People v. Pink

Full title: THE PEOPLE, Plaintiff and Respondent, v. DVONTAE LAROME PINK, Defendant…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Date published: May 19, 2017

No. F070488 (Cal. Ct. App. May. 19, 2017)

Opinion

F070488

05-19-2017

THE PEOPLE, Plaintiff and Respondent, v. DVONTAE LAROME PINK, Defendant and Appellant.

Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

LEVY, Acting P.J.

THE PEOPLE, Plaintiff and Respondent, v. DVONTAE LARMONE PINK, Defendant and Appellant. ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]

It is ordered that the opinion filed herein on May 19, 2017, be modified as follows:

1. On page 23, the third full paragraph beginning "The court noted" is deleted and the following paragraph is inserted in its place:

The court noted that case authority did not recognize young people or those lacking in experience as a cognizable class. The court stated that these cases "seem to lay the groundwork for the class that [the prosecutor] was putting [K.T.] in; that is, young, inexperienced, college-type people." The court acknowledged its duty "to make a sincere and reasoned attempt to evaluate the explanation. I'm trying to make sure the explanation is genuine or determine whether or not it's a sham or a pretext." The court made the following relevant comments:

2. On page 23, immediately following the paragraph beginning "A presumption exists" insert the following paragraph:

Our Supreme Court recently confirmed that if the prosecution offers a neutral justification, the trial court must decide whether the moving party

has proven purposeful discrimination. "In order to prevail, the movant must show it was '"more likely than not that the challenge was improperly motivated."' [Citation.]" (People v. Gutierrez (June 1, 2017, Nos. S224724, S240419) ___ Cal.5th ___ [2017 Cal. Lexis 3975, 9-10] (Gutierrez).) "We review a trial court's determination regarding the sufficiency of tendered justifications with '"great restraint."' [Citation.]" (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 11].)

3. On page 24, in the first full paragraph beginning "Here respondent concedes" the following sentence is added to the end of the paragraph:

"In the third prong, "'[t]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Citation.]' [Citations.]" (Id. at p. 433.)

4. On page 28, in the first full paragraph beginning "Appellant, however, contends" the last sentence is deleted and the following sentence is substituted in its place:

"We do not find appellant's view persuasive."

5. On page 29, in the third full paragraph, in the second sentence beginning "Moreover, this record" the word "skills" is deleted and the word "experience" is substituted in its place, so that the sentence now reads:

"Moreover, this record does not establish that the prosecutor failed to engage in any meaningful voir dire regarding K.T.'s life experience."

6. On page 29, the first word of the last paragraph, "Finally" is deleted so that the paragraph now begins with the word "In".

7. On page 30, the first full paragraph that begins "In conclusion, the trial court" is deleted and the following paragraphs are inserted in its place:

Finally, our analysis must address the recent opinion of Gutierrez, supra, ___ Cal.5th ___ , where our Supreme Court concluded that error occurred when the trial court denied the defendants' Batson/Wheeler motion. (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 42].) There, the three defendants were Hispanic and the prosecutor provided justifications for striking 10 Hispanic individuals from the jury. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 5, 11-12].) The prosecutor stated that one such venireperson was from Wasco and this person was not aware of any gang activity occurring there. The prosecutor

expressed concern regarding how this prospective juror would respond when hearing that a witness for the prosecution was from a criminal street gang out of Wasco. The prosecutor was also unsatisfied by this potential juror's "other answers" regarding how she would respond when hearing that this witness was from a criminal street gang out of Wasco. However, the prosecutor did not specify which "other answers" caused his dissatisfaction and no such answers appeared in the record to support the People's position on this point. Finally, in ruling on this issue, the trial court noted that the prosecutor had passed several times while this venireperson was still on the panel. Further, it was the trial court's belief that the prosecutor excused this potential juror because "'of the Wasco issue and also lack of life experience.'" However, on appeal, the People conceded that the prosecutor had not enumerated lack of life experience as a reason for striking this person. Gutierrez determined that the sole basis for striking this particular panelist was "the 'Wasco issue.'" (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 13-14].)

On appeal, the defendants argued, in part, that the prosecutor's explanation regarding his removal of this venireperson was inadequate because it did not explain why her unawareness of gang activity where she lived made her a bad or undesirable juror. The Gutierrez court rejected that argument, holding that neither Batson nor Wheeler required such an exacting standard. (Gutierrez, supra, ___Cal.5th___ [2017 Cal. Lexis 3975, 24].) To the contrary, Gutierrez found the prosecutor's reason to be clear and reasonably specific, particularly because the prosecutor had introduced the Wasco issue with another prospective juror and provided some insight into its logic. (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 24-25].) The high court noted that at this stage, the prosecution was not required to provide an explanation that was persuasive or even plausible, so long as facially valid. It determined that the Wasco reason was facially neutral. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 26].)

The Gutierrez court, however, found error regarding how the trial court evaluated the credibility of the prosecutor's explanation. In evaluating the prosecutor's reasons, the trial court acknowledged that this venireperson was excused because of the Wasco issue, and the court observed that the prosecutor had passed several times while this person was still on the panel. In denying the defendants' Batson/Wheeler motion as to all Hispanic panelists, the court made a global finding under "the totality of the circumstances" that the prosecutor's reasons were not pretextual and he "appear[ed] consistent." (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 27].) The Supreme Court, however, questioned the

prosecutor's consistency in this regard because only Hispanic panelists were involved in the Wasco issue. (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 27-28].) Earlier in the opinion, Gutierrez cited 2010 census data that established nearly 80 percent of Wasco's residents identify as Hispanic or Latino. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 25].)

Moreover, Gutierrez determined that the prosecutor's articulated basis for striking this potential juror "was derived solely from three responses to yes/no questions, which established that this panelist lived in Wasco and was not aware of gangs active in the Wasco area." (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 28].) The Gutierrez court noted it was not evident why the panelist's unawareness of gang activity in Wasco would indicate a bias against a member of a gang based in Wasco. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 29].)

Gutierrez also found fault with the scant voir dire record regarding this issue. The prosecutor did not ask any follow-up questions to this prospective juror. The Supreme Court noted that the prosecutor's "swift termination of individual voir dire of this panelist" raised a question regarding "how interested he was in meaningfully examining whether her unawareness of gang activity in Wasco might cause her to be biased against the witness for the People's case." (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 30-31].)

Finally, Gutierrez determined that the trial court was required to do more in this situation. "'[W]hen the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required of the trial court than a global finding that the reasons appear sufficient.' [Citation.]" (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 34-35].) Although the trial court acknowledged the Wasco issue and deemed it neutral, Gutierrez faulted the trial judge for not clarifying why the Wasco reason was accepted as honest. Further, the trial court was faulted for not rejecting or clarifying the prosecution's other reason for this strike (i.e., that this venireperson had provided "other answers" which were ultimately not supported by the record). Finally, the trial court cited a "lack of life experience" as a justification for removing this potential juror. However, the prosecutor never offered that reason. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 35].)

On its record, Gutierrez could not conclude that the trial court made a sincere and reasoned attempt to evaluate the prosecutor's explanation

regarding this venireperson. "The court may have made a sincere attempt to assess the Wasco rationale, but it never explained why it decided this justification was not a pretext for a discriminatory purpose. Because the prosecutor's reason for this strike was not self-evident and the record is void of any explication from the court, we cannot find under these circumstances that the court made a reasoned attempt to determine whether the justification was a credible one." (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 35-36].) Accordingly, Gutierrez held that the trial court's ruling was unreasonable in light of the record of voir dire proceedings. Such error was structural and required reversal of the defendants' convictions without analyzing prejudice. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 36-37].)

Here, the prosecutor stated that K.T. was "a 23-year-old college student whose job experience seems to be working on campus while she's waiting for her Master's degree. It doesn't seem that she has anything else to offer to the court—to this proceeding." Later, the prosecutor stated that, "consistent with the other three [students J.Z., C.A., and A.R.], adopting a comparative analysis approach, the young students with marginal life skills are being excluded by the People, which is where [K.T.] fits."

Unlike in Gutierrez, where the prosecutor's stated rationale did not make sense, the prosecutor's reasons here for striking K.T were not inherently implausible and the voir dire record supported the prosecutor's justification that K.T. was a young student with marginal life skills. The voir dire record here is more developed than the record appearing in Gutierrez and it provided substantial evidence that K.T. was a fulltime student who had not yet started her master's program. Further, unlike in Gutierrez, the prosecutor did not pass on K.T. several times before striking her. In addition, unlike in Gutierrez, the prosecutor did not provide a second justification that was wholly unsupported by the record.

Gutierrez clarified that this portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the prosecutor's stated reason and not on the objective reasonableness. (Gutierrez, supra,___ Cal.5th ___ [2017 Cal. Lexis 3975, 10].) The trial judge "must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.]" (Ibid.) Pretexts for purposeful discrimination will probably be found based on implausible or fantastic justifications. (Ibid.) However, the trial court enjoys an advantage over a reviewing court based on its contemporaneous

observations when assessing a prosecutor's credibility. (Id. ___ Cal.5th ___ [2017 Cal. Lexis 3975, 10-11].)

Here, the trial court had an advantage based on its contemporaneous observations when assessing the prosecutor's credibility. The trial court issued its ruling after reviewing its notes regarding voir dire. Prior to making its ruling, the trial court observed that the prosecutor was putting K.T. into a class of "young, inexperienced, college-type people." The trial court also acknowledged its duty "to make a sincere and reasoned attempt to evaluate the explanation. I'm trying to make sure the explanation is genuine or determine whether or not it's a sham or a pretext." This record demonstrates that the trial court understood its obligations and met them.

Unlike the circumstances in Gutierrez, the prosecutor's justification here was plausible. Unlike in Gutierrez, the trial court did not rely upon a justification not offered by the prosecutor. Unlike in Gutierrez, the trial court offered an explanation why it accepted the prosecutor's reasons. The trial court contemplated the youth and backgrounds of the four venirepersons identified by the prosecution. This record establishes that the trial court's ruling was based on a consideration of the circumstances of the case, its knowledge of trial techniques, and its observations of the prosecutor's voir dire examination and challenges. Gutierrez does not dictate reversal of the present matter.

In conclusion, the prosecutor offered a plausible explanation that the trial court found credible. The court reviewed its notes and drew upon its contemporaneous observations of the voir dire when analyzing the prosecutor's actions. The court noted the prosecutor used the same justification to excuse young potential jurors of both genders and of multiple races. This record shows the trial court made a sincere and reasoned effort to evaluate the prosecutor's explanation. The trial court's expressed understanding of its obligations was consistent with the precepts stated in the subsequently decided Gutierrez opinion. We are to review the "trial court's determination regarding the sufficiency of tendered justifications with '"great restraint."' [Citation.]" (Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 11].) As such, we will give its conclusions deference on appeal. Based on this record, the trial court did not err in denying appellant's motion. Appellant has not shown "it was '"more likely than not that the challenge was improperly motivated."' [Citation.]" People v. Gutierrez, supra, ___ Cal.5th ___ [2017 Cal. Lexis 3975, 9-10]. Accordingly, this claim fails.

Except for the modifications set forth, the opinion previously filed remains unchanged.

These modifications do not effect a change in the judgment.

The petition for rehearing filed by appellant is denied.

/s/_________

Levy, Acting P.J. I CONCUR: /s/_________
Poochigian, J.

I would grant appellant's petition for rehearing.

I concur with my colleagues on all aspects of the opinion except for one area of concern. I would grant rehearing in an abundance of caution to address the third prong of the Batson/Wheeler ¹ analysis in light of the decision in People v. Gutierrez (June 1, 2017, S224724, S240419) ___ Cal.5th ___ (Gutierrez). There is no disagreement as to the first two prongs of the Batson/Wheeler analytical framework, that appellant made a prima facie case of discrimination or that the prosecutor's justification for excluding K.T. and four other prospective jurors is race-neutral and facially valid. K.T. is an African-American female whose exclusion was challenged by appellant, described by his attorney as half African-American and half white.

1 Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258 (Batson/Wheeler).

The third prong under Batson/Wheeler requires, once the prosecutor establishes a race-neutral justification for excluding a prospective juror, the trial court to make a "'sincere and reasoned'" attempt to evaluate the credibility of the prosecutor's neutral explanation. (Gutierrez, supra, ___ Cal.5th at p. ___ [2017 Cal. Lexis at p. 10.].) The majority concludes that the trial court here made such a sincere and reasoned attempt as to K.T. and that the ruling is supported by substantial evidence, consisting primarily of the prosecutor's voir dire of prospective jurors who were excluded based upon their youth and "marginal life skills." As explained in Gutierrez, on review, "though we exercise great restraint in reviewing a prosecutor's explanations and typically afford deference to a trial court's Batson/Wheeler rulings, we can only perform a meaningful review when the record contains evidence of solid value.... It is the duty of courts and counsel to ensure the record is accurate and adequately developed." (Gutierrez, supra, at p. ___ .) I believe rehearing is warranted to clarify and reconcile the mandates for what constitutes an adequate voir dire and record regarding the third prong under Batson/Wheeler after Gutierrez with what traditionally constitutes "substantial evidence" sufficient to support a trial court's ruling. (Gutierrez, supra, at p. ___ .)

Appellant contends that an explanation for exclusion of a prospective juror may be deemed pretextual if the prosecutor failed to meaningfully voir dire the prospective juror on that subject. The majority cites to People v. Huggins (2006) 38 Cal.4th 175, 234-236 for the proposition that inadequate voir dire is not a determinative factor if the trial court's ruling is otherwise supported by substantial evidence. In Gutierrez, our Supreme Court instructed that "'[w]hen the prosecutor's stated reasons are either unsupported by the record, inherently implausible, or both, more is required by the trial court than a global finding that the reasons appear sufficient.'" (Gutierrez, supra, ___ Cal.5th at p. .) Here, we are concerned with the adequacy of the record.

In considering the third prong under Batson/Wheeler, the trial court here took the matter under submission after framing the issue: "So I have to look at not the fact that [K.T.'s] a young black female, but whether or not she falls into a group neutral determination for being young and in school and not having any real world experience outside of school." The court ultimately concluded as follows:

"I reviewed my notes as to what [K.T.] had to say during the course of her voir dire. And I remember what took place Friday afternoon. And [the prosecutor] appears—is questioning [sic] to the young people were all—put to almost all the young people were regarding their education, their employment, and their future prospect.

"The young jurors that he did bump or challenge had been both white, Hispanic, and black, and both men and women.

"I do understand the nature of the justification by [the prosecutor]. I don't think it has a basis—or it does have a basis. [The prosecutor's] justification does have a basis and accept [sic] a trial strategy in that young people seem to—do not have—or do have a difficult time with a case of this length and this complexity."

Although reasonable minds perhaps may differ, after taking the matter under submission, the trial court arguably did little, if anything, more than reiterate the reasonableness of the race-neutral justification. This is akin to "'a global finding that the reasons appear sufficient.'" (Gutierrez, supra, ___ Cal.5th at p. ___ .) In addition, in making its evaluation, the trial court stated "the ... justification does have a basis and accept [sic] a trial strategy that young people ... have a difficult time with a case of this length and this complexity." Inasmuch as the prosecutor did not state this reason, there is a question as to whether it should be considered, but the record does not support that K.T. would have had such difficulty in any event.

The record shows that four other jurors were excluded based upon their youth and marginal life skills. They each were "in school," but none had completed any degrees. Each of the four exhibited various levels of immaturity, lack of focus or direction, lack of good judgment, ill-considered answers to the prosecutor's questions and uncertain prospects—all traits commonly, but not exclusively, associated with youth and inexperience. In contrast, K.T. was 23, had completed a four-year university degree and was employed in a responsible position. K.T. was admitted to graduate school and had a career plan related to her education. In addition, K.T.'s answers to the prosecutor's questions were thoughtful, reasoned and balanced in contrast to the other four excluded jurors. She presented as mature and articulate. The trial court noted that K.T. was "not like [J.Z.] who is kind of lost and aimless." Based on this record, it is not readily apparent that K.T.'s life skills were marginal. Because of K.T.'s distinguishing qualities, which qualities mitigate against concerns of youth and inexperience to some degree, a question arises as to whether youth and inexperience served as a pretext for excluding her.

The trial court ruled that the prosecutor was justified in excluding K.T. because she falls within the parameters of being young (23), in school (albeit graduate school), and unmarried with no children. The record contains reasonable, credible and solid evidence of those threshold facts and, under traditional notions of "'substantial evidence,'" may be sufficient to uphold the trial court's ruling. (See, e.g., People v. Armstrong (2016) 1 Cal.5th 432, 450.) The question under Gutierrez is whether, given K.T.'s differences from the other four jurors, the prosecutor was required to probe further and create a record of why, notwithstanding those differences, her youth and inexperience remained valid concerns. And, in the absence of a record created by the prosecutor, was the trial court required to do more to build that record? In his concurrence in Gutierrez, Justice Liu emphasizes that the trial court must make a "'sincere and reasoned attempt to evaluate each stated concern as applied to each challenged juror." (Gutierrez, supra, ___ Cal.5th at p. ___ (conc. opn. of Liu, J.).)

Alternatively, is it sufficient, once a race neutral justification has been established, simply to demonstrate that the excluded juror falls within the parameters of the neutral exclusion? The high court in Gutierrez reminded us that the second phase of a Batson/Wheeler analysis "'does not demand an explanation that is persuasive, or even plausible. "... [T]he issue is the facial validity of the prosecutor's explanation."'" (Gutierrez, supra, ___ Cal.5th at p. ___ .) The question follows if the evidence of K.T.'s age and marital and student status are sufficient to constitute substantial evidence upholding the trial court's ruling, what distinguishes these findings from "'a global finding that the reasons appear sufficient'"? (Gutierrez, supra, ___ Cal.5th at p. ___ .) And how would a finding of substantial evidence under these circumstances comport with the requirement explained in Gutierrez of a more detailed and individualized inquiry as required in the third phase of Batson/Wheeler?

Rehearing is warranted in an abundance of caution to further consider these important issues.

/s/_________

Meehan, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF150965C)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. Scott Concklin, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

In 2013, three separate shootings occurred in Bakersfield, California: (1) a "drive-by" in the parking lot of Roy's Market on February 6; (2) the homicide of Floyd Beam, Jr. outside Roy's Market on February 10; and (3) an incident at a family gathering on March 3 about a mile from Roy's Market at a residence located at 420 Whitlock.

Appellant Dvontae Larome Pink was charged with these crimes along with codefendants Wendall Keith Allen, Jimmy Lee Baker, and Trevonte Shevelle Williams. The prosecution alleged a conspiracy among the codefendants, who were all identified as Country Boy Crip (CBC) gang members. A fellow CBC member, Devontay Garrett, acting on behalf of law enforcement, had secretly recorded Baker and Williams speaking about these shootings, and portions of the recordings were introduced into evidence at trial. Based on Williams's statements, the evidence showed that appellant participated in the drive-by shooting. Based on Baker's statements about Beam's murder, along with circumstantial evidence linking appellant with Baker, the evidence established that appellant participated in Beam's murder. Evidence suggested these shootings were done as gang retaliation for the killing of another CBC member, Charles Bell.² Appellant was tried alone, and he was convicted of crimes involving the drive-by shooting and Beam's murder, but acquitted of the charges regarding the shooting at 420 Whitlock.

2 In this opinion, we refer to Charles Bell and Jessie Bell, a witness for the prosecution, by their first names to avoid any confusion. We intend no disrespect.

On appeal, appellant raises 13 issues, including a Batson/Wheeler ³ challenge, a Sixth Amendment confrontation clause claim, an alleged Brady ⁴ violation, alleged prosecutorial misconduct, and instructional and sentencing errors, among other issues. Although we reject a majority of his claims, we find merit to some of his arguments. Insufficient evidence supports his conviction for receiving a stolen vehicle (Pen. Code, § 496d, subd. (a);⁵ count 7). His conviction for carrying a loaded firearm as an active street gang member (§ 25850, subd. (c)(3); count 12) must be reversed for prejudicial instructional error. Finally, we agree with the parties that the determinate abstract of judgment must be amended for clerical error. We reverse counts 7 and 12, and remand for further proceedings. We otherwise affirm.

3 Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

4 Brady v. Maryland (1963) 373 U.S. 83 (Brady).

5 All future statutory references are to the Penal Code unless otherwise noted.

BACKGROUND

I. Relevant Facts From The Prosecution's Case.

During the trial, the jury was transported to Roy's Market to view the scene of the two February shootings. The jury was also driven past the residence at 420 Whitlock, the scene of the March shooting.

A. The February 6 , 2013 drive-by shooting at Roy's Market .

On February 6, 2013, a drive-by shooting occurred in and near the parking lot at Roy's Market, located at the intersection of Dr. Martin Luther King Jr. Boulevard and Murdock Street in Bakersfield, California. The market is a known hangout for Eastside Crip gang members. Witnesses said the shots originated from a black-colored vehicle with four doors, which had driven very slowly on Dr. Martin Luther King Jr. Boulevard before turning into the parking lot.

At least four vehicles were struck with bullets, including two that were occupied. One such vehicle contained Dontrell Collins and Dedra Fizer, who were parked across the street from the market. The other occupied vehicle contained Jamia Williams, who was parked in the market's parking lot.

Two victims received gunshot wounds, but none were life threatening. Collins was shot on his upper back near his shoulder while sitting in the vehicle with Fizer. Royce Edwards was wounded in his left leg and right foot while he stood near his truck in the market's parking lot.

Police collected approximately 14 nine-millimeter shell casings and six .45-caliber shell casings. The casings were collected in and around the vicinity of the store's parking lot. At an adjacent apartment complex at 1512 Murdock Street, an officer noted a possible bullet hole above the door awning at apartment A.

About "a block or two" from Roy's Market, police located and impounded a black four-door Buick, which had been abandoned. The Buick had been reported stolen. At trial, a witness identified it as the vehicle involved in the drive-by. Fingerprint and DNA analysis did not link appellant and his codefendants to the Buick.

At trial, the woman who originally alerted authorities about the abandoned Buick, Glennis Briggs, gave conflicting testimony regarding possible suspects she saw that morning. She initially claimed she did not see any suspects or other cars near the Buick. She then remembered seeing "black and Mexican people" near it. She later admitted telling an officer she saw four Black suspects in their teens to early 20's. After prompting, she recalled a total of five people exiting the Buick and leaving in another vehicle. She denied that appellant was one of the suspects.

Detective Ryan Kroeker interviewed Briggs about seven months after the incident. During that interview, Briggs said she saw a suspect exit the Buick and leave in another vehicle, which returned about thirty minutes later. An individual went to the Buick and appeared to be looking for something on the passenger side. She said she could not identify anyone because she did not see faces.

B. The February 10 , 2013 murder of Floyd Beam outside Roy's Market .

Four days after the drive-by shooting, Floyd Beam, Jr. was shot and killed near Roy's Market. Beam was an associate of the Eastside Crips. A 911 call was placed at approximately 6:19 p.m., which was played for the jury. The caller said two subjects were involved in the shooting, they were both Black, and they wore black hoodies. One subject was described as "light skinned" and the other was "dark skinned." The two subjects ran to an alley and got into a vehicle. Beam was shot approximately 11 times, including multiple shots to his torso, which was the cause of death.

1. The eyewitness testimony.

Theresa Ellis knew Floyd Beam. She and her husband drove to Roy's Market on the night of February 10, 2013. She saw Beam walking down the sidewalk, although she did not immediately recognize him. She also saw two other African-American males walking in front of Beam. The males wore black hoodies pulled over their heads. One male was dark and the other was light, and they appeared to be in their mid-20's. They were dancing and rapping as they walked.

When Ellis's husband parked their vehicle, Beam and the two males were walking on the sidewalk. The two males walked past Ellis's vehicle and Beam was not too far behind. The two males walked to the front of the store, where they turned and started shooting Beam. She saw fire coming from both guns. Ellis heard the word "south" as the males both fired multiple times while standing side-by-side. Beam fell into the street. The two males walked up on him and shot him some more while he was on the ground. The two males ran across the street where a cream or pearl colored SUV came out of the alley. Ellis assumed they got into the SUV, which drove away. At trial, Ellis was unable to identify anybody in court as the shooter. She denied that either of the shooters had a limp.

2. Law enforcement's investigation.

After the shooting, it was discovered that Ellis's vehicle had been struck by a bullet underneath the front license plate. The bullet was imbedded in or around the radiator and could not be removed.

Police recovered five .45-caliber and six .380-caliber casings at the scene. A .45-caliber handgun cannot shoot .380-caliber cartridges and vice versa. It was determined that two guns were used in Beam's shooting. A responding officer observed shell casings "relatively close" to where Beam "was laying in the roadway." The shell casings appeared to start near the front door of Roy's Market and they continued up to the area where Beam's clothing and personal effects were laying. An officer opined at trial that this indicated the shooters were moving and were in very close proximity to Beam.

3. Police search Baker's residence and interview him.

On the night of Beam's shooting, police searched Baker's residence while he was not home. The search occurred at approximately 11:00 p.m. Two hooded sweatshirts were located in the master bedroom closet. One sweatshirt memorialized Charles Bell. The other said "SS J-Bake" on it.

Police interviewed Baker approximately two days after Beam's homicide. He denied responsibility for Beam's death, claiming he attended a barbeque on the night of Beam's homicide.

4. A police informant records Williams and Baker.

Devontay Garrett had been a CBC gang member since he was approximately 10 years old, and he was 27 years old at the time of appellant's trial. He was last on parole in February 2013. In the summer of 2013, Garrett agreed to work with police regarding some investigations. To assist police, Garrett recorded CBC members on two occasions while wearing a shirt with a button camera and a microphone woven into the seams. Detective Kroeker directed Garrett to ask generalized questions to the CBC members when Garrett was recording them, and he discussed with Garrett how to raise those questions. After helping the police, Garrett was relocated out of state. He received money from the police, but he denied he was testifying at this trial for the money.

Garrett explained to the jury that Charles Bell had been a respected CBC member known as C-Macc. About a month before the shootings at Roy's Market, Charles had been shot and killed. Garrett said the Eastside Crips were responsible. Garrett indicated plans were made to retaliate against that gang. Garrett identified the Eastside Crips as a big rival of CBC. He agreed Roy's Market was a place where one could find Eastside gang members. If he saw a young Black man by Roy's Market, he would assume that person was an Eastside Crip.

Garrett told the jury that appellant, Allen, Baker and Williams were CBC members. Appellant was known as Little Fido. Garrett identified appellant in court. Allen was known as Baby Stone and Williams was known as Spody. Garrett also identified Chris Miller as a CBC member known as Bad Ass.

5. Garrett's recordings.

Garrett recorded two conversations with CBC members. The first recording occurred in June 2013 at some apartments. Williams and Miller were present. Garrett told the jury that Williams talked about the drive-by shooting that occurred at Roy's Market on February 6, 2013. Garrett's second recording occurred in August 2013 at Garrett's residence. Baker and Williams, among others, were present. Garrett told the jury Baker spoke about Beam's homicide. At trial, Garrett's recordings were broken into five smaller clips: People's exhibits 137, 138, 139, 140 and 141.

a. People's exhibit 137.

People's exhibit 137 was played for the jury, which is approximately three minutes and 31 seconds long. In this recording, Williams said he was the driver, and he mentioned appellant (Fido) and Allen (Baby Stone). Garrett asked, "But did you bust?" Williams said, "Yeah, I bust on the other side though, but I let them bust[.]" Williams said it was an "egg nigga" and he used the "Nine." He tried to empty the clip but "I stopped." He described coming into Roy's Market as follows:

"I come out, like we hit a U-turn and we came back this way. We pulled up in there as we coming out the turn this way pulled up on the Egg. (Unintelligible) all posted behind the truck. I pulled right there. Bust at him, (unintelligible), boom—boom—boom—boom, like, and the Tec jams up, and Baby Stone, boom—boom—boom—boom like (unintelligible) that's how he, that's how his phone dropped."

Williams explained that they had stopped to get some gas, at which point Allen was driving. They wanted appellant to drive, but he said he did not know how to drive. Williams said, "Fuck it, I'm gonna bust and drive." Williams said he hopped in the vehicle. Williams noted that they thought Allen's cell phone had fallen out of the vehicle, which Williams said was a "rental."

At trial, Garrett said the term "rental" meant a rental car. Garrett agreed that Williams was describing "driving and shooting" when he used the term busting. Garrett also agreed that Williams described Allen and appellant shooting at some "egg niggas," which referred to Eastside gang members. He said the term "eggshell" also refers to "Eastside."

b. People's exhibit 138.

People's exhibit 138 was played for the jury, which is approximately 36 seconds long. Williams said he was "lucky" because Allen (Baby Stone) "left his phone in—in the car." Williams explained the phone was in somebody's pocket and "he started to bust[.]" Appellant "hung out the window that's when I think it fell out right there ...."

c. People's exhibit 139.

People's exhibit 139 was played for the jury, which lasts approximately two minutes and 15 seconds. Garrett asked who was supposed to be the driver, and Williams indicated appellant. Williams said he and "Baby Stone" (Allen) wanted appellant to drive because Williams wanted to "bust" and was going to hop out. The following relevant exchange occurred:

"Williams: Yeah. Who's driving?

"Unknown: Mm.

"Williams: Who—who—who came and got me (unintelligible)? Baby Stone was driving in a rental that's when they said Vonte was driving. I say Vonte drive and—I don't know how to drive nigga. Weirdest nigga. I'm trying to hop out and get a nigga.

"Baker: That cuz will bust though.

"Williams: Yeah, he will. (Unintelligible) anymore but he was the closest one 'cause he was the one that was supposed to really get him. Baby Stone[.]

"Garrett: He was close to him?

"Williams: Yeah, nigga. Car door right there, nigga. That nigga with the royal blue shirt (unintelligible) the window. And Baby Stone supposed to hit that nigga right here, boom. I'm on this side, but that—that store across the street (unintelligible) they—they (unintelligible)[.]

"Garrett: No, from a bunch of different directions.

"Williams: Yeah. As they busten (unintelligible) sitting there watching that's when I turned this way so I busten at them. (Unintelligible)—fuck. I—I really wanted to hop out though."

At trial, Garrett said "royal blue" signified a member of Eastside Crip, which was a big rival of CBC. He said he would think a person was an Eastside member if that person was in royal blue outside of Roy's Market. He agreed Roy's Market was a place where one could find Eastside gang members.

d. People's exhibit 140.

People's exhibit 140 was played for the jury, which is a little over eight minutes long. At one point in the recording, Garrett said, "I heard you got him" and he wanted to know how. A short time later, Baker mentioned the "C-Macc function" and a girl said, "I want to get one for Macc." In the video, Garrett indicated he was at the party and the girl was crying. A short time later, Baker said he "Snatch[ed] up Fido" (appellant), telling him to "act like your leg [is] alright." Later, Baker said they crossed a street and confronted a person, asking where he was from. The person said, "you Jimmy Baker" and "you my cousin ...." Baker said it was "JB" and "I remember you, you Orlando's little brother." Later in the recording, Baker said a "Nigga" was walking back and forth smoking, and he referenced an "egg." He said they wanted someone who was a shooter. He referenced Martin Luther King, "Gorill" and Roy's. Towards the end of the clip, Baker made a motion with his hand, and made sounds like someone was firing a handgun.

At trial, Garrett said the "C-Macc function" was a birthday party with a lot of people. Garrett said he saw Baker and appellant at this party.⁶ Garrett testified that appellant walks with a limp, and he had heard that appellant had been shot in his leg.

6 During cross-examination, defense counsel impeached Garrett with his testimony during the preliminary hearing that he could not recall whether or not appellant was at this party.

e. People's exhibit 141.

People's exhibit 141 was played for the jury, which lasts approximately 39 seconds. Baker asked Garrett if he knew about the "one" he did with appellant. Garrett said, "You told me that his thing jammed up ...." Garrett is heard saying "you did your thing that night, you got your man." He asked if Baker gave "him ... two to the face?" Baker responded but it is unintelligible. Garrett asked how many "you give 'em to the body?" Williams said something about "the rest" and Baker said "Everything (unintelligible) of 'em."

At trial, Garrett testified CBC members call themselves "Southsiders" and use double S's. They would also use the term South, which says they are from Country. Garrett admitted that gang members sometimes lie about work they have done in order to get status, but he said the gang would know who is telling the truth. People who lie lose status in the gang.

6. Kroeker separately interviews Baker and Williams.

After Garrett made the recordings, Kroeker arrested and separately interviewed Baker and Williams. Baker initially denied any involvement in Beam's shooting. However, Baker later told Kroeker he was just bragging when he made his statements

Williams initially denied any involvement in the drive-by shooting. Eventually he admitted making the statements heard in Garrett's recording, but Williams said his statements were lies. Williams told Kroeker he was bragging to gain respect within the gang.

While Kroeker was on the witness stand, both Baker and Williams were brought into the courtroom. Kroeker identified both for the jury. Kroeker told the jury that he confirmed a party had occurred for Charles (C-Macc) on the night Beam was shot. From the location of Charles's party, someone could drive to Roy's Market in approximately 15 minutes.

7. Kroeker interviews Jessie Bell.

Kroeker interviewed Jessie Bell approximately 14 months after Beam's murder. Jessie was incarcerated at the time. Kroeker's interview with Jessie was tape-recorded, and the audio was played for the jury. Jessie did not know he was being recorded. In his interview, Jessie said he had been walking with Adrienna Hull to a park on the night of Beam's shooting. Two males approached them and asked "where you from?" Jessie felt scared because he was "the enemy" and he thought they would shoot him. Both males wore all black. Jessie recognized Baker as one of the two males, telling Kroeker it was "Jimmy Baker" and he knew him "good." Jessie called Baker "cousin." He was positive he saw Baker on the night of Beam's shooting. He said both Baker and the other male had guns. Jessie walked away and the two males ran to a "suburban type" truck. He heard shots. He identified appellant as the light-skinned male. He said he later confronted appellant while they were in custody together, accusing him of killing Beam. Appellant had claimed he had nothing to do with it.

Jessie said he heard shots about 35 to 40 minutes after the encounter with Baker and appellant. He went and saw Beam's body. Jessie's cousin, Monique Grimes (King) was there. Jessie told Grimes that Baker and a light-skinned guy were around in the area. Grimes showed Jessie some photos, which apparently included appellant's picture. Jessie said he "got it wrong" at first and told Grimes that appellant was not the shooter. He thought it might have been Miller (Bad Ass). Jessie said he later thought back to the night Beam was killed and he remembered the shooter's facial and neck tattoos.

During the interview with Kroeker, Jessie identified Baker from a single photograph. After Jessie mentioned appellant's name, Kroeker showed him a photograph of appellant from a lineup, and Jessie confirmed he was the same person. Jessie agreed to testify in court about what he saw that night. He said his older brother was "Orlando Bailey."

At trial, Kroeker testified he showed Jessie a single photograph of Baker instead of a six-pack because Jessie had identified Baker by name. The jury was shown the photo of Baker which Kroeker showed to Jessie. Kroeker showed a six-pack of photos to Jessie, which included appellant's photo. Jessie identified appellant as the person he saw with Baker that night.

8. Adrienna Hull's trial testimony.

At trial, Hull testified she was walking with her friend Jessie on the night Beam was killed. They were walking to Martin Luther King Park and the sun was going down. Jessie is known as "JB." While walking together, they ran into two Black males. "One was dark. One was light skinned." Jessie acted like he knew one of the males. The dark-skinned male approached Jessie, who asked, "Where are you from?" Hull knew something was bad when the two males approached them. She denied seeing the males with guns. Jessie and the dark-skinned male talked for a "couple of minutes" up to about five minutes. The male told Jessie "to get off the street."

On cross-examination, Hull stated she identified appellant because "there was a tattoo by his eye."⁷ During the encounter with Jessie, she said she "glanced" at appellant for two seconds "because I thought he was cute." She did not notice any other tattoos because with "a two-second glance you can't remember all of that." She denied that she was "a hundred percent positive" when she selected appellant's photograph during her interview with Kroeker. She testified, "I was just saying anything to this white officer to get out of my fucking face. So I was saying anything."

7 On cross-examination, Kroeker admitted that only appellant's photograph showed a male with a visible facial tattoo in the six-pack lineup he showed Hull.

Hull said rumors had been going around after Beam's shooting. Monique Beam, Floyd's sister, had told her that Baker and a light-skinned male killed Beam. Hull denied seeing the light-skinned male limping when the males first walked up to them. After the encounter, she walked home, which took her about five minutes. She lived three to five blocks from Roy's Market. She did not hear gunshots, but she heard sirens after she returned home. The sirens occurred more than an hour later. It was dark when she heard the sirens, and the sun was going down when she saw the two males. She could not recall if the light-skinned male wore a hoodie, and she agreed it would have "stuck out" in her mind if they were wearing the same thing.

9. Jessie's trial testimony.

At trial, Jessie admitted he was serving a prison sentence for commercial burglary with a gang enhancement. However, he denied belonging to a gang in general and the Eastside Crips in particular. He said he pleaded to the gang enhancement to obtain a reduced sentence.

Jessie said Beam was his cousin. He described Hull as a friend, and said he was walking with her on the night Beam was killed. At trial, he denied knowing Baker and denied encountering two males on the night he was with Hull. Instead, he claimed two of Hull's friends came up to him. Although he agreed that Kroeker interviewed him, he claimed an inability to remember seeing Baker or identifying him, and he denied knowing any companion with Baker. He denied seeing any guns on the night Beam was killed. Jessie said he lied during his interview with Kroeker. He did not remember being in custody with appellant.

Jessie denied that he told his cousin, Monique, that Baker and Miller were involved. He denied knowing Miller. Jessie did not know why he originally told Kroeker that Miller was involved.

10. Evidence of Jessie's incarceration with appellant.

At trial, the prosecution introduced evidence establishing that appellant and Jessie were housed together in the same county penal facility starting in May 2013. At one point, from approximately June 21 through August 5, 2013, they resided four units from each other.

11. DMV has no record of appellant.

An investigator with the Department of Motor Vehicles (DMV) testified that DMV had no record of appellant having a driver's license. DMV also had no record of appellant ever receiving a citation.

C. The March 3 , 2013 shooting at 420 Whitlock .

On March 3, 2013, Daval Eason and Latoya Gilmore were having a family barbeque in the backyard at 420 Whitlock, which was about a mile from Roy's Market. At some point in the evening, two males approached the party by a back chain-linked fence: one was dark skinned and the other was light skinned. The light-skinned male asked for some marijuana, and he then began to shoot at Eason, who was shot in both legs. The two subjects fled. Police responded and collected six .45-caliber shell casings.

The following day, Gilmore identified appellant as the shooter from a photographic lineup with police. At trial, Eason identified appellant as his shooter. However, during their respective trial testimony, it came out that both Eason and Gilmore had viewed appellant's photograph on Facebook in the days following this shooting. Unnamed people from the neighborhood had suggested to them that appellant had been the shooter, and some unidentified person showed them appellant's pictures. In addition, about a year before trial, Eason and Gilmore were in court when appellant stood as his case was called. Eason, however, told the jury his identification of appellant as the shooter came from the night in question.⁸

8 The jury found appellant not guilty of discharging a firearm at an inhabited dwelling on March 3, 2013 (count 10) and not guilty of attempted murder of Eason (count 11).

D. Forensic evidence for all three shootings.

A criminalist, Chris Snow, analyzed the shell casings from these three shootings. For the drive-by shooting on February 6, 2013, Snow believed two different nine-millimeter guns and a .45-caliber gun were used. Snow stated the same .45-caliber gun from the drive-by was used in Beam's murder on February 10, 2013. However, based on an examination of the cartridge casings, the .45-caliber gun used during the March 3, 2013 shooting was different from the .45-caliber gun used in the previous two shootings.

DNA evidence did not link appellant or his codefendants to the shell casings fired in these three shootings.

E. Gang evidence.

An officer in the gang unit testified as the prosecution's gang expert. He explained the history of CBC, its territories, its signs and symbols, and its colors. CBC is associated with "powder blue" and Eastside Crips associate with "royal blue." CBC's primary rivalry is with the Eastside Crips. The expert reviewed prior criminal cases involving CBC members to establish predicate activities of the gang.

The gang expert opined that 420 Whitlock was in Eastside territory and a teenager resided there who was associated with that gang. Police had previously contacted Eastside Crip gang members at that location and the Eastside Crip teenager was present there on the night Eason was shot.

The gang expert reviewed the typical tattoos worn by CBC members, and the jury was shown appellant's tattoos, which included a "W" and "L" tattooed above his left eye. The expert opined that appellant's nickname was Little Fido and he was an active member of CBC. He opined that Allen (Baby Stone), Baker (J-Bake), and Williams (Spody or Spody Locc) were all active CBC members.

The expert opined that the term, "Where you from?" is generally a challenge to another gang member. The term "rental" can refer to a stolen vehicle or a rented vehicle.

According to the expert, Charles Bell had a higher level of status and respect within CBC. Retaliation was the expected response for Charles's murder. The expert opined that it would be gang-related activity if several members of CBC did a drive-by shooting in the parking lot of Roy's Market shortly after Charles's murder. The expert opined it would be gang related if two CBC members did a walkup homicide of an Eastside associate at Roy's Market. Finally, the expert opined a walkup shooting at 420 Whitlock by an active CBC member shortly after Charles's murder would be a gang-related offense. The expert opined that a pattern of shootings about five weeks apart would be a series of retaliatory shootings consistent with gang activity.

II. Defense Evidence.

An officer who responded to the shooting at 420 Whitlock testified regarding Gilmore's initial statements. She described the two males as both Black between 18 and 20 years of age. One was "five-foot-ten" and the other was "six-foot-two." Both had a thin build and both wore "black hooded sweatshirts." She did not provide any information about a getaway vehicle, tattoos, or the difference in light versus dark skin tones.

The defense moved into evidence certain portions of appellant's medical records, which established he was hospitalized on or about July 10, 2012, for a badly fractured left leg. The reports indicated the injury was not the result of a shooting but occurred when a vehicle struck him.

III. The Jury's Verdicts And Sentencing.

As stated by the trial court, appellant received an aggregated sentence of "life without the possibility of parole, plus 25 years to life, plus 15 years to life, plus 25 years to life, plus 32 years to life, plus 27 years to life, plus 27 years to life, plus 27 years to life, plus seven years." Below is a summary of jury's verdicts and findings, along with the imposed sentences.

A. Charges associated with the February 6, 2013 drive-by shooting.

1. Count 1:

For count 1, appellant was found guilty of discharging a firearm from a vehicle at a person (Royce Edwards) in violation of section 26100, subdivision (c). The jury found true that this crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)); he "was a principal in the commission of the above offense and intentionally and personally discharged and personally used a firearm" within the meaning of section 12022.53, subdivisions (c) and (e)(1); and he personally discharged and personally used a firearm which "proximately caused great bodily injury" within the meaning of section 12022.53, subdivisions (d) and (e)(1). He was sentenced to seven years to life in prison, which was enhanced by five years. This sentence was stayed pursuant to section 654.

2. Count 2:

For count 2, appellant was found guilty of attempted murder of Edwards in violation of sections 664 and 187, subdivision (a). The jury found true that the attempted murder was premeditated and deliberate (§ 189); it was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)); and he personally discharged and used a firearm which "proximately caused great bodily injury" within the meaning of section 12022.53, subdivisions (d) and (e)(1). He was sentenced to 15 years to life, which was enhanced by 25 years to life for the firearm.

3. Count 3:

For count 3, appellant was found not guilty of shooting at an inhabited dwelling in violation of section 246. During closing arguments, the prosecutor stated that this count "specifically goes to a bullet strike in Apartment A at 1512 Murdock."

4. Counts 4, 5 and 6:

For counts 4, 5 and 6, appellant was found guilty of shooting at vehicles occupied by Jamia, Fizer and Collins in violation of section 246. The jury found true that these crimes were committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)). It was found true in count 4 that he personally discharged and used a firearm which "proximately cause[d] great bodily injury" within the meaning of section 12022.53, subdivisions (d) and (e)(1); and in counts 5 and 6 it was found true that he personally discharged and used a firearm (§ 12022.53, subds. (c) & (e)(1)). Appellant was sentenced to 32 years to life for count 4, and 27 years to life on counts 5 and 6.

5. Count 7:

For count 7, appellant was found guilty of possession of a stolen vehicle in violation of section 496d, subdivision (a). The jury found true that this crime was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)). Appellant was sentenced to three years in prison, which was increased by four years for the gang enhancement.

B. Charges associated with Beam's homicide on February 10, 2013.

1. Count 8:

For count 8, appellant was found guilty of murdering Beam in violation of section 187, subdivision (a). The jury found true that the crime was premeditated and deliberate (§ 189); it was done to benefit a criminal street gang (§ 186.22, subd. (b)(1)); he personally discharged and used a firearm which "proximately cause[d] ... death" (§ 12022.53, subds. (d) & (e)(1)); and the murder was committed while appellant was an active participant in a criminal street gang and done to further the gang's activities (§ 190.2, subd. (a)(22)). Appellant was sentenced to life without the possibility of parole, plus 25 years to life for the firearm enhancement.

2. Count 9:

For count 9, appellant was found guilty of shooting at Ellis's occupied vehicle during Beam's homicide (§ 246). The jury found true that this was committed to benefit a criminal street gang (§ 186.22, subd. (b)(1)) and he personally discharged and used a firearm (§ 12022.53, subds. (c) & (e)(1)). Appellant was sentenced to 27 years to life.

3. Count 14:

For count 14, appellant was found guilty of conspiracy to commit murder in violation of section 182, subdivision (a)(1). The jury determined appellant committed this offense to benefit a criminal street gang (§ 186.22, subd. (b)(1)); he personally discharged and used a firearm (§ 12022.53, subds. (c) & (e)(1)); and he personally used a firearm which "proximately caused great bodily injury or death" within the meaning of section 12022.53, subdivisions (d) and (e)(1). Appellant was sentenced to prison for 25 years to life, which was increased by 20 years and 25 years to life, respectively, for the firearm enhancements. This sentence was stayed.

C. Charges associated with the March 3, 2013 shooting at 420 Whitlock.

1. Count 10:

For count 10, appellant was found not guilty of shooting at the inhabited dwelling at 420 Whitlock on March 3, 2013, in violation of section 246.

2. Count 11:

For count 11, appellant was found not guilty of Eason's attempted murder on March 3, 2013.

D. Other miscellaneous charges.

1. Count 12:

For count 12, appellant was found guilty of being a criminal street gang member carrying a loaded firearm in a public place in violation of section 25850, subdivision (c)(3). Appellant was sentenced to three years in prison, which was stayed.

2. Count 13:

For count 13, appellant was found guilty of participating in a criminal street gang in violation of section 186.22, subdivision (a). The jury found true that he used a firearm during this offense (§ 12022.5, subd. (a)). Appellant was sentenced to three years in prison, which was increased by 10 years for the firearm enhancement. This sentence was stayed.

DISCUSSION

I. The Trial Court Did Not Err In Denying The Batson/Wheeler Challenge.

During voir dire, the prosecutor exercised a peremptory challenge to exclude an African-American female, K.T., from the jury. Appellant, whom his trial counsel described as "half African-American and half white[,]" challenged her removal. On appeal, he complains the trial court erred in accepting the prosecutor's explanation for this peremptory challenge.

A. Background.

1. Relevant facts from voir dire.

During voir dire, K.T. stated she was 23 years old, she had lived in Bakersfield for nine years, she had no children and she was not married. She was a fulltime student who was entering a graduate program in sociology. In 10 years, she planned on either being a professor or working in the private industry in organizational management. She worked as "an evaluator in admissions and records" at California State University, Bakersfield (CSUB), which required her to determine admissions and graduation eligibility for students.

When she was 18 years old, K.T. had witnessed an incident of domestic violence committed against her mother. An arrest was made, but criminal charges were eventually dropped. Although she was unsatisfied by that result, she denied holding any animosity towards the district attorney's office.

When asked if she could find someone guilty or not guilty, K.T. said she would have to look "at all of the evidence for each of the charges individually. I have a little brother. I have two little brothers and one particularly tends to be in the wrong place at the wrong time often. And a lot of times he's accused of things that he hasn't done and sometimes he has done it. But you have to look at all of the evidence and hear the witnesses if there is evidence for it and judge fairly." She agreed she would have no problem finding somebody guilty if the case was proven beyond a reasonable doubt, and she would find not guilty if there was some doubt. She agreed she would listen to appellant if he testified.

K.T. obtained her four-year degree from CSUB in psychology. She chose this major "because I like helping people in various ways. So understanding the human processes and how the brain works and how people's behavior can affect their actions." She did not do any field work as part of her degree, but she "did research on intrinsic motivation and university professors."

K.T. denied she was a "touchy-feely" person. She was asked if "people are sometimes a result of where they grew up versus how they choose to act?" She responded it was both. "The nature versus nurture argument can go on forever. And so it just depends on the situation. What factors are involved. Just because someone's background or someone's nurture predisposed them towards a certain type of behavior doesn't mean that they necessarily have to choose that outcome." She agreed that good and bad children could come from the same household.

2. The Batson/Wheeler challenge.

The prosecutor exercised a peremptory challenge and excused K.T. from the panel. Appellant's trial counsel made a motion pursuant to Wheeler, supra, 22 Cal.3d 258, arguing she was excused for reasons related to her race.

The trial court noted K.T. had been "the only black juror that we've had [in the box] so far. I did notice that there are two additional black females in the panel in the audience that haven't taken the stand yet." The court determined a prima facie showing had been made, and the prosecutor was asked to explain. The following exchange occurred:

"[THE PROSECUTOR]: Yes, Judge.

"[K.T.] is a 23-year-old college student whose job experience seems to be working on campus while she's waiting for her Master's degree. It doesn't seem that she has anything else to offer to the court—to this proceeding.

"She is very well educated and I don't doubt that. She carries herself well and she acts well when she presents. She's articulate and she seems to understand the questions.

"But we also had [C.A.], who was a white female, young girl, who was also in school. Had no life experience and was just a full-time student. [J.Z.], who is working and also attending school, who doesn't appear to have any significant life experience to add. And [A.R.], who is an artist attending school. Doesn't seem to have anything to add to the proceeding at all.

"So consistent with the other three, adopting a comparative analysis approach, the young students with marginal life skills are being excluded by the People, which is where [K.T.] fits.

"THE COURT: Well, she's got a—she's working on her Master's.

"[THE PROSECUTOR]: I understand, Judge.

"THE COURT: She's not exactly like [J.Z.] who is kind of lost and aimless.

"[THE PROSECUTOR]: I understand that. But that doesn't change the analysis that all she's ever done in her life is go to school."

The court took the matter under submission. At the next court session, the court made the following relevant statements:

"[The prosecutor] seemed to indicate that he was, as I recall, bumping young jurors that were still in school or really had no experience in the real world, outside of high school or college.

"And he said that [K.T.] fell into that category.

"So I have to look at not the fact that she's a young black female, but whether or not she falls into a group neutral determination for being young and in school and not having any real world experience outside of school."

The court noted that case authority did not recognize young people or those lacking in experience as a cognizable class. The court made the following relevant comments:

"I reviewed my notes as to what [K.T.] had to say during the course of her voir dire. And I remember what took place Friday afternoon. And [the prosecutor] appears—is questioning [sic] to the young people were all—put to almost all the young people were regarding their education, their employment, and their future prospect.

"The young jurors that he did bump or challenge had been both white, Hispanic, and black, and both men and women.

"I do understand the nature of the justification by [the prosecutor]. I don't think it has a basis—or it does have a basis. [The prosecutor's] justification does have a basis and accept [sic] a trial strategy in that young people seem to—do not have—or do have a difficult time with a case of this length and this complexity."

The trial court denied the motion.

B. Standard of review.

A presumption exists that a prosecutor uses peremptory challenges in a constitutional manner. (People v. Winbush (2017) 2 Cal.5th 402, 434 (Winbush).) On appeal, we give a trial court's conclusions deference so long as a sincere and reasoned effort was made to evaluate the nondiscriminatory justifications offered. (Ibid.) The trial court's decision will be upheld if supported by substantial evidence. (Id. at p. 435.)

C. Analysis.

Pursuant to Batson, supra, 476 U.S. 79 and Wheeler, supra, 22 Cal.3d 258, a prosecutor may not remove prospective jurors based on their race or membership in a cognizable group. (Winbush, supra, 2 Cal.5th at p. 433.) Three steps are used to consider a Batson/Wheeler claim: (1) has the defendant made a prima facie showing the prosecutor exercised the peremptory challenge based on race; (2) if a prima facie case is present, the prosecutor bears the burden of adequately explaining the exclusion with permissible race-neutral justifications; and (3) if the prosecutor offers a race-neutral explanation, the trial court must decide whether the defendant has proved purposeful racial discrimination. (Winbush, at p. 433.)

Here, respondent concedes the trial court determined a prima facie case was present. Accordingly, our analysis focuses on the third prong: whether appellant has proven the peremptory challenge was based on purposeful racial discrimination. (See Winbush, supra, 2 Cal.5th at p. 434 [only analyzing third prong on appeal after the People conceded the trial court found a prima facie case].)

The issue during the third stage of the Batson/Wheeler inquiry is whether the trial court finds the prosecutor's race-neutral explanations to be credible. (Winbush, supra, 2 Cal.5th at p. 434.) A prosecutor "must articulate a neutral explanation related to the particular case to be tried." (Batson, supra, 476 U.S. at p. 98.) This requires a "'clear and reasonably specific' explanation of [the prosecutor's] 'legitimate reasons' for exercising the challenges. [Citation.]" (Id. at p. 98, fn. 20.) A prosecutor's credibility can be measured by, among other factors, his or her demeanor; the explanation's reasonableness; the improbability of the explanation; or whether the proffered rationale has some basis in accepted trial strategy. (Winbush, at p. 434.) "'In assessing credibility, the court draws upon its contemporaneous observations of the voir dire.' [Citation.] This assessment may also take into account 'the court's own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her. [Citation.]' [Citation.]" (Ibid.)

In Miller-El v. Dretke (2005) 545 U.S. 231, the high court acknowledged that peremptories are often based on instinct, and it is often hard to state why a venireperson was excused. However, a prosecutor must state the reasons as best he or she can. (Id. at p. 252.) If the prosecutor's stated reason does not hold up, a trial judge or an appeals court should not imagine other reasons not stated by the prosecutor. A Batson analysis "does not call for a mere exercise in thinking up any rational basis." (Miller-El v. Dretke, at p. 252.)

Here, appellant asserts the prosecutor gave vague, non-specific reasons for K.T.'s dismissal. He argues the prosecutor did not identify how her life skills were marginal or how a lack of those skills were relevant to the trial. He maintains the prosecutor failed to engage in any meaningful questioning of K.T. regarding the reasons for her dismissal. He contends the record does not support the prosecutor's stated justifications, and the trial court erred in finding a sufficient explanation. He focuses on the trial court's statement that young people would "have a difficult time with a case of this length and this complexity." He claims the prosecutor did not articulate this reason, which prohibited the trial court from relying on this factor. In any event, he suggests K.T. was not a typical young person given her education, which demonstrated her ability to comprehend complex issues.

We find appellant's numerous contentions unpersuasive. Three cases are instructive to our analysis.

First, in People v. Hamilton (2009) 45 Cal.4th 863 (Hamilton), our Supreme Court upheld the prosecutor's excusal of six African-American venirepersons from a murder trial which had 77 total prospective jurors. (Id. at p. 897.) One of the excused jurors, S.B., was female, 22 years old, and unmarried. The prosecutor excused her because she was young and single, less sophisticated and less mature than was his ideal juror; she was opposed to the death penalty, and she held a "'naïve view of the criminal mind.'" (Id. at pp. 900, 903.) The prosecutor excused another juror, B.H, because she was 24 years old and the unmarried mother of a two-and-a-half-year-old child. (Id. at pp. 900, 905.) The prosecutor said he did not want unsophisticated, immature jurors because the case would appeal more to married people with children. His ideal juror was between 40 and 65, although someone over 30 years of age was okay if otherwise acceptable. (Id. at p. 903.)

On appeal, Hamilton held that the Constitution was not violated from the exercise of a peremptory strike based on age. (Hamilton, supra, 45 Cal.4th at pp. 903-904.) The Supreme Court found nothing in the record to indicate the prosecutor's desire for a more mature jury was not genuine. (Id. at p. 904.) Hamilton determined the prosecutor's reasoning was legitimate for the removal of these two jurors. (Id. at pp. 904, 906.)

Second, in People v. Perez (1994) 29 Cal.App.4th 1313 (Perez), the prosecutor excused four prospective Hispanic jurors and the four codefendants were all Hispanic. (Id. at p. 1320.) The prosecutor indicated she had excused people, in part, who had no life experience. (Id. at p. 1321.) Regarding one potential juror, she was a college student with a liberal arts major, single, and with no jury experience. For another, she was an unmarried college student with no children studying health science. (Id. at pp. 1321, 1328.) The prosecutor distinguished these two excused individuals with another young white woman who was a business student and part-time receptionist at a medical center. The prosecutor did not excuse the young white woman because she dealt "with people on a daily basis." (Id. at pp. 1322, 1329, fn. 6.)

On appeal, the Perez court noted that "[l]imited life experience is a race-neutral explanation." (Perez, supra, 29 Cal.App.4th at p. 1328.) Perez found substantial evidence to support the prosecutor's reasons for excusing the two Hispanic college students. In addition, Perez rejected the codefendants' argument that the prosecutor's "limited life experience explanation" was a sham. (Id. at pp. 1328-1329.) The record established that the prosecutor did use peremptory challenges on other venirepersons who were young, single, and whose voir dire indicated limited life experiences. No error was found in the trial court's denial of the Wheeler motion. (Perez, at p. 1329.)

Finally, in People v. Sims (1993) 5 Cal.4th 405 (Sims), questioned on other grounds by People v. Storm (2002) 28 Cal.4th 1007, 1031, the prosecutor peremptorily removed four African-American and four Hispanic prospective jurors in a capital murder case. No African-Americans and only one Hispanic-surnamed person remained in the jury box among the prospective jurors then seated. The trial court denied a Wheeler motion. (Sims, supra, at pp. 427-428.) As is relevant to our analysis, the prosecutor excused three of these prospective jurors because they either appeared too young or lacked sufficient experience in exercising responsibility. (Id. at pp. 429-430.)

Sims determined the prosecutor's stated justifications were facially race-neutral and not based on group bias. (Sims, supra, 5 Cal.4th at p. 430.) The trial court properly performed its duty in making a sincere and reasoned attempt to evaluate the prosecutor's explanation in light of the circumstances then known. (Ibid.) The trial court reviewed the jury questionnaires and the transcript of the relevant voir dire. Sims concluded the prosecutor did not challenge the three potential jurors based on their numerical age, but their apparent immaturity and inexperience with assuming weighty decisions and responsibilities. The prosecutor had also challenged a prospective white juror because of her youth. Sims found no error because the trial court made a "conscientious determination" group bias was not present. (Id. at pp. 431-432.)

Here, the prosecutor stated he excused "young students with marginal life skills" from this trial, which included K.T. Although she had completed her university degree and worked on campus, K.T. was 23 years old, unmarried, and she had no children. She was a fulltime student. Although, as appellant argues, K.T. could have previously been married, and she may have had other life experiences that were not established during the voir dire, this record supports the prosecutor's race-neutral justification for her removal.

We are to presume the prosecutor's peremptory challenges were valid. (Winbush, supra, 2 Cal.5th at p. 434.) The exercise of peremptory strikes based on age does not violate the Constitution. (Hamilton, supra, 45 Cal.4th at pp. 903-904.) Likewise, "[l]imited life experience is a race-neutral explanation." (Perez, supra, 29 Cal.App.4th at p. 1328.) Similar to Hamilton, there is nothing in this record to indicate that the prosecutor's desire to exclude young students was not genuine. Similar to Sims, the prosecutor's stated justification was facially race-neutral and not based on group bias. Similar to Perez, we cannot say the prosecutor's explanation was a sham because he did challenge other venirepersons with similar limited life experience. Hamilton, Sims and Perez support affirming the trial court's decision.

Appellant, however, contends a comparative analysis of K.T. with the other excused young venirepersons establishes error. He claims "obvious" reasons exist why each of these other four individuals were excused beyond their alleged lack of life skills. He further notes that two of these individuals had Spanish names, suggesting the prosecutor was motivated by race. We find these concerns unpersuasive.

L.D. was a 21-year-old unemployed construction worker. He was single and had no children. He said, in part, that he had met gang members during a class. He described them as "tattooed up" but he found them "real nice." They offered him food, and he listened to them talking about incarceration and "gang related" experiences.

J.Z. was attending college, he had no children, and he was working for KGET Telemundo. In 10 years, he hoped to be working in movies and editing movies. When ruling on appellant's Wheeler motion, the trial court described him as "kind of lost and aimless," which the prosecutor did not dispute.

C.A. was a fulltime college student. She was single and she had no children. She said, in part, that appellant's tattoos do not "affect anything because some of the nicest people, like someone said earlier, have tattoos."

A.R. was a fulltime student at CSUB studying music, and he was a freelance musician. He had never sat on a jury panel before. During voir dire, the trial court caught him "zoning off" in the jury box. He agreed he had a "long night" but denied that he was bored. He later reiterated that he did not find the process boring, and he agreed he should not have been "doing that in the courtroom." He later noted what transpired made him realize appellant may not be guilty because, while it looked like he fell asleep in court, he did not find the process boring. He realized he might not appear believable.

Here, the trial court observed these individuals first hand. Our Supreme Court has recognized the "inherent limitations" of trying to conduct a comparative analysis based on a cold appellate record. (People v. Lenix (2008) 44 Cal.4th 602, 622.) Instead, the trial court is in the best position to analyze comparative juror evidence. (Id. at p. 624.) A comparative analysis based on this appellate record does not establish error.

Appellant also argues the prosecutor failed to question K.T. adequately regarding her life skills. He notes a stated concern may be deemed pretextual if the prosecutor failed to engage in any meaningful voir dire examination on that subject. (Miller-El v. Dretke, supra, 545 U.S. at p. 246.) However, our Supreme Court has also indicated that this factor is not determinative if the trial court's ruling is supported by substantial evidence. (People v. Huggins (2006) 38 Cal.4th 175, 234-236 [finding no discrimination although no voir dire was conducted on the ground the prosecutor stated to support the excusal].)

Here, as noted above, substantial evidence supports the stated reason for K.T.'s excusal. Moreover, this record does not establish that the prosecutor failed to engage in any meaningful voir dire regarding K.T.'s life skills. Her voir dire established her current work, her marital status, her lack of children, her level of education, and her future goals.

Finally, in assessing the prosecutor's credibility, it was acceptable for the trial court to evaluate the prosecutor's explanation in light of the circumstances then known. (Sims, supra, 5 Cal.4th at p. 430.) The trial court understood the complexity and length of the pending trial, and it noted it was "a trial strategy" to exclude young people in such a case. It was acceptable for the trial court to draw on its own experiences and knowledge when evaluating the prosecutor's credibility. (Winbush, supra, 2 Cal.5th at p. 434.) As such, we reject appellant's contention the trial court was prohibited from commenting that young people would "have a difficult time with a case of this length and this complexity."

In conclusion, the trial court found the prosecutor's race-neutral explanation to be credible. The court reviewed its notes and drew upon its contemporaneous observations of the voir dire when analyzing the prosecutor's actions. The court noted the prosecutor used the same justification to excuse young potential jurors of both genders and of multiple races. This record shows the trial court made a sincere and reasoned effort to evaluate the prosecutor's explanation. As such, we will give its conclusions deference on appeal. Based on this record, the trial court did not err in denying appellant's motion. Accordingly, this claim fails.

II. Appellant's Confrontation Rights Were Not Violated.

Appellant asserts Baker's and Williams's recorded statements were "testimonial" so that their admission at trial violated his confrontation rights. He relies primarily on Ohio v. Clark (2015) 576 U.S.___ (Clark), which expanded the "primary purpose" test that was first announced in Davis v. Washington (2006) 547 U.S. 813 (Davis). He seeks reversal on all counts.

A. Background.

Prior to trial, the parties filed briefs regarding the admissibility of Baker's and Williams's recorded statements pursuant to Crawford v. Washington (2004) 547 U.S. 36 (Crawford) and its progeny. On July 22, 2014, the trial court met with the parties to discuss this issue. At that time, a jury had convicted Baker on or about July 16, 2014, and both Williams and Allen had accepted plea agreements. Williams entered his plea agreement on or about July 21, 2014. After hearing argument from counsel, the trial court determined these statements were against Baker's and Williams's penal interests and they were not testimonial. The court ruled the recorded statements were admissible against appellant.

At trial, appellant's counsel objected under hearsay and confrontation clause grounds when the prosecution introduced these statements into evidence. The trial court overruled the objections.

Posttrial, appellant filed a motion for new trial. He argued, in part, that the admission of these statements violated the confrontation clause. After hearing argument, the trial court denied the motion.

B. Standard of review.

We review a trial court's determination of the admissibility of evidence, including the application of hearsay exceptions, for an abuse of discretion. (People v. Valdez (2012) 55 Cal.4th 82, 143; People v. Rowland (1992) 4 Cal.4th 238, 264.) We review de novo the legal question of whether admission of the evidence was constitutional, including whether a declarant's statement was sufficiently trustworthy to satisfy the confrontation clause. (Lilly v. Virginia (1999) 527 U.S. 116, 137; People v. Cromer (2001) 24 Cal.4th 889, 893-894.)

C. Analysis.

At least one California appellate court, People v. Arauz (2012) 210 Cal.App.4th 1394, has held that the confrontation clause is not implicated when statements are made unwittingly to an informant. (Id. at p. 1402.) Likewise, lower federal courts have held that statements made unknowingly to confidential informants are not testimonial for Sixth Amendment purposes. (See United States v. Smalls (10th Cir. 2010) 605 F.3d 765, 778 [recorded statement to a confidential informant, known to declarant "only as a fellow inmate, is unquestionably nontestimonial"]; United States v. Saget (2d Cir. 2004) 377 F.3d 223, 229 ["a declarant's statements to a confidential informant, whose true status is unknown to the declarant, do not constitute testimony within the meaning of Crawford"] (Sotomayor, J.); see also United States v. Johnson (6th Cir. 2009) 581 F.3d 320, 325; United States v. Watson (7th Cir. 2008) 525 F.3d 583, 589; United States v. Udeozor (4th Cir. 2008) 515 F.3d 260, 270; United States v. Underwood (11th Cir. 2006) 446 F.3d 1340, 1347; United States v. Ledbetter (S.D.Ohio 2015) 137 F.Supp.3d 1042, 1060-1061.) Under these authorities, Baker's and Williams's respective statements made to Garrett did not constitute testimony within the meaning of Crawford.

Appellant argues subsequent opinions from the high court, primarily Davis, supra, 547 U.S. 813, and Clark, supra, 576 U.S.___ [135 S.Ct. 2173, 2179], have repudiated these lower authorities. Under the primary purpose test, the issue is whether the primary purpose of these recorded conversations was to create an out-of-court substitute for trial testimony. We must answer that question in light of all the circumstances, which are viewed objectively. (Michigan v. Bryant (2011) 562 U.S. 344, 358 (Bryant); Davis, supra, 547 U.S. at p. 822.) Under the primary purpose test, we disagree that Baker's and Williams's recorded statements were testimonial for purposes of the confrontation clause.

As an initial matter, the high court in Davis, supra, 547 U.S. 813, commented that "statements made unwittingly to a Government informant" are "clearly nontestimonial." (Davis, supra, 547 U.S. at p. 825.) Davis cited Bourjaily v. United States (1987) 483 U.S. 171, 181-184 (Bourjaily) for this proposition, and counted Bourjaily as one example of cases that had "dispensed with the Confrontation Clause requirements of unavailability and prior cross-examination" because the statements at issue were nontestimonial. (Davis, supra, 547 U.S. at p. 825.)

In Bourjaily, a coconspirator agreed to purchase cocaine from a seller, who was an FBI informant. In a tape-recorded conversation with the seller, the coconspirator said he had a friend (the petitioner) who had questions about the cocaine. In a subsequent telephone call, the coconspirator and the informant arranged the details of the purchase. The coconspirator said his friend would be waiting in a car at a certain area to receive the drug, and the coconspirator would transfer the drug from the informant's car to the friend. The transaction went as planned and FBI agents arrested the coconspirator and the petitioner at that location. (Bourjaily, supra, 483 U.S. at pp. 173-174.) The high court rejected any suggestion the admission of the recorded statements violated the petitioner's rights under the confrontation clause of the Sixth Amendment. (Id. at p. 181.) Generally, the court determined the coconspirator's statements were not a constitutional issue because they were not hearsay under the Federal Rules of Evidence. (Id. at pp. 181-184.)

Appellant notes Bourjaily dealt with a sting operation to catch the offender in the act of negotiating the drug transaction. He contends the FBI agents were engaged in crime stopping and not investigating a past event for future prosecution. He asserts this distinction is a key factor that distinguishes nontestimonial conversations from testimonial ones.

We need not directly respond to appellant's contentions regarding Bourjaily. Although Bourjaily predated the primary purpose test, and even Crawford, Davis's citation to it suggests the Supreme Court would continue to find no confrontation clause implications for statements made unwittingly to a government informant. More importantly, when we review Davis, Bryant, and Clark, the high court's primary purpose test does not mandate reversal for the present situation.

1. Davis.

In Davis, supra, 547 U.S. 813, the Supreme Court announced the primary purpose test. (Id. at p. 822; see also Clark, supra, 576 U.S. at p. ___ .) In Davis, a woman called 911 and reported a domestic disturbance with her former boyfriend. During the call, she provided the 911 operator with information about the boyfriend's identity, location, and the circumstances of the attack. The police arrived within four minutes of the call. (Davis, supra, 547 U.S. at pp. 817-818.) Davis held that the primary purpose of the conversation was in response to an ongoing emergency, and the woman's statements were not testimonial. (Id. at pp. 827-828.)

Davis also reviewed the case of Hammon v. Indiana, which was consolidated with Davis. (Davis, supra, 547 U.S. at p. 819.) In Hammon v. Indiana, police responded to a domestic violence call at a residence. Police kept the couple in separate rooms and questioned the victim, who eventually signed an affidavit stating, in part, that her husband had battered her. (Davis, at pp. 819-820.) These statements were held testimonial. The statements occurred during a police investigation into possible past criminal conduct. No ongoing emergency was occurring. (Id. at pp. 829-830.)

2. Bryant.

In Bryant, supra, 562 U.S. 344, the high court expounded the primary purpose test first set forth in Davis. Bryant held that the confrontation clause is not triggered when an interrogation's primary purpose is in response to an ongoing emergency. In that situation, the purpose is not to create a record for trial. (Id. at p. 358.) However, Bryant noted other circumstances could exist "when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony." (Ibid.) Whether an ongoing emergency exists is one factor. (Id. at p. 366.) Another factor is "the informality of the situation and the interrogation." (Id. at p. 377.) Also relevant are the standard rules of hearsay, which are designed to identify some statements as reliable. (Id. at pp. 358-359.) Applying these principles, the Bryant court held "that the statements made by a dying victim about his assailant were not testimonial because the circumstances objectively indicated that the conversation was primarily aimed at quelling an ongoing emergency, not establishing evidence for the prosecution." (Clark, supra, 576 U.S. at p. ___ .)

3. Clark.

In Clark, supra, 576 U.S.___ , the high court returned to the primary purpose test when it found no violation of the confrontation clause after teachers questioned a three-year-old boy following concerns of abuse. (Id. at p. 2181.) In reviewing its facts and considering all of the relevant circumstances, Clark held that the boy's statements "clearly were not made with the primary purpose of creating evidence" for the defendant's prosecution so "their introduction at trial did not violate the Confrontation Clause." (Ibid.)

Clark determined the boy's "statements occurred in the context of an ongoing emergency involving suspected child abuse." (Clark, supra, 576 U.S. at p. ___ .) The teachers' immediate concern was protecting a vulnerable child who needed help. The teachers needed to know whether it was safe to release the boy to his guardian. Clark noted that both the teachers' questions and the boy's answers "were primarily aimed at identifying and ending the threat." (Ibid.) The high court found "no indication that the primary purpose of the conversation was to gather evidence" for the defendant's prosecution. (Ibid.) The teachers never informed the boy "that his answers would be used to arrest or punish his abuser. [The boy] never hinted that he intended his statements to be used by the police or prosecutors." (Ibid.) The conversation "was informal and spontaneous." (Ibid.)

Clark emphasized that the boy's age fortified the conclusion the statements were not testimonial, holding that "[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause." (Clark, supra, 576 U.S. at p. ___ [135 S.Ct. at pp. 2181-2182].) Clark determined it was "extremely unlikely" a three-year-old child in this situation "would intend his statements to be a substitute for trial testimony. On the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all." (Id. at p. 2182.)

Clark noted it was "highly relevant" that the boy was speaking to his teachers. (Clark, supra, 576 U.S.___ .) "Courts must evaluate challenged statements in context, and part of that context is the questioner's identity. [Citation]. Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers. [Citation.] It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police." (Ibid.) Clark concluded that "[b]ecause neither the child nor his teachers had the primary purpose of assisting in [the defendant's] prosecution, the child's statements do not implicate the Confrontation Clause and therefore were admissible at trial." (Id. at p. ___ .)

Here, we must note at the outset that Davis, Bryant and Clark are all factually distinguishable from the present situation. These opinions do not deal with a police informant secretly recording fellow gang members. We are not convinced that these opinions signal that the Supreme Court would find confrontation clause implications for statements made unknowingly to a government informant.

Setting aside the factual differences, we do not read the primary purpose test as requiring us to focus on the interviewer's motives or that the interviewer's motives take precedence over the declarant's motives. Likewise, we do not read Davis, Bryant or Clark as requiring both the interrogator and the declarant to lack an intent to preserve evidence for future prosecution in order to render the statements nontestimonial. Although Garrett questioned and recorded Baker and Williams for the primary purpose of creating evidence for a future prosecution, the high court has made it clear we are to view objectively the totality of the circumstances. (Bryant, supra, 562 U.S. at p. 359.)

It is undisputed that Garrett recorded Baker and Williams while no ongoing emergency was occurring. However, Bryant noted other circumstances could exist, aside from ongoing emergencies, which could produce nontestimonial statements. (Bryant, supra, 562 U.S. at p. 358.) The rules of hearsay and the "informality" of the situation are other relevant factors to consider. (Id. at pp. 358-359, 366, 377.) Clark noted the boy made his statements in a conversation that "was informal and spontaneous." (Clark, supra, 576 U.S. at p. ___ .) As such, we disagree with appellant's suggestion that it does not matter whether the conversation lacked solemnity or formality just because Garrett acted for the police. Baker and Williams made their statements in a relaxed setting with fellow gang members. These statements were not made under circumstances that imparted the formality and solemnity characteristic of testimony.

Clark also noted these statements must be examined in context, which includes the interviewer's identity. Clark found it "highly relevant" that the boy spoke to his teachers. (Clark, supra, 576 U.S. at p. ___ .) Here, it is highly relevant that Garrett was a prominent CBC member. It is common sense that the relationship between members of the same gang is very different from that between a citizen and the police. A person in Baker's or Williams's situation would want to explain himself to his peers or he would have no discernible purpose at all.

Finally, Clark emphasized that the boy's age fortified the conclusion the statements were not testimonial. (Clark, supra, 576 U.S. at p. ___ [135 S.Ct. at pp. 2181-2182].) Clark determined it was "extremely unlikely" a three-year-old child in this situation would intend his statements to be a substitute for trial testimony. (Id. at p. 2182.) Likewise, it is extremely unlikely that a gang member in Baker's or Williams's situation would have intended their statements to be a substitute for trial testimony. Although Garrett was acting at the behest of law enforcement, an objective witness would not have realized a police interrogation was occurring. Neither Baker nor Williams were informed their answers would be used to arrest or punish anyone. They never hinted they intended their statements to be used by the police or prosecutors.

Based on the high court's primary purpose test, the totality of the circumstances demonstrates that Baker's and Williams's recorded statements were not testimonial. Thus, appellant's Sixth Amendment confrontation clause rights were not violated when this evidence was admitted and played for the jury. Accordingly, this claim fails.

III. Admission Of Baker's And Williams's Statements Did Not Violate Hearsay.

In addition to the Crawford challenge above, appellant contends Baker's and Williams's statements were inadmissible hearsay. Appellant raises two contentions: first, the prosecution did not prove with competent evidence that Baker and Williams were unavailable to testify. Second, their statements contained self-serving assertions that were not against their penal interests, such as naming appellant as a participant in both February shootings. He maintains the trial court erred in admitting the statements. He seeks reversal of all counts due to alleged prejudice.

A. Background.

Baker and Williams were charged as codefendants in appellant's case. A jury convicted Baker on or about July 16, 2014, and Williams accepted a plea agreement on or about July 21, 2014.

On July 30, 2014, after trial in this matter commenced, the parties convened in court outside the jury's presence to determine whether Baker and Williams were available to testify. Baker and Williams were not present, but their respective attorneys were in court. The trial court noted that Baker and Williams were codefendants "at one point" but were "still named in the conspiracy charges" in appellant's matter. The prosecutor stated that both Baker and Williams were "transported" (apparently to the courthouse) to determine if they "wanted to participate in the proceedings" against appellant. The prosecutor wanted to know if they would testify.

Baker's and Williams's respective counsel both represented that they had spoken with their clients, who were asserting their Fifth Amendment rights not to testify. Appellant's counsel objected that this did not occur "in front of the jury." Without commenting on defense counsel's objection, the trial court determined that both Baker and Williams were unavailable for the purposes of this trial based on the representations of their respective counsel.

B. Standard of review.

"We review a trial court's decision whether a statement is admissible under Evidence Code section 1230 for abuse of discretion. [Citations.]" (People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) "Whether a trial court has correctly construed Evidence Code section 1230 is, however, a question of law that we review de novo." (Grimes, supra, at p. 712.) We will not disturb on appeal a trial court's exercise of vested discretionary power unless "the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

C. Analysis.

Although hearsay statements are generally inadmissible (Evid. Code, § 1200, subd. (b)), the rule has a number of exceptions. (Grimes, supra, 1 Cal.5th at p. 710.) For example, the hearsay rule does not bar a statement that when made exposed the declarant to the risk of criminal liability so "that a reasonable man in his position would not have made the statement unless he believed it to be true." (Evid. Code, § 1230.) To be admissible, the declarant must be unavailable as a witness. (Ibid.) The rationale for this hearsay exception is the reasonable assurance of the statement's veracity in light of the criminal implications. (Grimes, supra, at p. 711.)

The proponent of such evidence bears the burden of establishing (1) the declarant's unavailability; (2) that the declaration was against the declarant's penal interest when made; and (3) that the declaration was sufficiently reliable to warrant admission. (Grimes, supra, 1 Cal.5th at p. 711.) Witness unavailability must be shown with "competent evidence." (People v. Stritzinger (1983) 34 Cal.3d 505, 516.)

1. Unavailability.

The parties dispute whether the prosecution used "competent evidence" to establish that Baker and Williams were unavailable to testify. Appellant asserts these witnesses were required to take the stand to assert their individual privilege not to testify and their counsel could not make that representation for them. He relies primarily on People v. Ford (1988) 45 Cal.3d 431 (Ford). He also argues it was "questionable" whether Baker and Williams had a valid Fifth Amendment claim to assert. In contrast, respondent contends the representations from counsel were sufficient, generally relying upon People v. Apodaca (1993) 16 Cal.App.4th 1706 (Apodaca).

As an initial matter, we disagree with appellant's suggestion that Baker and Williams could not exercise a valid Fifth Amendment privilege in this trial. A witness who has been convicted of a crime cannot be compelled to testify in a codefendant's trial until sentencing and, if there is an appeal, until resolution of the appeal process. (People v. Fonseca (1995) 36 Cal.App.4th 631, 634-635.) In California, a criminal defendant has 60 days to file an appeal from a final judgment of conviction. (§ 1237, subd. (a); Cal. Rules of Court, rule 8.308(a).)

Here, when the trial court determined that Baker and Williams were unavailable, a jury had recently convicted Baker, and Williams had just entered a plea agreement. This record does not establish that either had been sentenced prior to appellant's trial. Further, the time had not yet run for Baker to file his appeal. As such, both Baker and Williams retained their respective Fifth Amendment privilege against self-incrimination.

We also disagree that the trial court abused its discretion in relying on the representations from counsel. Although respondent's cited authority, Apodaca, supra, 16 Cal.App.4th 1706, is factually distinguishable, we find its reasoning instructive.

In Apodaca, a defense witness took the stand before the jury. The court appointed counsel for her after determining that some evidence in the case suggested she was involved in illegal activities. (Apodaca, supra, 16 Cal.App.4th at p. 1713.) Outside the presence of the jury, the witness was asked a question that exposed her to criminal liability and her appointed counsel asserted the Fifth Amendment privilege on her behalf. The trial court did not allow her to testify before the jury, determining the Fifth Amendment privilege prevented her from being cross-examined about material issues in the case. (Id. at pp. 1713-1714.) On appeal, the Apodaca court determined the witness's attorney properly invoked the privilege on her behalf. She made no indication of disapproval or disagreement to her counsel's invocation. The record showed her attorney was authorized to make the statement. Apodaca held it would be "a wasteful exercise" to insist, as the defendant had on appeal, that the witness was required to repeat the invocation of her privilege "simply for the sake of formality." Apodaca concluded that the trial court did not err. (Id. at p. 1715.)

Here, the trial court received representations from counsel that both Baker and Williams were exercising their Fifth Amendment privilege against self-incrimination. Counsel made it clear they had consulted with their clients. The representations from counsel were unequivocal. Nothing in this record suggests counsel lacked the authority to make the representations. Nothing suggested that Baker and Williams might change their minds and testify in appellant's trial. Under the circumstances of this record, we agree with Apodaca's reasoning. It would have been a wasteful exercise to insist that these codefendants take the stand before the jury just to repeat the invocation out of their own mouths. We do not find an abuse of discretion based on this record.

Further, we reject appellant's contention that Baker and Williams were required to take the witness stand before the jury to invoke their respective privilege against self-incrimination. Our Supreme Court has held that putting a witness on the stand to have the witness assert a privilege may cause the jury to make an improper inference regarding the witness's guilt. (People v. Smith (2007) 40 Cal.4th 483, 516-517; People v. Frierson (1991) 53 Cal.3d 730, 743.) It is a better practice for a trial court to require the exercise of a privilege outside the jury's presence, which avoids any prejudicial impact. (People v. Smith, supra, at p. 517; People v. Frierson, supra, at p. 743.)

Finally, appellant's reliance on Ford, supra, 45 Cal.3d 431, is misplaced. In Ford, our Supreme Court determined a prosecutor did not commit misconduct in commenting on the defendant's failure to call his former codefendants to testify at trial. (Id. at pp. 435-436.) On appeal, the defendant argued a prosecutor should be forbidden to comment on a defendant's failure to call a codefendant who might exercise the privilege against self-incrimination. According to the defendant, a codefendant or accomplice should be automatically "unavailable" to testify for purposes of hearsay. (Id. at p. 439 & fn. 5.) Ford disagreed, holding that the privilege against self-incrimination is "personal and may be asserted only by the holder. [Citations.]" (Id. at p. 439.) Ford noted that the established practice was to call and swear a witness in order to assert the privilege against self-incrimination. Ford declined to find a witness unavailable because he or she might claim the privilege if called. (Id. at p. 440.) Ford instructed that a witness should be sworn and questioned before the trial court sustains a privilege. Under this approach, the court can decide whether the answer might incriminate the witness. (Id. at p. 441.) Ford noted a trial court should not assume that a witness would refuse to give testimony that would exculpate both the witness and the defendant. (Id. at p. 442.)

Ford, however, did not address whether a trial court could find a codefendant unavailable based on representations from counsel. Although Ford explained how the privilege of self-incrimination should be invoked, this was in response to the defendant's contentions a codefendant should be deemed automatically "unavailable" for hearsay purposes. (Ford, supra, 45 Cal.3d at p. 439.) In any event, the Supreme Court subsequently held it is better for a trial court to require the exercise of a privilege outside the jury's presence. (People v. Smith, supra, 40 Cal.4th at p. 517; People v. Frierson, supra, 53 Cal.3d at p. 743.) Finally, unlike in Ford, there is no suggestion that either Baker or Williams might have offered favorable testimony for appellant. Ford does not establish an abuse of discretion in the present matter.

2. Redaction.

Appellant next contends the trial court erred by admitting Baker's and Williams's statements without redaction. He relies primarily on People v. Duarte (2000) 24 Cal.4th 603 (Duarte). He further argues the "bulk" of Baker's and Williams's statements were "self-serving," making everything inadmissible, even in redacted form. He contends Baker and Williams were vague and they emphasized that others were more culpable. He asserts the use of his name (Fido) was not specifically disserving of Baker's and Williams's respective penal interests. We disagree with appellant's numerous contentions.

Appellant is correct that a statement or a portion thereof is not admissible as against penal interest if it applies to collateral assertions or is not specifically disserving of the declarant's interests. (Duarte, supra, 24 Cal.4th at p. 612.) A statement that appears facially inculpatory may also be exculpatory, or have a net exculpatory effect, when considered in context. (Ibid.) A statement that admits some complicity but places the major responsibility on others is not admissible because it does not meet the test of trustworthiness. (Ibid.) The proper approach in these cases is to examine the circumstances in which the statements are made in order to determine whether they are self-inculpatory or self-serving. (Williamson v. United States (1994) 512 U.S. 594, 603-604 (Williamson); People v. Cortez (2016) 63 Cal.4th 101, 127 (Cortez).)

The high court has noted that, depending on the situation, statements that give police "significant details about the crime" may be against the declarant's interest. (Williamson, supra, 512 U.S. at p. 603.) Our Supreme Court has held that hearsay statements referring to a criminal companion can be against the declarant's penal interest as establishing an element of conspiracy. (Cortez, supra, 63 Cal.4th at p. 126.) Further, naming a codefendant can implicate the declarant's own penal interests if it links the declarant to a crime. (Id. at p. 127.) We find Cortez instructive.

In Cortez, supra, 63 Cal.4th 101, the defendant was driving a car when a passenger, Bernal, fired multiple shots at two victims, killing one. (Id. at p. 105.) Police interviewed and recorded Bernal's nephew, who relayed a conversation he had had with Bernal. According to the nephew, Bernal stated he had been in a shooting and the defendant was the driver. This recording was played at the defendant's trial. (Id. at pp. 107-108.) On appeal, Cortez determined that Bernal's statement was against his penal interest when he referred to a criminal companion because it established an element of conspiracy. (Id. at p. 126.) Cortez also noted that Bernal made these statements knowing the defendant and her car were in police custody. By identifying the driver by name, Bernal increased the likelihood he would be implicated in the drive-by shooting for which the defendant had been arrested. (Id. at p. 127.) The Supreme Court held that Bernal's identification of the defendant by name, when viewed in context and based on the specific facts of the case, was specifically disserving of Bernal's penal interest. (Id. at pp. 126-127.) Finally, Cortez determined that the portions of Bernal's statements that implicated the defendant were not self-serving because Bernal assigned most of the blame to himself in admitting he was the shooter. Bernal never attempted to shift blame to the defendant. (Id. at p. 128.) "Moreover, the context in which Bernal made the statements—a conversation with a close family member in an apartment he frequented—does not suggest that Bernal was trying to improve his situation with police." (Ibid.) This setting promoted truthfulness. Cortez held that, under the totality of the circumstances, the trial court did not abuse its discretion in finding that Bernal's identification of the defendant was against his penal interest pursuant to Evidence Code section 1230. (Cortez, at p. 128.)

Here, Williams made it clear he wanted to "bust" and he did so, firing his weapon multiple times during the drive-by shooting. He stated, "I'm trying to hop out and get a nigga." His statements did not minimize his own actions or cast himself in a sympathetic light. Although Williams mentioned appellant's (Fido) and Allen's (Baby Stone) involvement in the drive-by shooting, Williams did not suggest that they played a larger role than he did and he did not place major responsibility on them. Williams simply described how the drive-by shooting occurred, using appellant's and Allen's gang monikers. Williams's statements were disserving of his own penal interests because they indicated a conspiracy with other gang members to shoot at a rival.

Likewise, Baker indicated he left Charles's memorial party with appellant. Baker's statements strongly suggest he planned a retaliatory shooting, he was the one instrumental in executing that plan, and he directed appellant in the criminal enterprise. Baker did not minimize his role, as appellant argues, and Baker did not place responsibility on appellant while casting himself as someone less blameworthy. Baker referred to appellant by his gang moniker. The references to appellant were more than collateral and they were disserving of Baker's own penal interests as indicating a conspiracy among gang members to kill a rival gang member.

Further, Baker and Williams made their statements to fellow gang members during social events that took place before police made arrests in this matter. There is no reason to believe they were trying to avoid criminal liability. The context in which these statements were made does not suggest that they were trying to improve their situation with police. The setting for each conversation promoted truthfulness.

Moreover, by naming appellant, as well as the locations and surroundings where their actions took place, Baker and Williams provided specific information that enabled investigation and corroboration of their crimes. A reasonable person would not have made the statements unless believing them to be true. Under the unique circumstances of this case, their respective explanations of the events surrounding their crimes, including referring to appellant by name, were against Baker's and Williams's respective penal interests. Redaction was not required.

Finally, we reject appellant's reliance on Duarte, supra, 24 Cal.4th 603. There, a codefendant made statements to police, which admitted his participation in a shooting and implicated the defendant. These statements were played at the defendant's trial. The statements had a number of self-serving assertions that cast the codefendant in a favorable light and suggested that others, including the defendant, were responsible for injuring the victim. (Id. at pp. 612-613, 615, 616.) The Supreme Court noted the codefendant made his statements shortly after he had been arrested and taken into custody. (Id. at p. 617.) The codefendant knew that police had discovered physical evidence linking him to the crime during a search of his residence. (Ibid.) Under these circumstances, he may have believed the police had sufficient evidence to link him to the crimes, and he had little to lose and perhaps something to gain in minimizing his role and shifting primary responsibility to others. (Ibid.) Duarte held the trial court erred in admitting even redacted statements into evidence against the defendant because the statements were sympathetic to the codefendant's participation and tended to shift responsibility to others. (Id. at p. 613.) The Supreme Court also concluded that the codefendant's statements lacked sufficient indicia of trustworthiness to qualify for admission under Evidence Code section 1230. (Duarte, at p. 618.)

Here, unlike in Duarte, neither Baker nor Williams made their statements while in police custody. This record does not suggest that Baker or Williams made their statements under a belief police had incriminating evidence against them. These statements were not made in an attempt to curry favor with authorities. This record does not suggest that Baker or Williams were motivated to shift blame to others. Duarte does not mandate reversal in the present matter.

This record does not demonstrate that the trial court's decision to permit introduction of this evidence was arbitrary, capricious or patently absurd. A manifest miscarriage of justice is not present. As such, the trial court did not abuse its discretion in ruling that Baker's and Williams's unredacted statements were admissible under Evidence Code section 1230. Accordingly, this claim fails.

IV. The Trial Court Did Not Err In Failing To Give Accomplice Instructions.

The parties agree that Baker and Williams were accomplices. However, the parties disagree whether Baker and Williams provided "testimony" in this matter. Appellant argues their statements were testimonial "in nature" under the primary purpose test. He contends the trial court erred because it failed to give accomplice instructions pursuant to section 1111, which would have required the jury to find corroborating evidence to support Baker's and Williams's hearsay statements. He asserts reversal of all counts is required. We disagree.

Section 1111 states, in part, that a conviction may not be based "upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof." Our Supreme Court holds that an extrajudicial statement is not "'testimony'" under section 1111. "The usual problem with accomplice testimony—that it is consciously self-interested and calculated—is not present in an out-of-court statement that is itself sufficiently reliable to be allowed in evidence. [Citations.]" (People v. Sully (1991) 53 Cal.3d 1195, 1230.) As such, corroboration is not required. (Ibid.)

Here, we have rejected appellant's contention that Baker's and Williams's statements were testimonial under the primary purpose test. Moreover, neither Baker nor Williams testified in appellant's trial. Their extrajudicial statements were not "testimony" within the meaning of section 1111. (People v. Sully, supra, 53 Cal.3d at p. 1230.) Accordingly, corroboration was not required and the trial court did not err. V. The Trial Court Did Not Err In Failing To Grant A New Trial Based On An Alleged Brady Violation.

Appellant contends the trial court erred in denying his motion for new trial based on an alleged violation pursuant to Brady, supra, 373 U.S. 83. During trial, the prosecution's ballistics expert, Snow, testified that two different nine-millimeter guns and a .45-caliber gun were used during the drive-by shooting on February 6, 2013. He also testified that the .45-caliber shell casings found at the scene of the February 6, 2013 drive-by shooting matched shell casings found at the scene of Beam's murder on February 10, 2013. Snow opined that the same .45-caliber gun was used in both February shootings.

After the verdict was rendered, appellant filed a motion for a new trial, alleging in part that the prosecution failed to disclose certain documents known as "Reports of Quality Variance" (RQV). The RQV detailed various performance concerns about Snow in 2009, 2010, 2012, 2013 and 2014. These issues included a failure to seal evidence properly, leaving drug evidence out on a weighing balance, omitting an entry in a report, scoring poorly on a proficiency test, failing to complete continuing education workflow, and leaving an incomplete chain regarding the tracking of certain evidence. Appellant's motion alleged the RQV reflected negatively on Snow's past performance and his credibility as they detailed multiple breaches of laboratory protocols.

The prosecution filed a response, contending the defense received 800-900 pages of "lab discovery" in this case. The prosecutor admitted he had no recollection of specifically providing this material, but he argued it had been provided. The prosecution further argued any failure to disclose this information was not prejudicial because Snow's testimony was not material.

At the hearing regarding appellant's motion, the trial court presumed this evidence was favorable to appellant and the prosecution suppressed its disclosure. The court, however, determined Snow's testimony was not dispositive and it was the testimony of the witnesses that persuaded the jury to vote guilty. The court ruled it was not reasonably probable a different result would have occurred had this evidence been provided.

A. Standard of review.

We use a deferential abuse-of-discretion standard to review a trial court's ruling on a motion for new trial. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.) The trial court's ruling will not be disturbed unless a manifest and unmistakable abuse of discretion is present. (Ibid.) When the asserted abuse of discretion is the trial court's alleged failure to recognize violations of the defendant's constitutional rights, we analyze both the constitutional claim and the abuse of discretion issue. (People v. Hoyos (2007) 41 Cal.4th 872, 917 & fn. 27, overruled on different grounds as stated in People v. Black (2014) 58 Cal.4th 912, 919-920.)

"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." (Strickler v. Greene (1999) 527 U.S. 263, 281-282.) On appeal, we independently review a Brady claim. (People v. Salazar (2005) 35 Cal.4th 1031, 1042.)

B. Analysis.

In Brady, the high court held that the prosecution's suppression of favorable evidence to an accused upon request violates due process, irrespective of the prosecution's good or bad faith, if the evidence is material to either guilt or punishment. (Brady, supra, 373 U.S. at p. 87.) Favorable evidence includes evidence that impeaches a government witness. (United States v. Bagley (1985) 473 U.S. 667, 676.) The defendant has the burden of showing materiality. (In re Sassounian (1995) 9 Cal.4th 535, 545.)

Under Brady, evidence is material if it is reasonably probable the results would have been different had the evidence been disclosed. (Smith v. Cain (2012) 565 U.S. 73, 75.) This issue is not whether it was more likely than not the defendant would have received a different verdict. (Ibid.) We do not engage in a sufficiency of evidence test in analyzing a Brady claim. (Kyles v. Whitley (1995) 514 U.S. 419, 434.) Instead, we ask if the likelihood of a different result was great enough to undermine confidence in the outcome of the trial. (Smith v. Cain, at p. 75.)

Here, Snow opined that the same .45-caliber gun was used in both shootings on February 6 and 10, 2013. Appellant concedes that this testimony was not dispositive. However, he argues this evidence "was a critical component of the People's case" because it provided "an essential link" between the two shootings. He contends this testimony "gave the jury a way to find that appellant was a shooter in both cases." We disagree that Snow's testimony was material.

The high court has held "that evidence impeaching an eyewitness may not be material if the State's other evidence is strong enough to sustain confidence in the verdict." (Smith v. Cain, supra, 565 U.S. at p. 76.) "'"In general, impeachment evidence has been found to be material where the witness at issue 'supplied the only evidence linking the defendant(s) to the crime,' [citations], or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case, [citation]."'" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 177, quoting People v. Salazar, supra, 35 Cal.4th at p. 1050.) A new trial is generally not required when other evidence corroborates the witness's testimony. (People v. Salazar, supra, 35 Cal.4th at p. 1050.)

Here, Snow's testimony did not provide the only evidence linking appellant as a shooter in both crimes. Williams said appellant was present during the drive-by shooting. After mentioning appellant's and Allen's involvement, Williams said he busted on one side and "I let them bust." Williams said "we" saw an "egg nigga." (Emphasis added.) Williams said appellant hung out the window. At trial, Garrett testified that the term "busting" meant "[s]hooting." He agreed that Williams's recording indicated that appellant was shooting during the drive-by.

Regarding Beam's homicide, two African-American males shot Beam. One male "was dark and one was light." Baker's statements indicated he left Charles's memorial party with appellant. They encountered Jessie. Baker's recorded statements and his actions on the recordings suggest he fired at a rival gang member. Both Jessie and Hull identified appellant as the light-skinned male they saw with Baker on the night of Beam's homicide. Both Baker and appellant had guns, and Jessie was scared because he was the enemy.

Appellant notes Glennis Briggs did not identify him as one of the five suspects she saw exiting the Buick on the morning of the drive-by shooting. Further, Ellis was unable to identify him in court as one of Beam's shooters, and she did not notice either of the shooters walking with a limp. He argues he has a "noticeable" limp and Ellis said the shooters were "dancing" before shooting, whereupon they fled. He calls Jessie's and Hull's identifications of him "weak." Based on these concerns, appellant questions the strength of Baker's and Williams's statements. He argues the ballistics evidence provided the key link between the two offenses. We are not persuaded.

Briggs's contradictory testimony does not reduce confidence in the verdicts. Likewise, Ellis's description of the shooters matched Hull's and Jessie's identifications of appellant and Baker, which further corroborated Baker's recorded statements. Based on the verdicts rendered, it is clear the jury gave considerable weight to Baker's and Williams's statements. Snow's testimony did not supply the key evidence connecting appellant to the crimes.

Moreover, we disagree with appellant's assertion that Snow's testimony was a critical component of the prosecution's case. The prosecutor's initial closing arguments span 65 pages in the record. During that span, the prosecutor briefly mentioned twice that the same .45-caliber gun was used in both February shootings. The prosecutor's rebuttal arguments span 21 pages in the record. During that span, the prosecutor mentioned once that the shell casings matched in both February shootings. Although the prosecutor referenced Snow's testimony during closing arguments, that evidence was not emphasized. To the contrary, the prosecutor spent considerable time reviewing and analyzing Baker's and Williams's recorded statements.

Based on this record, appellant has not met his burden of establishing the materiality of the undisclosed evidence that could have impeached Snow. Although Snow's opinion testimony strengthened an inference that appellant was a shooter in both crimes, the other evidence is strong enough to sustain confidence in the verdicts. There is no reasonable probability appellant would have received a more favorable result had this impeachment evidence been disclosed. As such, we will not disturb the trial court's denial of the new trial motion based on the alleged Brady violation because a manifest and unmistakable abuse of discretion is not present. Accordingly, this claim fails.

VI. Any Presumed Prosecutorial Misconduct During Rebuttal Arguments Was Harmless.

Appellant argues the prosecutor misstated the burden of proof during rebuttal arguments. He asserts reversal is required, contending the jury applied a reduced standard of proof.

A. Background.

1. Relevant closing arguments.

During the prosecution's rebuttal arguments, the prosecutor made the following statements:

"Like I said earlier, it's the People's burden of proof to prove this case beyond a reasonable doubt. The judge read you a jury instruction describing what that is. You'll have a copy of that instruction. It may seem confusing but keep in mind it's the same user friendly standard used in every criminal court in this country to convict criminals on a regular basis." (Emphasis added.)

Defense counsel objected, which the court overruled. The court stated, "The standard is the same in every criminal case." The following exchange occurred:

"[THE PROSECUTOR]: If you have any question regarding the law, ask the judge. Write a letter and the court will do its best to answer it.

"For those of you who believe the defendant is guilty but you're just not sure if we've proven the case beyond a reasonable doubt, I want you to ask yourselves this question[:] Why would you believe the defendant is guilty if we didn't prove the case beyond a reasonable doubt?

"Ladies and gentlemen, you have --

"[DEFENSE COUNSEL]: I'll object as improper as to the standard of proof.

"THE COURT: Well, the jury will review Jury Instruction Number 220. I read it to you yesterday. You apply the facts you heard to 220 and you make a decision." (Emphasis added.)

2. Relevant jury instructions.

With CALCRIM No. 200, the trial court instructed the jurors to follow the law as explained to them by the judge. "If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions."

With CALCRIM No. 220, the trial court explained that a defendant in a criminal case is presumed to be innocent and the prosecution was required to prove guilt beyond a reasonable doubt. The jury was told to apply this standard unless instructed otherwise. "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt, because everything in life is open to some possible or imaginary doubt."

B. Standard of review.

The Fourteenth Amendment to the United States Constitution is violated when a prosecutor's misconduct infects the trial with such unfairness as to deny due process. (People v. Tully (2012) 54 Cal.4th 952, 1009.) The misconduct must be significant enough to deny a fair trial. (Ibid.) Before a federal constitutional error can be deemed harmless, a reviewing court must declare it was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)

Even if the prosecutor's misconduct does not result in a fundamentally unfair trial, California law is violated if the prosecutor used deceptive or reprehensible methods in attempting to persuade the jury or the court. (People v. Tully, supra, 54 Cal.4th at pp. 1009-1010.) Prosecutorial misconduct under state law will not result in reversal of a defendant's conviction unless it is reasonably probable the defendant would have obtained a result more favorable without the misconduct. (Id. at p. 1010.)

C. Analysis.

The parties dispute whether the prosecutor committed misconduct. Instead of resolving that dispute, we find any presumed error harmless.

The court defined the proper standard of proof, and the jury was instructed regarding that standard. The prosecutor noted the jurors would have a copy of the instruction with them to review. The jury was told to follow the court's instructions if the attorneys' comments on the law were in conflict. After the prosecutor made his disputed statements, the court expressly admonished the jury to rely upon CALCRIM No. 220. To the extent the prosecutor's statements contradicted the court's instructions, we presume the jurors followed the court's directions. (People v. Letner and Tobin, supra, 50 Cal.4th at p. 152.)

The prosecutor's disputed statements were brief and not emphasized. Given the state of this record, we disagree with appellant that "there is a reasonable likelihood" the jurors would have relied upon the prosecutor's statements and ignored the proper standard. It is beyond a reasonable doubt these brief statements were not prejudicial. Accordingly, this claim fails.

VII. The Court Did Not Commit Instructional Error Regarding Attempted Murder And Any Presumed Error Was Harmless.

Appellant argues instructional error occurred in count 2, which involved the attempted murder of Edwards. He contends the instruction under CALCRIM No. 601 allowed the jury to find premeditation without finding that he acted with the requisite mental state. This instruction told jurors, in part, that "[t]he attempted murder was done willfully and with deliberation and premeditation if the defendant or Wendall Allen or Trevonte Williams acted with that state of mind." (Emphasis added.)

A. Background.

1. Relevant jury instructions.

With CALCRIM No. 600, the trial court instructed the jury to determine whether appellant committed attempted murder as charged in counts 2 and 11. To be guilty, the prosecution had to prove that: one, appellant "took at least one direct but ineffective step toward killing another person; and, two, [appellant] intended to kill that person."

With CALCRIM No. 601, the trial court instructed the jury to decide whether appellant acted with deliberation and premeditation if they first found him guilty of attempted murder in counts 2 or 11. The trial court provided the following:

"The defendant acted willfully if he intended to kill when he acted.

"The defendant deliberated if he carefully weighed and considered for and against his choice and, knowing the consequences, decided to kill.

"The defendant premeditated if he decided to kill before acting.

"The attempted murder was done willfully and with deliberation and premeditation if the defendant or Wendall Allen or Trevonte Williams acted with that state of mind.⁹

"The length of time that a person spends considering whether to kill does not alone determine ... whether the attempted murder is deliberate or premeditated.

"The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstance.

"The decision to kill made rashly, impulsively or without careful consideration of the choice and its consequences is not deliberate and premeditated.

"On the other hand, a cold, calculated decision to kill can be reached quickly. The test is in the extent of the reflection, not the length of time.

"The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved." (Emphasis added.)

9 For this paragraph, the form instruction for CALCRIM No. 601 states: "[The attempted murder was done willfully and with deliberation and premeditation if either the defendant or __________ <insert name or description of principal> or both of them acted with that state of mind.]"

2. The jury's note and subsequent jury instructions.

After the jury began deliberations, it sent a note to the judge regarding count 1. The note stated: "Need clarification on law. Does [appellant] have to be I.D.'d as the shooter, or because he was in the car and we believe he is a member of a gang (gang enhancement) he is guilty by association?"

The court and counsel discussed the note, and the judge responded to the jury in writing as follows: "Please refer to the following instructions for your consideration: CALCRIM instructions 400 and 401 involving perpetrators and aiders and abettors. [¶] Also, you can consider the enhancements only if you find [appellant] guilty of the substantive charge(s)." Accompanying the note were CALCRIM Nos. 400 and 401, which explained criminal liability as a perpetrator, or as an aider and abettor.

B. Standard of review.

We review de novo a claim of instructional error. (People v. Posey (2004) 32 Cal.4th 193, 218.) If instructional error occurred regarding the elements of an offense, reversal is required unless it is beyond a reasonable doubt the error did not contribute to the verdict. (People v. Chun (2009) 45 Cal.4th 1172, 1201.) Likewise, the failure to instruct properly on a sentence enhancement is also subject to harmless error analysis under Chapman, supra, 386 U.S. 18, when the enhancement increases the penalty for the charged crime. (People v. Sengpadychith (2001) 26 Cal.4th 316, 320.)

C. Analysis.

Appellant contends the trial court's instruction "did not require the jury to find that the 'direct perpetrator' attempted murder with the requisite mental state." He argues this instruction improperly assumed that Williams and Allen were principals in the commission of the offense. He asserts a correct instruction would have stated that the attempted murder was done willfully and with deliberation and premedication "if the perpetrator attempted murder with that state of mind." (Original italics.) He notes the jury was not required to identify the direct perpetrator of Edwards's attempted murder. He maintains he was prejudiced. We disagree.

1. The court's instruction was proper.

"Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.]" (People v. Lee (2003) 31 Cal.4th 613, 623 (Lee).) Section 664 imposes a life sentence with the possibility of parole if an attempted murder was willful, deliberate and premeditated. The life sentence cannot be imposed under section 664 "unless the fact that the attempted murder was willful, deliberate, and premeditated is ... found to be true by the trier of fact." (§ 664, subd. (a).)

Our Supreme Court has held that section 664, subdivision (a), is a penalty provision and does not create a greater offense or degree of attempted murder. (People v. Chiu (2014) 59 Cal.4th 155, 162.) To impose the life sentence for attempted murder, the defendant need not have personally acted willfully, and with deliberation and premeditation, so long as the attempted murder was willful, deliberate, and premeditated. (Lee, supra, 31 Cal.4th at pp. 621-622.) Section 664, subdivision (a), does not distinguish between an attempted murderer who is guilty as a direct perpetrator with an attempted murderer who is guilty as an aider and abettor. (Lee, at p. 622.) Contrary to some provisions that require "certain personal conduct on the part of a person committing a crime, that is the person's use of a firearm, infliction of great bodily injury, or use of a dangerous or deadly weapon, section 664[, subdivision] (a) requires only a certain quality characterizing the crime itself, that is that the attempted murder was willful, deliberate, and premeditated." (Lee, at p. 626.)

Here, the trial court properly instructed the jury that appellant was guilty of attempted murder if the prosecution proved that he (1) took at least one direct but ineffective step toward killing another person and (2) he intended to kill that person. As such, we reject appellant's suggestion that the jury was not required to find the requisite mental state for attempted murder. Further, to receive the life sentence for appellant's conviction of attempted murder, the jury was not required to find that appellant personally acted willfully, and with deliberation and premeditation. To the contrary, section 664, subdivision (a) only required that the attempted murder itself was willful, deliberate, and premeditated. (Lee, supra, 31 Cal.4th at pp. 621-622.)

The jurors were to consider the issue of premeditation only if they first determined appellant was guilty of attempted murder. Once the jury determined appellant committed attempted murder, the issue turned to whether premeditation and deliberation was established. Based on the trial evidence, that issue turned on appellant's or Williams's or Allen's intent. Thus, contrary to appellant's contention, the court's instruction did not assume a fact the jury was required to find but was tailored to the facts of the case. Based on this record, we reject appellant's contention that instructional error occurred.

2. Any presumed instructional error was harmless.

Even if we presume instructional error occurred, the error was harmless. We reject appellant's suggestion the evidence was not sufficient to show a willful and premeditated intent to kill Edwards. Appellant and his codefendants drove to the parking lot with loaded weapons. After pulling into the parking lot, they opened fire upon multiple victims, including Edwards, who was struck more than once. The evidence overwhelmingly established a deliberate and premeditated attempt on his life.

Moreover, in count 1, the jury convicted appellant of discharging a firearm from a vehicle at Edwards in violation of section 26100, subdivision (c). The jury found true two separate firearm allegations that established that appellant was a principal in the commission of count 1, he intentionally and personally discharged a firearm, and he proximately caused great bodily injury within the meaning of section 12022.53, subdivisions (c), (d) and (e)(1).

Based on this record, any presumed instructional error was harmless regarding the attempted murder of Edwards in count 2. It is beyond a reasonable doubt the claimed error did not contribute to the verdict. Accordingly, this claim fails.

VIII. Appellant Has Forfeited A Claim The Prosecutor Misstated The Law Regarding Premeditation And Any Presumed Error Was Harmless.

During closing arguments, the prosecutor discussed premeditation and deliberation with respect to the attempted murder of Edwards during the drive-by shooting as charged in count 2. The prosecutor stated that in a drive-by shooting, premeditation and deliberation "have a different definition." He explained it was "either premeditation and deliberation under [section] 189 or shooting from a motor vehicle." The prosecutor offered two theories regarding premeditation for the drive-by shooting. First, he argued planning was involved, and he summarized the codefendants' actions as they drove towards Roy's Market before opening fire. The prosecutor then stated the following:

"The second theory for [section] 189 is shooting from a motor vehicle, which is exactly what it sounds like. A shooting happened from inside a car.

"Very simple theory on—on [section] 189 for the attempted murder of Edwards.

"Shooting from a car. Got a gun from a car. Had a person outside the car. Intended to kill him."

Later, when discussing the other attempted murder charge in count 11 involving Eason at 420 Whitlock, the prosecutor stated:

"Now, the [section] 189, the premeditation and deliberation, is a little different in this one. There's not shooting from a car. This is kind of the traditional. Was it planned? Was it thought out? Was it a thoughtful decision rather than something rash and impetuous? Did they plan it? Did they think about it?"

As appellant concedes, defense counsel neither objected to these arguments nor requested the jury to be admonished.

Appellant argues the prosecutor misstated the law during closing arguments regarding premeditation and deliberation. Respondent does not dispute this contention. To resolve this issue, however, we need not determine whether appellant is correct. Instead, a defendant may not claim prosecutorial misconduct on appeal without objecting and requesting jury admonishment in the trial court. (People v. Fuiava (2012) 53 Cal.4th 622, 679.) "A defendant's failure to object and to request an admonition is excused only when 'an objection would have been futile or an admonition ineffective.' [Citation.]" (Ibid.) Here, appellant failed to object to the prosecutor's comments and no admonition was sought. "A prosecutor's misstatements of law are generally curable by an admonition from the court. [Citation.]" (People v. Centeno (2014) 60 Cal.4th 659, 674.) Accordingly, this issue is forfeited on appeal. In any event, we also find any presumed error harmless.

The evidence overwhelmingly established that Edwards's attempted murder was premeditated and deliberate. The prosecutor's brief statements did not infect the trial with such unfairness as to deny due process. The prosecutor did not use deceptive or reprehensible methods in attempting to persuade the jury. In light of this record, it is beyond a reasonable doubt the prosecutor's brief comments were harmless.

To overcome his counsel's failure to object in the lower court, appellant raises a claim of ineffective assistance of counsel. However, he may not transform his forfeited claim into a cognizable one merely by asserting ineffective assistance of counsel. (People v. Jennings (2010) 50 Cal.4th 616, 654, fn. 15.) Moreover, because this presumed error was harmless beyond a reasonable doubt, we do not need to address the alleged ineffective assistance. (Id. at p. 654, fn. 15.) Accordingly, this claim fails.

IX. The Conviction In Count 7 Is Reversed Due To Insufficient Evidence.

In count 7, the jury convicted appellant of receiving a stolen vehicle (§ 496d, subd. (a)). Appellant asserts there was insufficient evidence to support this conviction.

A. Standard of review.

For an appeal challenging the sufficiency of evidence, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt based on "'evidence that is reasonable, credible, and of solid value ....'" (People v. Jones (2013) 57 Cal.4th 899, 960.) In doing this review, we are not required to ask whether we believe the trial evidence established guilt beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Rather, the issue is whether any rational jury could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence favorably for the prosecution. (Id. at p. 576.) We are to presume the existence of any fact the jury could have reasonably deduced from the evidence in support of the judgment. (Ibid.)

B. Analysis.

Appellant argues the only evidence to support his conviction in count 7 was Williams's statements that appellant was a passenger in the Buick during the drive-by shooting. He contends he did not "receive" the vehicle, and there was no evidence he knew the Buick was stolen. Finally, he asserts there was no evidence he exercised any dominion or control over the Buick.

In contrast, respondent notes appellant's gang membership and association with Allen and Williams. Auto theft is a common CBC crime. Appellant, Williams and Allen were armed in the Buick on February 6, 2013. They argued over who should drive. After the drive-by shooting, the codefendants abandoned the Buick and escaped in another vehicle. Williams told Garrett that the Buick was a "rental." The prosecution's gang expert testified that the term "rental" could mean either an actual rental car or one that had been stolen. Based on these facts, respondent contends "there was sufficient evidence from which the jury could infer that appellant knew that the Buick was a stolen vehicle." We agree with appellant.

Section 496d imposes criminal liability on any person who "receives" any stolen motor vehicle knowing the vehicle has been stolen or obtained in any manner constituting theft or extortion. (§ 496d, subd. (a).) Three elements are required to establish guilt for possession of stolen property: (1) the property must be stolen; (2) the defendant must have received it in his or her possession; and (3) the defendant must have known it was stolen. (People v. Martin (1973) 9 Cal.3d 687, 695; People v. Land (1994) 30 Cal.App.4th 220, 223 (Land).)

"Possession of the stolen property may be actual or constructive and need not be exclusive. [Citations.]" (Land, supra, 30 Cal.App.4th at p. 223, fn. omitted.) "Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property. [Citations.]" (Id. at p. 224.) However, "something more than mere presence or access is required to establish possession." (Id. at p. 225.)

Here, no evidence established that appellant took control or dominion over the Buick. Appellant refused to drive it. Nothing in this record suggests appellant's refusal was based on a concern the Buick was stolen. To the contrary, appellant did not know how to drive. "Presence in the passenger seat is not enough to show possession of a stolen automobile [citations]." (People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336.)

Moreover, no evidence establishes that appellant knew the Buick was stolen. Our conclusion is not altered even though appellant was with other CBC members and the Buick was used in the commission of a crime. As the prosecution's gang expert explained, the term "rental" could have referred to a rented vehicle. Although an inference exists appellant had a close relationship with his codefendants, this record is silent regarding who stole the Buick, how long the codefendants used it, or how long appellant rode in it.

Viewing the evidence in the light most favorable to the judgment, this record does not establish sufficient evidence that is of solid value to support appellant's conviction for receiving a stolen vehicle. A rational jury could not have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence favorably for the prosecution. Accordingly, appellant's conviction in count 7 is reversed. A retrial is precluded for this charge. (Burks v. United States (1978) 437 U.S. 1, 18 [double jeopardy precludes retrial once a reviewing court has found the evidence legally insufficient].)

X. Staying The Sentence On Count 7 Is Moot.

The parties agree that appellant's sentence on count 7 should be stayed. This issue, however, is moot because we have reversed this conviction. XI. Gang Enhancements Were Properly Imposed In Counts 1, 2, 4, 5, 6, and 9.

A defendant who does not personally use or discharge a firearm but participates in a gang-related crime in which a principal personally uses or discharges a firearm is subject to additional punishment under either section 12022.53 (personal use of firearm) or section 186.22 (participation in a criminal street gang), but not both. (§ 12022.53, subd. (e)(2); People v. Brookfield (2009) 47 Cal.4th 583, 590 (Brookfield).) In contrast, a defendant who participates in a gang-related crime and who personally uses or discharges a firearm is subject to punishment under both the firearm enhancement and the gang participation enhancement. (§ 12022.53, subd. (e)(2); Brookfield, at p. 590.)

Based on section 12022.53, subdivision (e)(2), appellant contends he received an unauthorized sentence when the trial court imposed both a gang participation enhancement (§ 186.22, subd. (b)) and a firearm enhancement (§ 12022.53, subd. (e)) in counts 1, 2, 4, 5, 6, and 9. Although he concedes that the verdict forms reflect that he personally used and discharged a firearm in the commission of these offenses, he argues these facts were neither alleged in the information nor supported by substantial evidence. He asks that we strike the gang enhancements imposed in counts 1, 2, 4, 5, 6, and 9. We reject these contentions.

A. The information alleged sufficient facts.

As appellant notes, section 12022.53 requires, in part, the accusatory pleading to allege the required facts for the penalties in this section to apply. (§ 12022.53, subd. (j).) The required facts were alleged.

The information alleged, in part, that Allen, Williams and appellant unlawfully and maliciously discharged a firearm from a motor vehicle at Edwards (§ 26100, subd. (c); count 1). It further alleged, in part, that Allen, Williams and appellant attempted to murder Edwards (§§ 664/187, subd. (a); count 2). For both of these counts, it was alleged that appellant committed the crimes to benefit a criminal street gang (§ 186.22, subd. (b)).

In counts 4, 5 and 6, the information alleged, in part, that Allen, Williams, and appellant unlawfully and maliciously discharged a firearm at an occupied motor vehicle (§ 246). In count 9, the information alleged, in part, that Baker and appellant unlawfully and maliciously discharged a firearm at an occupied motor vehicle (§ 246). For each of these counts, it was alleged that appellant committed the crimes to benefit a criminal street gang (§ 186.22, subd. (b)). During closing arguments, the prosecutor explained that counts 4, 5, and 6 involved shooting at the vehicles occupied by Jamia, Fizer and Collins during the February 6, 2013, drive-by shooting, while count 9 involved Ellis's vehicle during Beam's homicide.

Based on these allegations, appellant was on notice that he faced liability both for participating in a gang-related crime, and personally using or discharging a firearm on February 6 and February 10, 2013. The facts necessary to impose sentence pursuant to section 12022.53, subdivision (e)(2), were alleged. (§ 12022.53, subd. (j).)

B. Substantial evidence establishes that appellant used a gun.

To resolve the insufficiency of evidence claim, we review the entire record in the light most favorable to the judgment to determine whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt based on "'evidence that is reasonable, credible, and of solid value ....'" (People v. Jones, supra, 57 Cal.4th at p. 960.)

Here, Williams said he drove with appellant and Allen. Williams said he "bust[ed]" on one side and "I let them bust." Williams said "we" saw an "egg nigga." (Emphasis added.) Williams said appellant "hung out the window" during the drive-by shooting. We are to presume the existence of any fact the jury could have reasonably deduced from the evidence in support of the judgment. (People v. Johnson, supra, 26 Cal.3d at p. 576.) Williams's statements strongly suggest that appellant fired a gun out the vehicle's window. Further, at trial, Garrett testified that the term "busting" meant "shooting." Garrett agreed that Williams's recording demonstrated that appellant shot during the drive-by. Based on these facts, a rational jury could have determined that appellant personally used or discharged a gun on February 6, 2013.

Likewise, regarding Beam's homicide on February 10, 2013, sufficient evidence exists in this record that appellant personally used and discharged a weapon. Two African-American males, one light and one dark, shot Beam while Ellis's vehicle was in the vicinity. Both Jessie and Hull identified appellant as the light-skinned person with Baker that night. Both Baker and appellant had guns. Snow testified that the same .45-caliber gun was used in both the drive-by shooting and Beam's homicide. Based on these facts, a rational jury could have determined that appellant personally used or discharged a gun during Beam's homicide on February 10, 2013, which resulted in a bullet striking Ellis's vehicle.

The evidence in this record regarding appellant's use of a firearm was reasonable, credible, and of solid value. As such, the enhancements imposed under section 12022.53, subdivision (e)(2), were appropriate. (Brookfield, supra, 47 Cal.4th at p. 590.) We reject appellant's argument that it was error to impose the additional gang enhancement in counts 1, 2, 4, 5, 6, and 9. Accordingly, this claim fails.

XII. Count 12 Is Reversed For Prejudicial Instructional Error.

Count 12 charged appellant with carrying a loaded firearm as an active street gang member between February 6 and March 3, 2013, in violation of section 25850, subdivision (c)(3). Section 25850 states, in part, that "[a] person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." (§ 25850, subd. (a), italics added.) This crime is punished as a felony when the person is an active participant in a criminal street gang. (§ 25850, subd. (c)(3).) The jury found appellant guilty of this charge.

CALCRIM No. 2530 provides a standard jury instruction for an alleged violation of section 25850, subdivision (a). As is relevant to our discussion, this instruction states:

"To prove that the defendant is guilty of this crime, the People must prove that:

"1. The defendant carried a loaded firearm (on (his/her) person/in a vehicle);

"2. The defendant knew that (he/she) was carrying a firearm;

AND

"3. At that time, the defendant was in a public place or on a public street in (an incorporated city/in an unincorporated area where it was unlawful to discharge a firearm)." (CALCRIM No. 2530.)

The parties agree, as do we, that the trial court failed to use CALCRIM No. 2530 when instructing the jury. Instead, the court incorrectly used CALCRIM No. 2520, which instructs on whether a person is guilty of carrying a concealed firearm in violation of section 25400, subdivision (a)(2). Because of this sentencing error, the jury was not instructed to consider (1) whether the firearm was loaded; (2) whether it was carried in a public place or on any public street in an incorporated city; or (3) whether it was carried in a public place or on any public street in a prohibited area of an unincorporated territory. The parties dispute whether the error was harmless.

"Instructional error regarding the elements of the offense requires reversal of the judgment unless the reviewing court concludes beyond a reasonable doubt that the error did not contribute to the verdict." (People v. Chun, supra, 45 Cal.4th at p. 1201.) We ask whether it is beyond a reasonable doubt the beneficiary of the error proved that the error did not contribute to the jury's verdict. (People v. Neal (2003) 31 Cal.4th 63, 86.) "Thus, the focus is what the jury actually decided and whether the error might have tainted its decision." (Ibid.) The issue is whether the verdict rendered "'was surely unattributable to the error.' [Citation.]" (Ibid.)

Appellant concedes that the jury's verdict in count 12 was likely based on Beam's murder, and the jury's verdict "implies a finding that appellant had a loaded gun and it appears that appellant had the loaded gun in a public street or place." Appellant, however, argues the evidence did not show that these crimes occurred in an incorporated city or an unincorporated area where it is illegal to discharge a firearm. He notes the trial court neither took judicial notice of this element nor instructed the jury about these facts.

In contrast, respondent argues the instructional error was harmless because appellant was convicted of crimes that occurred outside Roy's Market on Dr. Martin Luther King Jr. Boulevard. Officers from the Bakersfield Police Department responded and investigated the crimes, which indicated they occurred within city limits. Respondent contends Bakersfield is an incorporated city because it has a police department. Respondent points to the California Constitution, which authorizes city charters to provide a city police force. (Cal. Const., art. XI, § 5.)

We agree with appellant and reject respondent's contentions. The prosecution was required to prove that this offense occurred in an incorporated city or an unincorporated area where it was unlawful to discharge a firearm. (§ 25850, subd. (a); CALCRIM No. 2530.) The prosecution failed to introduce evidence in this trial regarding these elements. We reject respondent's suggestion that the mere existence of a local police department proved that these crimes occurred within an incorporated city.

Unincorporated cities do exist in California. (Bus. & Prof. Code, § 5404; Gov. Code, § 51010.5, subd. (e); see also Lawrence v. California (1985) 171 Cal.App.3d 242, 244 [evidence indicated Dana Point was not an incorporated city].) Moreover, some cities have "county islands" of unincorporated territory. (See 2005 Legis. Bill Hist. CA A.B. 2223.) Unincorporated communities can exist with their own police departments. (See Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal.App.4th 1345, 1348 [Kensington is an unincorporated community that maintains its own police department].)

Based on this record, we cannot conclude beyond a reasonable doubt that the verdict rendered was surely unattributable to this instructional error. Accordingly, appellant's conviction in count 12 is reversed. Upon remand, the prosecution may elect, but is not required, to retry appellant on this charge.

XIII. Errors In The Abstract Of Judgment Must Be Corrected.

Appellant raises two issues regarding the abstracts of judgment. Regarding his first concern, the parties agree, as do we, that the determinate abstract of judgment contains a clerical error regarding count 13. At sentencing, the trial court orally stayed the sentence for count 13, including the firearm enhancement. However, the determinate abstract of judgment does not reflect that the 10-year firearm enhancement was stayed. Accordingly, upon remand the trial court shall correct the determinate abstract of judgment to reflect the actual sentence imposed. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)

The parties, however, disagree regarding appellant's second contention. At sentencing, the trial court summarized appellant's aggregate term of imprisonment as follows: "Therefore, [appellant's] sentence is life without the possibility of parole, plus 25 years to life, plus 15 years to life, plus 25 years to life, plus 32 years to life, plus 27 years to life, plus 27 years to life, plus 27 years to life, plus seven years."

Appellant asserts that the sentencing court did not expressly state that the indeterminate counts would be imposed consecutively to each other. He cites section 669, which imposes a duty upon the sentencing court to direct whether the terms of imprisonment for conviction of two or more crimes shall run concurrently or consecutively. (§ 669, subd. (a).) Appellant notes that under section 669, concurrent terms of imprisonment are imposed when the trial court fails to clarify this issue. (§ 669, subd. (b).) He contends his indeterminate sentences should run concurrently with one another as a matter of law.

In contrast, respondent takes the position the trial court intended to impose consecutive terms of imprisonment. Respondent argues the word "plus" establishes that intent. Appellant opposes this interpretation.

We need not resolve the parties' dispute. In light of the remand, we decline to speculate regarding the trial court's intentions. At resentencing, we direct the trial court to clarify whether appellant's terms of imprisonment shall run concurrently or consecutively. (§ 669, subd. (a).) The amended abstracts of judgment shall reflect that oral pronouncement.

DISPOSITION

The conviction in count 7 is reversed for insufficient evidence, prohibiting retrial. The conviction in count 12 is reversed for instructional error. The matter is remanded to the trial court for further proceedings consistent with this opinion. Prior to resentencing, the prosecution may elect, but is not required, to retry appellant regarding count 12. At resentencing, the trial court shall state whether the remaining terms of imprisonment shall run concurrently or consecutively, and that pronouncement shall be reflected in amended abstracts of judgment. In addition, the amended determinate abstract of judgment shall reflect that the firearm enhancement imposed in count 13 (§ 12022.5, subd. (a)) was stayed. The trial court shall forward the amended abstracts of judgment to the appropriate authorities. The judgment is otherwise affirmed.

/s/_________

LEVY, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
MEEHAN, J.