house. Andre pulled up and argued with 
6

Haddock. Someone then threw a brick through the window of Gerald’s house.

Police later arrested Andre for this incident.

On March 15, 2011, another shooting occurred at the P. family home. 

Malcolm was present at the time. A P. family member had seen a blue car 

driving by the house on numerous occasions the week before the shooting. 

Malcolm told this person that Frank from LPB was in the car, and the family 

member told police that he saw the same blue car during the shooting. The 

family member claimed that he did not know Frank personally and could not 

identify him. In early April 2011, Andre and Keshawn’s mother rammed into 

the back of a car driven by Lashayla with Haddock as her passenger.

B. Darris’s Murder

On the night of April 29, 2011, a high school girl rented a party bus 

that picked up her friends from a College Grove parking lot. The group on 

the bus included Skyline gang members. When the bus returned to drop 

everyone off at around 12:30 a.m., appellants showed up and started a fight 

with the Skyline gang members. Witnesses understood the fight to be gangrelated. During the fight, someone screamed that Haddock had a gun.

That same night, other high school girls rented another party bus that 

picked people up near a restaurant. Some of the girls had invited Frank and 

Haddock. Some uninvited Skyline or O’Farrell gang members appeared, 

including Andre, Keshawn, Malcolm, Marcel, Sai T., Tevin E., and Darris W. 

When the girls asked Keshawn and his friends whether Frank and Haddock 

could join them, they assured the girls this would be fine. When the bus 

made a stop at Mission Beach, one of the girls was on the phone with Frank

and asked the bus driver to wait for him and his friends to join the bus, but 

the bus eventually left.
7

The police later stopped the bus and several people got off and 

arranged alternative transportation back to the restaurant where the bus 

had picked them up. One person picked up Marcel and Darris and brought 

them to the restaurant where they had initially boarded the party bus. One 

of the girls who stayed on the bus was in contact with Frank, who told her 

that he would meet them back at the restaurant.

At the restaurant, Darris and Marcel went to Marcel’s car. Gunfire 

erupted. Darris, who had been sitting in the backseat of Marcel’s car, had 

been shot. Darris suffered three gunshot wounds and bled to death from his 

injuries. Malcolm noticed “5-0” or “5-9” had been written in dust or 

condensation on the car window, which meant to him that the LPB gang was 

involved in the shooting. 

Cell phone location data showed that Frank called Haddock before the 

first fight and that Haddock was in communication with Glenn. Cell phone

data also placed Frank in the shopping center parking lot where the first 

fight took place. His phone then moved to a different location and was turned 

off or in airplane mode at the time of Darris’s shooting. Eyewitness 

testimony placed Haddock with Frank during the first fight. Darris’s

shooting occurred shortly before 2:00 a.m. Cell phone data revealed that 

Haddock text messaged and had a social media transaction with Glenn after 

the murder at 2:09 a.m. and 2:10 a.m. 

C. Xusha’s Murder

Frank obtained a nine-millimeter handgun from Marcel B., another 

LPB gang member. On the night of May 4, 2013, appellants drove to a party 

in Haddock’s Impala with their friend Alaeante E.5 After the party, the 

5 Alaeante was originally charged as a codefendant in this case. In 

exchange for his testimony, Alaeante entered a plea to voluntary 
8

group talked about the fact that Malcolm and other Skyline gang members 

were down the street at a hookah lounge.

Marcel and Andre and Keshawn’s sister, Brittney P., and two of her 

girlfriends, were at the same party. After leaving the party, Brittney and her 

friends joined Malcolm and his friends at the hookah lounge. An unidentified 

person from the LPB gang was also at the hookah lounge.

From the hookah lounge, someone suggested that the group get a hotel 

room at a casino, so the group got into several cars to make the trip. Malcolm 

drove Brittney’s car, with Xusha in the passenger seat, and Brittney and a

friend in the rear seats. Haddock saw the cars leaving and positioned his car 

behind the caravan of vehicles. At the time, Haddock was driving his Impala 

with Frank and Alaeante as his passengers. When the caravan stopped for 

gas, Frank or Haddock recognized Malcolm in one of the cars. Haddock 

circled the block several times and then followed the caravan onto the 

freeway. 

Frank told Alaeante to “[g]et down” and began shooting at the car 

driven by Malcolm. Malcolm, who had been shot in the arm, stopped the car

and saw that Xusha had been shot in the head. Xusha died from the injury.

A jailhouse informant testified that while in a holding tank, Frank 

described how he shot at another car on a freeway. Frank told the informant

that he knew the person he shot had been killed because he saw the person’s 

head bounce backward. The informant contacted authorities about Frank’s

statements. After speaking to a detective about the case, the informant 

agreed to wear a recording device while talking with Frank. The informant 

manslaughter with a gang allegation, as well as a plea to pandering in an 

unrelated case, and a probation violation, for a sentence anywhere from four

years four months to up to 16 years.
9

obtained no information while wearing the recording device. He explained 

that Frank had been removed to take part in a lineup and was “really 

nervous.” After the recording device was removed, Frank told the informant

that “Gadget” and D.J. were involved in the shooting. The informant was 

ultimately released to a nonviolent offender program for his remaining 

sentence, was relocated, and received monetary assistance for about four or 

five months.

DISCUSSION

II. ALLEGED EVIDENTIARY ERROR

A. No Prejudicial Error in Admitting Rap Song and Declining to Accept 

Stipulation Regarding Glenn’s Gang Status 

1. Additional Background

Haddock moved in limine to limit the scope of the prosecution’s gang 

expert’s testimony, setting forth general categories of evidence he considered 

to be admissible and inadmissible. Frank joined in this motion. The People 

moved to admit evidence to establish that: LPB was a criminal street gang; 

appellants acted in association with other gang members, including Glenn, 

Donny, and Alaeante; appellants committed the crimes to benefit the gang; 

and appellants killed the victims specifically intending to further, promote, or 

assist in criminal conduct by other gang members. To prove these elements, 

the People sought to present evidence of nine predicate offenses committed by 

LPB, including field interviews, social media postings, tattoos, writings, and 

prior criminal cases to establish appellants’ gang membership.

At a hearing on the motions, the prosecutor offered to stipulate to seven 

predicate acts. In response to a defense argument concerning

cumulativeness, the prosecutor explained that, to the extent the parties 

stipulated to predicate offenses and facts, she would not be calling witnesses 
10

to discuss the details of those offenses. The prosecutor also agreed that if 

appellants stipulated to their gang membership this would eliminate the 

need for social media postings, photo screen shots, writings, and other items 

that would have otherwise been admissible to prove gang membership. 

Ultimately, the parties stipulated that between 2006 and the present

day: (1) the LPB are an ongoing organization of three or more people; (2) 

they have a common name, LPB, and common identifying signs and symbols;

and (3) their principal activities are the commission of murders, attempt 

murders, and assaults with firearms. The stipulation recited seven predicate 

offenses, including Haddock’s guilty plea to assault with means of force likely 

to produce great bodily injury for his participation in a 2009 drive-by 

shooting, and Frank’s guilty plea to attempted murder for his participation in 

a 2013 drive-by shooting.

Before trial, the prosecutor notified the court that she wanted to 

introduce a rap song performed by Glenn, also known as “Little Fatal,” an 

unnamed coconspirator to Darris’s 2011 murder. She explained that the 

video was published on August 17, 2011, approximately three months after 

Darris’s murder, by an individual with whom Frank had a social media

conversation six hours before Darris’s murder. The prosecutor planned to 

introduce a portion of the rap song sung by Glenn as evidence of Glenn’s 

personal animus toward Skyline, Glenn’s gang membership, and Glenn’s 

motivation for the 2011 killing. The portion of the rap song6 that the 

prosecutor sought to introduce contained the following lyrics:

“Eastside what? Eastside of the map where the niggas try 

to say fuck Lincoln Park in they raps, but we aint trippin 

6 For ease of reference, we refer to the portion of the rap song presented 

to the jury as the “song.”
11

cuz, we really know the facts. Where the niggas hang out 

in broad daylight and get klacked.[7] Try to come through 

ma hood and get messed-up with the gat, sent to the 

mortuary with a bullet in ya brain. I’m Lil Fatal,[8] I’m in 

it for the stats not the fame. Run up smoked ya big 

homeboy for the cocaine and went back to the dip where we 

hold them fat straps, Desert Eagles drop the triangle in ya 

face like that. Ain’t no love foo, so why ya fuckin with us? 

Come thru and get touched nigga, it’s a must. I get the LP 

up and then I skate to the block I’m in a D.I.P. where 

Crosstowns[9] get shot. You might go to the Lola, go 

through and klack, but I guarantee you come through the 

DIP you won’t make it back. Slip Slide D-I standing over a 

body screaming fuck skyline be a goddam shame how these 

dudes flat line and these niggas still talkin but its L’s on 

mine.”

Appellants objected, arguing that the song had an attenuated 

connection to them, was inflammatory, irrelevant, and cumulative of other 

evidence. The prosecutor agreed that the song’s lyrics did not pertain to 

Darris’s 2011 murder but claimed it was significant that the song was again 

published online in 2011. The operative complaint alleged that a conspiracy 

existed between appellants to murder Darris for the benefit of LPB. The 

prosecutor argued that she had an obligation to prove that Glenn and 

Donny—alleged uncharged coconspirators in the conspiracy to kill Darris—

were LPB gang members, that two witnesses had claimed they were not gang 

members, and that the animus of the uncharged coconspirators toward 

7 “Klacked” means killed.

8 “Lit Fatal” refers to Glenn. 

9 “Crosstowns” refer to any member of a rival gang.
12

Skyline was relevant to the case. She also argued that the prosecution 

needed to establish the origin of the conspiracy. 

After the trial court ruled that the song could be introduced because it 

was highly probative regarding the motive of a coconspirator and not unduly 

prejudicial under Evidence Code section 352, appellants offered to stipulate 

that Glenn was a LPB gang member to eliminate the need to introduce the 

song. The trial court impliedly rejected this suggestion, stating:

“What will come out with this particular rap [song] is

something that I think is going to be unique in the course of 

this trial where we have evidence in the first person of an 

individual who has some relationship with this particular 

case, in their own voice, saying something that is highly 

relevant in the case in terms of what motivation there 

might be that’s going on. And it will be in Glenn[’s] . . .

words, not in an officer saying, ‘Yes, we had a contact in 

2005 or 2011 and this is what they said.’ We have it with 

the individual saying it. [¶] I think it’s highly relevant. If 

that means that there needs to be an explanation because 

somebody else is mentioned in here or somebody else is 

part of the extended video, well, that’s up to you in terms of 

how you react to that. But I think that this is highly

probative on the issue of Glenn[’s] . . . motivation. It is—it 

is probative, I think, on the motivation of both [appellants]

in terms of their complying with [Glenn’s] wishes. And I 

don’t see that undue prejudice as a result of the playing of 

this particular rap under [Evidence Code section] 352. As 

you said, 60 percent of this trial is going to be all about the 

animus between the two gangs.”

The prosecutor introduced the song during the testimony of its gang 

expert. The gang expert first reviewed some social media communications 

between Frank and Glenn dated April 28, 2011, the day before Darris’s 

murder, and referred to a conversation that Frank had with Donny. The 

gang expert discussed the song, the prosecutor played the song for the jury,

and presented a transcript of the audio to the jury. The gang expert then 
13

opined that Glenn was a LPB gang member at the time of Darris’s murder.

During cross-examination, the gang expert stated that no evidence existed 

showing that Haddock was involved in promoting or producing the song. The 

gang expert also stated that rappers may rap about conduct in which they do 

not actually participate and that a “studio gangster” may rap about incidents 

to which he has no connection.

2. Analysis

Appellants contend that the trial court erred in admitting the song 

because the stipulation and other gang evidence established the gang rivalry 

which rendered the song irrelevant or cumulative in proving the animus 

between the LPB and Skyline gangs. Haddock also asserts that the 

prosecution failed to lay a foundation or properly authenticate the song prior 

to its admission. 

“Under the Evidence Code, authentication of a writing—including 

documents, audio recordings, and ‘every other means of recording upon any 

tangible thing’ (Evid. Code, § 250)—is required before the writing may be 

admitted in evidence ([Evid. Code], § 1401). ‘Authentication is to be 

determined by the trial court as a preliminary fact ([Evid. Code,] § 403, subd. 

(a)(3)) and is statutorily defined as “the introduction of evidence sufficient to 

sustain a finding that it is the writing that the proponent of the evidence 

claims it is” or “the establishment of such facts by any other means provided 

by law” ([Evid. Code,] § 1400). The statutory definition ties authentication to 

relevance.’ ” (People v. Flinner (2020) 10 Cal.5th 686, 727 (Flinner).) “The 

first step is to determine the purpose for which the evidence is being offered. 

The purpose of the evidence will determine what must be shown for 

authentication, which may vary from case to case.” (People v. Goldsmith

(2014) 59 Cal.4th 258, 267 (Goldsmith); Flinner, at p. 727.) “The foundation 
14

requires that there be sufficient evidence for a trier of fact to find that the 

writing is what it purports to be, i.e., that it is genuine for the purpose 

offered. [Citation.] Essentially, what is necessary is a prima facie case. ‘As 

long as the evidence would support a finding of authenticity, the writing is 

admissible. The fact conflicting inferences can be drawn regarding 

authenticity goes to the document’s weight as evidence, not its

admissibility.’ ” (Goldsmith, at p. 267.)

“We review claims regarding a trial court’s ruling on the admissibility 

of evidence for abuse of discretion. [Citations.] Specifically, we will not 

disturb the trial court’s ruling ‘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.’ ” (Goldsmith, supra, 59 Cal.4th 

at p. 266.)

The prosecution’s theory regarding Darris’s murder is that Glenn and 

Donny, respected gang members, acted as unnamed coconspirators who 

directed Frank to commit the murder and recruit others, such as Haddock, to 

help him. The People presented evidence that Glenn and Donny were LPB 

gang members. Glenn’s gang moniker was Lil Fatal, Donny’s was Baby 

Fatal, and Frank’s was Tiny Fatal. The gang expert explained the 

generational hierarchy of gang monikers, noting the original name “Fatal” is 

followed in order with Lit Fatal, Baby Fatal, and Tiny Fatal. Lower named 

individuals, such as Frank, commit crimes for the gang to receive status 

within the gang and the respect of older gang members, such as Donny and 

Glenn. Other evidence established that Frank identified Glenn as Lit Fatal. 

The song’s lyrics identified the singer as Lit Fatal, meaning Glenn. 
15

“No evidence is admissible except relevant evidence.” (Evid. Code,

§ 350.) “ ‘Relevant evidence’ means evidence, . . . having any tendency in 

reason to prove or disprove any disputed fact that is of consequence to the 

determination of the action.” (Evid. Code, § 210, italics added.) The song 

established Glenn’s motivation for the murder (his personal animus toward 

Skyline) and the gang expert’s testimony established Frank’s motivation to 

comply with Glenn’s wishes. Appellants have not explained how this 

evidence of motive and intent was cumulative to other evidence in the case.

“[A] writing may be authenticated by its contents and circumstantial 

evidence, including the testimony of witnesses other than the person or 

persons who created the writing or witnessed its creation.” (People v. Cruz

(2020) 46 Cal.App.5th 715, 729 (Cruz); Goldsmith, supra, 59 Cal.4th at p. 268

[Foundation “may be supplied by other witness testimony, circumstantial 

evidence, content and location.”].) Here, the content of the song along with 

the circumstantial evidence described above adequately supplied the 

necessary foundation for admission of the song. Haddock’s argument that the 

song existed well before Darris’s 2011 murder is of little import. Regardless 

of whether the song’s lyrics were written before or after the murder, they 

were adequately authenticated as Glenn’s work. (See People v. Gutierrez

(2002) 28 Cal.4th 1083, 1138 [defendant’s statements that he did not like 

police officers and wanted to kill one, made years before and years after he 

attempted to do so, properly admitted as relevant to his state of mind].) 

Additionally, the gang expert’s failure to testify that she recognized the 

singer as Glenn and the fact conflicting inferences could be drawn regarding 

the song’s authenticity went to the weight of the evidence, not its 

admissibility. (Goldsmith, supra, 59 Cal.4th at p. 267.)
16

Because sufficient evidence existed to sustain a finding that the song 

was what the prosecution claimed it to be, the trial court properly allowed its 

authenticity and the identity of the singer to become questions of fact for the 

jury. (See Cal. Law Revision Com. com., 29B pt. 4 West’s Ann. Evid. Code, 

(1995 ed.) foll. § 1400, p. 440 [trier of fact “may find that the writing is not 

authentic despite the fact that the judge has determined that it was 

‘authenticated’ ”].) 

Appellants next contend that the trial court erred in admitting the song 

under Evidence Code section 352, claiming the song was inflammatory and 

highly prejudicial because it portrayed them as having a propensity for 

violence. Frank also suggests that the song could trigger latent racial bias 

toward African Americans in the jurors. 

“Under Evidence Code section 352, the probative value of the proffered 

evidence must not be substantially outweighed by the probability that its 

admission would create substantial danger of undue prejudice, of confusing 

the issues, or of misleading the jury.” (People v. Cole (2004) 33 Cal.4th 1158, 

1195.) “ ‘[T]he prejudice which exclusion of evidence under Evidence Code 

section 352 is designed to avoid is not the prejudice or damage to a defense 

that naturally flows from relevant, highly probative evidence. “[A]ll evidence 

which tends to prove guilt is prejudicial or damaging to the defendant’s case. 

The stronger the evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred 

to in Evidence Code section 352 applies to evidence which uniquely tends to 

evoke an emotional bias against the defendant as an individual and which 

has very little effect on the issues.’ ” (People v. Jones (2017) 3 Cal.5th 583, 

610.)

A trial court’s exercise of discretion under Evidence Code section 352 

will not be overturned on appeal absent a manifest abuse of that discretion. 
17

(People v. Jennings (2000) 81 Cal.App.4th 1301, 1314 (Jennings).) “ ‘It is . . . 

well settled that the erroneous admission or exclusion of evidence does not 

require reversal except where the error or errors caused a miscarriage of 

justice. [Citation.] “A ‘miscarriage of justice’ should be declared only when 

the court, ‘after an examination of the entire cause, including the evidence,’ is 

of the ‘opinion’ that it is reasonably probable that a result more favorable to 

the appealing party would have been reached in the absence of the error.” ’ ” 

(People v. Fields (2009) 175 Cal.App.4th 1001, 1018.)

We find no error in admitting the song because it was relevant to 

establishing Glenn’s personal animus and not likely to invoke a purely 

emotional bias against appellants. The gang expert testified that Haddock 

was not involved with the song and rappers often do not carry out the conduct 

that they sing about. The lyrics did not mention appellants, and addressed 

shooting and killing Skyline members in generic terms. (Compare, People v. 

Coneal (2019) 41 Cal.App.5th 951, 971 [graphic lyrics impermissibly offered

to show the defendants had violent dispositions].)

 Introduction of the lyrics and audio clip likely took less than 10 

minutes in an otherwise lengthy trial covering over 6,000 pages of reporter’s 

transcript. Although the entire rap song included different singers and the 

sound of sirens and gunshots, the prosecutor limited the evidence to Glenn’s 

brief portion that supported her theory of the case and did not include other 

sounds. The prosecutor did not mention the song in her closing argument 

and told the jurors in her rebuttal argument to “acquit” appellants “[i]f you 

believe that I am asking you to find these men guilty of two murders because 

of a rap song.” Instead, the prosecutor argued:

“That song was not played in my opening statement. That 

song was played with a gang expert, who was required to 

testify about elements of a crime that we were trying to 
18

establish that the two men that ordered the 2011 killing 

were members of the gang. And that they had a motive. 

And yes, they rapped about it. And you did get to hear 

that. Does that by itself create guilt? Absolutely not. Is it 

a piece of relevant evidence that you get to consider? It is.”

Further, the trial court instructed the jury not to let bias, sympathy or 

prejudice influence their decision, including bias based on race or ethnicity. 

(CALCRIM No. 200.) We presume that the jurors followed this instruction in 

the absence of any evidence to the contrary. (People v. Krebs (2019) 8 Cal.5th 

265, 335 (Krebs).) On this record, we are not persuaded by Frank’s 

speculative argument that the song could trigger latent racial bias toward 

African Americans in the jurors.10 We conclude that the trial court 

10 Frank complains that other prosecution evidence exacerbated the racial 

prejudice of the song, specifically noting that prosecution exhibit 565 

consisted of 132 pages of text messages downloaded from Haddock’s cell 

phone in April 2013. Frank admits that parts of this exhibit were 

“marginally relevant to disputed issues” but other parts of the exhibit contain 

text messages “filled with jargon and abbreviations associated with Blacks” 

that depict the participants in the conversations “as morally unacceptable 

reprobates who are prostitutes, strippers, and promiscuous.”

 While we are sensitive to how jurors might perceive the participants in 

these text messages it is incumbent on defense counsel raise such issues to 

the trial court. Frank did not object to the admission of any part of this 

exhibit and Haddock objected based on hearsay and the right to 

confrontation. Neither defendant sought to exclude any portion of exhibit 

565 based on how the evidence might impact racial stereotypes. Had Frank 

raised his current concerns in the trial court the parties could have redacted

portions of exhibit 565. (People v. Holford (2012) 203 Cal.App.4th 155, 169–

170 [noting that a timely and specific objection is required to preserve an 

Evidence Code section 352 claim on appeal and holding that “when making a 

Evidence Code section 352 objection grounded upon the existence of an 

evidentiary alternative [e.g., redaction], the requirement in [Evidence Code]

section 353, subdivision (a), to state specific reasons for an objection 

necessarily requires the objecting party to identify the evidentiary alternative 

with specificity”].)
19

reasonably determined that the probative value of the song outweighed its 

potentially prejudicial effect and admission of the song was not an abuse of 

discretion under Evidence Code section 352.

To avoid admission of the song, appellants offered to stipulate that 

Glenn was a gang member. Frank argues that the trial court erred in 

refusing to compel the prosecution to accept appellants’ proposed stipulation 

regarding Glenn’s gang status. We disagree.

“Neither the prosecutor nor the trial court [is] legally obligated” to 

accept a stipulation. (People v. Rogers (2013) 57 Cal.4th 296, 329–330 

[prosecutor could properly reject offer to stipulate that charged murder was a 

first degree or nothing type of case, instead opting to prove intent with prior 

acts evidence of defendant’s prior uncharged murders].) Additionally, a trial 

court is not authorized to enforce such a stipulation over the prosecutor’s 

objection. (Ibid.) Rather, “ ‘[a] criminal defendant may not stipulate or admit 

his way out of the full evidentiary force of the case as the Government 

chooses to present it.’ ” (Id. at p. 330, quoting Old Chief v. United States

(1997) 519 U.S. 172, 186–187 [conventional evidence “tells a colorful story 

with descriptive richness”; it “has force beyond any linear scheme of 

reasoning, and as its pieces come together a narrative gains momentum”].)

Moreover, the prosecution is “not obligated to present its case in the 

sanitized fashion suggested by the defense” when the probative value of the 

evidence “clearly extended beyond the scope of the defense’s offers to 

stipulate.” (People v. Garceau (1993) 6 Cal.4th 140, 182, overruled on another 

point in People v. Yeoman (2003) 31 Cal.4th 93, 117–118.) Here, the 

prosecutor explained that Glenn was a person that appellants looked up to 

and followed, and the song was evidence of Glenn’s personal desire and

intent. Accordingly, appellants’ proposed stipulation that Glenn was a LPB 
20

gang member did not negate the relevance of the song because its probative 

value extended beyond the scope of the stipulation.

B. Any Error in Admitting the Song Was Harmless

Even assuming the trial court erred in admitting the song, the assumed 

error did not render the trial fundamentally unfair or cause prejudicial harm 

to appellants. Ordinarily, the erroneous admission of evidence is reviewed 

for prejudice under the standard set forth in People v. Watson (1956) 46 

Cal.2d 818 (Watson), which requires reversal only if the defense shows it is 

reasonably probable that a result more favorable to the appealing party 

would have been reached in the absence of the error. (Id. at p. 836.) The 

admission of evidence, even if erroneous under state law, results in a due 

process violation only if it makes the trial fundamentally unfair. (People v. 

Partida (2005) 37 Cal.4th 428, 439.) “Absent fundamental unfairness, state 

law error in admitting evidence is subject to the traditional Watson test . . . .” 

(Id. at p. 439.)

The song constituted one piece of the People’s case and was not the 

strongest evidence establishing appellants’ guilt for both murders. Rather,

the People argued that the evidence established that Glenn ordered a hit on 

one of the P. brothers based on a social media exchange between Frank and 

Glenn the day before Darris’s murder. Specifically, a message from Frank to 

Glenn stated, “babyfatal [i.e., Donny] Blood gave me 48hours.” Glenn stated, 

“K . . .where all the lil niggas fr the turf. Ckall a meetn between yall then hit 

me. We fina get it right.” Frank responded, “yeadat when ou want iht calld 

?? tonight or tomorrow ? they around here somewhereonlinckoln ihts only aye 

few of us who’s really wit the shit othas is scared and shit.” Glenn replied, 

“They gota go. But the ones that is. . .gota show up. Get wit yo niggas 2nite. 

Then ima have yall ckum to where im at.” The prosecution interpreted these
21

messages to mean that Donny (Baby Fatal), gave Frank 48 hours to commit a 

murder and that Frank should recruit individuals to help. 

The jury also heard testimony that on the evening of Darris’s murder, 

Frank and Haddock were involved in a gang-related fight and that Haddock 

had a gun. Cell phone location data showed that Frank called Haddock 

before this fight and that Haddock was in communication with Glenn. 

Thereafter, Frank was in communication with one of the girls on the 

second party bus throughout the evening. Frank told this girl that he had 

gotten into a fight at a different party bus and that he planned to meet them 

back at the restaurant. Frank was aware that Skyline gang members were 

on the bus. Haddock was also texting another girl on this party bus and she 

provided him information if he wanted to join them on the bus. 

Marcel and Darris returned to the restaurant and went to Marcel’s car. 

Gunfire erupted, hitting both sides of Marcel’s car. Darris, who had been 

sitting in the backseat of Marcel’s car, had been shot. The driver’s side rear 

door of Marcel’s car had a bullet hole just above the door handle. The 

passenger side of the car had six bullet holes. Police later recovered six .40 

caliber casings and one .9mm casing from the scene. 

Despite almost constant use during the evening, Frank’s cell phone was 

turned off or in airplane mode at the time of Darris’s shooting which occurred 

shortly before 2:00 a.m. Haddock’s phone showed a similar pattern of 

constant use, including calls between him and Glenn, until 1:11 a.m. when 

the phone was disconnected from the network until 1:57 a.m. Shortly after 

the murder, at 2:09 a.m. and 2:10 a.m., Haddock had a text message and 

social media transaction with Glenn.

The evidence connecting appellants to Xusha’s murder was even more

compelling. Appellants had been involved in an ongoing feud with Keshawn, 
22

Andre, and Malcolm for several years. Appellants and Alaeante learned that 

Malcolm and other Skyline gang members were down the street at a hookah 

lounge. Haddock saw cars leaving the hookah lounge and positioned his car 

behind the caravan of vehicles. Frank and Alaeante were his passengers. 

When the caravan stopped for gas, Frank or Haddock recognized Malcolm in 

one of the cars. Haddock circled the block several times and then followed 

the caravan onto the freeway. Frank told Alaeante to “[g]et down” and began 

shooting at the car driven by Malcolm. One bullet hit Malcolm’s arm, 

another entered Xusha’s head, killing him.

Police found gunshot residue in Haddock’s car. Police later discovered 

that Haddock tried to sell his car a few days after Xusha’s murder. Review of 

Haddock’s cell phone data indicated that his phone was not connected to the 

network when the shooting took place. Although Haddock’s girlfriend told 

law enforcement that she was continuously with Haddock starting at 1:00 

a.m. on the day of Xusha’s murder, their messages to each other indicated 

that they were not together. 

Given the limited duration of the song, along with the other evidence of 

appellants’ guilt, there is no reasonable probability that the jury’s verdict 

would have been more favorable to appellants in its absence. (Watson, supra, 

46 Cal.2d at p. 836.)

C. No Abuse of Discretion in Admitting Evidence of Predicate Offenses 

and Other Gang Evidence

Haddock asserts that the trial court should have excluded many of the

predicate offenses and other gang evidence pursuant to Evidence Code 

section 352 as cumulative and irrelevant because the parties’ stipulation 

covered every element of the gang allegation except specific intent. He also 

argues that the gang expert provided “further irrelevant, cumulative, and 
23

highly inflammatory evidence” regarding elements of the gang allegation, 

gang violence, and gang terminology and culture that should have been 

excluded under Evidence Code section 352 as cumulative, irrelevant, and 

unduly prejudicial.

The People contend Haddock forfeited these evidentiary challenges by 

not objecting on these grounds in the trial court. They also assert we should 

treat these arguments as waived because Haddock failed to provide any 

argument or analysis explaining how the trial court erred in admitting any 

piece of evidence. Haddock disagrees, noting that defense counsel filed an 

extensive in limine motion seeking to limit the “avalanche” of gang evidence. 

He claims that when the trial court indicated at the hearing that it preferred 

a stipulation and was not leaning toward narrowing the gang evidence, 

counsel was “placed in a lose-lose situation” and further objection would have 

been futile. Haddock submits that the trial court abused its discretion by not 

adhering to its gatekeeping function by limiting the gang evidence in this 

case regarding gang predicates, gang testimony, and prior act evidence.

“A party desiring to preserve for appeal a challenge to the admission of 

evidence must comply with the provisions of Evidence Code section 353, 

which precludes reversal for erroneous admission of evidence unless: ‘There 

appears of record an objection to or a motion to exclude or to strike the 

evidence that was timely made and so stated to make clear the specific 

ground of the objection or motion.’ The reason for the requirement is 

manifest: a specifically grounded objection to a defined body of evidence 

serves to prevent error. It allows the trial judge to consider excluding the 

evidence or limiting its admission to avoid possible prejudice. It also allows 

the proponent of the evidence to lay additional foundation, modify the offer of 

proof, or take other steps designed to minimize the prospect of reversal.” 
24

(People v. Morris (1991) 53 Cal.3d 152, 187–188 (Morris), disapproved on 

another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.)

A motion in limine to exclude evidence is sufficient to preserve an 

objection if the motion (1) is directed to a particular, identifiable body of 

evidence; (2) states a specific legal ground for exclusion that is subsequently 

raised on appeal; and (3) is made at a time before or during trial when the 

trial court can determine the evidentiary issue in its appropriate context. 

(Morris, supra, 53 Cal.3d at p. 190.) If each of these conditions is satisfied, 

defense counsel would be “justified in concluding that a mere repetition of the 

same objection advanced on the motion in limine would serve no useful 

purpose.” (Id. at p. 189.)

In this matter, Haddock filed an in limine motion to limit gang 

evidence that generally set forth the scope of admissible and inadmissible 

gang expert testimony. Regarding inadmissible gang expert testimony, 

Haddock argued that gang experts may not testify as to the knowledge or 

intent of specific defendants or as to the motives of specific defendants, and 

that their testimony must be based on facts and not speculation. He also 

argued that hypothetical questions must be rooted in facts and that gang 

experts cannot present case-specific hearsay without an applicable hearsay 

objection.

Haddock’s motion in limine was wholly insufficient to preserve an 

Evidence Code section 352 objection because he never raised this objection in 

his motion. Nonetheless, as we have already noted, the discussion at the 

hearing on the in limine motions focused on stipulating to certain matters to 

eliminate the need for the prosecution to present evidence on these matters. 

(Ante, pt. II.A.1.) Haddock’s counsel questioned what evidence would be 

admitted if the parties stipulated to certain matters, stating it presented an 
25

Evidence Code section 352 issue regarding the level of evidence that needed 

to be presented and expressing concern that the gang has “done horrible, 

horrible stuff” and there is other “horrible stuff related to the case.” The trial 

court understood counsel’s concern, stating that evidence may be relevant on 

more than one theory and the question presented is the amount of detail that 

the prosecution needed to present to prove issues such as gang status, the 

primary activities of the gang, and gang membership. For example, if the 

parties stipulated to appellants’ gang membership, this eliminated the need 

for the prosecution to present evidence on this issue such as field interview 

related to other cases, social media postings, tattoos, and writings.

At trial, Haddock never objected to the scope of the gang evidence 

presented as cumulative given the parties’ stipulation. Nor did he object to 

any portion of the gang expert’s testimony as irrelevant or unduly prejudicial.

Assuming for the sake of argument that Haddock has not forfeited an 

Evidence Code section 352 objection to any part of the stipulation or gang 

evidence, we reject his contention that the gang evidence was cumulative or 

otherwise inadmissible and thus analogous to the situations addressed in 

People v. Williams (2009) 170 Cal.App.4th 587 (Williams) and People v. Leon

(2008) 161 Cal.App.4th 149. 

In Williams, supra, 170 Cal.App.4th 587, a jury convicted the

defendant of several substantive offenses, including active gang participation, 

and found true gang benefit enhancement allegations. (Id. at p. 595.) As 

part of its proof, the prosecution presented evidence of three prior crimes 

involving the defendant, 15 arrests or contacts with law enforcement 

involving the defendant, and eight predicate offenses, three of which either 

directly or indirectly involved the defendant. (Id. at pp. 598–599, 601–602.) 

The defendant in Williams “challenged the cumulative impact of admitting 
26

evidence of dozens of prior crimes,” some of which were introduced “multiple 

times and for multiple purposes.” (Id. at pp. 598, fn. 5, 610.) The appellate 

court found “plain” but harmless error in the admission of “unnecessary 

quantities of evidence” that “turned the trial of this routine drug and 

weapons possession case into a weeks-long marathon.” (Id. at p. 595.) The 

court further concluded that it was an abuse of discretion (but a harmless 

one) “to admit cumulative evidence concerning issues not reasonably subject 

to dispute.” (Id. at p. 611.)

The instant trial did not involve a situation where a prosecutor “overprove[d]” the case against appellants, creating a problem of cumulative, 

prejudicial evidence. (See Williams, supra, 170 Cal.App.4th at pp. 610–611.) 

The prosecutor did not call a list of witnesses, each of whom presented in 

turn a “repeat of previous evidence.” (Id. at p. 610.) Nor did appellants’ trial 

involve a situation where the “sheer volume of evidence extended the trial—

and the burden on the judicial system and the jurors—beyond reasonable 

limits . . . amount[ing] to a virtual street brawl.” (Id. at p. 611.) 

Here, the gang expert’s testimony on direct examination took only 50 

pages of the reporter’s transcript. After describing her background to 

establish her expertise in gang related matters, the gang expert testified 

regarding the legal definition of a gang and then the prosecutor read the 

parties’ stipulation to the jury. The gang expert then provided general 

information about the LPB gang including its size, the existence of 

generational cliques within the gang, gang colors, and gang monikers. The 

gang expert testified regarding appellants’ gang monikers, naming 

conventions within a gang, and provided information regarding other LPB 

gang members which ultimately led to the expert’s testimony regarding the 

song and Glenn being a LPB gang member. The expert addressed gang 
27

territories, the rivalry between LPB and Skyline, including the P. family. 

Finally, the gang expert provided general information regarding gang

culture, including the concept that gang members commit crimes to gain 

respect within the gang.

This testimony was not irrelevant, cumulative, inflammatory or time 

consuming. Unlike Williams, supra, 170 Cal.App.4th 587, the record does not 

support the conclusion that the trial court here believed that the prosecution 

had the right “ ‘to over-prove [its] case.’ ” (Id. at p. 610 [prosecutor spent 

almost two full days on evidence that was a repeat of previous evidence].) 

Haddock’s reliance on People v. Leon, supra, 161 Cal.App.4th 149 is 

similarly misplaced. In People v. Leon, the trial court admitted evidence of 

the defendant’s prior juvenile adjudication as relevant to establishing the 

predicate offenses necessary to establish the section 186.22, subdivision (b)(1) 

gang sentence enhancements and the gang membership elements charged in 

connection with two charges. (Id. at p. 165.) The trial court, however, 

excluded the evidence under Evidence Code section 1101, subdivision (b). (Id.

at pp. 165–166.) The appellate court found admission of the defendant’s prior 

juvenile adjudication to be harmless error because the prosecution had other 

“overwhelming” evidence to support the defendant’s gang activity, including: 

12 contacts between defendant and the police related to gang activity, 

defendant’s admission of gang membership, presence of a gang tattoo, and 

association with other gang members on four separate occasions. (Id. at 

pp. 166, 169–170.)

Unlike People v. Leon, supra, 161 Cal.App.4th 149, the gang expert 

provided no details regarding Haddock’s gang activities. Additionally, as we 

later discuss, Haddock’s participation in the February 2010 shooting at the P. 

home was admissible under Evidence Code section 1101, subdivision (b) 
28

because it supported a reasonable inference that when he committed the 

charged crimes, he was actively and knowingly participating in, and 

promoting, the criminal activity of LPB, and participated in the murders for 

the benefit of LPB with the specific intent to promote the criminal activity of 

its members and enhance his own reputation in the gang. (Post, pt. II.D.3.) 

Thus, People v. Leon is inapposite.

Accordingly, we reject Haddock’s arguments. Because there was no 

error under state evidence law, appellants’ derivative claim under the federal 

Constitution is also meritless. (People v. Seumanu (2015) 61 Cal.4th 1293, 

1311.) 

D. No Abuse of Discretion in Admitting Prior Uncharged Crimes 

Evidence

1. Additional Background

Appellants moved in limine to exclude any evidence of prior uncharged 

crimes. At a hearing on the motions, the parties discussed stipulating to 

various facts to streamline the evidence. The prosecutor, however, objected 

to any stipulation that eliminated her ability to introduce evidence of two 

shootings that occurred near the P. family home in 2010 and 2011, arguing 

that these shootings were relevant under Evidence Code section 1101, 

subdivision (b). She explained that her theory of the case involved a specific 

rivalry between appellants and the P. family. The defense argued the prior 

act evidence simply “pil[ed] on” gang evidence to the point where appellants

would be deprived of due process and a fair trial. The trial court agreed that 

the evidence met the foundational requirements to be admitted under 

Evidence Code section 1101 to show appellants’ motive and intent, and their 

identity. 
29

At trial, the jury heard evidence about the two uncharged shootings

that occurred at the P. family home in February 2010 and March 2011 that 

involved appellants. (Ante, pt. I.A.) The trial court later instructed the jury 

to “not conclude from this evidence that [appellants have] a bad

character or [are] disposed to commit crime.” (CALCRIM Nos. 375.) This 

instruction informed the jury that it could consider evidence of appellants’

prior uncharged acts for the “limited purpose” of deciding whether appellants, 

among other things, had acted with the intent to kill or had a motive to 

commit the charged offenses, and only if the People proved the occurrence of 

the uncharged acts by a preponderance of the evidence. (Ibid.) CALCRIM

No. 1403 similarly informed the jury of the limited purposes it could consider 

gang evidence and to “not conclude from this evidence that [appellants are 

persons] of bad character or that [they have] a disposition to commit crime. 

2. Legal Principles

A trial court retains broad discretion in determining the relevancy of 

evidence. (People v. Scheid (1997) 16 Cal.4th 1, 14.) Evidence that the 

defendant committed prior bad acts is inadmissible when offered solely to 

prove the defendant’s criminal disposition to commit such an act (Evid. Code, 

§ 1101, subd. (a); People v. Ewoldt (1994) 7 Cal.4th 380, 393, 399 (Ewoldt), 

superseded by statute on other grounds), but is admissible “when relevant to 

prove some fact (such as motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake or accident . . . ) other than [the 

defendant’s] disposition to commit such an act.” (Evid. Code, § 1101, subd. 

(b).) “To be relevant to prove identity, the uncharged crime must be highly 

similar to the charged offenses, while a lesser degree of similarity is required 

to establish relevance to prove common design or plan, and the least 
30

similarity is required to establish relevance to prove intent.” (People v. 

Lenart (2004) 32 Cal.4th 1107, 1123 (Lenart).)

If the trial court determines that uncharged misconduct is admissible 

under Evidence Code section 1101, subdivision (b), it must then determine 

whether the probative value of the evidence is substantially outweighed by 

the probability that its admission would create substantial danger of undue 

prejudice, confusing the issues, or misleading the jury. (Ewoldt, supra, 7 

Cal.4th at p. 404; Evid. Code, § 352.) “ ‘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. In applying section 352, “prejudicial” is 

not synonymous with “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d 612, 

638 (Karis).) “[E]vidence should be excluded as unduly prejudicial when it is 

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

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

but to reward or punish one side because of the jurors’ emotional reaction. In 

such a circumstance, the evidence is unduly prejudicial because of the 

substantial likelihood the jury will use it for an illegitimate purpose.’ ” 

(People v. Doolin (2009) 45 Cal.4th 390, 439.)

“The weighing process under [Evidence Code] section 352 depends upon 

the trial court’s consideration of the unique facts and issues of each case, 

rather than upon the mechanical application of automatic rules.” (Jennings, 

supra, 81 Cal.App.4th at p. 1314.) The record must affirmatively show that 

the trial judge did in fact weigh prejudice against probative value, but no 

more is required. (People v. Clair (1992) 2 Cal.4th 629, 660.) “ ‘On appeal, 

the trial court’s determination of th[e] issue [of the admissibility of other 
31

uncharged crimes], being essentially a determination of relevance, is 

reviewed for abuse of discretion.’ ” (Lenart, supra, 32 Cal.4th at p. 1123.)

3. Analysis

Appellants assert that the trial court incorrectly concluded that the 

drive-by shootings were admissible under Evidence Code section 1101, 

subdivision (b). The People disagree, claiming that these uncharged acts 

were relevant to appellants’ motive and intent. We agree with the People.

“Evidence of intent is admissible to prove that, if the defendant 

committed the act alleged, he or she did so with the intent that comprises an 

element of the charged offense.” (Ewoldt, supra, 7 Cal.4th at p. 394, fn. 2, 

italics in original.) “The least degree of similarity (between the uncharged 

act and the charged offense) is required in order to prove intent.” (Id. at

p. 402.) To be admissible to prove intent, the uncharged misconduct need 

only be “sufficiently similar [to the charged offense] to support the inference 

that the defendant ‘ “probably harbor[ed] the same [or similar] intent in each 

instance.” ’ ” (Ibid.) Additionally, although motive is generally not an 

element of any crime, evidence of motive is relevant because it “ ‘makes the 

crime understandable and renders the inferences regarding defendant’s 

intent more reasonable.’ ” (People v. Riccardi (2012) 54 Cal.4th 758, 815, 

abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) 

The evidence of the uncharged shootings, directed toward the P. family 

or their property, was relevant to the issue of appellants’ intent and motive 

with respect to the murder charges and the allegations that they actively 

participated in a criminal street gang in violation of section 186.22, 

subdivision (a), and to the gang enhancement allegations. (§ 186.22, subd. 

(b)(1)(A) & (C).) As appellants note, the parties’ stipulation and other 

evidence established a rivalry between LPB and Skyline. The stipulation and 
32

this evidence, however, did not render evidence of appellants’ intent and 

motive irrelevant. Appellants’ stance at trial that they were not guilty of the 

charges or allegations put the question of gang motivation at issue. 

Appellants never stipulated that the murders were committed in association 

with and for the benefit of a criminal street gang.

There is no evidence that appellants had a motive to shoot Darris or 

Xusha. Evidence of the two prior uncharged shootings admitted under 

Evidence Code section 1101, subdivision (b) supported a reasonable inference 

that, when appellants participated in shooting Darris and Xusha, without 

any apparent reason or provocation, they were actively and knowingly 

participating in, and promoting, the criminal activity of LPB, and that they

participated in the murders for the benefit of LPB with the specific intent to 

promote the criminal activity of its members and enhance their own 

reputations in the gang. (See People v. Zepeda (2001) 87 Cal.App.4th 1183, 

1211–1212.)

The similarity requirement is satisfied because the evidence showed 

that the uncharged shootings (directed toward the P. family or their property)

were sufficiently similar to the charged crimes (directed toward cars owned 

by P. family members), to support the inference that appellants probably 

harbored the same or similar intent, and in each instance acted with a 

similar motivation. (See Ewoldt, supra, 7 Cal.4th at p. 402.) To the extent 

appellants argue that the trial court erred by admitting evidence of the 

uncharged shootings because they were too dissimilar to the lying-in-wait 

murders to be admissible to show modus operandi or identity of the shooters, 

any error was harmless because the evidence was admissible on motive and 

intent.
33

Appellants have not convinced us that the uncharged acts evidence was 

unduly prejudicial under Evidence Code section 352.11 The testimony 

describing the uncharged acts “was no stronger and no more inflammatory 

than . . . testimony concerning the charged offenses.” (Ewoldt, supra, 7 

Cal.4th at p. 405.) Thus, it is unlikely that the jury would disregard the 

court’s “limited purpose” instructions regarding the uncharged acts and gang 

evidence and convict appellants due to irrational emotional bias. (Karis, 

supra, 46 Cal.3d at p. 638.) The trial court’s limiting instructions further 

minimized any prejudice to appellants. The trial court instructed the jury 

that the evidence of appellants’ uncharged offense “is not sufficient by itself 

to prove that [appellants are] guilty of [the charges] or that the [allegations 

11 Frank contends the trial court committed reversible error when it 

admitted the uncharged crimes evidence without considering the Evidence 

Code section 352 criteria. This argument ignores what took place at the 

hearing on the in limine motions where the trial court discussed with defense 

counsel for Frank and Haddock their respective concerns regarding “piling 

on” evidence that might prejudice each defendant’s ability to have a fair trial. 

The heart of these discussions involved balancing the prejudicial nature of 

gang evidence and the prosecution’s need to prove its case. Although the 

trial court did not expressly weigh the prejudicial impact of the uncharged 

acts evidence against its probative value, we believe the requisite showing 

can be inferred from the record. (People v. Mickey (1991) 54 Cal.3d 612, 656 

[“the trial [court] need not expressly weigh prejudice against probative 

value—or even expressly state that [it] has done so”].) Nothing in this record 

indicates that the trial court misunderstood its responsibilities under 

Evidence Code section 352.

Frank also asserts that the 2011 drive-by shooting was particularly 

prejudicial due to the lack of evidence connecting him to the incident. The 

People argue, and we agree, that sufficient evidence existed for the jury to 

reasonably infer Frank’s identity as a participant in this incident. (Ante, pt. 

I.A.) To the extent the jurors may have been unconvinced that Frank 

participated in this uncharged act, CALCRIM No. 375 informed them “to 

disregard this evidence entirely.”
34

have] been proved. The People must still prove [each charge and allegation]

beyond a reasonable doubt.” (CALCRIM No. 375.)

We conclude that it is not reasonably probable the result would have 

been more favorable to appellants had the prior crimes evidence been 

excluded. (Watson, supra, 46 Cal.2d at p. 836.) Because we find there is no 

evidentiary error, there is no due process violation. (People v. Rogers (2013) 

57 Cal.4th 296, 332 [no due process violation when evidence was material, 

probative, and properly admitted].)

Even assuming for the purpose of argument that the trial court 

erroneously admitted evidence of the two uncharged crimes, the assumed 

error was harmless under any standard in light of the evidence adduced at 

trial. (Ante, pt. II.B.) “It is . . . well settled that the erroneous admission or 

exclusion of evidence does not require reversal except where the error or 

errors caused a miscarriage of justice. (Evid. Code, §§ 353, subd. (b), 354.) 

‘[A] “miscarriage of justice” should be declared only when the court, “after an 

examination of the entire cause, including the evidence,” is of the “opinion” 

that it is reasonably probable that a result more favorable to the appealing 

party would have been reached in the absence of the error.’ [Citations.]” 

(People v. Richardson (2008) 43 Cal.4th 959, 1001, abrogated on other 

grounds by statutory repeal as stated in People v. Nieves (2021) 11 Cal.5th 

404, 509.) Given the totality of the other evidence against appellants, this is 

not an instance where evidence of the uncharged offenses would raise 

concerns that it evoked in the jury “ ‘a “tendency to condemn [appellants, 

regardless of whether] . . . [they are] believed guilty of the present 

charge[s]. . . .” ’ ” (People v. Foster (2010) 50 Cal.4th 1301, 1331.)
35

E. No Prejudicial Cumulative Error

Appellants assert that even if the alleged errors discussed above do not 

individually warrant reversal, their cumulative effect does. We disagree.

“Under the cumulative error doctrine, the reviewing court must ‘review 

each allegation and assess the cumulative effect of any errors to see if it is 

reasonably probable the jury would have reached a result more favorable to 

defendant in their absence.’ ” (Williams, supra, 170 Cal.App.4th at p. 587, 

646.) “The ‘litmus test’ for cumulative error ‘is whether defendant received 

due process and a fair trial.’ ” (People v. Cuccia (2002) 97 Cal.App.4th 785, 

795.) We found no actual error and any assumed error was harmless. Thus, 

we reject appellants’ claim of cumulative error.

III. THE TRIAL COURT DID NOT ERR WHEN IT DENIED SEVERANCE 

OF THE TWO MURDERS

A. Legal Principles

“[C]onsolidation or joinder of charged offenses ‘is the course of action 

preferred by the law.’ ” (People v. Soper (2009) 45 Cal.4th 759, 772 (Soper).) 

When separate accusatory pleadings assert offenses that are “connected 

together in their commission or [are] . . . of the same class of crimes or 

offenses, . . . the court may order them to be consolidated.” (§ 954.) The 

purpose of section 954 is to avoid the “ ‘increased expenditure of funds and 

judicial resources which may result if the charges were to be tried in two or 

more separate trials.’ ” (Soper, at p. 772.) We review the denial of a 

severance motion for an abuse of discretion, based on the facts before the 

court at the time of its ruling, which requires reversal only where it is 

reasonably probable that separate trials would have led to a more favorable 

result for defendant. (People v. Burney (2009) 47 Cal.4th 203, 237 (Burney).) 

A defendant seeking severance must make a stronger showing of prejudice 
36

than required for exclusion of other crimes evidence in a severed trial. 

(People v. Arias (1996) 13 Cal.4th 92, 127.) 

Where, as here, “ ‘the statutory requirements for joinder are met, a 

defendant must make a clear showing of prejudice to establish that the trial 

court abused its discretion in denying the defendant’s severance motion.’ 

[Citation.] ‘In determining whether a trial court’s refusal to sever charges 

amounts to an abuse of discretion, we consider four factors: (1) whether 

evidence of the crimes to be jointly tried is cross-admissible; (2) whether some 

charges are unusually likely to inflame the jury against the defendant; (3) 

whether a weak case has been joined with a stronger case so that the 

spillover effect of aggregate evidence might alter the outcome of some or all of 

the charges; and (4) whether any charge carries the death penalty or the 

joinder of charges converts the matter into a capital case.’ ” (People v. 

Anderson (2018) 5 Cal.5th 372, 388–389.)

B. Analysis

Appellants moved for separate trials of the 2011 and 2013 homicides 

arguing that the prosecution was bootstrapping the weaker 2011 murder 

with the stronger 2013 murder and trying the murders together would 

inflame the jury against them. Frank also argued that evidence of the 

circumstances surrounding the two murders were not cross-admissible. The 

trial court denied the motions, stating that it had presided over the 

preliminary hearing, understood that the two murders involved different 

evidence with different strengths, but that the evidence of the 2011 murder

was not so weak that trying the two offenses together constituted “bootstrapping.” The court also concluded that the evidence of each shooting 

would be cross-admissible in separate trials.
37

Appellants concede that the statutory requirements for joinder under 

section 954 were satisfied but assert that evidence of one homicide would not 

be cross-admissible in a separate trial of the second homicide. Appellants 

contend that the primary issue to be determined at trial was whether they 

committed the two murders. 

The first step in assessing whether a combined trial was prejudicial is 

to determine whether evidence on the joined charges would have been 

admissible, under Evidence Code section 1101, in separate trials on the other

charges. (People v. Jenkins (2000) 22 Cal.4th 900, 948.) In other words, the 

cross-admissibility of the evidence is sufficient to negate prejudice without 

any further showing. (Ibid.) However, the absence of cross-admissibility, by 

itself, is insufficient to demonstrate prejudice. (People v. Memro (1995) 11 

Cal.4th 786, 850.)

Here, a substantial portion of the evidence from the two sets of charges 

would have been cross-admissible under Evidence Code section 1101, 

subdivision (b), as evidence of intent, common plan or scheme, and identity if 

the two murders had been tried separately. Both murders involved rival 

gang members, vehicles belonging to P. family members, and appellants 

working together. Additionally, the gang-related evidence would have been 

cross-admissible in separate trials of the two murders as relevant to the gang 

enhancements common to all charges.

Even assuming evidence of the incidents were not cross-admissible, the 

absence of this factor is not dispositive. (Soper, supra, 45 Cal.4th at pp. 774–

775.) Section 954.1 explicitly states “evidence concerning one offense or 

offenses need not be admissible as to the other offense or offenses before the 

jointly charged offenses may be tried together before the same trier of fact.”

(Italics added.) “In the [hypothetical] absence of cross-admissibility, we turn 
38

to the remaining factors to assess whether the trial court abused its 

discretion.” (People v. Simon (2016) 1 Cal.5th 98, 123–124 (Simon).)

Appellants do not argue the next factor—whether any of the charges 

were likely to inflame the jury against them. They tacitly concede, and we 

agree, that the factual circumstances for both murders may have been 

“different in their particulars,” but were “equally abhorrent.” (People v. Price

(1991) 1 Cal.4th 324, 390.)

Appellants contend that the evidence connecting them to the 2011 

homicide is far weaker than the evidence connecting them to the 2013 

homicide so that the prejudicial spill-over effects of joining the two cases for 

trial outweighed the benefits of joinder. “The core prejudice concern arising 

in connection with this [factor] is that jurors may aggregate evidence and 

convict on weak charges that might not merit conviction in separate trials.”

(Simon, supra, 1 Cal.5th at p. 127.) However, there is “no abuse of discretion 

if the evidence of guilt for each of the joint incidents is sufficiently 

compelling.” (Ibid.)

Here, the trial court did not abuse its discretion by finding that the 

evidence of both murders was sufficiently compelling to try them jointly. 

(Ante, pt. II.B.) On this issue, the major difference between the two murders 

is that Darris’s murder involved only circumstantial evidence whereas 

Xusha’s murder involved eyewitness testimony. Nonetheless, it is

“always . . . possible to point to individual aspects of one case and argue that 

one is stronger than the other. A mere imbalance in the evidence, however, 

will not indicate a risk of prejudicial ‘spillover effect,’ militating against the 

benefits of joinder and warranting severance of properly joined charges.” 

(Soper, supra, 45 Cal.4th at p. 781.) Moreover, severance is not required 

“because properly joined charges might make it more difficult for a defendant 
39

to avoid conviction compared with his or her chances were the charges to be 

separately tried.” (Ibid.) To demonstrate the potential for a prejudicial spillover effect, a defendant must show an “extreme disparity” in the strength or 

inflammatory character of the evidence. (Belton v. Superior Court (1993) 19 

Cal.App.4th 1279, 1284.) The trial court reasonably concluded no significant 

risk existed of an unjustified conviction based on a possible spillover effect.12

Finally, none of the counts against either appellant was a capital 

charge. Here, of the four factors to be considered, none weigh clearly in favor 

of a prejudice finding. It was reasonable for the trial court to conclude that 

trying the two murder charges together would not be unduly prejudicial to 

appellants when balanced against the benefits to the state of joinder, which 

are “very substantial.” (Soper, supra, 45 Cal.4th at p. 783.)

Appellants also suggest that joinder of the murder charges rendered 

their trial grossly unfair. We disagree. 

If joinder was proper and there was no sufficient showing of prejudice 

at the time the trial court ruled, we “ ‘still must determine whether, in the 

end [and in light of the evidence as presented at trial], the joinder of counts 

or defendants for trial resulted in gross unfairness depriving the defendant of 

due process of law.’ ” (Soper, supra, 45 Cal.4th at p. 783.) We will reverse a 

judgment for gross unfairness “only if it is reasonably probable that the jury 

was influenced by the joinder in its verdict of guilt.” (Simon, supra, 1 Cal.5th 

12 Frank also argues that his jailhouse confession to the informant

regarding the 2013 murder required severance of the 2013 murder from the 

2011 murder because nothing remotely comparable was presented for the 

2011 killing. This observation regarding the imbalance of the evidence 

between the 2011 and 2013 murders does not warrant severance of these 

properly joined charges because the relative strength of the evidence was 

sufficiently strong in both cases. (Soper, supra, 45 Cal.4th at p. 781.)
40

98, 129–130.) “Appellate courts have found ‘ “no prejudicial effect from 

joinder when the evidence of each crime is simple and distinct, even though 

such evidence might not have been admissible in separate trials.” ’ ” (Soper, 

at p. 784.)

Here, the evidence establishing appellants’ guilt for the 2011 murder 

and 2013 murder was distinct. Moreover, the court instructed the jury that 

each of the counts was a separate crime that must be separately decided. 

(CALCRIM No. 3515.) Nothing in the record indicates the jury failed to 

follow this instruction. (People v. Merriman (2014) 60 Cal.4th 1, 48–49 

[absent contrary showing, jury presumed to follow instructions to consider 

each count separately].) We conclude that the trial court’s order denying 

severance of the murder charges did not render appellants’ trial grossly 

unfair so as to violate their due process rights.

IV. THE TRIAL COURT DID NOT ERR WHEN IT DENIED SEVERANCE 

OF APPELLANTS’ TRIALS

A. Additional Background

Haddock moved to sever his trial from Frank’s trial. At the hearing on 

the motion, the trial court had already denied appellants’ motions to sever 

the two murder charges. The court noted that the prosecutor sought to 

introduce multiple statements by Frank implicating Haddock and depending 

on its rulings on the admissibility of those statements, the prosecutor might 

acquiesce to a two-jury trial. After the trial court ruled on the admissibility 

of Frank’s statements, the prosecutor argued that separate juries were not 

required.13

13 Appellants do not challenge the court’s rulings regarding the 

admissibility of those statements.
41

The trial court heard argument from counsel and denied the motions to 

sever and for a second jury. The court observed that trial would take

between 12 and 16 weeks and “about 99 percent of the evidence is going to be 

admissible in a trial as to each of these individuals if they were tried 

separately or if they’re tried together.” Although some evidence existed that 

would be admissible only in a trial involving one of the defendants, the 

prosecutor stated that this evidence would not be introduced if the men were 

tried together. From a judicial economy standpoint, the trial court concluded 

that having separate juries did not make sense because all jurors were “going 

to hear the same thing and they’re going to be making the decisions just as to 

the different individuals.”

B. Legal Principles

Section 1098 provides in part: “When two or more defendants are 

jointly charged with any public offense, whether felony or misdemeanor, they 

must be tried jointly, unless the court order[s] separate trials.” Thus, “[o]ur 

Legislature has expressed a strong preference for joint trials.” (People v. 

Souza (2012) 54 Cal.4th 90, 109 (Souza).) Typically, when defendants are “ 

‘charged with the same crimes arising from the same events’ ” the court is 

presented with a “classic case for a joint trial.” (People v. Bryant, Smith and 

Wheeler (2014) 60 Cal.4th 335, 379 (Bryant).) The court’s discretion to order 

severance of defendants is guided by certain nonexclusive factors, “ ‘such that 

severance may be appropriate “in the face of an incriminating confession, 

prejudicial association with codefendants, likely confusion resulting from 

evidence on multiple counts, conflicting defenses, or the possibility that at a 

separate trial a codefendant would give exonerating testimony.” ’ ” (Souza, at 

p. 110.)
42

“Simply because the prosecution’s case will be stronger if defendants 

are tried together, or that one defense undermines another, does not render a 

joint trial unfair.” (Bryant, supra, 60 Cal.4th at p. 379.) “Indeed, important 

concerns of public policy are served if a single jury is given a full and fair 

overview of the defendants’ joint conduct and the assertions they make to 

defend against ensuing charges.” (Ibid.) “We review the court’s denial of 

severance for abuse of discretion based on the facts as of the time of the 

ruling. If the court properly denied severance at the time, the reviewing 

court may reverse a judgment only if it finds that the joint trial caused gross 

unfairness that denied due process.” (People v. Sánchez (2016) 63 Cal.4th 

411, 464 (Sánchez).)

C. Analysis

Haddock contends the presence of Frank’s admissions, prior bad acts,

and other evidence unique to Frank undermined his rights to due process

and a fair trial. Specifically, he contends that Frank’s confession through the 

jailhouse informant prejudiced him making it impossible for the jury to 

assess the evidence fairly. He argues that testimony from jailhouse snitches

should be given greater scrutiny by trial and appellate courts because the 

perils of informant testimony cannot be minimized. 

As a preliminary matter, Haddock does not challenge the admissibility 

of Frank’s nontestimonial statements to the jailhouse informant. (Davis v. 

Washington (2006) 547 U.S. 813, 823–826 [the confrontation clause does not 

bar admission of hearsay statements that are not testimonial]; People v. 

Nelson (2010) 190 Cal.App.4th 1453, 1463 [same]; People v. Fayed (2020) 9 

Cal.5th 147, 169 [“[S]tatements made unknowingly to an informant or 

statements between fellow prisoners are ‘clearly nontestimonial.’ ”].) Nor 

does Haddock contend that Frank’s statements to the informant fail to
43

qualify as declarations against penal interest. (People v. Almeda (2018) 19 

Cal.App.5th 346, 363–368 [codefendant’s nontestimonial jailhouse statements 

that included details police were able to corroborate were against declarant’s 

own interest were not exculpatory, self-serving, or collateral, and inextricably 

linked both defendants to crime, and so were admissible against defendant].)

Instead, Haddock argues that his trial should have been severed from 

Frank’s trial because Frank’s statements to the jailhouse informant were 

suspect. Haddock, however, fails to explain how this fact mandated a

separate trial or jury. Nor has Haddock cited any authority requiring a 

separate jury under similar circumstances. During cross-examination, 

Haddock’s counsel made the jury aware of the jailhouse informant’s criminal 

history and what the informant received from the government to relocate. 

Haddock’s counsel reminded the jury during closing argument about the 

informant’s background, the witness benefits he received, and multiple felony 

convictions, arguing that jurors should “be very skeptical about what [the 

informant] has to say and what he has to gain.” The trial court also 

instructed the jury on how to evaluate the informant’s credibility. 

(CALCRIM Nos. 316 [Additional Instructions on Witness Credibility—Other 

Conduct], 336 [In-Custody Informant], 358 [Evidence of Defendant’s 

Statements].) Accordingly, Haddock has not convinced us that Frank’s 

confession through the informant required a separate trial or jury. 

Haddock next argues that Frank’s prior bad acts and conduct inflamed 

the jury and created a risk that it would convict him based upon his criminal 

propensity and association with Frank rather than on a determination of his 

individual culpability for the crimes. We disagree.

“Prejudicial association might exist if ‘the characteristics or culpability 

of one or more defendants [are] such that the jury will find the remaining 
44

defendants guilty simply because of their association with a reprehensible 

person, rather than assessing each defendant’s individual guilt of the crimes 

at issue.’ ” (Sánchez, supra, 63 Cal.4th at p. 464.) Nonetheless, “[i]ndividuals 

who choose to commit crimes together are not generally entitled to shield the 

true extent of their association by the expedient of demanding separate 

trials.” (Bryant, supra, 60 Cal.4th at p. 383 [no improper guilt by association 

when evidence was clear as to each defendant’s role in the criminal 

organization, and defendants had different roles].) “To justify severance the 

characteristics or culpability of one or more defendants must be such that the 

jury will find the remaining defendants guilty simply because of their 

association with a reprehensible person, rather than assessing each 

defendant’s individual guilt of the crimes at issue.” (Ibid.)

Here, the trial court acted within its discretion in denying severance. 

The jury learned of Frank’s involvement in an uncharged drive-by shooting in 

March 2011 at the P. family home. They also learned of Haddock’s 

involvement in an uncharged act identical to Frank’s except for the date and 

intended target. In January 2013, Frank pleaded guilty to attempted murder 

for his act of driving a fellow gang member to a location where the other gang 

member shot a rival Skyline gang member in the chest. However, the jury 

also learned that in 2009 Haddock pleaded guilty to a very similar crime; 

namely, assault with means of force likely to produce great bodily injury for 

participating in a drive by shooting of a Skyline gang member with two other 

LPB gang members. Based on this record, it is unlikely that Frank’s prior 

attempted murder conviction or uncharged act caused the jury to convict 

Haddock based solely on his association with Frank. 

Moreover, the trial court limited the risk of prejudice by instructing the 

jury that it “must separately consider the evidence as it applies to each 
45

defendant” and it “must decide each charge for each defendant separately.” 

(CALCRIM No. 203.) “Jurors are expected to follow instructions in limiting 

evidence to its proper function[.]” (Bryant, supra, 60 Cal.4th at p. 381.)

Haddock next claims the jury could not impartially consider his 

defenses based on the joinder. “[T]o obtain severance on the ground of 

conflicting defenses, it must be demonstrated that the conflict is so 

prejudicial that [the] defenses are irreconcilable, and the jury will 

unjustifiably infer that this conflict alone demonstrates that both are guilty.’ 

[Citations.] Stated another way, ‘ “mutual antagonism” only exists where the 

acceptance of one party’s defense will preclude the acquittal of the other.’ ”

(People v. Hardy (1992) 2 Cal.4th 86, 168.) Here, appellants’ expected 

defenses were not technically “conflicting” in that both denied participating 

in the murders. Haddock has not explained how the jury could not 

impartially consider his defenses based on the joinder. 

Finally, we reject Haddock’s argument that the trial court’s refusal to 

sever his trial from Frank’s violated his rights to due process and a fair trial. 

An order denying severance may render an appellant’s trial grossly unfair so 

as to violate his due process rights “only if it is reasonably probable that the 

jury was influenced by the joinder in its verdict of guilt.” (Simon, supra, 1 

Cal.5th 98, 129–130.) Haddock, however, has not shown a reasonable 

probability that the joinder affected the jury’s verdict. In sum, joinder of 

appellants did not result in gross unfairness amounting to a due process 

violation.
46

V. ANY INSTRUCTIONAL ERROR REGARDING THE CONSPIRACY TO 

COMMIT MURDER COUNTS WAS HARMLESS

A. Additional Background

The trial court instructed the jury that murder required malice 

aforethought, explaining that malice aforethought may be express or implied. 

(CALCRIM No. 520.) Malice is express when the defendant intended to 

unlawfully kill a human being. (Ibid.) Malice is implied when (1) the 

defendant intentionally committed the act, (2) the natural and probable 

consequences of the act were dangerous to human life, (3) at the time the 

defendant acted, he knew his act was dangerous to human life, and (4) the 

defendant deliberately acted with conscious disregard for human life. (Ibid.)

The court then instructed the jury on first degree murder. (CALCRIM 

No. 521.) With respect Darris’s murder, the instruction told the jury that 

there were two theories upon which it could convict appellants: (1) willful, 

deliberate, and premeditated murder or (2) lying in wait. (Ibid.) With 

respect to Xusha’s murder, the instruction told the jury that there were three 

theories upon which it could convict appellants: (1) willful, deliberate, and 

premeditated murder, (2) lying in wait, or (3) shooting from a motor vehicle. 

(Ibid.) The court also instructed the jury that it could convict appellants of 

second degree murder for Xusha’s murder if it found that the defendant 

discharged a firearm from a motor vehicle but only intended to inflict great 

bodily injury. (CALCRIM No. 525.) 

The court also instructed on the intent required for an accomplice, 

informing the jury that if it found one of the defendants committed first 

degree murder but was not the actual killer, it must find that he acted with 

the intent to kill to return a true finding on the special circumstances. 

(CALCRIM No. 702.) For the special circumstance of lying in wait, the court 
47

told the jury that the People must prove that the defendant “intentionally 

killed” Darris or Xusha and “intended to kill . . . by taking the person by 

surprise.” (CALCRIM No. 728.)

Finally, regarding the crime of conspiracy to commit murder, the court 

instructed that the People were required to prove “that the members of the 

alleged conspiracy had an agreement and intent to commit murder.” 

(CALCRIM No. 563.) This instruction also informed the jurors that “[t]o 

decide whether a defendant and one or more of the other alleged members of 

the conspiracy intended to commit the crime of murder, please refer to 

instructions which define that crime.” (Italics added.)

With respect to the murder counts, the jury found appellants guilty of 

first degree murder and returned a true finding on the lying in wait special 

circumstance for Darris’s murder and the discharge from a motor vehicle 

special circumstance for Xusha’s murder, specifically finding that appellants

acted “with the intent to kill” for both murders.

B. Analysis

A conviction for conspiracy to commit murder requires a finding of 

intent to kill. Accordingly, this crime cannot be based on a theory of implied 

malice which does not require a finding of intent to kill. (People v. Swain

(1996) 12 Cal.4th 593, 607 (Swain).) Swain involved two defendants who 

were convicted of conspiracy to commit murder and second degree murder. 

(Id. at p. 598.) The Supreme Court concluded that the trial court improperly 

instructed the jury on an implied malice theory of conspiracy to commit 

murder. (Id. at pp. 599, 602, 607.) It found the error prejudicial because the 

jury “returned general verdicts, which do not inform us on what theory they 

found the requisite element of malice necessary to convict on the charges of 

conspiracy to commit murder. Under the implied malice instructions, the 
48

jury could have found malice without finding intent to kill. [Citation.] The 

prosecutor repeatedly referred to implied malice in the closing arguments, 

stating at one point that ‘. . . this could very easily be an implied malice

case.’ ” (Id. at p. 607.) Accordingly, the Swain court reversed the defendants’ 

convictions of conspiracy to commit murder. (Ibid.)

To avoid this error, the Bench Notes to CALCRIM No. 563 advise: “Do 

not cross-reference the murder instructions unless they have been modified to 

delete references to implied malice. Otherwise, a reference to implied malice 

could confuse jurors, because conspiracy to commit murder may not be based 

on a theory of implied malice.” (Bench Note to CALCRIM No. 563 (2020 ed.), 

Vol. 1, p. 339.)

Appellants contend that their convictions for conspiracy to commit 

murder must be reversed due to prejudicial instructional error that allowed 

the jury to find them guilty of conspiracy to commit murder based on implied 

malice rather than an intent to kill. The People disagree. They assert that 

when read together, the instructions made it clear to the jury that a 

conspiracy to commit murder conviction required the intent to kill. Even 

assuming the jury could have interpreted the instructions in the manner 

appellants suggest, the People claim any error was harmless beyond a 

reasonable doubt based on the verdicts convicting appellants of first degree 

murder and the true findings on the special circumstance allegations. 

Whether instructions are correct and adequate is determined by 

consideration of the entire charge to the jury. (People v. Wilson (1992) 3 

Cal.4th 926, 943.)14 Here, CALCRIM No. 563 stated that to prove conspiracy 

14 Although appellants did not object to CALCRIM No. 563 as given, 

“[i]nstructions regarding the elements of the crime affect the substantial 

rights of the defendant, thus requiring no objection for appellate review.” 

(People v. Hillhouse (2002) 27 Cal.4th 469, 503.)
49

to commit murder, the People had to prove that the defendant “intended to 

agree and did agree with one or more other people to intentionally and 

unlawfully kill,” and that the members of the alleged conspiracy “had an 

agreement and intent to commit murder.” The instruction also stated: “To 

decide whether a defendant and one or more of the other alleged members of 

the conspiracy intended to commit murder, please refer to the instructions 

which define that crime.” The murder instructions, however, were not 

modified to delete references to implied malice as they relate to the charge of 

conspiracy as suggested by the bench notes to CALCRIM No. 563. As our 

high court recently noted, CALCRIM No. 563 and the corresponding murder 

instructions “would avoid any possibility of confusion if they told the jury 

that when it refers to the instructions that define murder, it should not 

consider any instructions regarding implied malice because conspiracy to 

commit murder may not be based on a theory of implied malice. Conspiracy 

to commit murder may be based only on express malice, i.e., an intent to kill.” 

(People v. Beck and Cruz (2019) 8 Cal.5th 548, 642.) “Alternatively, because 

‘all conspiracy to commit murder is necessarily conspiracy to commit 

premeditated and deliberated first degree murder’ [citation], references to 

‘conspiracy to commit murder’ and ‘intent to commit murder’ in the standard 

conspiracy instructions could be changed along the following lines. The 

instructions should make clear that what is required is a conspiracy to 

commit first degree murder and an intent to commit first degree murder, 

respectively. That would also avoid any confusion about the nature of the 

intent required for this type of conspiracy.” (Ibid.) 

Here, the instructions given did not conform to our Supreme Court’s 

suggestion in People v. Beck and Cruz, supra, 8 Cal.5th 548 that it be made 

clear that “what is required is a conspiracy to commit first degree murder.” 
50

(Id. at p. 642.) We review instructional errors such as the one alleged here 

under Chapman v. California (1967) 386 U.S. 18 (Chapman). The question is 

whether it can be “determined beyond a reasonable doubt that the erroneous 

implied malice murder instructions . . . contribute[d] to the conviction[ ] on 

the conspiracy count[ ].” (Swain, supra, 12 Cal.4th at p. 607.) Based on the 

record, we conclude the error was harmless beyond a reasonable doubt.

For both murders, the jury found appellants guilty of first degree 

murder and found true the allegation that the perpetrator “intentionally 

killed the victim by means of lying in wait.” For Xusha’s murder, the jury 

also found true the allegation that the defendant or a perpetrator 

“intentionally killed the victim by means of discharging a firearm from a 

motor vehicle.” Thus, unlike Swain, supra, 12 Cal.4th 593, the verdicts here 

“inform us on what theory [the jury] found the requisite element of malice 

necessary to convict on the charges of conspiracy to commit murder.” (Id. at 

p. 607; People v. Beck and Cruz, supra, 8 Cal.5th at p. 643 [instructional error 

harmless where jury found defendants guilty of first degree premeditated 

murders of all victims].) Accordingly, no reasonable possibility exists that the 

jury convicted appellants of conspiracy to commit murder without first 

finding an intent to kill. Thus, the instructional error was harmless beyond a 

reasonable doubt.

VI. APPELLANTS’ CHALLENGE TO THE IMPOSITION 

OF FINES AND FEES

At appellants’ sentencing hearing on October 11, 2019, the trial court 

ordered them to pay a court facilities fee of $150 (Gov. Code, § 70373; $30 for 

each of five counts), a court operations assessment or security fee of $200

(§ 1465.8; $40 for each of five counts), a criminal justice fee of $154 (Gov. 

Code, § 29550), and a restitution fine of $10,000 (§ 1202.4, subd. (b)). Defense 
51

counsel did not object to the imposition of these sums or request a hearing on 

their client’s respective ability to pay them, and the trial court made no 

inquiry into and no finding regarding appellants’ ability to pay any of the 

assessments, fines, or penalty assessments.

Citing Dueñas, supra, 30 Cal.App.5th 1157, decided on January 9, 

2019, approximately nine months before their sentencing hearing, appellants 

argue that the trial court violated their right to due process by imposing 

various fines and fees without first finding that they had the ability to pay 

them.15 Appellants alternately assert that imposition of the sums ordered

constitutes excessive punitive sanctions under the Eighth Amendment. 

Haddock contends that his counsel’s failure to argue these issues should be 

reviewed through the lens of ineffective assistance of counsel to prevent 

forfeiture.

Even before Dueñas, supra, 30 Cal.App.5th 1157, appellants had a 

statutory right to object to the $10,000 maximum restitution fine on the basis 

that they lacked the ability to pay. (§ 1202.4, subd. (c); People v. Gutierrez

(2019) 35 Cal.App.5th 1027, 1033 (Gutierrez).) Moreover, as to the restitution 

fine, section 1202.4 expressly allows consideration of a defendant’s ability to 

pay when determining whether to increase the restitution fine above the 

statutory minimum of $300. (§ 1202.4, subd. (c).) Thus, appellants could 

have objected to their $10,000 restitution fine based on an inability to pay but 

failed to do so. Notably, appellants were aware before sentencing that the 

probation department recommended imposing the $10,000 maximum 

restitution fine. Their failure to object to the restitution fine forfeits this 

15 The validity of Dueñas, is unsettled and will be decided by our Supreme 

Court. (People v. Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 

2019, S257844.) Accordingly, it is unnecessary for us to comment on the 

merits of the analysis employed in Dueñas.
52

claim of error on appeal. (Gutierrez, at p. 1033 [“[E]ven if Dueñas was 

unforeseeable (a point on which we offer no opinion), under the facts of this 

case [defendant] forfeited any ability-to-pay argument regarding the 

restitution fine [above the statutory minimum] by failing to object.”].) 

Appellants were in the best position to know their respective ability to 

pay, so it was incumbent on them to raise the issue if they could not pay the 

restitution fine. (People v. Avila (2009) 46 Cal.4th 680, 729.) Because 

appellants did not raise any issue concerning their ability to pay a $10,000 

restitution fine, we conclude they have also forfeited their challenge to the 

much smaller fees and assessments. (Gutierrez, supra, 35 Cal.App.5th at

p. 1033 [defendant’s failure to challenge a restitution fine greater than 

minimum on grounds of inability to pay forfeited defendant’s objection to fees 

on same grounds]; accord, People v. Smith (2020) 46 Cal.App.5th 375, 395.) 

Appellants’ alternative Eighth Amendment challenge is similarly 

forfeited based on their silence regarding their ability to pay in the trial 

court. Although the United States Supreme Court recently held that the 

excessive fines clause of the federal Constitution is “an incorporated 

protection applicable to the States” (Timbs v. Indiana (2019) 586 U.S. __, 139 

S.Ct. 682, 685), California courts have entertained challenges to fines under 

article 1, section 17 of the state Constitution (see, e.g., People ex rel. Lockyer 

v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728; People v. Urbano

(2005) 128 Cal.App.4th 396, 406). Accordingly, appellants were required to 

raise their excessive fines objection in the trial court to preserve this claim. 

(See People v. McCullough (2013) 56 Cal.4th 589, 592–593 [constitutional 

challenge to booking fee forfeited]; People v. Torres (2019) 39 Cal.App.5th 

849, 860 & fn. 4 [excessive fines claim forfeited in absence of timely 

objection].)
53

In any event, even putting forfeiture aside, we would affirm the trial 

court’s judgments because any error in the trial court’s failure to consider, 

sua sponte, appellants’ ability to pay the fines and assessments is harmless 

on this record. (See People v. Johnson (2019) 35 Cal.App.5th 134, 139–140 

(Johnson); People v. Jones (2019) 36 Cal.App.5th 1028, 1035.) 

At the time of sentencing, Haddock was 28 years old. He had a college 

degree and told the probation officer that he earned $2,000 to $3,000 per 

month buying and reselling cars, paid $1,300 in rent, and had no money in 

the bank or credit card debit. Haddock denied any medical or psychological 

problems and his counsel represented at the sentencing hearing that 

Haddock played football while in college. Haddock’s situation is different 

from the appellant in Dueñas, supra, 30 Cal.App.5th 1157, who was unable to 

work due to a disability. (Id. at p. 1160.) 

Frank was also 28 years old at the time of sentencing. Frank, however, 

declined to be interviewed for the probation report. Nonetheless, his criminal 

history, which dated back to 2011, suggests a certain amount of vigor and 

hence the ability to earn prison wages. Haddock will similarly be able to earn 

money while in prison to pay the fines and fees. (People v. Jenkins (2019) 40 

Cal.App.5th 30, 41 [“[I]t is entirely appropriate to consider the wages 

defendant may earn in prison on the inability-to-pay issue.”]; People v. 

DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant did not show inability 

to pay $10,000 restitution fine simply because prison wages would make it 

difficult, it would take a long time, and the fine might never be paid].) 

Appellants could also make payments on the amounts owed out of 

monetary gifts from family and friends during their prison sentences. (See, 

e.g., People v. Lewis (2009) 46 Cal.4th 1255, 1321.) Moreover, the trial court 

was “permitted to conclude that the monetary burden the restitution fine 
54

[and other sums] imposed on [appellants] was outweighed by other 

considerations,” such as the seriousness and gravity of the offense, and the 

circumstances of its commission. (People v. Potts (2019) 6 Cal.5th 1012, 

1056–1057; § 1202.4, subd. (d).)

Even assuming, for the sake of argument, that appellants suffered a 

constitutional violation when the court imposed this financial burden on then 

without considering their ability to pay, we conclude on this record that the 

assumed error was harmless beyond a reasonable doubt.16 (Chapman, 

supra, 386 U.S. at p. 24; Johnson, supra, 35 Cal.App.5th 134, 139–140.)

VII. ANY UNPAID PORTION OF THE CRIMINAL JUSTICE 

ADMINISTRATION FEE SHALL BE VACATED

After completion of briefing in this matter on June 30, 2021, the 

Legislature enacted Assembly Bill No. 1869 (Assem. Bill 1869), effective

July 1, 2021, repealing the provision under which the trial court ordered 

appellants to pay a $154 criminal justice administration fee (the fee). (Stats. 

2020, ch. 92, § 22 [deleting Gov. Code, § 29550, former subdivision (c)].)17 

This bill also added section 6111 to the Government Code, effective July 1, 

2021. (Stats. 2020, ch. 92, § 11.) Government Code section 6111, subdivision 

16 Given this holding, we need not address Haddock’s argument that his 

counsel rendered ineffective assistance by failing to raise a Dueñas objection.

17 In enacting Assem. Bill 1869, the Legislature sought “to eliminate the 

range of administrative fees that agencies and courts are authorized to 

impose to fund elements of the criminal legal system and to eliminate all 

outstanding debt incurred as a result of the imposition of administrative 

fees.” (Stats. 2020, ch. 92, § 2.) The bill “abrogated the authority to impose 

and collect 23 different administrative fees, including as relevant here, . . . 

the criminal justice administration fee.” (People v. Greeley (2021) 70 

Cal.App.5th 609, 625.)
55

(a) states: “On and after July 1, 2021, the unpaid balance of any courtimposed costs pursuant to Section 27712, subdivision (c) or (f) of Section 

29550, and Sections 29550.1, 29550.2, and 29550.3, as those sections read on 

June 30, 2021, is unenforceable and uncollectible and any portion of a 

judgment imposing those costs shall be vacated.”

We permitted all parties to file supplemental briefs regarding the 

application of Assem. Bill 1869 to these appeals. In response, both sides 

agreed that any unpaid balance of the fee automatically became 

unenforceable and uncollectible beginning on July 1, 2021, and must be 

vacated from the judgment. We agree that the plain language of the newlyenacted statute mandates this result. (People v. Lopez-Vinck (2021) 68 

Cal.App.5th 945, 953 (Lopez-Vinck) [holding that “by its express terms, 

[Government Code] section 6111 envisions that the referenced costs are to be 

vacated, and it makes the vacatur mandatory through its use of the word 

‘shall’ ”].) As we explained in Lopez-Vinck, “Because [Government Code] 

section 6111 indicates a legislative intent to extend the ameliorative changes 

in the law regarding the imposition of administrative fees to individuals 

serving both final and nonfinal sentences, but only to the extent of relieving 

those individuals of the burden of any debt that remains unpaid on and after 

July 1, 2021, the [In re] Estrada [(1965) 63 Cal.2d 740] rule does not apply, 

and [a defendant] is not entitled to have the fee imposed pursuant to 

Government Code section 29550.1 vacated in its entirety as a result of the 

repeal of section 29550.1.” (Lopez-Vinck, at p. 953, italics added.) 

Thus, we reject Frank’s request that his abstract of judgment be 

amended to “direct that any portion of the booking fee that was collected after 

July 1, 2021, be returned to [his] books,” and that the superior court be 

directed to enter such an order because the changes made by Assem. Bill
56

1869 do not apply retroactively to payments made prior to the effective date 

of the new statutes. (Lopez-Vinck, supra, 68 Cal.App.5th at p. 953.) Rather, 

appellants are “entitled to the vacatur of that portion of the criminal justice 

administration fee imposed pursuant to Government Code section 29550.1 

that remains unpaid as of July 1, 2021, and to the modification of [their] 

judgment[s] consistent with such vacatur.” (Ibid.)

VIII. NO REVERSIBLE ERROR DURING IN CAMERA REVIEW

“The defendant generally is entitled to discovery of information that 

will assist in his defense or be useful for impeachment or cross-examination 

of adverse witnesses. [Citation.] A motion for discovery must describe the 

information sought with some specificity and provide a plausible justification 

for disclosure. [Citation.] The court’s ruling on a discovery motion is subject 

to review for abuse of discretion.” (People v. Jenkins, supra, 22 Cal.4th at

p. 953.) When the state seeks to protect items from disclosure a “court must 

examine them in camera to determine whether they are ‘material’ to guilt or 

innocence.” (People v. Webb (1993) 6 Cal.4th 494, 518 (Webb).) 

The trial court held multiple in camera hearings in this case. Haddock 

requests that we conduct an in camera review of seven of these hearings to 

determine if the trial court erroneously withheld any responsive materials.

The People do not object to this request. The People anticipate that 

examination of the transcripts and documents will show that the trial court 

properly exercised its discretion. Should we conclude that some material 

should have been disclosed, the People assert that the appropriate remedy is 

to remand the matter to the trial court to determine whether Haddock was 

prejudiced by the nondisclosure.

The transcripts of the trial court’s confidential in camera hearings were

transmitted to this court under seal. On our own motion, by order dated 
57

March 17, 2022, we augmented the record to include the sealed documents 

reviewed by the trial court at four of the hearings at issue, as follows: 

October 17, 2017 (redacted and unredacted copies of the police report);

April 19, 2018 (redacted and redacted copies of preliminary hearing 

transcripts)18; September 25, 2018 (documents taken from Frank’s cell); and 

June 3, 2019 (SDT Records from the San Diego Sheriff’s Department). We 

independently reviewed these materials, and the transcripts of the seven in 

camera hearings at issue, to determine whether the trial court erroneously 

withheld any discoverable material. We briefly summarize the nature of each 

hearing and the material denied to the defense.

At an in camera hearing held pursuant to Evidence Code section 1040

on October 17, 2017, the trial court denied the defense access to portions of a 

police report by a detective regarding an active investigation. The police 

report contained witness statements from a P. family member. We reviewed 

the redacted and unredacted portions of the police report and find no error.

On April 19, 2018, in open court, the court heard argument on a 

defense motion to set aside a protective order that limited appellants’ access 

to physical copies of discovery materials. The court inquired about giving 

appellants access to the preliminary hearing transcripts. After hearing 

argument from the prosecutor, the court expressed concern regarding 

witness intimidation and witness safety. The court then went in camera with 

the prosecutor to hear about the ongoing investigation. The court ordered the 

transcript of the in camera hearing to be sealed. 

18 The clerk of the superior court filed a declaration stating that 

unredacted copies of the preliminary hearing transcripts were provided in the 

certified record on appeal.
58

When the court went back on the record, it denied the defense motion 

to set aside the protective order but modified the protective order to allow 

appellants to have copies of the preliminary hearing transcripts. The 

transcripts given to each appellant would bear a unique “watermark” to trace 

the origin of any transcripts improperly made public. Appellants 

subsequently signed a modified protective order giving them access to the 

preliminary hearing transcripts. 

This modified protective order is not at issue in this appeal. Rather, 

Haddock asked that we review the in camera hearing ordered sealed by the 

court. We have reviewed the transcript of the in camera hearing and 

conclude that the trial court did not err in ordering the transcript to be 

sealed.

On September 25, 2018, the court held an in camera hearing with 

Haddock’s defense counsel to review documents taken from Frank’s jail cell. 

After defense counsel reviewed the materials, the trial court ordered the 

materials sealed without objection by defense counsel. The trial court did not 

err in sealing these materials.

At an in camera hearing on June 3, 2019, of “SDT Records from

San Diego Sheriff Department” the trial court described its review of medical 

records subpoenaed by defense counsel pertaining to Marcel, a cooperating 

witness. After conducting an in camera review of these materials, the court 

released some documents to counsel. We discern no error.

At an in camera hearing on June 18, 2019, the trial court discussed an 

ongoing police investigation and a potential witness with the prosecutor. The 

trial court did not err in sealing the reporter’s transcript of this hearing.

At an in camera hearing on June 20, 2019, with all counsel present, the 

trial court discussed with counsel a tip that Brittney P. provided to police, 
59

unrelated to the case, where she received two $700 payments. After 

discussing possible collateral relevancy with defense counsel, the trial court 

excused defense counsel and discussed the matter further with the 

prosecutor. The trial court did not err in withholding the details of Brittney’s 

cooperation.

During a chambers conference with the prosecutor on June 25, 2019, a 

discussion was held regarding an ongoing criminal investigation pertaining 

to a potential prosecution witness. The People disclosed to defense counsel 

felony offenses involving this potential witness. The potential witness never 

testified. The trial court properly ordered the discussion of this ongoing 

investigation sealed.

In summary, after independent review of the sealed materials, we

conclude that the trial court did not abuse its discretion in denying the 

defense access to the withheld materials.

IX. REMAND IS REQUIRED TO DETERMINE HADDOCK’S 

CUSTODY CREDITS

The sentencing court must grant a defendant actual time credits for

both the day of arrest and the day of sentencing. (§ 2900.5; People v. 

Browning (1991) 233 Cal.App.3d 1410, 1412.) “[C]redit shall be given only 

where the custody to be credited is attributable to proceedings related to the 

same conduct for which the defendant has been convicted.” (§ 2900.5, subd. 

(b).) “[I]t is the business of the trial court, and not the appellate court, to 

determine the credit to which the defendant is entitled by reason of presentence confinement.” (People v. Montalvo (1982) 128 Cal.App.3d 57, 62 

(Montalvo).) An erroneous award of presentence custody credits is a 

jurisdictional error that may be corrected at any time. (People v. Chilelli

(2014) 225 Cal.App.4th 581, 591.) 
60

Haddock contends that the trial court miscalculated his pre-sentence 

custody credits based on his arrest date of July 20, 2016, and his sentencing 

date of October 11, 2019. He asserts that the abstract of judgment should be 

corrected to award him an additional 86 days of custody credit. 

The People concede the error if Haddock was arrested on July 20, 2016. 

The probation report, however, set Haddock’s confinement date as 

October 14, 2016. Even assuming Haddock was arrested on July 20, 2016, 

the People claim it is unclear if Haddock’s time in custody was attributable to 

the proceedings in this case. Thus, the People assert that the matter should 

be remanded to the trial court to clarify the discrepancy on the record,

determine Haddock’s period of custody attributable to this case, and calculate 

his custody credits accordingly. We agree.

The record is unclear regarding Haddock’s initial custody date and 

whether his custody date is attributable to the proceedings in the instant 

case. Therefore, the matter is remanded to the trial court to determine 

Haddock’s period of custody attributable to the instant proceedings and to 

calculate his custody credits accordingly. (Montalvo, supra, 128 Cal.App.3d 

at p. 62 [“If the court does not have enough facts at the time of sentencing, 

its duty is to direct ‘the sheriff, probation officer or other appropriate person’ 

to produce the information.”].)

X. HADDOCK’S PAROLE REVOCATION RESTITUTION FINE 

MUST BE STRICKEN

The trial court sentenced Haddock to two consecutive life terms 

without the possibility of parole for the two murders. Additionally, Haddock

did not receive any unstayed determinate prison terms that included a period 

of parole. (§ 3000, subd. (a)(1); People v. Brasure (2008) 42 Cal.4th 1037, 

1075 [upholding imposition of a section 1202.45 parole revocation restitution 
61

fine where defendant was sentenced to death and to determinate prison 

terms under section 1170].) At sentencing, the trial court ordered Haddock to 

pay a $10,000 restitution fine pursuant to section 1202.45. Section 1202.45, 

subdivision (a), provides that the court “shall” assess an additional parole 

revocation restitution fine “[i]n every case where a person is convicted of a 

crime and his or her sentence includes a period of parole.”

Haddock contends the parole revocation restitution fine is

unauthorized and should be stricken because it does not apply where the 

sentence includes life without parole. The People concede and we agree that 

the trial court erred by imposing a $10,000 parole revocation restitution fine 

under section 1202.45 because the court sentenced Haddock to life in prison 

without possibility of parole. Such a “fine may not be imposed for a term of 

life in prison without possibility of parole, as the statute is expressly 

inapplicable where there is no period of parole.” (People v. Jenkins (2006) 140 

Cal.App.4th 805, 819.) Because the parole revocation restitution fine is

unauthorized, Haddock’s failure to raise this issue in the trial does not 

preclude relief. (People v. Scott (1994) 9 Cal.4th 331, 354.) Accordingly, we 

strike the parole revocation restitution fine.

XI. Assem. Bill 333

A. Assem. Bill 333 Amendments to Section 186.22 

Effective January 1, 2022, Assem. Bill 333 “amends section 186.22 to 

require proof of additional elements to establish a gang enhancement.” 

(People v. Lopez (2021) 73 Cal.App.5th 327, 343 (Lopez).) When appellants 

were tried, former section 186.22 defined a “ ‘criminal street gang’ ” as “any 

ongoing organization, association, or group of three or more persons . . . 

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

pattern of criminal gang activity.” (Former §186.22, subd. (f), italics added.) 
62

Assem. Bill 333 narrowed the definition to “an ongoing, organized association 

or group of three or more persons . . . whose members collectively engage in, 

or have engaged in, a pattern of criminal gang activity.” (§ 186.22, subd. (f), 

italics added.) This change requires that the People “prove that two or more 

gang members committed each predicate offense.” (People v. Delgado (2022) 

74 Cal.App.5th 1067, 1072; accord, Lopez, at pp. 344–345.)

Under the former version of section 186.22, the phrase “pattern of 

criminal gang activity” was defined as “the commission of, attempted 

commission of, conspiracy to commit, or solicitation of, sustained juvenile 

petition for, or conviction of . . . two or more of [specified] offenses, provided at 

least one of these offenses occurred after the effective date of this chapter and 

the last of those offenses occurred within three years after a prior offense, 

and the offenses were committed on separate occasions, by two or more 

persons.” (Former § 186.22, subd. (e), italics added.)

Assem. Bill 333 changed this definition. Now, the predicate offenses 

must have been committed by two or more “members” of the gang (as opposed 

to any persons) and must have “commonly benefited a criminal street gang”

and “the common benefit of the offense [must be] more than reputational.

(§ 186.22, subd. (e)(1), italics added.) Additionally, at least one of these 

predicate offenses must occur after the effective date of this chapter, and the 

last of those offenses must have occurred within three years of the prior 

offense and within three years of the date the current offense is alleged to 

have been committed. (Id. at subd. (e)(1).) Finally, the currently charged 

offense no longer counts as a predicate offense. (Id. at subd. (e)(2).) The new 

law also reduced the number of qualifying offenses that can be used to 

establish a pattern of criminal gang activity, removing vandalism, looting 

and several fraud-related offenses from the list. (Id. at subd. (e)(1)(A)-(Z).)
63

Assem. Bill 333 also requires the prosecution to prove the benefit the 

gang derives from the predicate and current offenses is “more than 

reputational.” (Stats. 2021, ch. 699, § 3 [enacting § 186.22, subd. (g)].) 

“Examples of a common benefit that are more than reputational may include, 

but are not limited to, financial gain or motivation, retaliation, targeting a 

perceived or actual gang rival, or intimidation or silencing of a potential 

current or previous witness or informant.” (Id. at subd. (g).) Finally, Assem. 

Bill 333 added section 1109 requiring that gang enhancements charged under 

section 186.22, subdivision (b) or (d) be tried separately from the underlying 

charges upon request from the defense. (Stats. 2021, ch. 699, § 5.) The 

defendant’s guilt on the underlying offense must first be determined, and a 

trial on the gang enhancement is held if the defendant is first found guilty of 

the underlying offense. (§ 1109, subd. (a)(1) & (2).) Additionally, a charge for 

active participation in a criminal street gang (street terrorism, § 186.22, 

subd. (a)), must be tried separately from “all other counts that do not 

otherwise require gang evidence as an element of the crime.” (§ 1109, subd. 

(b).)

B. Failure to Bifurcate the Gang Enhancements was Harmless

Haddock asserts that new section 1109 requires that the judgment 

against him be reversed. He contends that all of Assem. Bill 333, including 

section 1109, should apply retroactively. He reasons that section 1109 is 

remedial in nature because it changes the procedure for the trial of a gang 

enhancement and changes proof of the gang enhancement to remedy a 

procedure that the Legislature viewed as problematic if not inherently unfair. 

The People contend section 1109, unlike other provisions of Assem. Bill 333, 
64

does not apply retroactively because it is a change in trial procedure which

applies prospectively.19 

We need not decide whether section 1109 applies retroactively to 

nonfinal decisions because, even assuming error in trying the gang 

enhancements together with the substantive offenses, any such error was 

harmless whether considered under the standard of Watson or Chapman. 

(Watson, supra, 46 Cal.2d at p. 836 [state law error requires reversal only if it 

is reasonably probable that the error had an effect on the verdict]; Chapman, 

supra, 386 U.S. at p. 24 [reversal is required under the federal Constitution 

unless the error was harmless beyond a reasonable doubt]; see People v. E.H.

(2022) 75 Cal.App.5th 467, 480) [concluding the failure to bifurcate was 

harmless under Watson because verdict was not based on improper bias but 

on strong evidence defendant committed the charged offenses]; People v. 

Ramos (2022) 77 Cal.App.5th 1116, 1133; [defendant not entitled to reversal 

of his conviction under Watson because he was not harmed by the failure to 

bifurcate gang enhancement].)

The prosecution presented persuasive evidence of appellants’ 

involvement in both murders. As we previously discussed regarding Darris’s 

murder, the People presented evidence and argued that Glenn ordered a hit 

on one of the P. brothers within 48 hours and that Frank was to recruit 

individuals to help. On the evening of Darris’s murder, Frank and Haddock 

were involved in a gang-related fight where Haddock had a gun. Cell phone 

location data showed that Frank called Haddock before this fight and that 

19 Haddock also argues that this record contains a reasonable inference

that had bifurcation of the gang allegations been an available option, his 

counsel would have so requested. The People do not challenge this assertion 

and we need not address it.
65

Haddock was in communication with Glenn. Thereafter, Frank 

communicated with a girl throughout the evening and learned that Skyline 

gang members were on a party bus with the girl. Frank told the girl that he 

had gotten into a fight at a different party bus and would meet her when the 

party bus returned the girl back to a restaurant. Darris’s shooting occurred 

in the restaurant parking lot shortly before 2:00 a.m. Despite almost 

constant use during the evening, appellants’ cell phones were not connected 

to the network at the time of Darris’s shooting. Less than 15 minutes after 

the shooting, Haddock had a text message and social media transaction with 

Glenn. Darris was shot while sitting in a car owned by one of the P. brothers. 

“5-0” or “5-9” had been written in dust or condensation on the car window, 

which meant to Malcolm that the LPB gang was involved in the shooting.

The jury heard testimony that appellants were together on the evening 

of Xusha’s murder when they learned that Malcolm and other Skyline gang 

members were down the street at a hookah lounge. Haddock saw cars 

leaving the hookah lounge and followed the caravan of vehicles. Either 

Frank or Haddock recognized Malcolm in one of the cars. After Haddock 

positioned his vehicle, Frank began shooting at the car driven by Malcolm, 

injuring Malcolm and killing Xusha with a shot to his head. A jailhouse 

informant testified that Frank described how he shot at another car on a 

freeway and told the informant that he knew the person he shot had been 

killed because he saw the person’s head bounce backward. Police later found 

gunshot residue in Haddock’s car, which Haddock was trying to sell. 

Haddock’s girlfriend told law enforcement that she was continuously with 

Haddock starting at 1:00 a.m. on the day of Xusha’s murder but their 

messages to each other indicated that they were not together.
66

In arguing that the failure to bifurcate the gang enhancements from 

the substantive crimes was prejudicial, Haddock ignores that courts routinely 

admit gang evidence “when the very reason for the crime, usually murder, is 

gang related.” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449.) 

Specifically, “evidence of gang membership is often relevant to, and 

admissible regarding, the charged offense. Evidence of the defendant’s gang 

affiliation—including evidence of the gang’s territory, membership, signs, 

symbols, beliefs and practices, criminal enterprises, rivalries, and the

like—can help prove identity, motive, modus operandi, specific intent, means 

of applying force or fear, or other issues pertinent to guilt of the charged 

crime.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) This was the 

case here. (See, ante, pt. II.)

Other than the stipulated admission of the predicate acts and the gang 

expert’s testimony regarding the principal activities of LPB, the evidence of 

gang membership and the gang rivalry between LPB and Skyline would have 

been admissible on the substantive crimes alleged against appellants even if 

no gang enhancements had been alleged. Stated differently, the gang 

evidence presented here was relevant because it had “a ‘tendency in reason to 

prove or disprove any disputed fact that is of consequence’ to resolving the 

case.” (Bryant, supra, 60 Cal.4th at p. 405; Evid. Code, § 351 [“Except as 

otherwise provided by statute, all relevant evidence is admissible.”]; Evid. 

Code, § 210.) Haddock contends that the gang evidence admitted into 

evidence constituted “prejudicial overkill.” Unlike People v. Albarran (2007) 

149 Cal.App.4th 214, cited by Haddock, the evidence here does not come close 

to the irrelevant “overkill” evidence admitted in Albarran. (Id. at p. 228 

[“[e]vidence of threats to kill police officers, descriptions of the criminal 

activities of other gang members, and reference to the Mexican Mafia had 
67

little or no bearing on any other material issue relating to [defendant’s] guilt 

on the charged crimes” and “was so extraordinarily prejudicial and of such 

little relevance that it raised the distinct potential to sway the jury to convict 

regardless of [defendant’s] actual guilt.”].)

Moreover, the trial court instructed the jury with CALCRIM No. 1403 

to consider “evidence of gang activity only for the limited purpose of deciding 

whether . . . [¶] [t]he defendant acted with the intent, purpose, and 

knowledge that are required to prove the gang-related . . . allegations 

charged;” . . . and not to “conclude from this evidence that the defendant is a 

person of bad character or that he has a disposition to commit crime.” We 

presume that the jurors followed the trial court’s instructions in the absence 

of any evidence to the contrary. (Krebs, supra, 8 Cal.5th at p. 335.) There is 

no evidence suggesting the jurors were unable or unwilling to follow the 

court’s instruction.

On this record, we conclude that appellants have failed to demonstrate 

they would have achieved a more favorable outcome at trial on the 

substantive charges against them had the gang enhancements been tried 

separately.20

20 In People v. Burgos (2022) 77 Cal.App.5th 550 a divided appellate court 

held that section 1109 applies retroactively. (Id. at p. 568.) The Burgos

majority also concluded that the failure to bifurcate the gang enhancements 

in that case “likely” constituted “ ‘structural error’ because it ‘def[ies] analysis 

by harmless-error standards.’ ” (Ibid.) On the instant record, we cannot 

conclude that the failure to bifurcate amounted to structural error. As we 

already explained, the gang evidence was highly relevant to the charges

against appellants and the admission of the stipulated evidence pertaining to 

the predicate offenses and principal activities of LPB was harmless under 

any standard of review. Thus, we disagree with the concern voiced by the 

Burgos majority that it can be “difficult to determine how the outcome of the 

trial would have been affected if [the proceeding] had been bifurcated to try 
68

C. The True Findings on the Gang Enhancement Allegations Must be 

Vacated

Appellants argue, and the People concede, that the balance of the 

amendments to section 186.22 apply retroactively to appellants. We agree 

and accept the concession. (Lopez, supra, 73 Cal.App.5th at p. 344.) 

The trial court instructed the jury that if it found appellants guilty of 

the charged offenses, it must then decide for each crime if the People proved 

the additional allegation that appellants “committed or attempted to commit 

the crime for the benefit of, at the direction of, or in association with a

criminal street gang” and “intended to assist, further, or promote criminal 

conduct by gang members.” (CALCRIM No. 1401.) The jury subsequently 

found true the gang enhancement allegation for appellants attached to each

count. (§ 186.22, subd. (b)(1) & (5).) 

Amended subdivision (g) of section 186.22 defines the term “to benefit, 

promote, further, or assist” as meaning “to provide a common benefit to 

members of a gang where the common benefit is more than reputational.” A 

nonreputational common benefit might consist of “financial gain or 

motivation, retaliation, targeting a perceived or actual gang rival, or 

intimidation or silencing of a potential current or previous witness or 

informant.” (Ibid.) 

Appellants assert that the true findings on the gang allegations for all 

counts must be reversed because the jury was not instructed on the new 

requirement that the benefit to the gang must be more than reputational.

The People concede that the gang expert testified that the individual 

members of LPB and the gang itself enjoyed reputational benefits from 

the gang enhancements separately” because bifurcation in this case would 

not have drastically changed the nature of the instant proceeding. (Ibid.) 
69

committing the predicate offenses. However, the People note that the gang 

expert also testified about nonreputational benefits to the gang such as 

generating revenue. The People also claim that the parties’ stipulation and 

overwhelming evidence established thatthe offenses commonly benefitted 

LPB, and that the common benefit from the offenses was retaliation. Thus, 

they assert that any instructional error was harmless beyond a reasonable 

doubt.

Appellants have a constitutional right to a jury trial on “every essential 

element” of the crimes and enhancements charged against them “no matter 

how compelling the evidence may be against [them].” (People v. Figueroa

(1993) 20 Cal.App.4th 65, 71.) “By requiring proof for a gang enhancement 

that the benefit to the gang was more than reputational, [Assem. Bill 333]

essentially adds a new element to the enhancement. When jury instructions 

are deficient for omitting an element of an offense, they implicate the 

defendant’s federal constitutional rights, and we review for harmless error 

under the strict standard of Chapman. . . .” (People v. Sek (2022) 74 

Cal.App.5th 657, 668 (Sek); People v. E.H., supra, 75 Cal.App.5th at p. 479 

[same].) “Under the Chapman standard, reversal is required unless ‘it 

appears beyond a reasonable doubt that the error did not contribute to th[e] 

jury’s verdict.’ ” (Sek, at p. 668.)

We cannot conclude that the jury instruction was harmless beyond a 

reasonable doubt. The gang expert testified that a crime could benefit a 

criminal street gang by providing a reputational benefit to the gang and by

generating revenue. Additionally, the People argued and the evidence 

established that some of the crimes were committed for retaliation. “[T]o 

prove harmless error under the Chapman standard, it is not enough to show 

that substantial or strong evidence existed to support a conviction under the 
70

correct instructions. [Citation.] [¶] The inquiry ‘is not whether, in a trial 

that occurred without the error, a guilty verdict would surely have been 

rendered, but whether the guilty verdict actually rendered in this trial was 

surely unattributable to the error.’ ” (People v. E.H., supra, 75 Cal.App.5th at 

p. 479.) 

As in Sek, supra, 74 Cal.App.5th 657 and People v. E.H., supra, 75 

Cal.App.5th 467, “ ‘we cannot rule out the possibility that the jury relied on 

reputational benefit to the gang as its basis for finding the enhancements 

true.’ ” (People v. E.H., at p. 480, citing Sek at p. 669.) Accordingly, the 

instructional error was not harmless under the Chapman standard.21 The 

appropriate remedy is to reverse the true findings on the gang allegations 

attached to all counts and remand the matter with directions that the trial 

court either: (1) conduct a new trial on any subsequent allegations filed by 

the People under current section 186.22 and a resentencing hearing based on 

any findings made thereon; or (2) if the People elect to not file any

subsequent allegations under current section 186.22, conduct a resentencing 

hearing based on the omission of the gang allegations. (See People v. Vasquez

(2022) 74 Cal.App.5th 1021, 1033; Sek, supra, 74 Cal.App.5th at pp. 669–670; 

Lopez, supra, 73 Cal.App.5th at p. 346.)22

21 We also note that the gang allegation jury instruction, CALCRIM No. 

1401, instructed the jury that “[t]he crimes, if any, that establish a pattern of 

criminal gang activity, need not be gang-related.” (Italics added.) However, 

Assem. Bill 333 changed this and the law now requires that “the [predicate] 

offenses [to] commonly benefit[] a criminal street gang. . . .” (§ 186.22, subd. 

(e)(1).)

22 Based on this result, we need not address appellants’ alternative 

argument that the true findings on the gang enhancement allegations 

attached to counts 3, 4, and 5 (connected to Xusha’s 2013 murder) must be 

reversed because there is only one predicate act that meets the narrower time 
71

D. The True Findings on the Gang-Related Firearm Enhancement 

Allegations Must be Reversed

Section 12022.53 provides for sentence enhancements for using

firearms in the commission of an enumerated felony. As explained in Lopez, 

supra, 73 Cal.App.5th 327, penalties may also be imposed under certain 

gang-related circumstances as follows: “First, the person who is a principal 

must be ‘convicted of a felony committed for the benefit of, at the direction of, 

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

promote, further, or assist in any criminal conduct by gang members’ as set 

forth in section 186.22, subdivision (b). (See § 12022.53, subd. (e)(1)(A).) 

Second, ‘[a]ny principal in the offense’ must have ‘committed any act specified 

in subdivision (b), (c), or (d),’ that is, any principal involved in the offense 

must have personally used a firearm in the escalating use categories provided 

in section 12022.53, subdivisions (b) through (d). (§ 12022.53, subd. 

(e)(1)(B).)” (Lopez, at p. 374.)

The jury found true the allegations that appellants were principals as 

to each count and in the commission of each offense at least one principal 

personally and intentionally discharged a firearm within the meaning of 

section 12022.53, subdivision (e)(1). As the People concede, because the

enhancements under section 12022.53, subdivision (e)(1) depend on a true 

finding under section 186.22, subdivision (b) (§ 12022.53, subd. (e)(1)(A)), the 

changes to section 186.22 made by Assem. Bill 333 require that the true 

frames and that was committed “collectively.” We also need not address 

appellants’ argument that the fact their counsel stipulated to some of the 

gang evidence does not preclude application of Assem. Bill 333 benefits.
72

findings on these gang-related firearm enhancements must also be vacated 

and the matter remanded to the trial court to allow the People the option to 

retry these allegations. 

As to Frank, the jury also found true a personal discharge causing 

death or great bodily injury allegation under section 12022.53, subdivision (d)

as attached to counts 3, 4 and 5. Frank concedes, the People agree, and we 

concur, that reversal of the gang enhancement allegations do not impact this 

enhancement. (Lopez, supra, 73 Cal.App.5th at p. 348 [“[T]hose findings 

under section 12022.53, subdivision (d), which carry the same penalty, 

remain intact.”].) 

As to appellants, the jury also found true the special circumstance 

allegation attached to count 3 that Xusha’s murder was “intentional and 

perpetrated by means of discharging a firearm from a motor vehicle, 

intentionally at another person or persons outside the vehicle with the intent 

to inflict death.” (§ 190.2, subd. (a)(21).) Haddock contends that this 

enhancement must be vacated along with the gang-related firearm 

enhancements. Haddock relies on Lopez, supra, 73 Cal.App.5th 327, which 

involved an enhancement under subdivision (a)(22) of section 190.2 that 

provides: “[t]he defendant intentionally killed the victim while the defendant 

was an active participant in a criminal street gang, as defined in subdivision 

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

of the criminal street gang.’ ” The Lopez court vacated this gang murder 

special circumstance because it expressly incorporated provisions of section 

186.22. (Lopez, at p. 348.) 

In contrast, the true findings as to the special circumstance allegation 

under section 190.2, subdivision (a)(21) did not depend on a finding that 

either appellant was an active participant in a criminal street gang, or that 
73

the Xusha’s murder was carried out to further the activities of a criminal 

street gang. Accordingly, the sentence enhancement related to the true 

findings for this allegation are not impacted by the changes to section 186.22 

under Assem. Bill 333.

XII. APPELLANTS’ REQUESTS TO CONSIDER WHETHER TO STRIKE 

OR MODIFY ONE OR MORE FIREARM ENHANCEMENTS

A. Additional Background

The information alleged that appellants were principals in the charged 

offenses and at least one principal personally and intentionally discharged a 

firearm, causing great bodily and death (§ 12022.53, subds. (d) & (e)(1)). The 

jury returned true findings on these allegations. At sentencing, Haddock’s 

counsel noted that the court had “discretion to strike the [section 12022].53 

[allegations]. I would ask the court to consider striking the .53s . . . in Mr. 

Haddock’s particular case. I think there is a question, certainly, in 2011 as to 

whether he pulled a trigger that killed somebody; and in 2013 we know he 

wasn’t the triggerman.” Frank’s counsel similarly asked the trial court “to 

exercise discretion on the [section 12022].53 allegations.” The trial court 

responded: “I’m going to hold, basically, that particular issue to the specific 

sentencing determination, and we’ll see how the Court rules on that.” 

When sentencing Haddock, the trial court found that the evidence 

“overwhelming[ly]” supported the verdicts. The trial court struck Haddock’s 

prior strike and the 15 years that would be added for Haddock’s nickel priors 

but stated “I can’t go any further than that, and I’m not inclined to go any 

further than that, because the time has come, basically, now to atone for the 

events that you’ve been convicted of.” (Italics added.) The court then 

imposed on Haddock three consecutive 25-year-to-life terms for the firearm 

enhancements for counts 1, 3, and 5 (staying the firearm enhancements on 
74

counts 2 and 4 pursuant to section 654). The court did not expressly address 

the issue as to Frank but implicitly denied the motion by imposing the full 

term of 25 years to life for the allegation on all counts and the minimum 

parole period of 15 years for counts 3, 4, and 5.

B. Analysis

Assuming the trial court’s action can be construed as an implied denial 

of their requests to strike the firearm enhancements, appellants note that the 

trial court did not mention its discretion to modify, as opposed to striking the 

firearm enhancements, to something less than three 25-year to life sentences 

or its awareness of this discretion. They contend that the trial court was 

unaware of its discretion to modify or impose a lesser gun enhancement 

pursuant to section 1385 as observed in People v. Morrison (2019) 34 

Cal.App.5th 217 (Morrison) and a remand is appropriate so the trial court 

can exercise its discretion in this regard. If we deem this sentencing issue 

forfeited, appellants argue that they received ineffective assistance of counsel 

and request relief on that basis.

The People agree that under Morrison, supra, 34 Cal.App.5th 217, a 

trial court can impose a lesser uncharged enhancement after striking an 

enhancement under section 12022.53, subdivision (d). (Morrison, at pp. 222–

223.) However, the appellate court in People v. Tirado (2019) 38 Cal.App.5th 

637 (Tirado I) came to the opposite conclusion, finding that a trial court has 

no discretion to modify a gun enhancement if a lesser enhancement has not 

been charged. (Tirado I, at pp. 643–644, review granted Nov. 13, 2019, 

S257658.) The People argue that appellants forfeited this claim because both 

Morrison and Tirado I had been issued by the time of the sentencing hearing; 

thus, appellants cannot assert that the trial court was unaware of Morrison’s

holding. Assuming we decline to find the issue forfeited, the People argue 
75

that Tirado I is the better reasoned decision and we should decline to follow 

Morrison. Finally, assuming we address the merits and determine that the 

trial court was unaware of its discretion to impose a lesser included firearm 

enhancement, the People assert that the error was harmless beyond a 

reasonable doubt.

Our Supreme Court recently held Morrison, supra, 34 Cal.App.5th 217

“correctly described the scope of a trial court’s sentencing discretion under 

section 12022.53.” (People v. Tirado (2022) 12 Cal.5th 688, 946 (Tirado II).)23 

Morrison was decided just over six months before appellants’ sentencing 

hearing and Tirado I, supra, 38 Cal.App.5th 637 was decided approximately 

two months before sentencing. Therefore, we presume both the trial court 

and trial counsel were aware of the split of authority. (People v. Stowell

(2003) 31 Cal.4th 1107, 1114 [on appeal, “ ‘a trial court is presumed to have 

been aware of and followed the applicable law’ ”].) Accordingly, any claimed 

“ ‘ “error must be affirmatively shown.” ’ ” (People v. Giordano (2007) 42 

Cal.4th 644, 666; People v. Leon (2016) 243 Cal.App.4th 1003, 1026 (Leon) 

[“Relief from a trial court’s misunderstanding of its sentencing discretion is 

available on direct appeal when such misapprehension is affirmatively 

demonstrated by the record.”].) On this record, we find no forfeiture.

24

23 We allowed the parties to file supplemental briefs on the impact of 

Tirado II, supra, 12 Cal.5th 688, if any, to the arguments on appeal. We 

received and considered those submissions.

24 Because we conclude that appellants’ claims are cognizable on appeal, 

we do not address their alternative argument that their respective trial 

counsel was constitutionally ineffective for failing to request a lesser gun 

enhancement.
76

Sentencing in this case took place nine months after publication of 

Morrison, supra, 34 Cal.App.5th 217. Nonetheless, appellants’ probation 

reports are silent on whether the trial court had the discretion to impose a 

lesser firearm enhancement. Rather, appellants’ probation reports expressly 

stated that section 12022.53 allegations added “25 years to life.” The People’s 

sentencing memoranda similarly stated that appellants should receive a 25 

years to life sentence on the section 12022.53 allegations. The trial court 

indicated that it read these reports and the People’s sentencing memoranda

to prepare for sentencing. Additionally, appellants’ respective defense 

counsel did not inform the court during the sentencing hearing that it had 

the discretion to modify or impose a lesser firearm enhancement pursuant to 

section 1385 and Morrison. 

This record shows that both parties appeared to assume that the 

section 12022.53 allegations mandated a 25 years to life sentence. 

Additionally, the trial court showed no awareness that it had the discretion to 

impose a lesser firearm enhancement. This record strongly suggests that the 

trial court was unaware of its sentencing discretion and that appellants are 

entitled to a limited remand to give the trial court an opportunity to exercise 

its sentencing discretion. (Leon, supra, 243 Cal.App.4th at p. 1026.) “[A] 

court that is unaware of its discretionary authority cannot exercise its 

informed discretion.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.)

Although the People disagree, we conclude the record does not clearly 

indicate that a remand would be futile. Regarding Haddock’s sentence, the 

trial court indicated a willingness to impose a reduced sentence by striking a 

strike prior and the nickel prior enhancements. The trial court made no 

comments regarding Frank which might suggest that a remand would be 

futile.
77

Because the failure to exercise discretion implicates due process 

concerns, and to forestall unnecessary claims of ineffective assistance of 

counsel, on remand the trial court may exercise its discretion with respect to 

the personal use firearm enhancements under section 12022.53, subdivision 

(d) found true as to Frank attached to counts 3, 4 and 5. As we discussed

above in part XI.D, we must reverse appellants’ gang-related firearm 

enhancements. (§ 12022.53, subds. (d) & (e)(1).) Should the People retry 

these enhancements and the enhancements are found true, we express no 

opinion how the trial court should exercise its sentencing discretion on 

remand.

DISPOSITION

The jury’s true findings on the gang enhancement allegations (§ 186.22, 

subd. (b)) and the gang-related firearm enhancements (§ 12022.53, subds. (d) & 

(e)(1) attached to each count as to both appellants are vacated. The portion of 

the criminal justice administration fee imposed on appellants by the trial court 

pursuant to Government Code section 29550 that remains unpaid as of July 1, 

2021, is vacated. Haddock’s parole revocation restitution fine imposed pursuant 

to section 1202.45 is stricken and the trial court is directed to redetermine its 

award of Haddock’s custody credits in accordance with the views expressed 

herein. 

The matter is remanded to the trial court for further proceedings. The 

People shall have 60 days from the date of the remittitur in which to file an 

election to retry appellants on the vacated enhancements. If the People elect not 

to retry them, the trial court shall modify the judgments by striking the 

enhancements and shall resentence appellants accordingly. At resentencing, (1) 

appellants shall have the opportunity to request a hearing on their respective 

inability to pay court-imposed fines, fees and assessments, (2) the trial court 
78

may exercise its sentencing discretion with respect to the personal use firearm 

enhancements under section 12022.53, subdivision (d) found true as to Frank 

attached to counts 3, 4 and 5, and (3) the trial court shall determine Haddock’s 

custody credits.

Following the conclusion of proceedings, the trial court shall amend the 

abstracts of judgment and forward copies of the amended abstracts to the 

appropriate law enforcement and custodial officials. In all other respects, 

appellants’ judgments are affirmed as modified.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

BUCHANAN, J.