PEOPLE v. JOHNSON

Respondent’s Petition for Review

Cal.May 30, 2012

$202790 In the Supreme Court of the State of California C O P Y THE PEOPLE OF THE STATE OF CALIFORNIA, SUPREME COURT Plaintiff and Respondent, Case No v. MAY 30 2012 COREY RAY JOHNSONet al., Frederick K. Ohlrich Cierk Defendants and Appellants. Deputy California Court of Appeal, Fifth Appellate District, Case No. F057736 Kern County Superior Court, Case Nos. BF122135A, BF122135B & BF122135C The Honorable Gary T. Friedman, Judge PETITION FOR REVIEW KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General BRIAN G. SMILEY Supervising Deputy Attorney General LAURA WETZEL SIMPTON Deputy Attorney General State Bar No. 197674 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 322-3674 Fax: (916) 324-2960 Email: Laura.Simpton@do}.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Issue Presented ..........ccccccssessessssssssecesceecsereessnessseesserseseneeessneeecenesseessseeoseeensees 1 Necessity for REVICW.......cccceeccesesseesscereeeessesssseassesseeessesseescsessesseseesessaenaes l Statement Of the Case .........cccccccscecssceeeseeeeneceeseecneeessaeeesseeceessessseesaeeseasenseeee 2 Statement Of Facts..........ccccsccsscccssesseeeesceeeseateeseeesesseessesesseeseeseassenseeeseeesessaeey 2 ATQUMENE 000... cece eececeeceeseeseeecnseeesereeeeesseesseeeseesersstecesesenssseeessessesessaseneeeens 3 Conspiracy to participate in a criminal street gang is a valid offense not otherwise barred by statute...ee3 COnCHUSION ........:cccesecetsesseceeceserseneeerseeeceneecesceeeaeeesesareneeeseneessneeseseseresnneaesegs 7 TABLE OF AUTHORITIES Page CASES People v. Albillar (2010) 51 Cal4th 47 oooeccccceccccceceneeeseeseeseseessseeeeaesesacsaeessaeeeeseeeseneeaes 4 People v. Johnsonet al. (2012) 205 Cal.App.4th 594 oo... eeccececccscsteccesseessesssesseseesesecssesseestrssseeenes 1 People v. Jurado (2006) 38 Cal.4th 72...esausaesescussaeseseessosssssecesesssssseseseesssseaeersnsauaeeneas 4 People v. King (2006):38 Cal4th 617 .o.ccccceccccccceeccecneesseseeeeenececeresaseeseeeesanesaeeneesereseeatens 3 People v. Lee (2006) 136 Cal.App.4th 522 oo... cccsccccscseccsseeccsseensecserseceeeeesseceseecneesaeenes 6 People v. Manzo (2012) 53 Cal.4th 880 oo. cccccccssssescseceeceeseseeetscseesvaeeaeesaeecsseeesaeenseenaeergs 3 Williams v. Garcetti (1993) 5 Cal.4th 561 oo. cccescesseeseessecseeseeeeqessecseceaeeeeseessaeessesaeseesaeesareas 4 STATUTES Penal Code § 182 eeeececssesceeeseesecsceaeeecsneecseeesessesresaceneeeeaeesaessesesersacenaresteetarens 1,2,3,4 § 182, Sub. (2) ooo eeeeceeecceceseeessecesetseceeesevaceesseecseeseceneseenecsaeessesesestaeseeeaeeness 6 § 182, subd. (A)(1).... cece eseeseeceseeteceteeceseeseeeessectseeeeeeaesteeesetaestseeseeenaeessaees 4 SBSeeeeceeeccenneerteesseenneeeeesaeeneeeensaeeesaeeeeeseseeeceeertaeeesenaeeeneageespassim § 186.22 occ ccecscccssesseseescescececseecesseseseressseseeceeeessessesaeseevseseseecesseneeseessats 4,6 § 186.22, SUDA. (A) occeeeeeecseestereesacesseeaeeeeaeeesesaceneceesserseeetteetateraters 1, 2,3 § 186.22, SUD. (LD... eee eeceeesessceeeeeceseeceeeeseeceeecssecseeseceeeseecaeereseaessatersaes 4,5 § 186.22, SUC. (]).....eeecsesceeceescecsceeeeeecesssasesaceeeenscesecseeeeeseeeesetenseneessesseents 4 § 187 eeeeeeceeeeceneeeees“eaeuseonecseeesaceseacessessecusuecensesessecesensesesenseeessseasenssaseneees 2 § D246 occ cccccesecsseensenscsecsessesseecseecseseessaesecesseeseaeesesseeesessesssesseevseseaeesseseecssents 2 § 664 occ ceectscsscessesseeseeseeeeseecaeeeseesesseenseeseecsseecsecsessepeasseseeeecsecseecsteatenseense 2 COURT RULES California Rules of Court TUle 8.S50(D)(1) on. eeccccccseeseesseecesneesseesseenseesssecessseesestenseeeeesseresstensesMeseeeees 1 i TO THE HONORABLE TANI GORRE CANTIL-SAKAUYE, CHIEF JUSTICE, AND TO THE HONORABLEASSOCIATE JUSTICES OF THE CALIFORNIA SUPREME COURT: Respondent, the People of the State of California, respectfully petitions this Court to grant review ofthe partially-published opinionfiled by the California Court of Appeal, Fifth Appellate District on April 26, 2012, which is reported at 205 Cal.App.4th 594. A copy of the entire 329- page decisionis attached to this petition as Exhibit A. ISSUE PRESENTED Is a charge of conspiracy to actively participate in a criminalstreet gang (Pen. Code, §§ 182, 186.22, subd. (a)) an invalid offensethat is legislatively barred as duplicative? NECESSITY FOR REVIEW In accordance with California Rules of Court, rule 8.50(b)(1), review is necessary to settle an important question of law (i.e., whether the statutes defining the offenses for conspiracy and active participation in a criminal street gang preclude a charge of conspiracy to actively participate in a criminalstreet gang). Review is also necessary to avoid any inconsistency between the appellate court’s statutory interpretation of these two offenses and this Court’s pending decision in People v. Rodriguez (S187680), which will determine whether an active gang participant may, solely by his own felonious conduct, violate Penal Code section 186.22, subdivision (a). In the event this Court affirmatively decides Rodriguez, then an inherent conflict will exist with the appellate court’s published interpretation of the elements for active participation in a criminal street gang as being equivalent to a criminal conspiracy. STATEMENTOF THE CASE Appellants Corey Ray Johnson, Joseph Kevin Dixon, and David Lee, Jr., were charged with conspiracy to actively participate in a criminalstreet gang (Pen. Code, §§ 182/186.22, subd. (a)), in addition to multiple first- degree murders (Pen. Code, § 187), attempted murder (Pen. Code, §§ 664/187), drive-by shooting (Pen. Code, § 246), being an active participant in a criminal street gang (Pen. Code, § 182.22, subd. (a)), and several other offenses and enhancements. (1CT 1-27.) A jury found all three appellants guilty as charged. (1OCT 2768-2780.) Consequently, Johnson and Lee were sentenced to 3 consecutive LWOP terms plus 196 years to life, while Dixon was sentenced to 3 consecutive LWOPtermsplus 238 years to life. (LOCT 2837-2848.) On April 26, 2012, in a partially published opinion, a three-justice panelofthe Fifth District Court of Appeal unanimously reversed appellants’ conviction for conspiracy to actively participate in a criminal street gang (Pen. Code, §§ 182/186.22, subd. (a)). The appellate court concluded, as a matteroffirst impression, that this offense is redundant becauseactive participation in a criminal street gang is “at its core, a form of conspiracy.” (Exh. A. at p. 312.) The duplicative charge was not authorized by statute and implicitly prohibited by Penal Code section 182.5, which “expanded conspiracy liability to include gang-related activities.” (Exh. A. at p. 315.) As such, the charge waslegislatively invalid. (Exh. A. at p. 308-316.) Other than a few minor sentencing corrections, the appellate court otherwise affirmed the remaining convictions. (Exh. A at pp. 328-329.) STATEMENTOF FACTS Asdetailed in the appellate court’s opinion, appellants were members of the “Country Boy Crips” gang in Bakersfield. Over a six-month period, _ the threesome committed escalating violent offenses directed at tworival gangs, the Bloods and the Eastside Crips. Appellants’ crime spree ultimately resulted in three premeditated murders, which included a pregnant mother and her unborn child, in addition to three attempted murders, a drive-by shooting, and multiple other offenses. (Exh. A.at pp. 5-85.) ARGUMENT CONSPIRACY TO PARTICIPATE IN A CRIMINAL STREET GANG Is A VALID OFFENSE NOT OTHERWISE BARRED BY STATUTE The Fifth District Court of Appeal interpreted Penal Code sections 182, 182.5, and 186.22, subdivision (a), to preclude a charge of conspiracy to actively participate in a criminal street gang because the crime merely amounted to a redundant conspiracy to commit a conspiracy. (Exh. A.at 308-316.) Respondent maintains that the charge is neither duplicative nor barred by statute and, therefore, appellants’ convictions for this offense mustbe reinstated. | “Statutory construction begins with the plain, commonsense meaning of the wordsin the statute, becauseit is generally the most reliable indicator of legislative intent and purpose.” (People v. Manzo (2012) 53 Cal.4th 880, 885.) “The plain meaning controlsif there is no ambiguity in the statutory language.” (People v. King (2006) 38 Cal.4th 617, 622.) But if “the statutory language may reasonably be given more than oneinterpretation, courts may consider various extrinsic aids, including the purposeof the statute, the evils to be remedied,the legislative history, public policy, and the statutory scheme encompassingthe statute.” (bid.) Subdivision (a) of Penal Code section 186.22 prohibits “[a]ny person” whoactively participates in a criminal street gang, with knowledgethat its membershave engagedin a pattern of criminalactivity, and willfully assists “any felonious conduct” by its members. (Pen. Code, § 186.22, subd.(a).) A “street gang” is defined as any group of three or more persons, with a commonnameoridentifying symbol, whose primary activities include assault with a deadly weapon,drugsales, or robbery. (Pen. Code, § 186.22, subd. (f).) A “pattern of criminal activity”is defined as the commission of two or more enumerated predicate offenses, such as assault with a deadly weaponor drug sales. (Pen. Code, § 186.22, subd.(j).) The defendant need not specifically intend to promote the gang, only the felonious conductof its members, and that felonious conduct need not be gang-related. (People v. Albillar (2010) 51 Cal.4th 47, 56-57, 67.) By comparison, Penal Code section 182 prohibits “two or more persons” from conspiring “[t]o commit any crime.” (Pen. Code, § 182, subd. (a)(1).) The elements for conspiracy consist of an agreement between the defendant andat least one other person to commit a criminaloffense, | entered into with the specific intent to commit that criminal offense, together with the commission of an overt act in furtherance of the conspiracy. (People v. Jurado (2006) 38 Cal.4th 72, 120.) Significantly, Penal Code section 182 does not exempt any criminal offenses from being the object of a conspiracy. Plainly understood, a defendantis guilty of conspiracy to participate in a criminal street gang when (1) the defendant enters into an agreement with another person to participate in a criminal street gang with the specific intent to assist or further the commission of felonious conductbyits members, (2) the defendant specifically intends to so participate at the time of entering into the agreement, and (3) the defendant or another to the agreement commits an overt act in furtherance of the conspiracy. (Pen. Code, §§ 182, 186.22.) Accordingly, the elements for the charged offense are readily ascertainable in accordance with due process. (See Williamsv. Garcetti (1993) 5 Cal.4th 561, 568 [rejecting vagueness challengeto statute “if any reasonable andpractical construction can be givento its language”’].) Moreover, this offense does not constitute a duplicative charge of “conspiracy to actively participate in a conspiracy.” (Exh. A at p. 313.) To illustrate, a defendant may be guilty of conspiring to participate in a criminal street gang, without also being guilty of the substantive offense of actively participating in a criminal street gang, such as where a new gangis being formed and the requisite numberofpredicate offenses have not been committed, or where only two members haveagreed to join. By comparison, a defendant may beguilty of actively participating in a criminal street gang, without also being guilty of conspiracy, such as the scenario in People v. Rodriguez (S187680) where an active gang memberis the sole perpetrator of the felonious criminal conduct. While the two offenses overlap, they are not redundant. The appellate court, however, avoided this point by simply limiting its holding to only those cases with “an existing criminal street gang” and “express[ing] no opinion as to whether it would be proper to charge conspiracy to actively participate in a criminal street gang if the gang, as defined by section 186.22, subdivision (f), did not yet exist....”” (Exh. A at p. 316, fn. 163.) But whenall of the elements of both offenses are properly considered, the charge of conspiracy to actively participate in a criminal street gang is not duplicative. This conclusion is not undermined by Penal Code section 182.5. This section providesthat: any person whoactively participates in any criminalstreet gang, ...with knowledge that its members engage in or have engaged in a pattern of criminal gang activity,...and who willfully | promotes,furthers, assists, or benefits from any felonious criminal conduct by membersofthat gangis guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182. (Pen. Code, § 182.5.) Under this section, a defendant whoactively participates in a gang by assisting another gang member commit a particular felony offense, such as murder,is also guilty of conspiracy to commit that offense (i.e., conspiracy to commit murder). Asa result, the person may be punished by the same term ofincarceration for conspiracy to commit the underlying felony offense (i.e., conspiracy to commit murder), as opposed to the muchlesser term for actively participating in a gang. (Pen. Code, §§ 182, subd. (a); 182.5; 186.22.) | Contrary to the appellate court’s interpretation (Exh. A. at p. 315- 3 16), Penal Code section 182.5 merely confirms the unremarkable application of general liability principles for coconspirators in the specific context of gang membersin order to ensure a commensurate sentence with their criminal acts. This section has absolutely no impact upon whethera defendant may be charged with conspiring to participate in a gang because, as explained above, a person may beguilty of such a conspiracy without also being guilty of actively participating in a street gang. Consequently, this section did not, as the appellate court construed, seek to exclude colluding gang members from the reach of general conspiracy laws. (Exh. A. at pp. 315-316.) Accordingly, section 182.5 does not preclude a charge of conspiracy to actively participate in a criminal street gang. Incidentally, this conclusion is not altered by the judicially-created presumption knownas “Wharton’s Rule,” which the appellate court declined to address. (Exh. A at p. 313 fn. 162.) Underthis rule, a crime that requires two or more personsfor its commission may not be prosecuted as a conspiracy, absent contrary legislative intent. (People v. Lee (2006) 136 Cal.App.4th 522, 530.) Respondent maintains that Wharton’s Rule does not apply because, as noted above, a defendant may beguilty,all alone, of actively participating in a criminal street gang. Moreover, by adopting Penal Code section 182.5, the Legislature affirmatively evincedits intent that active participation in a criminal street gang may also be prosecuted as a conspiracy. (Pen. Code, § 182.5.) Therefore, Wharton’s Rule does not bar prosecution for conspiracy to participate in a street gang. Forall of these reasons, the charge of conspiracy to participate in a criminal street gang is a valid offense that is not precluded bystatute as being duplicative. Consequently, the appellate court’s contrary conclusion must be reversed and appellants’ convictionsreinstated. CONCLUSION For the foregoing reasons, respondentrespectfully asks this Court to grant the petition for review. Dated: May 24, 2012 LWS:tmk S$A20093 12202 31457959.doc Respectfully submitted, KAMALA D. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General BRIAN G. SMILEY Supervising Deputy Attorney General KorMille RV LAURA WETZEL SIMPTON Deputy Attorney General Attorneysfor Respondent CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEW usesa 13-point Times New Roman font and contains 1,865 words. Dated: May 24, 2012 ~ KAMALAD. HARRIS Attorney General of California PooIdEf LAURA WETZEL SIMPTON Deputy Attorney General Attorneysfor Respondent EXHIBIT A CERTIFIED FOR PARTIAL PUBLICATION’ By. rr . / Deputy IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F057736 Plaintiff and Respondent, . (Super. Ct. No. BF122135A, ve BFI22135B & BFI21358¢)Spd a COREY RAY JOHNSONet al., 8 hen aod | . OPINION Defendants and Appellants. APPEALfrom a judgmentof the Superior Court of Kern County. Gary T. Fnedman,Judge. Susan D. Shors, under appointmentby the Court of Appeal, for Defendant and Appellant Corey Ray Johnson. Joseph Shipp, under appointmentby the Court of Appeal, for Defendant and Appellant Joseph Kevin Dixon. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant David Lee, Jr. * Pursuantto California Rules of Court, rules 8.1105(b) and 8.1110, only the Introduction, the first paragraph of part [JI and section B.of part HI of the Discussion, and the Disposition are certified for publication. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian G. Smiley and Laura Wetzel Simpton, Deputy Attorneys General, for Plaintiff and Respondent. -00000- INTRODUCTION Corey Ray Johnson, Joseph Kevin Dixon, and David Lee,Jr., (Johnson, Dixon, and Lee, respectively; collectively, defendants) were charged by first amended indictment as follows: e Count one (Johnson and Lee only): March 21, 2007, attempted murder of Edwin McGowen, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminalstreet gang (Pen. Code,! §§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)). ° Count two (all defendants): April 19, 2007, premeditated murder of James Wallace, involving the personal discharge of a firearm proximately causing death, committed by an active participant in andfor thebenefit of a criminal street gang, and constituting one of multiple murders (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2, subds. (a)(3) & (22), 12022.53, subds. (d) & (e)(1)). ° Countthree (all defendants): April 19, 2007, premeditated murder of ~-VanessaAlcala; involvingthe personal discharge of-afirearmproximately causingdeath, committed by an active participant in and for the benefit of a criminal street gang, and -constituting one of multiple murders (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2 subds. (a)(3) & (22), 12022.53, subds. (d) & (e)(1)). ° Countfour(all defendants): April 19, 2007, premeditated murder of Baby BoyAlcala, involving the personal discharge of a firearm proximately causing death, committed by an active participant in and for the benefit of a criminal street gang, and 1 All statutory references are to the Penal Code unless otherwise stated. constituting one of multiple murders (§ 186.22, subd. (b)(1)(C), 187, subd. (a), 190.2, subds. (a)(3) & (22), 12022.53, subds. (d) & (e)(1)). e Count five (all defendants): April 19, 2007, attempted murder of Anthony Lyons, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 187, subd. (a), 664, 12022.53, subds. (d) & (e)(1)). ° Count six (Dixon only): April 19, 2007, possession of a firearm by one previously convicted of a felony, committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1), 12021, subd. (a)(1)).? ° Count seven (all defendants): August 11, 2007, attempted murder of Adrian Bonner, involving the personal discharge of a firearm proximately causing great bodily injury, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 187,.subd. (a), 664, 12022.53, subds. (d) & (e)(1)). ° Count eight (all defendants): August 11, 2007, discharge of a firearm at an occupied vehicle, involving the personal discharge of a firearm proximately causing great bodily injury or death, and committed for the benefit of a criminal street gang (§§ 186.22, subd. (b)(1)(C), 246, 12022.53, subds. (d) & (e)(1)). e Count nine (all defendants): March2, 2007-August 22, 2007, conspiracy to violate any orall of sections 186.22, subdivision (a), 187, 211, and 245,. subdivision (a)(2), committed for the benefit of a criminal street gang (§ 192, subd. (a)(1), 186.22, subd. (b)(1)(C)). 2 Effective January 1, 2012, former section 12021, subdivision (a)(1) was repealed and reenacted as section 29800, subdivision (a)(1) without substantive change. (Stats. 2010, ch. 711, § 4, p. 4036 [repealed]; Stats. 2010, ch. 711, § 6, p. 4169 [reenacted].) ° Count ten (Dixon only): August 9, 2007-August 18, 2007, possession of a firearm by one previously convicted of a felony, committed for the benefit of a criminal street gang ($$ 186.22, subd.(b)(1), 12021, subd. (a)(1)). | . Count eleven (all defendants): March 2, 2007-August 22, 2007, active _participation in a criminal street gang (§ 186.22, subd. (a)). It was further alleged that Dixon waspreviously convicted of a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and for which he served a term in prison (§ 667.5, subd. (b)). The People elected not to seek the death penalty against any defendant. Following a joint jury trial, defendants were convicted as charged, and the murders were determinedto be first degree. All special circumstance and enhancement allegations, including Dixon’sprior convictions, were found to be true.> Johnson’s motion for a new trial was denied, and each defendant was sentencedto three consecutive termsoflife in prison without the possibility of parole plus additional determinate and indeterminate terms, and wasorderedto payrestitution and various fees and fines. Defendants now raise numerousclaimsof error. With some minor exceptions and modifications, we affirm the judgments. We publish our discussion of what we believe to be a question offirst impression: whether a defendant can properly be charged with ‘conspiracy to-activelyparticipatein-a-criminalstreet gang.As-weshall explain;such-a~~~ charge is not permitted. 3 The jury was unable to reach a decision as to Dixon, and made no finding as to Lee,-with respectto several of the overt acts alleged in connection with count nine. The - parties stipulated to not true findings for those acts. FACTS I PROSECUTION EVIDENCE Events Surrounding March 21, 2007 Early on the morning of March 20, 2007, someone shot Venesta Grinnage’s vehicle, which was parked in front of her home in the 4300 block of Deborah Street in Bakersfield.4 Grinnage’s son, Daniel Davis, frequented the house, although he did not live there. Multiple shell casings from three different semiautomatic firearms were found in the street. Although no suspects could be developed, a neighbor reported seeing a burgundy Hondadrive slowly byshortly after 3:30 a.m. and again about 15 minuteslater. The car had tinted windowsand she could not see inside it. About 4:00 a.m., she heard what sounded like numerous gunshots. Just after midnight on March 21, Bakersfield Police Officers Shaff and Williamson, both membersofthe police department’s Special Enforcement Unit (also known as SEUor the gang unit) were dispatched to an address on Myrtle Street in response to a call in which the reporting party said he had been shotat and his vehicle had been hit with bullets. Upon arrival, Shaff contacted Lee, who reported he had been standing by his vehicle in front of a residence in the 800 block of Deanna Way,talking with some friends, when an older silver or green Jeep drove by and shots werefired at 4 All dates are in the year 2007 unless otherwisestated. _ Someof the law enforcementofficers whotestified had received promotions or retired by the time of trial. To the extent possible, we refer to them bythetitles they had at the time of events. A numberof peripheral actors in the case were regularly referred to at trial by their nicknames or monikers. For the most part, we use the same appellations for the sake of clarity. Last, exact addresses were givenattrial. him and his friends. Lee said the incident occurred about half an hour before he called the police, and that he hadleft the area and gone home. Shaff noted that Lee seemed unusually vague in terms of information he was giving. For instance, he would not identify the friends who had beenpresent, and he seemed very hesitant when Shaff asked for specifics about the other vehicle and its occupants. There were what appeared to be bullet holes in Lee’s vehicle, a 2000 Chevrolet Tahoe that belongedto his father. Shell casings andbullet fragments from at least one gun were foundin the 800 block of Deanna Way, where Lee said the shooting had ~ occurred. As of March 21, the area of Monterey and Inyo in Bakersfield was known to SEU officers as an area that was controlled by the Bloods criminal street gang, a group that was associated with the color red. The Country Boy Crips, who were associated with the color powderblue, were active rivals of the Bloodsatthe time. The Bloods had somewhatofan alliance with the Westside Crips, and were notactively quarrelling with | the Eastside Crips. The comer was a knownnarcotics location, with sales being made out of the apartment complex there. Theterritory of a local Hispanic gang, which also sold narcotics, begannearby. Around 6:45 that evening, Edwin McGowanwastalkingto friends outside the apartments whenheheard-some-shots- He- tried-to-ran;-but-fell;having-been-struck. -He-- saw a male wearing a burgundy hoodieshooting a little gun over the top of a car. When McGowan fell, the person ran behind him and shot him two moretimes, then took off running. McGowancould see the eyes and upper nose of this person, who was not wearing a mask. McGowan denied ever having seendefendants. Officer Meek interviewed McGowanin the emergency room. McGowan described the shooterasa tall, light-skinned African-American male, 17 to 21 year s old, wearing a red hooded sweatshirt, dark pants, a dark ball cap, and clear glasses. Meek confirmed that McGowan wascertain the race was African-American and not Hispanic. When asked, McGowansaid he would be able to identify the person if he saw him.5 Atthe scene, adult-sized footprints, with a stride length suggesting the person had been running, led from the area in which McGowan hadlain in front of one of the apartments, toward where a hole had been cut in the chain-link fence at the far corner of the parkinglot. Three spent .25-caliber shell casings were found nearthe doorofthe apartment where McGowanhadlain,and another was recovered from the parkinglot. All four had been fired from the same gun. All told, McGowan wasstruck three times in the back. He suffered major abdominal injuries that necessitated multiple surgeries. Taken together, his injuries were life-threatening. Sometime between 8:00 p.m. and 10:45 p.m. on March 22, Michael Wilcox was inside his homein the 4200 block of Deborah Street, when he heard six to 10 gunshots. Looking out, he saw a person, who appearedto be in the area of the Grinnage house, shooting at a van that was driving away. The van was white with blue trim, and Wilcox 5 McGowandenied telling Meek that a light-skinned African-American male shot him. Rather, he told Meek the shooter could have been Hispanic or “a bright-skinned” male. McGowantold the grand jury that the shooter was a very light-skinned person, but he could nottell his race. McGowandid not consider any of the defendants to be light- skinned. They all appeared to be African-American to him. On October 4, Bakersfield Police Detective Darbee showed McGowan a photographic lineup that included a picture of Johnson, whom Darbee considered to be light to medium-skinned. McGowansaid he did not recognize anyone, and did not know who shot him because the person had a hoodie over his face. When confronted with the fact that he had told Meek he would be able to identify the shooter, McGowan was hesitant to answer and asked if Darbee knew what would happento his family if he were to identify anyoneortestify against anyonein court. 6 A canal ran parallel to Monterey Street about a block away. A traversable alleyway ran along both sides of the canal. had seenit before in the neighborhood. The driver was an African-American male ; Wilcox could nottell if anyone else was in the vehicle. Around 10:45 p.m., Jorge Garcia, who lived in the vicinity, was cleaning his garage whenhe heard around three gunshots. Before that, there had been some m ales behind his house, drinking and playing loud music. When he heard the shots, he went to the back to see if they were having a fight, but nobody was around. Garcia return ed to cleaning the garage with the door open, then Lee walked in, said he had beenshot, and asked Garcia to give him a ride around the corner. Lee had been shotin the left a rm and the right hand andfingers. Garcia took him to the location in the 800 block of Deanna Wayat which Lee’s vehicle had previously been shot. The people there called th e police and an ambulance. Bakersfield Police Officer Hernandez respondedto the scene. At the same time, the Kern County Sheriff’s Deputies Chandler and Moreno were respondingto a r eport of “an illegal shooting” in the 4300 block of KennyStreet, onestreet east of Debora h Street.7 Chandler attemptedto talk to Lee, but Lee did not respond to any of Cha ndler’s questions. Lee wasnotin possession of a handgun. | Investigation revealed broken automobile glass and what appearedto be part o f an automobile windowframe near the Grinnage house. Onthe east side of Deborah Street - were anumberofspent'shellcasings. Some-weregroupedin: oneplace, whil e-two were—- apart from the others. Eight had been fired from the same gun, while one was from a different firearm — the same firearm as someofthe shell casings recovered from the March 20 shooting of Grinnage’s vehicle. Chandler and Moreno contacted Lee in the hospital emergency room. Told shel l casings had been found in the 4300 block of Deborah Street, Lee said he had been 7 The 4300 blocks of Deborah, Kenny, and Eve Streets are in.a.c ounty pocket; hence, the different law enforcementjurisdictions. walking southbound in the 4300 block of Deborah Street, when he saw subjects in a green 1995 or 1996 Jeep pull up alongside him. He saw a flash and heard fiveto six shots. He described the route he ran before reaching Garcia’s garage. A bloodtrail was found in that area, but no weapon. Events Surrounding April 19, 2007 As of April 19, James Wallace resided. with his mother, Kathie Oats, not far from McNew Court in Bakersfield. Dixon’s mother and Wallace’s father, who lived on Watts Drive in a part of town called the Country, were cousins, although Oats believed Dixon and Wallace had only been introduced once. Wallace had never been arrested and was not in a gang. On April 19, Wilma Shaw,the aunt of Wallace’s best friend, held a barbecue in the front yard of her residence in the 1300 block of McNew Court. Her guests, who included Wallace and her nephews, Anthony and Othelon Lyons, were outside off and on most of the day, talking and playing music in the front yard.8 Whenit beganto getdark, Shaw wentinside to attend to her grandchildren. Not long after, sheheard multiple gunshots. Anthony had been at his aunt’s house all day, as he usually was during this time period. Just before 8:00 p.m., he was in the front yard, hooking up music with his cousin, Curtis Miller, in Miller’s Tahoe. The vehicle was parked in the driveway of Shaw’s apartment complex. Helping him were his youngerbrother, Othelon, and Wallace. At some point, another cousin, Albert Darrett, arrived with his girlfriend in a black Tahoe and parked on the wrongside ofthe street. Anthony went up to the driver’s side of the vehicle to talk to Darrett, and leaned in as they conversed. Anthony was moving away from the vehicle whenhe saw tall 8 Forthe sakeofclarity, we refer to Anthony and Othelon Lyons, and Mikeshiea and Myeshia Herring, bytheir first names. No disrespect is intended. person, weighing about 200 pounds, in the middle of the street. The person, who was dressed all in black, started shooting toward the house. Anthony only saw oneperson, ‘and could nottell if it was a man or a woman orthe person’s race, because the person had on a hoodie with the hoodup.’ | Anthony ran toward the back door of Shaw’s residence. He believed Wallace was by Miller’s truck, and Miller wasinside the truck. Wallace was runningahead of _ Anthony toward the house, then Anthony saw Wallace fall down. Anthony ran thro ugh the back entrance andoutthe front. Wallace was on the front porch,lying on his stom ach on the step in a pool of blood. Anthonybelieved he heard about five shots. He was struck abovethe right hip. The bullet remained in his bodyatthe time oftrial, as he refused to haveit removed for fear of possible complications. 9 Anthonyhadnovisionin his right eye, having been shot in 2004. He was also grazed in the head in 2005. His older half-brother, Deshawn Peterson, was shot an d killed on Feliz Drive about four years earlier. Anthony had met Johnson, who was . Peterson’s cousin, one time about six years earlier. Anthony was a child: when helast saw Johnson, and would not recognize him if he saw him again. He did not see Johnson on the night of April 19, although he had heard that Johnson used to cut people’s hair in thearea... - be t At somepoint, Anthony was shown photographic lineups containing Johnson’s and Lee’s pictures. Anthony did not identify either defendantas oneofthe shooters. He said it was dark andhe did not get a good lookat the people who shot him. 10 Sheriff’s Sergeant Marshall interviewed Anthonyat the hospital on the even ing of the shooting. Anthony related that he saw a Black male, about five feet eight or nine inchestall, wearing a black hoodie, walking from westto east across the street nea r a white van. The shooter was by the white van, and when the shooting started, Anthony ran. He wasin the parkinglot of the apartment complex whenhefelt himself get h it with a bullet. When Marshall explained that he really needed the bullet as physical evidence, Anthony. agreed to have.an elective procedure soit could be retrieved. He did not express any hesitation about having the surgery. 10. Asof April 19, Albert Darrett resided in Bakersfield with his girlfriend, Vanessa Alcala, and her mother and child. Alcala was pregnant with Darrett’s son. Darrett worked in oilfield construction.4 On April 19, he needed to cash his paycheck, so he picked up Alcala and they drove in his black Chevrolet Tahoeto the store on the corner of Feliz Drive and Cottonwood Road. After he cashed his check, they went south on Cottonwood Roadto the first street, McNew Court, and went to Shaw’s house. Shaw was Darrett’s aunt, and it washis habit to stop by her house for a few minutes every day after work. On April 19, family and friends were in her driveway. Curtis Miller was one of the cousins who wasthere. Like Darrett, Miller drove a black Chevrolet Tahoe, which was parked at Shaw’s residence. Darrett pulled over on the wrong side ofthe street (facing west) next to the driveway, left his vehicle running, andstarted talking to his cousin, Anthony, who wasat the driver’s side door. Alcala remained in the passenger seat. Darrett and Anthony conversed for a couple of minutes. It was light out, but getting dark. Darrett saw two people walkingup the opposite side ofthe street, headedin the direction of Cottonwood Road. They were about halfway down the block when hefirst saw them, and he did not pay.muchattention to them. He did not see either of them get out of an automobile or come out of a house, and he saw nothing in either one’s hands. Darrett continued to talk to Anthony, then glanced at the two and saw them crossing the street in a diagonal direction toward him. They crossedthe street together, then cameup to the car and spread out so they were a couple of feet apart. One was 1 Darrett admitted being booked into the Kern Countyjail four days before the shooting, andstating at that time that he associated with the Crips. He denied saying, however, that he wanted to be kept away from Country Boy Crips. Heinitially denied, but then admitted, once having a tattoo on his arm that read “805 ESC,” meaningthe area code for Bakersfield and Eastside Crip. He was about 15 years old when he got the tattoo. He wasolder by the timeoftrial and not in a gang, although he knew people who werein the Eastside Crips. 11. toward the passenger’s side of the vehicle, while the other was right in front of it. Both were no more than five feet from the vehicle, and both then started shooting. One shot toward the apartment complex, while the other shot toward the vehicle. Darrett tried to duck. He did not hear anything from Alcala or see what she or anyoneelse did. After the shooting stopped, Darrett saw the two men running back in the direction from which they had come. Although hedid not see their faces, he believed they were African-American. They appeared to be around 5 feet 10 or 11 inchestall, and were thin. Although Darrett could nottell their approximate ages, he believed they were younger than him.!2 Both were dressed all in black. At least one, and possibly both, wore a black hooded sweatshirt with the hood pulled over his head. Darrett tried to run them over, but was unsuccessful because they ran back the other direction, toward Cottonwood Road. They separated, with one running north towardFeliz Drive, and one running south ~ toward Cannon,via the dirt alleyway next to Shaw’s apartment. Darrett did not see either of them taking off their‘clothes or trying to jump a fence to get away. Halfway up the block, Darrett turned to look at Alcala. She was bleeding and unresponsive, and he realized. she had been shot. He drove her to Kern Medical Center. He did not see either of the shooters exit onto Feliz Drive or any cars leaving or trying to flee, but he was not really payingattention. At-7:58p.m:;theKernCountyShenffsDepartment received-a-911-call-from the McNew Court address, reporting a shooting. Senior Deputy Lostaunau arrived four minutes later, and the helicopterand other deputies shortly after that. Lostaunau, who wasin the gang unit at the time, had driven down severalofthe streets in the area before the shooting was reported, looking for people to contact or anything that appeared to be out of the ordinary. He did not comeacross any parked car containing three African- 12 Darrett was 31 years old as of December 19, 2008. Dixon was between five feet six and five feet seven inchestall. 12. American males or make contact with a group of three African-American males on foot. Hedid not see anybody jumping fences or running, or any vehicle fleeing at a high rate of speed. | Lostaunau parked a few feet west of the driveway into the apartments and found empty cartridge casings on the groundathis feet when hegotoutofhis car.}3 Healso smelled gunpowder and saw a person down on the groundin front of the apartment. He could hear screaming coming from the apartment. Lostaunau approached the apartment and asked what happened and whodidit. Someoneinside yelled that it was a Black male, and Lostaunau broadcast that overhis radio. He then started attending to Wallace. When he put his hand on Wallace’s back, he felt it rise at least once with a breath. Within seconds, however, Lostaunau could feel no more breathing and was unableto find a pulse. Deputy Adams, a former paramedic, determined Wallace was deceased. Around 8:00 p.m., Leon Reyes wasasleep in the back room of his house on the south side of McNew Court, in the same block as Shaw’s residence, when he heard a racket at the fence separating his front yard from his back yard on the westside of the house. He stepped out onto his back porch and saw someone jump the fence separating 13 Five spent .38-caliber Super Plus P shell casings were found. That kind of ammunition normally is used in semiautomatic firearms. No fingerprints were found on the casings. The core of a round ofjacketed ammunition was found in the front passengerside door of Darrett’s vehicle. The spent shell casings found on McNew Court werefired from the same firearm. A partial fingerprint, which could not be identified when comparedto the prints of defendants, Darrett, and Alcala, was found on the rear passenger window exterior. Detective Armendariz investigated a numberof vehicles at or near the scene of the shooting. None wereregistered to or associated with any defendant. The white van parked acrossthe street and to the west of Shaw’s residence belonged to the Fuentes family. 13. his back yard from his neighbor to the south. He could not see who it was, but the person could have been wearing dark clothing. Reyes immediately went to the front yard to check on his car. As he did, he saw Deputy Ollague going down McNew Court. Reyes informed Ollague that a subject wearing white tennis shoes and dark clothing hadjust gone over his fence. Ollague and a K-9 deputy searched the front and back yards, but found nothing. Oneof the units responding to the scene wasthe helicopter, Air One. It did not report anyone who appearedto be fleeing the scene, although it did report a subject walking on Feliz Drive near Cottonwood Road,a location one block north ofthe shooting and east of where the dirt alley from McNew Court cameout onto Feliz Drive. The subject appeared to be wearing dark clothing and white shoes. Contact was made with this person, a teenager, who was searched, questioned, and released. Just before 8:00 p.m. on April 19, Rebecca Martinez, who lived in the 1200 block of McNew Court, heard five to six gunshots, a scream that sounded female, and tires “peeling out.” Martinez called 911. When Sheriffs Sergeant Rennie contacted her, she pointed him to the house directly across the street, where a large dog was barking near the east fence line. Martinez suggested Rennie check that yard, because the residents were not homeand the dog rarely barked. Rennie checkedthe house and-saw-that-it appeared-to be-seeure.-When-helooked- under oneofthe vehicles parkedin the driveway of the house immediately to theeast, which wasacross the street and four houses down from the location ofthe shooting, however, he saw a small pile of dark clothing that consisted of a dark-coloredbaseball cap bearing the Boston Red Sox logo (a red B), a Nike brand U.S.A. Basketball Michael | Jordan jersey, a dark blue or black Navy-style Volcom-brand peacoat, and a beige or tan American Dawn-brand smock-type shirt. A Samsungcellular telephone was found in 14. one of the coat pockets. The clothes did not belong to anyone in that household, and had not been there earlier that evening.!4 Senior Deputy Little contacted Othelon at the scene. After learning that Othelon had witnessed some of what happened, Little took Othelonto his patrol car, activated his tape recorder, and took his statement. Othelon was cooperative. 14 From March 16 through April 12, Johnson attended Bakersfield Barber College. Students were required to wear a tan, short-sleeved smock. The school generally issued students a Brick McMann-brand smock with an American Dawnlogo. Following their arrests, DNA samples were obtained from defendants and compared to DNAextracted from variousplaces on the items of clothing. All three defendants were amongthe five or more contributors to the DNA found onthe coat. Because of the numberof contributors, the astronomically rare frequencies (probability of finding that genetic profile in the general population) typically found with a single-source genetic profile were not obtained. Thus, for example, although Johnson wasincluded as a contributor to the mixture found on the coat collar, approximately one in 25 people could also have had the same profile and been contributors. The frequencies were similarly common with respect to Lee and Dixon. Where such common frequencies were obtained, Gary Harmor, the senior forensic serologist at the Serological Research Institute who conducted the DNAanalysis in this case, could not say with certainty that a particular defendant touched the particular item. DNAextracted from various places on the smock wasalso a mixture of contributors, with all three defendants included. Frequencies again were common, except with respect to the three-contributor mixture found on the inside front collar. Johnson’s genetic types showed up strongly enoughthatit could be determined only approximately one out of every 1.1 million people would have genetic types consistent with what was found in the evidence compared to Johnson. DNAextracted from the jersey was also a mixture of contributors. Lee was excluded as a possible contributor. Dixon could not be excluded. Johnson wasincluded as a possible contributor; with respect to the mixture found on the inside front collar, only one in 8.8 million people could have the same types. A frequency calculation of that magnitude was quite significant where a mixture was concerned. DNAextracted from the sweatband of the cap was a mixture ofat least four contributors. Johnson could not be excluded as a contributor, but the statistical analysis showedthat approximately one in 1144 persons would have a type similarto that contributor. Lee and Dixon were excluded as contributors to the DNA onthe baseball cap. 15. Othelon told Little that he was sitting in the backseat of his cousin’s truck, eating and hooking up music, when his cousin Darrett and Alcala pulled up. They were facing west, and Anthony, Miller, and Wallace were standing by the driver’s side, talking to Darrett. Othelon heard shots. He opened the doorand looked back, and saw oneofthe assailants jump the fence into a field. This person was wearing a black hoodie with the hood up, and a white Pro Clubshirt over the black hoodie. He was African-American, 18 to 20 years old, aroundsix feet tall and 180 to 185 pounds, and with a dark complexion. Othelon did not see this one with a gun. The other one ran downthealley. He was dressed all in black. He had a handgun pointed toward Shaw’s house and was running southbound. He was African-American, 18 to 19 years old, about 5 feet 10 inchestall, weighed 160 or 165 pounds, andwas dark-complected. One of the two had a “punk” hairstyle, a “short bush [A]fro.”15 The gun wasall black and soundedlike a nine- millimeter. Nothing wassaid before the shooting started. After, everyone ran into the house. Wallace only madeit to the porch. | Othelon related that he did not see any cars come up and stop anywhere in the area before the shooting started, and that he did not notice the shooters until after they had stopped shooting. Othelon estimated he heard-at least eight shots, andthat it sounded like they all came from the same gun. Hedidnot recognize either of the assailants, although 16.2 -hebelieved hewould-probablyrecognizethem-tfhe-saw-themagain. 15 Little was in contact with Johnson sometime after the shooting. Johnson did not have an Afro, nor was a small Afro wig found. Little also saw Dixon two days after the McNew Court shootings. There was no indication Dixon shavedor cut his hair in the preceding couple ofdays, nor were any wigs found on him. 16 Attrial, Othelontestified that just before the shooting, he wassitting in Miller’s © truck, installing stereo speakers. Hefurthertestifiedthat the only time he ever saw Dixon was when they both were in prison sometimeafter the shooting, but the two were in different locations and never met. Beyond that, Othelon claimed that he was unable to remember anything, didnot wantto testify, and was not going to identify.anyone. He did not remembertalking to Little or what he told the grand jury. 16. When brought into the hospital, Alcala was in a deep coma. She had a penetrating injury to the posterior portion of the occipital area of the brain, with the entry site on the right lower back portion of the skull and the bullet’s direction of travel upwardtotheleft, and back to front. There were bone and metallic fragments in her brain. She died during surgery performed in an attempt to control her continued rapid bleeding. The cause of . death was gunshot woundofthe head. Alcala was pregnant with a boy whosegestational age was approximately 12 to 14 weeks. The fetus was medically healthy and died as a result of the mother’s gunshot woundto the head. Wallace suffered an entrance gunshot woundto the right side of his chest, underneath the armpit, with an exit woundin the left shoulder area. The bullet traveled right to left and slightly upward. The absence ofsoot or stippling indicated the weapon was more than three to four feet from him whenthe shot wasfired. The cause of death was gunshot woundofthe chest. Asthe bullet injured internal organs and major vasculature of the heart, he lived a matter of a minute to minutes after he was shot. The day after the shooting, Marshall and Little began investigating the Samsung cell phone foundin the coat pocket. Marshall ultimately was able to determine the - phone’s number. At about 2:00 p.m., the phone rang, and thecaller asked for “Dodo.” Little checked some law enforcement databases and discoveréd that Dixon used the moniker Dodo. Little obtained photographs of Dixon maintained by law enforcement. Kern County Sheriff's Senior Deputy Pratt spoke to Othelon on February 1, 2008, while Othelon wasin prison. Othelon admitted being a gang member. He said he was Eastside or Stroller Boys, and that at the time of the shooting, things had been “pretty tense” between Eastside and the Country. Pratt again talked to Othelon on December10, 2008,after Othelon paroled, with respect to a rumorPratt had heard about Othelon being threatened by Dixon while in prison. Othelon denied being threatened andsaid thatif Dixon had threatened him, Othelon would have “taken him out.” Othelon told Pratt that - he usedto live in the Country and knew Dixon from his childhood, when they would ride dirt bikes together. Othelon said Dixon told him, as kind of an apology, “I didn’t know it was your auntie’s house.” 17. They revealed that Dixon boretattoosrelated to the Country Boy Crips and its Watts and Lotus clique. There were photographs of Dixon stored in the phone’s memory. The screensaver for the phone read, “Watts wit it.” Further investigation into Dixonled Little to an apartmentin the 2600 block of Chandler Court, Bakersfield, which was the residence of Myeshia Herring. Myeshia related that Dixon had called her and said he needed a place to stay because of some parole issues. She texted him the address. He moved in Wednesday, April 18; she did not see him at all on Thursday, April 19; they left together on Friday, April 20; when she got back early Saturday morning, he wasnotthere, but he was there when she got up later that day; later on Saturday, he left with Myeshia’s friend, Gina Stewart, in a white 1990’s Chevrolet Caprice. Little examined Myeshia’s cell phone, which contained the number - of the Samsungcell phone foundin the coat pocket in the address book under the name “friend.” Little told Myeshia to tell Dixonto call Little when she saw Dixon. About three hourslater, Dixon contacted Little and then voluntarily cameto the sheriffs office. Little took identifying photographs and more detailed photographs of Dixon’s tattoos. Dixon, who was wearing dark blue pants andlight blue boxers, was allowed to leave after he was photographed. | == --On-April25,Littleinterviewed-Myeshia-again.17_MyeshiareiteratedthatDixon— needed a place to stay, and she simply replied by text messageto whatever numberhe used to contact her. Dixon movedinto the apartment Wednesdayand spent the night. . Thursday, the night of the McNew Court shootings, he was at the apartmentinthe’ daytime, but notat night. When Myeshia woke Friday morning, Dixon was not there, but 17 Attrial, Myeshia either denied,ortestified she didnotrecall,telling Little anything about Dixon during the interview. A video recording of the interview was shownto the jury. ~ 18. he did spend the night Friday. Myeshia related that she had Dixon’s numberstored in her phone as “friend,” and that he had grown suspiciousof her after Little interviewed her the _ first time. Myeshia related that her nickname was “Messy 1,” and that she had known Dixon since they were in junior high school. She said she saw Dixon onthe dayhe got out of prison. With respect to the Samsung cell phone found in the coat pocket, Myeshia related that her sister Mikeshiea gave the cell phone to Dixon shortly after his release from prison. Myeshia said that every time she called that phone, Dixon answered. Myeshia related that about a week before this interview, Dixon called Myeshia from a numbershe did not recognize. When she asked him about why he wascalling from that number, he said he did not have his other phone becausehe hadlost it. When she asked how helost it, he told her not to worry aboutit. Myeshia said she had known Johnson for several years. He had a girlfriend who was Hispanic and several years older than him. Myeshia said she had never known Johnson and Dixonto be close. Dixon was always by himself or with “thegirls.” Meanwhile, Marshall obtained a search warrant for the subscriber information and tolls for the Samsungcell phone found in the coat pocket. Recordslisted the phone’s subscriber as Dominique S. Clayton, with an address in the 4400 block of Balboa Drive, Bakersfield. The phone was activated on March 10. On the evening of April 27, Rennie and Little went to an apartmentin the 4400 block of Balboa Drive — the samestreet address as the subscriber of the phone found in the coat — to interview Mikeshiea. | Mikeshiea’s middle name wasDominique, and she had a child by Gary Clayton. Mikeshiea gave Little and Rennie permission to enter to look for Dixon. They did not find him. Mikeshiea denied knowing anyone named Dominique Clayton or ever giving Dixon a cell phone, although she admitted knowing someone named Dodo and identified Dixon’s photograph. 19. Little examined Mikeshiea’s cell phone. The screen read “Messina #2.” When he inquired of Mikeshiea, she said that she and her sister Myeshia used the names “Messy 1” and “Messy 2.” Mikeshiea said she was Messy 2, while Myeshia was Messy 1. Little found no reference in Mikeshiea’s phone’s contents to the numberof the Samsung cell phone foundin the coat pocketor to the name Dodo. There was, however, a num berfor “Pook,” whom Mikeshiea identified as Columbus Holford and with whom Lit tle was familiar. 18 Cell phone records showedcalls between Dixon’s phone that was foundin the coat pocket at the McNew Court crime scene and Mikeshiea’s and Holford’s phone s. 18 Mikeshieatestified at trial that she and Myeshia never went by the nicknames Messy I and Messy 2. On Mikeshiea’s MySpacepage, however, she referredto he rself as Messy, while people’ who posted messages to her referred to her as Messy or Messy2. Attrial, Mikeshiea testified that she had never heard of or called the numberofth e cell phone found on McNew Court and did not know Dixonpersonally, although she knew him to be a friendof hersister. She denied ever giving him a cell phone. Myeshiaalso deniedtelling Little the things to which he testified. She testified that she had only known Dixon, whom she knew as Dodo, for a couple of years. | Although she was aware he wentto prison, she did not meet with him thefirst day he got out. She did not know if Dixon had a cell phone. She and Mikeshiea did not hel p him | get that phone. Myeshia had seen Johnson and knew whohewas,but had not spo ken to him. Myeshia knew Lee,as he hadlived on the samestreet as her grandmother , and he and Myeshia went to the same church. However,she denied ever talking to him. MyéeshiaadmittedallowingDixon to usé her address as a mailing add ress, butdenied’that™ ~~ he ever moved in with her. She denied ever texting Dixon heraddress. The phone foundat the scenelisted Messy 1 and Messy 2 as the first two con tacts in its address book. A text message stored in the phone from Messy2, dated Apr il 21, read, “Friend, are you okay? Call me. It’s important. Please call me.” Anothe r text message in the phone, dated April 16 and from Messy 1, gave an address in the 2600 block of Chandler Court. The address, which was the same as that determined to belong to Dixon, was Myeshia’s apartment. One of the text messagesfrom M essy | was directed to Dodo. Oneofthe texts, dated March 27, read, “F-u-c-c U.” K ern County Sheriff's Senior Deputy Pratt had seen that spelling in the course of gang invest igations. According to some people, “CK”is not used because it stands for “Crip Killer .” According to others, “CC” standsfor “Country Boy Crips.” 20. Records further showed a series of eight calls, beginning at 7:19 p.m., made from Dixon’s phoneto a numberdeterminedto belong to Lee’s cell phone. A search warrant was obtained, and records seized, for Lee’s phone number. Cell phone and cell tower records for Dixon’s phone showed a groupingofcalls occurring in the vicinity of the cell phone antenna with coverage of the McNew Court area, from 7:14 p.m. through 7:45 p.m. Thefirst six were made on the antenna consistent with the shooting scene in the 1300. block of McNew Court. The seventh call, which was made beginningat 7:45 p.m., was almost four minutes long. It began on the antenna consistent with the 1300 block of McNew Court, but ended on the antenna consistent with the 1200 block of McNew Court. The eighth call did not register on an antenna, which was consistent with the phone being powered off, either intentionally or because the battery died. This last call was an incomingcall from Lee’s phone that occurred at 7:54 p.m. Records further showedactivity that was consistent with Dixon’s phonebeing in the area of Inyo and Monterey at 6:45 p.m. on March 21. Records for Lee’s phone showed that when the 7:19 p.m. call was received from Dixon’s phone, Lee’s phone was north of Highway 58, which in turn was north of McNewCourt. By the time the 7:25 p.m. call was received, Lee’s phone had moved south of Highway 58, in an area covered by the antenna that had coverage of the McNew Court vicinity. The third call from Dixon’s phone to Lee’s phone occurred at 7:40 p.m. Dixon’s phone was on the antenna that encompassed the 1300 block of McNew Court. The next incoming call was the nearly four-minute one; Lee’s phone wasstill on the- same antenna. The outgoing call at 7:54 p.m. was moving away from that antenna. The next call, made at 8:02 p.m., which wasafter the shootings were reported, was from the antenna that covered Cottonwood Road and Highway 58. The phonewas probably north of the highwayat the time; the call was outgoing to a numberassociated with Joseph Gage, whose moniker was “Gage.” Dixon’s phone had contact with that numberbefore the shootings. 21. Events Surrounding August 11, 2007 Sometime after 9:00 p.m. on March 25, Adrian Bonner wasgetting a tattoo ata tattoo parlor in the vicinity of H and 20th Streets, in downtown Bakersfield, when Lee and a light-skinned, green-eyed Black male came in. Bonner knew ofLee, although he did not know him personally, because each had once dated Saleta Roseburr. Bonnerlast saw Lee about a month before Lee walked into the tattoo parlor. When Lee walked in, he and Bonner made eye contact, and Lee acknowledgedthe people he knew there. He asked Bonner’s female friend if this was her “dude.” When she said yes, Lee talkeda little more and then walked back outside. Lee was outside a minute or two. Bonner did not know what he was doing. Lee » then walked back inside, went up to Bonner, and asked if Bonner was a Blood. He also said something like, “[TJhis Little Gunner Loc from South Side Crp. [just want you to know where you’re at.” Bonner was aware the Bloods were a criminal street gang and that their color was red. He did not believe he was wearing anyredthat night. The tattoo artist said it was a place of business and that they did not have to worry about any of that there. The situation caused Bonnerto start feeling nervous, and so he asked fora cell phone so he could call a family memberandlet that person knowhis whereabouts. His girlfriend handed him herphone, and hedialedall the relatives he - thoughtwould be-home; butgotno-answer-~ During this time, Lee produceda cell phone and started showing everyone the picturesonit andtelling them to look at what was doneto his hand, which was bandaged, and his truck. Curious, Bonner asked to see. He saw a picture ofinjuries to Lee’s finger, and of a truck withbullet holes in the windshield. | Theartist wasstill doing Bonner’s tattoo, and Lee went outside and came back in a couple more times. At some’point, one of the other males said, “your homeboy Rifle’ s here.” Lee walked outside,then returned a few secondslater with Johnson, whom Bonner hadnever seen before. Lee sat down, but Johnson kept walking in and outofthe 22. parlor and looking at Bonner in an awkward kind of way. By this point, Bonner was feeling very intimidated. Whenthetattoo was finished, Bonner got up, shookthe artist’s hand, and paid him. Lee wassitting on the couch a few feet from Bonner, talking about how his pain medicine had him tired. Bonner also shook another male’s hand. He then extendedhis hand to the third male, but that person just looked at him and said, “nah, Watts.”!9 Bonner knew whatthis meant and that Watts was located in the Country. Bonnerturned to leave. As he was on his way out, however, Johnson, who was standing in the doorway, struck him in the face with his fist. The person to whom Bonner had extended his handalso started hitting him. Both Johnson and the other man struck Bonner multiple times. Dazed and almost unconscious, Bonnertried to cover up as he lay on the floor of the tattoo parlor, being hit and kicked. He did not know where Lee was. At some point, the blows stopped. Bonner got up and ran. He could hear voices coming from thealley, threatening to get him and kill him. He ran until he felt he was a safe distance away, ending up a couple of blocks away at a men’s shelter. He wentinside and stayed there for 45 minutes to an hour, then one of the residents was able to contact Bonner’s girlfriend. She took him to his cousin’s house, and Bonner contacted his father. Although Bonnerdid not give a statementto police that night, his father did. Bonner was not a Blood, but he had friends and family members who were. He associated with Bloods“all the time.” The Eastside, Westside, and Country were the Bloods’ rivals. As of March, Bonner was acquainted with Daniel Davis (Grinnage’s son), who lived on Deborah Street. Bonner would regularly visit Davis at that house, as would Bloods. In Bonner’s estimation, that house was a Blood hangout. A couple blocks away, on Deanna Street, was a house where Country Boys tended to congregate. Bonner 19 Neither of these males was Dixon, who wasnotin the tattoo parlor. 23. had seen Leethere on a couple of occasions. Lee was driving a Tahoeatthe time, the same onein the pictures in Lee’s cell phone. At the time, the Bloodsdid notreally have a territory, just certain places they would be at. One ofthese places was on the east side, near Monterey Street. Between March 25 and August 11, Bonner saw Lée a couple of timesintraffic. Both times, Lee was in a black Volkswagen Jetta or Passat. On August 11, Bonnerwasliving with his sister in the southwest part of. Bakersfield. About 10:30 that morning, he borroweda car and drove to the Denny’s on White Lane. He was alone. While he waited for his order, which he had already called in, he talked to Saleta Roseburr, who workedthere. Bonnerfelt someone staring at him, and turned to see a person he knew as “Cutty Pete.” Bonner knew him from a prior incident in which he and Bonner’s cousin had had an altercation. At that time, Cutty Pete said he was from the Country, meaning he was a Country Boy Crip. Bonner and Cutty Pete exchanged words. Cutty Pete threatenedto hurt Bonner, wholaughedat him. Bonner got his order and got back in his vehicle,at which time Cutty Pete cameto the doorofthe restaurant andstarted “[t]hrowing up signs” through thewindow and saying things Bonner could not hear. This occurredshortly after 11:00 a.m. Bonner did not see Cutty Pete any othertime that day. . Laterthatmorning,Bonnerpicked-up hisfriends,PaulandDwayne,-wholived--~- directly south of the Foods Co. at White Lane and South H Street, and headed toward a barbershop in the vicinity of Real and Wilson Roads. They wereat the barbershop for . approximately three hours. Anotherfriend was there, and he askedfor a ride. Bonner took him home, then took Paul and Dwayne backto their house. Bonner next went to the Taco Bell by Foods Co. to eat. It was around 4:00 or 5:00 p.m. Although he was wearingall red that day, he was not trying to dress like a Blood;it simply happened to be what he had on. As he wasleaving the parking lot, he saw Lee two, to two anda half, car lengths away from him in a 2001 orlater small, four- 24. door, reddish-burgundy car that Bonner believed was a Suzuki Forenza. Lee, who appearedto be alone, did a double- or triple-take, and Bonner made eye contact with him. Bonner then pursued him in the vehicle, and ended up directly behind him, headedeast on White Lane. Bonner wanted to fight Lee because of what had happenedatthe tattoo parlor. The light at South H Street and White Lane turned red, and both cars stopped. It looked like Lee was going to go straight, but then he ran the red light and turnedleft, heading north on South H Street. Bonner did not follow, but instead made a U-turn and headed back to Paul’s house. He wanted to let Paul know that Lee wasin the area. Bonner was concerned that if Lee had seen Bonnerin the car earlier in front of Paul’s house, something could happen at the house. | Bonnerremained at Paul’s house for five or 10 minutes, then headed out to return the car. His route took him north on South H Street, then west on Planz. As he came to where Real Road dead-ends into Planz, the light turned red for traffic on Planz. Bonner stopped. His was the fourth car back from the intersection. He was listening to music when heheard a loud popping sound andfelt his body jolt. Out of the cornerof his eye, he saw a burgundyvehicle passing by the passengerside.of his car. He did not knowifit wasthesame car Lee had been driving earlier, although it was the samecolor, or even if the shots came from that car. He did not see who or how many werein the vehicle. Bonner knew immediately it was a gunshot, but did not know if it was more than one, as it all sounded like one drawn-out noise. He felt something hit him, and checked himself over. His vision blurred, and when he began to move,hestarted to feel a burning sensation in his abdomen. Hetried to get out of the car, but could not movehis legs. He felt only tingling in his lower body. He wasableto get the car to roll, and so made a right turn onto Real Road, andthe first left turn possible, which wasinto the driveway of someone’s house. Someonethere called 911 and an ambulance. About 20 minutes had elapsed from when he saw Lee on South H Street to when he wasshot. 25. Whentalkingto the officer at the scene, Bonner never mentioned Leeorthe other defendants. Hesaid he did not know whoshot him and could not describe the suspects, although he thought the shooter wasthe person with whom hehad hadthe altercation at Denny’s. In light of Cutty Pete’s belligerence and aggressiveness, Bonner had considered the incident with him moresignificant than the incident with Lee in the parkinglot. Christopher Calloway lived at the house on the corner of Real Road and Planz. Around 7:22 p.m., he was outside when heheard at least two gunshots. He saw a car waiting at the redlight. A secondcarpulled up onthe right side and someone in the second car shot toward the other car. Calloway believed there were three individuals in the car from which the shots were fired. The shooter was a darker-skinned African- American male wearing a black hat or do-rag, sitting toward the left side of the vehicle in the back seat. The driver and front passenger also were African-American and, Calloway believed, male. The shooter’s arms, shoulders, and head were outside the window until after the second shot. The gun was a black handgun. The car was a burgundycolor, possibly a newer-model (late-1990’s or early 2000’s) Ford Taurus or something ofthat nature. Calloway believed it was a four-door model. The car rounded the corner and then sped north on South Real Road. Calloway could notsay whether any defendant was -in the car from-which-the-shots-were-fired——~~~nnen Ruben Gonzaga and some friends were outside a house on the south side of Planz, talking, when Gonzaga heard.a loudpop. He sawgun smokeoutside one of the windows» of a cherry red, four-door car — possibly a Chevrolet sedan or Ford Taurus — that sped off. He believed he heard two shots. He could see at least two people in the car, but believed there may have beenthree or four. Gonzaga was unable to tell who in the car was shooting or the race of anyonein the vehicle. Talia Zarate and Bryan Kunzmann weretraveling westboundon Planz and had to stop for a red light at Real Road. There was one car stoppedin front of them. They-had 26. been at a full stop for a couple of seconds when a small, four-door, maroon or cranberry- colored car pulled up beside the vehicle stopped in front of Zarate. A young, dark- complected African-American rolled down the driver’s side rear window. He was _ wearing a black beanie cap and had a goatee. Half of his body came outofthe vehicle, and hestarted shooting a black gun at the vehicle in front of Zarate. He was using a two- handedgrip. Zarate did not know if anyone other than the shooter and the driver was in the car. She did not know if any defendants were in thecar. Kunzmann described the car as being either dark red or burgundy. It wasa late, four-door model, and either a Ford Taurus or something with that type of rounded body style.2® The shooter, whose arms were outside of the car window, was an African- American male in his early 20’s, wearing a black sweatshirt or long-sleeved T-shirt, and a black hat or beanie. He had a neatly trimmed goatee. There were three peoplein the car, all African-American males: the driver, the front passenger, and the driver’s side rear passenger. Bonner wasshotin the right side of the chest, close to the armpit.?! The bullet caused major,life-threatening abdominal injuries, including the loss of a kidney and damageto the spinal cord. He underwent almost immediate surgery to control internal exsanguinating hemorrhage. Asa result of the gunshot wound, Bonnerwas.left a permanentparaplegic. The bullet was not recovered, because it was lodged in the spine, and the neurosurgeonsfelt it would be too dangerous to attempt to removeit. 20 In his 911 call, Kunzmannsaidthe car was red and lookedlikea Toyota Corolla. 21 He suffered a second injury in the samearea, but it could not be identified with certainty as a bullet wound. When Kunzmann spoketo him immediately after the shooting, however, Bonner said he had been hit twice. In addition, Officer Vasquez saw two bullet holes in the car, one on the right rear passenger quarter panel, and the other on the passenger-side front by the door handle. Two expended nine-millimeter shell casings were found on the east side of the intersection. They had been fired from the same gun. 27. Later that month, Kunzmann was shown three photographic lineups, one containing each defendant. Hedid notidentify, select, or eliminate anyone.’ However, records for Lee’s cell phone showedthat calls made or received between 10:17 a.m. and 3:52 p.m. were routed through the cell antennasite near.Lee’s residence on Myrtle Street. Calls between 4:22 p.m. and 4:34 p.m. were routed on the antennaat South Real and Wilson Roads. Calls between 4:58 p.m. and 6:48 p.m. were routed on the antennathat covered an apartment complex at Eye Street, although the calls moved from the side. of the antenna facing duenorth to the side facing southeast during that time. Between 6:48 p.m. and 7:01 p.m., there were several calls between Johnson’s residence on Thoreson Court and Lee’s phone. At 7:18 p.m., a call was made from Lee’s phonethat, given the cell phone tower on which it originated, was consistent with the phone being to the east; or at the corner, of South Real Road and Planz. At 7:28 p.m., the antenna ' registered a call that was consistent with the phone being in the Thoreson Court area. The phone then movednorth. On August 16, Kern County Sheriff’s SeniorDeputy Little, and Bakersfield Police Detectives Heredia and Darbee, Flew to Las Vegas, Nevada, tointerview Sara Agustin,a woman whohad beenin a prior relationship with Johnson. The detectives returned her to Bakersfield, where she pointed out various locationsto them. Agustin also provided -- telephone numbersof-people-sheknewduringthe-time-she-lived-withJohnson,together-——- with photographs andcredit card statements. Shortly after 8:00 p.m. on August 23, Bakersfield Police Officer Finney and his partner, Officer Ursery — both assigned to SEU — were on patrol on Dobrusky Drive in Bakersfield, an area within the traditional boundaries of the Westside Crips. . They observed a gray Nissan, motor running, parked in front of a house from which Finney previously hadseized firearms. ColumbusHolford, wholived there and whom they knew to bea Country BoyCrip withthemoniker “Pookie,” wasspeakingto three subjects inside the car. 28. Asthe officers approached, Finney recognized Dixon as the Nissan’s driver. Aware Dixon wasonparole, Finney yelled at him a couple of timesto turn off the car and step out so he could perform a parole search. Atfirst there was no reaction, but then Dixon accelerated away. A vehicle pursuit ensued.. In front of an apartment complex in the 100 block of L Street, Dixon stopped, and the occupantin the front passenger seat jumped out of the vehicle. Ursery pursued him on foot. The individual was a dark-skinned African-American male, six feet or six feet one inchtall, about 175 pounds, with short hair. Ursery was unable to catch him. Meanwhile, Dixon again sped off. At one point, he drove through the 200 block of Eye Street, then subsequently returned to the apartment complex on L Street. There, the car again stopped. The driver’s door opened, then, after about 15 seconds, closed _ again andthe pursuit resumed. On northbound Chester, the vehicle pulled into the center turn lane in the 200 block and slowed significantly. Dixon jumped outandran, eventually climbing the back wall of the parking lot for an apartment complex in the 200 block of Eye Street. The vehicle continued on until it hit a curb and came toa stop. Finney followedit and found Leesitting in the rear passenger-side seat. In a partially unzipped lunch pouch ontheleft rear seat, directly behindthe driver, were a loaded Tec- 9 pistol and additional rounds of ammunition. The Nissan had been reported stolen from an apartmentin the complex in the 200 block of Eye Street, although investigation revealed it had not actually beenstolen. Officers determined that Dixon had jumped a wall to the east of the complex. On the west side of the wall, in the apartment complex’s rear parking lot, were three live rounds of ammunition. Oneofthe cars parkedin thelot at the back of the complex at that time wasred. Dixon wasarrested shortly after midnight on August 24. He was taken into custody at his residence in the 2900 block of Half Moon. 29. On October 1, Kern County Sheriffs Senior Deputy Lopez andother officers executed a search warrant at the residence on Myrtle Street in which Lee lived with his father. Lee was in custody at the trme. Lopez foundletters referencing gangactivity that were addressed to Lee and appeared to be from his brother in prison, photographs depicting persons throwing gang signs, and rap lyrics containing references to gang activity. Also found were a gas mask, somearticles of powder blue clothing, multiple . rounds ofvarious calibers of ammunition, and a baggie containing a usable amount of marijuana. That same day, Lopez and his team executed a search warrantat the apartment in the 2900 block of North Half Moon at which Dixon had been residing. Dixon wasin custody at the time of the search. In addition to somebills addressed to Dixon at that address, officers found a California identification card for Johnson.. Sara Agustin’s Testimony Sara Agustin, whotestified under a grant of immunity, first met Johnson in late September 2006, when he was 20 years old and she was 36. She was driving to a market on Cottonwood Road andCasino to purchase marijuana, when she saw Johnson andhis friend, “Fat-Fat,” walking to the market. Agustin pulled over and asked Johnson if he . knew whereshe could purchase marijuana. Johnson eventually directed her to the house -of-a-drug-dealer;about-three blocksaway.-The-dealer’s-nickname-was“‘Reese,;”-andhe- ~ lived onReese Street. With moneyprovided by Agustin, Johnson purchased marijuana, then he, Agustin, and Fat-Fat wentto the latter’s apartment and smoked some. Agustin and Johnson exchangedtelephone numbers. During the next month to month and a half, Agustin and Johnson sharedthe . common bond of smoking marijuana, and they had fun together. At the same time,. Agustin’s relationship withher husbanddeteriorated, and they separated just before Thanksgiving 2006. Johnson and Agustin then movedinto an apartmentin the 2500 block of Encina Street in Bakersfield. Agustin was employedat the time, but 30. Johnson was not. He told Agustin he wasselling crack cocaine, and showed her white rocks. Hesaid he “post[ed]” himself at the market where they first met, meaning he sold the drugs there. Johnson said he got his cocaine from his uncle and “Two C’s.” When Agustin first met Johnson, she did not know whether he wasin a criminal street gang. She becamesuspicious, however, when he would take her to the Country and she would see his behavior.22, They would beat an intersection, and he wouldsee one of what he called his homies, and he would make what soundedlike bird noises and make signs with his hand. Early in 2007, Johnson told Agustin that he was a memberof the Country Boy Crips, and that they “pushed the hood,” meaning they protected the neighborhood from rival gangs. Although Johnson did not grow up in the Country, he said he became a Country Boy Crip aroundthe age of 14 or 15. Johnson explainedthat he was jumpedby rival gang members then. They broke his jaw, and he began to “have hate towardscertain types of individuals.” That was what got him interested in being part of a gang. Johnsonsaid therivals of the Country Boy Crips were the Bloods and the Eastside, whom he derogatorily called “slobs” and “eggs.” Johnson told Agustin that the Country Boy Crips did drive-by shootings and sold drugs. Johnson had several monikers, but was most commonlycalled “Rife” and “Rifle.”23 Johnson explained to Agustin that his “big homfie],” “Big Rifle,” had given him that name because Johnson was someone “who wasbold enoughto really push the hood.” Johnson said he admired Big Rifle, who was now deceased. When Agustin first met Johnson, Johnson had several tattoos. Onthe first three fingers of one hand were an “E,” an “S,” and a “K,” which Johnson said meant Eastside Killers. A tattoo on his chest read, “fuc[c] them other niggas.” Johnson explained it was 22 The Country is considered the southeast part of Bakersfield. The mainstreetis Cottonwood Road. 23 Agustin’s daughter heard oneperson call him “Rifleman.” 31. derogatory to his rival gangs. While they were living on Encina Street, he gota tattoo on his lower back that said “2007” and “NC.” Johnson explained that 2007 was “the year of the Country,” and that NC stood for Neighborhood Crips. Healso pointed out Watts and Lotus to her and said he claimed or “pushed” Watts. . Agustin encouraged Johnsonto quit selling drugs and learn a trade. He began going to barber school in early 2007. She also discouraged him from participating in the gang. Overthe courseoftheir relationship, however, Johnson beganto tell Agustin about his gang activities. With respect to the gang, Johnson said he wasthe boss,so hepretty much did what he wanted to do. In order to have that position of leadership, he said he did anything necessary. During the middle ofthe relationship, while they were living on Encina Street, Johnson told Agustin that he was a hit man. Hesaidthat if other people in the gang needed something done, they called him, because he was the one who could get the job done. He wasnotafraid of anybody. — ‘Agustin met Lee in around October 2006, when she had known Johnson a couple of weeks to a month. She met himthrough Johnson. Johnsonreferred to his friends as homies, loc, and cuz. He explainedthat Crips called each other Cuz. He also explained that powder blue wasthe color of the Country Boy Crips. Johnson sometimes worethat color, but he would wear any color. Sometimeshis friends wore powderblue,but not on - -~ategularbasis- ener nic leleee Ce eee ee nheencee eet . Ss cecene eens te i en nnnne en enn After Agustin met Lee, she saw him often, as he was Johnson’s best friend. Johnson said they had knowneach other since childhood. Leelived on Myrtle Street with his father. Myrtle Street was in Central Bakersfield, not in the Country. However, -Lee’s motherlived in the Country. At some point, he told Agustin that he worked in Los Angeles as a respiratory therapist. She saw him in various automobiles during the time she lived on Encina Street, most often a powder blue Magnumthat heliked to rent. He : also had his own car, a small black vehicle. In the first part of 2007, Agustin and 32. Johnson were at Lee’s house on Myrtle Street. Somehow,the topic came up, and Lee said he hid guns in the backyard. He did not give a specific location. Sometimeafter February, while living on Encina Street, Agustin heard Johnson and Lee talk about being Country Boy Cnps. They carried on conversations abouttheir neighborhoodandactivities. They discussed drive-by shootings. On August 13, Agustin heard Johnson call Lee “Gunman.” This was the only time she heard Lee called anything but “Dave.” Agustin never saw Lee flash hand signs. Johnson was moreblatant about being in a gang than Lee. Lee did not dress like a gang member. Agustin knew Dixon only as Dodo. Although she did not meet him until the spring of 2007, he and Johnson were together almost daily during the time Agustin and Johnson lived on Encina Street. They were together even more frequently in July and August, after Agustin moved away and then returned to Bakersfield with Johnson. Agustin also often saw Lee with them while she lived on Encina Street, and more often during July and August. Occasionally, Dixon talked to Johnson, in Agustin’s presence, about being a Country Boy Crip. In addition, Johnson told Agustin that Dixon was.a Country Boy Crip, as was Lee. Johnson also identified “Big Gage,” “Little Gage,” “Nip,” a woman named “Cece,” her husband Jim Herron (also known as “Big Boy”or “Big Jim”), Bradley Walker (also knownas “Bus Loc”or “Buzz Loc”), “Goo,” “D- Keys,” “Two C’s,” and someone Johnson referred to as “the light hom[ie]” as Country Boy Crips. Johnson obtained marijuana from Herron whenever he wanted. Agustin never saw him pay Herron. Herron also provided Johnson with Ecstasy. Agustin saw Dixon at Herron’s house onetime, and Lee there more than oncebut not often. In January, around Martin Luther King,Jr.’s birthday, Johnson and Agustin attended a barbecue in Casa Loma Park, which was located in the Country. Johnson said 33. it was the yearof the Country, and they were going to celebrate it.24 Johnson wore a black shirt that he designed. Lee hadan identical shirt. According to Johnson, he and Lee drove to Los Angelesand had the shirts made specifically for them. Johnson's shirt 92 ¢¢ read, from top to bottom, “2007,” “S,” “Wingstone,” “Watts Blocc, monstas.” Johnson explained that S stood for Southerner, the side of town on whichtheir gang neighborhood was located. Watts was the nameofa street in Johnson’s neighborhoodin the Country, and the block he represented was Watts block. Monstas meant monsters, and Johnson said he was a monsta. The back ofthe shirt read, again from top to bottom, “Naybors,” “Southsiders,” “Shell Killa,” “Country.” Shell was one of the monikers used for rival gangs. It meant eggs. The phrase meant Johnson wasa shell killer, i.e., someone who would kill an egg. Country was Johnson’s neighborhood. Each sleeve bore the letters “SSC,” for Southsider Country. Two or three times in early 2007, Agustin went with Johnson to purchase - marijuana at a house a couple of blocks off Pacheco Road. Agustin never met anyone wholived at the house, and never saw Dixon or Lee there. However,in the first part of 2007, Agustin was present when Lee and Johnsondiscussed Lee’s car being hit by gunfire in the area of Pacheco Road.25 Lee said he-and Johnson had goneto the location on Pacheco Roadto purchase some marijuana, and in the process, they were shot at by --someindividuals:~BothtoldAgustintheythemselves were-notarmed:~Lee-said-his-—---—- vehicle was shot numerous times. He and Johnson both were angry, and Johnsonsaid they needed to go backand retaliate. Lee wantedto submit the damageto his insurance. company,but he said he regretted submitting the claim because the insurance company 24 Dixon wasin prison at the time. Agustin did not believe Lee was present, as she did not see him that day. 45 The neighborhood containing Deborah Street and Deanna Wayis north of Pacheco Road and just east of Monitor Street. 34. required a police report, and that was how the police department found out the shooting had taken place. Lee and Johnson did nottalk about the specifics of what they were going to do or when. Within a day or two, Lee cameto the house on Encina Street with his arm bandaged. Agustin and Johnson were present. Lee unwrapped his arm and talked about how he had gotten shot in the arm whenthey wentbackto retaliate for the initial shooting on Pacheco Road.*® Lee said they parked away from where theinitial shooting occurred so that their vehicle would not be spotted by those wholived in that location. Johnson said that after they parked, they began walking toward the location wherethe initial shooting had taken place. Lee said they were walking toward wherethe individuals lived, or were thought to live, when they spotted a vehicle driving toward them. The individuals in the vehicle were the same ones who had shot at Lee’s vehicle, and they now beganto shoot toward Lee and Johnson. Johnson told Agustin that he pulled out his gun, but as he wentto fire, the gun jammed. He and Lee then began to run from the individuals in the vehicle, who continued shooting at them. Johnsonrelated that he and Lee ran in different directions. Lee said he jumped over a fence, but it broke and he injured himself. Lee was very angry and said he wanted to get them back. Johnson said those whohad shot Lee weretheir rival gang onthe east side. Duringthis time, Johnson was attending barber college on the east side of Bakersfield, on Niles Street. One day within a couple of days after Lee was shot, Agustin picked Johnson up from school. Johnson then drove on a dirt road beside a canal in a neighborhoodin the area of Monterey and Niles. He said he was scouting rival gang members who were hanging out in that location, and he pointed out a residential area. He drove through and pointed out some African-American males who were standing outside, right off of Monterey Street. One was wearing red, which Johnson also pointed out. 26 Agustin was already aware Lee had been shot, because Johnson hadtold her. Johnson said they were cominginto the barbershop, and he wasscared for his safety. He said he could not take his gun into the barbershop because the owner, who washis teacher, had security cameras, and he wasfeeling really helpless without his gun. He said that now he would haveto start taking his gun to the barbershop, but that he would leave it in the vehicle. One morning after this time, Johnson gave Agustin a pair of white Nike tennis shoes with red on the emblem and a red hoodie sweatshirt Agustin had bought him, and told her to destroy the items because they had been involved in a drive-by shooting he had committed in the canal area. Hesaid that a couple of days earlier, he and Lee went to the area. Lee was driving his black vehicle. Lee parked in an alley and Johnson gotout. He put on a mask and walkedto the frontof a residence, where a couple of individuals were sitting.2” Johnson walked up to one and started shooting. Johnson said he shotthis person several times and thought he had killed him. Johnson told Agustin that Lee wanted to go and retaliate for the shooting that took place on Pacheco Road, but Lee could not shoot the gun himself because his arm had been injured and so Johnson had to shoot on Lee’s behalf. Agustin burned the-sweatshirt in the fireplace of the Encina Street residence, and discarded the shoes in her trash can, because Johnsontold herto get rid of the items. She -did not-feel shehad-a-choice-Bythattimeinthe-relationship,he often-hit-her--Although-—-- ~~ - _ she knew she was helpingJohnson cover up acrime,she felt helpless, because he had 27 WhenAgustin and Johnson lived on Encina Street, Johnson possessed a black mask that looked almost like a gas mask. Agustin’s credit card receipt showed she bought the mask for him on March 30. Johnson said he wanted it for smoking marijuana. Johnson did not tell Agustin what he was wearingor the kind of mask he usedduring the shooting. During the time the couple lived on Encina, Agustin’s daughter observed a black ski mask in a duffel bag Johnson kept in Agustin’s. closet. On one occasion, Agustin’s daughter saw Johnson leaving the house with the duffel bag. He appeared to be in a hurry. 36. told her he would kill her if she ever left him or told on anything he did. Johnson subsequently told her that the person he shot had survived. On March 25, Johnson and Agustin went to Disneyland and Santa Monica. They camestraight home, because Johnson wasin a hurry to get homeandbe with his friends. Agustin believed they reached Bakersfield around nightfall, and she was almost certain he then went out with his friends. Johnson said nothing to her around this date about beating up a Blood gang memberor someoneata tattoo parlor. For Christmas of 2006, Agustin bought Johnson a black Volcom-brandpeacoat. For Johnson’s birthday on April 12, Agustin bought him a blue hat with “B” or “S” on it and a white jersey. While attending barber college, Johnson had to wear a tan, zippered smock.28 Johnson normally came home around 11:00 p.m. or midnight. Agustin did not know what he was doingat those times, although he wentout a lot with Lee. About a week after his birthday, however, he came homeseveral hours earlier than usual. He was very startled. He told Agustin that he had done something andthat they neededto go. back to the location, but that they had to wait until 3:00 a.m., when it would be safe and there would be no police around. A few hours later, Johnson told Agustin that he, Lee, and Dixon had driven to a certain location on McNew Court. Lee was driving. He parkedthe car, and they watched a particular vehicle. Lee and Dixon then stayed in the car while Johnson got out, approached the other vehicle, and started shooting. Johnson said he couldnot see inside the vehicle, but he thought there was someoneinside. Johnson told Agustin that after he shot, he ran to another location, then took off the clothes he was wearing and hid them 28 At trial, Agustin identified the pea coat, hat, and shirt found on McNew Court as the ones she had purchased for Johnson. The smock found on McNew Court wasthe same kind worn by Johnson at the barber college. . 37. underneath a vehicle. He did not specify what he was wearing. Johnson wanted Agustin and her daughter, who wasliving with Agustin at the time,to say that he was at home with them, watching movies, if anything ever came up aboutthat night. He said he needed to go pick up a gun, but he wantedto wait until 3:00 a.m. because he thoughtall the police would be gone from the area. At exactly 3:00 a.m., Johnson told Agustin that it was time to go. Agustin drove, with Johnson directing her, through the McNew Court area. Because she did not have her glasses and could not see well, her driving was somewhat erratic. Upset, Johnson told her that she needed to be more careful, because they could get pulled over by the police and that would jeopardize him. . They drove past McNew Court. As far as Agustin could see, there were no law enforcement officers in the area. Johnson directed Agustin to turn one block past McNew Court, and then to make a U-turn. Hethen had her park as close to the curb as — possible by the mailbox of a house witha brick wall and wrought-iron fencing, andthat had a van or similar large vehicle parked in front. Johnson then reached out of Agustin’s vehicle, took a dark-colored gun out of the mailbox, andplacedit on his lap.?? Johnson had gunsat the house on EncinaStreet, and this appeared to be one of them.*? _29 When Agustinsubsequently pointed out locations to law enforcementofficers, she_ identified a house in the 1000 blockof Feliz Drive, near Jastro, as the place where Johnsonretrieved the.gun. Senior DeputyLittle determined that the mailbox in front of that house was too far from the curb for a person sitting in the passenger seat of a car to reach inside. Twohouses to the west, however, was a similar-looking house with a mailbox muchcloser to the curb. 30 Agustin observedJohnsonto have a small revolver that he referred to asa .22, another revolver that jammed frequently and which he called a .38, and a large gun, about three feet long, that Agustin believed was a Tec-9 because she had heard Johnsonuse the term. He also had a grayish-black gun that was about the same length as the .38, but it was not a revolver and had a slide on it. He also had a black one like police officers ‘carry. It wasan older ‘model. The .22,38, and largégiin beganappearing at the residence in the early part of 2007. At somepoint, she did not see the large gun or the 38. Agustin and Johnson wentstraight home. Johnson told her how scared he was, then went to the back yard and hid the gun. He told Agustin that he needed to get md ofit right away. Johnson subsequently told Agustin he had sold the gun, but did not say to whom. | A day or two after Agustin took Johnson to the McNew Court area, Johnson received a telephone call from Dixon. Dixon was extremely upset at Johnson because Johnson had left the clothing he was wearing at the shooting, and inside the coat pocket was Dixon’s cell phone. The police had found the phone and were harassing Dixon. Dixon was upset that Johnson had gotten very careless. Johnson wanted to know what the police were asking and what kind of information Dixon wasgiving them. Johnson did not tell Agustin why he had Dixon’s cell phone, but just that Dixon was angry at him because he had taken off his clothes and put the cell phone in the pocket. Johnsonsaid he put the clothes underneath a vehicle not far from the crime scene. Johnson expressed concern that since the police had foundthe clothes, he and the others were goingto get caught. On Saturday, April 21, Agustin and Johnson wentto Pismo Beach alone for a night. The trip was unplanned. Johnson said he wanted them to get out of town to have some quality time together. After the McNew Court shooting, Johnson’s demeanor changed and he began drinking heavily. About a week after the shooting, Agustin asked him why. Hesaid he had found out that he had killed a pregnant woman. Johnson seemed remorseful. After the shooting, Dixon stopped coming to Agustin and Johnson’s house for a few weeks. After that time, however, he started coming overto the house again. Hesaid .38 anymore, but she still saw the .22. Agustin was unable to tell which gun Johnson retrieved from the mailbox because it was too dark. She knew from its size that it was not the .22. It appearedto be the samesize as the .38, but did not appear to be a revolver. the police had stopped comingto his house as often as they had in the beginning. Dixon told Johnson that Johnson had gotten careless. Dixon was concerned he would end up being blamed,since the police had no evidence that Johnson was involved. Johnson and Dixon discussed the car used in the shooting on McNew Court; both said it was Lee’s black car. At somepoint in early May, Johnson told Agustin that things were “getting pretty hot”. and he was afraid he was goingto get caught, so he left the Encina Street house and moved to San Jose to live with his sister, Lynell Johnson. Johnson asked Agustin to move with him, because he wanted to start over. He said he was going to changehislife. She did not believe him, but, hoping he really was going to change, moved in with Johnson andhis sister in late May. After Johnson moved, but before Agustin joined him, Johnson telephoned andaskedif she could park Lee’s vehicle, a Volkswagen, in her garage. She said no, because she wanted no involvementin what they had done. He then asked if she could at least drive the vehicle to the light homie’s house and park it there. Agustin agreed and tookthe car to 19th Street, just off of Cedar. She locked the keys insideit andleft it there. A day or so later, Johnson telephoned andsaid that Lee had tried to retrieve the vehicle, but the police had towedit.31 After Agustin and Johnson moved back to Bakersfield from SanJose, they moved — -in-with-P-G.and-Dreenie;-who-were-close friends ofJohnson--Dreenie-had-awig thatshe ~~ ~ occasionally wore. The hair was black andshort, but not curly. One evening in late June orearly July, Johnson asked if he could borrowit. Dreenie gave him the wig. After it 31 On the morning of May 2, police received a complaint of an illegally parked vehicle in the 2500 block of 19th Street, between Pine and Cedar Streets. There, a 1999 four-door Volkswagen Passat, without currentregistration tags, was blocking a construction. dumpster.Becausethe registration tags had been expired more than six months, the vehicle was impounded. . AQ. grew dark, Johnson said he had something to do and would be back. Heleft the house with Lee in Agustin’s Expedition. They were gone for 45 minutes to an hourorso. When Johnson, Dixon, and Goo returned, Agustin did not see her Expedition. Johnsontold her that she needed to go get Lee “in the hood,” by Reese’s house. Agustin did not have a car, so she asked Dreenie to drive her. She and Dreenie drove around by Reese’s house-but could not find Lee, so they returned to Dreenie’s house. When they arrived, Agustin’s Expedition was there, and Johnson, Dixon, Lee, and Goo were on the floor of the front room. There was a bunch of moneyall over the floor, along with three large sandwich bags of marijuana. The men were kneeling on the floor, counting the moneyandsorting it out among themselves. Agustin overheard them saythat they had robbed Reese. Two of them went inside to makeit look like they were going to buy marijuana like usual, then Johnson and the fourth one wentin, disguised and with guns. Whenthey camein, they pointed the guns toward the others and demanded the money. Johnsonsaid that one of the people got so scared, he “pretty much wentto the bathroom on himself.” Johnson said that to make it look good, he had to sock Lee inthe face. Johnson, Goo, Dixon, and Lee wereall discussing the robbery and laughing about how easy it had been. Since they now had money, Johnson told Agustin to get her things, as they were going to get a room somewhere else. They then moved out of P.G. and Dreenie’s house to a motel in Oildale. Johnson made Agustin use the $400 he had given her from the robbery proceedsto pay for their room and food. When the money ranout after less than a week, Agustin contacted herbest friend, Alethia Larios, who lived on Thoreson Court, just downthestreet from Big Jim Herron. Larios allowed Agustin and Johnson to move in with her. This was during July. In early 2007, before Lee was shot, Johnson began getting physically violent with Agustin, often because she refused to give him the keys to her Expedition. There were multiple incidents; they included him striking her with his fist and “busting” her nose, 41. holding her head underwaterin the bathtub, attempting to shoot her but having his gun jam,biting her hard enoughto leavescars, dragging her by a belt around her neck, and threatening her with bodily harm and death.>? Agustin and Johnsonlived with Larios for slightly more than a month. During that time, their relationship was worsethan it had been when they were living on Encina Street. They foughtall the time, and on August 7, Agustin contacted a battered women’s shelter. She was tired of the abuse andfeared forherlife, as Johnson had goneso far as to get his semiautomatic out of the closet andstick it in her mouth.*3 Agustin went to the shelter on August 7, and was in telephone contact with them for several daysafter, but they had no bedsavailable. Early on August 9, Johnson received a telephonecall. He subsequently told. ~ Agustin that he neededto take the car, and that something had happened. He did not go into any details, but was in ahurry. He left in Agustin’s Expedition. Concerned, Agustin telephoned Lee and then Dixon. Eachtold her not to worry, andthat he would get a hold of Johnson. Several hourslater, Johnson returned to the house in the Expedition. He told | Agustin that Cuckoo’s wife’s cousin had gotten shot. Johnsonrelated that the person had been shot in the face and several times in the chest on Cheatham Street, which was in the ~Country nextto ReeseStreet:Johnson said-that-oneofhis“homfie}s”-had-seen-the ~~ - shooting take place, and that the shooter had been a Mexican male. Johnsonrelated that he (Johnson) had contacted the shooter on his cell phone and asked him to meet 32 Lee was not present on any of these occasions. Lee never threatened Agustin; and she was notafraid of him. Although she saw Johnson and Dixon with a gun, she never saw Lee with one. 33 As far as Agustin saw, the black semiautomatic was the only gun Johnson had at this time.- He kept it in a pillowcase in the closet, along with the.mask that lookedlike a gas mask, a wig, and black clothing. 42. somewhere so they could talk. When the individual refused, Johnson told him that Johnson was going to “get him where it hurt him the most.” Johnson said that he and Dixon had found out wherethe individual’s father lived, which was out in the bluffs, and they had gone in Agustin’s car to that location.44 When they were walking toward the house, a vehicle approached. The individuals in that car saw them and madeeye contact, and Johnson and Dixon got scared and acted as if they were tying their shoes. When Agustin said she could not believe Johnson would do such a thing in her car, Johnson said he did not want to “do” her like that and have a shootoutin her car, so he and Dixon left the area. On August 11, Johnson and Agustin werestill living on Thoreson Court, and Agustin wasstill trying unsuccessfully to get into the battered women’s shelter. That afternoon, the couple got into a physical altercation over Johnson taking Agustin’s vehicle. Johnson eventually said Agustin could go with him, but, once she got into the driver’s seat and he got in on the passengerside, he retrieved the black semiautomatic from between the passenger seat and the center console, and he pointed it at her. She got out of the vehicle and ran back into the house. He followedher in and told her to come on, and she went with him. He had the gunstuffed in his pants at the time. The tworan an errand, then, near the intersection of Ming Avenue and Real Road, Johnson got into an argument with a lady. driving a green Tahoe over who had cut off whom. Johnson got mad, pulled out the semiautomatic, and pointed it towardthe lady. She immediately got on her cell phone, and Agustin feared that if she got the license plate number for Agustin’s Expedition, it would lead the police to Agustin. 34 Johnson did not say Lee was with them. Agustin assumedthat by “the bluffs,” Johnson meantthe area in northeast Bakersfield, by Bakersfield College and Panorama Drive. 43. The lady and Johnson and Agustin went in different directionsat the intersection. Johnson and Agustin ran several more errands, which included Johnson buying some Ecstasy pills and forcing Agustin to ingest one. They returned to Larios’s house around 4:30 p.m., but Agustin was feeling the effects of the drug and drove alone to a market to -purchase some beer. Whenshe returned, shefelt like someone was following her. She _ told Johnson and warmed him to hide his gun. Agustin then returned to the market, contacted her ex-husband, and endedup spending the night at his house. She did not have any contact with Johnson the night of August 11. On Sunday, August 12, Agustin checked her messages and learned Johnson had. been looking for her and wondering why she never came home. She lied and told him that she had gone to a battered women’s shelter. Johnson asked to see her, and she told him she could only get away from the shelter for a certain period oftime. At 8:00 p.m., Agustin arrived at Lee’s house on Myrtle Street, and Johnson greeted her at her car. As they talked, Agustin heard a couple of noises. Johnson saw a vehicle approaching, and he grabbed Agustin’s hand and said something had happened - the night before. They then ran to the back.of Lee’s house. Lee and Dixon, who were by a tree in the front yard, also ran to the back. The vehicle that drove by was large, possibly a van or an SUV,and Johnsonsaid he suspected the occupants were rival gang - ~members:ocean rong oe Lae! moe eeeeanneetSpenginenn noo After a few minutes, Agustin told Johnson she neededto get backto the shelter. She thenleft and returned to her ex-husband’s house. She did not have further contact with Johnson that night, although while at Lee’s house, she had made arrangements to pick Johnson up from Dixon’s house on Monday morning to take him to an appointment with his public defender. Instead, at 8:00 a.m. on Monday, August 13, Agustin went to | the shelter in person. She was in fear and desperate to get away. Again unable to get a bed andwith nowhereelse to go because her ex-husbanddid notwant her comingback, she went to meet Johnson at his attorney’s office. 44. After they left the office, Johnson said he wanted Agustin to see something. They went to the intersection at Planz and Real Road, where Johnson told Agustin to look up at the signal light and asked what she saw. Whenshe said she saw a camera, he asked her what she thoughtit did. She said she did not know. Shetold him that the big square camerasin certain intersections took pictures if someoneran a red light, but that she did. not know whatthislittle camera did. She said it possibly recorded things, but she was not sure: He then got scared. Johnson told Agustin that he had donea drive-by shooting at that intersection on Saturday night. He said Lee was driving, Dixon wasin the front passenger seat, and Johnson wasin the back seat.35 Johnson said he saw someone walking on the sidewalk, and so he stuck bis head out and fired twice, and he was concernedthat if the camera was recording,the incident would have been caught on camera. Johnson said he and Agustin neededto get out of town, and that his plan was for them to go to Las Vegas. Hesaid he had a friend and extended family there. Johnson said he had some guns that he neededto sell so they could get some money. They then drove to a housein the 400 block of Eye Street. Agustin remained in the car; when Johnson came back a few minuteslater, he said the individuals at the house had made him an acceptable offer of $400 and he neededto get the guns. Johnson and Agustin then drove south on Eye Street to a set of apartments. Dixon, Lee, and Lee’s young son were outside, and there were several womenin the front yard. Johnson told Dixon and Leeto get in the car, because he had something to show them. Lee’s son stayed behind; when Agustin asked, Lee said somefriendslived there, and that his son was in good hands. Johnson then drove backto the intersection, pointed toward the pole, asked them if they had seen the camera and what they thoughtthat 35 Agustin never saw Lee driving a vehicle that was red, burgundy, cranberry,or maroon. 45. camera did. They said they did not know. Johnsonsaid that if the camera wasactually recording, it would be bad because it would show that Lee wasdriving, the vehicle and the license plate, and that Dixon wasinthe front seat. Dixon responded that if it was going to showthat, it was also going to show when Johnson puthis head out of the window andstartedfiring. Johnson then told them that he wantedto get out of town, and Dixon and Leetried to discourage him from leaving. Johnson said he had found someoneto purchase. the guns, and so they drove back to the house on Eye Street. There, the three men went inside. When they came back out a few minuteslater, Johnson was excited because the people had actually raised the offer to $500. Johnson told Agustin that she neededto drivethe three of them to the Country so that they could dig up the big gun. Johnson actually drove, and they wentto the home of Lee’s mother. There, Dixon retrieved a shovel, and’they directed Agustin to drop them off at Watts and Lotus. She was then instructed to go: to Larios’s house and get packed » and ready to move. Johnsontold her to wait for a phone call to come back andpick them up. Agustin left all three of them standing in the middle of the intersection with one shovel. | About 15 minutes later, Agustin received a call from Johnson,telling her to come and get them. Only Johnson and Dixon were there. They went to a market on Casino _.-Street; off CottonwoodRoad;-and-Leedrove-up-in-whatlookedtike-awhite-Explorer.—.-—-.-. -- - Lee said it was his mother’s car. They then all went to his mother’s house. Johnson made somephonecalls, trying unsuccessfully to sell the guns. Dixon called D-Keys to see if he was interested. Although D-Keys was out of town, Dixon told Johnson that D- Keys had asked Dixon to pay Johnson, and that D-Keys would reimburse Dixon when he returned. Dixon then handed Johnson $150 for the black semiautomatic. The last time Agustin saw that gun, Dixon had it. Johnson, Dixon, and Lee discussed how they had been unableto unbury the big oun, and Johnsoninstructed Lee to makesure he got rid of it. 46. Johnson and Agustin then went to the homeof one of Johnson’s friendsto get directions to Las Vegas. By now,it was dark. They headed for Las Vegasthat night, sleeping in a rest area outside of that city and arriving the next morning. They then went directly to a homeless shelter and then to the welfare department to apply for emergency food stamps. While there, Agustin wasjust staring off, but a woman in line apparently thought Agustin was staring at her, and said something. Johnson said something to the woman, then got angry at Agustin for making him “look bad” when Agustin refused to respond rudely to the woman. Johnson then decided he did not want to stay in Las Vegas, and demanded that Agustin take him home. She refused, and he eventually calmed down. | Johnson and Agustin did not return to the homeless shelter in time to get beds, but Johnson said he had enough money for them to be able to get aroom. They spent the night of August 14 in ahotel. That evening, they walked to a couple of casinos. After they had both had some drinks, Johnson brought up the incident at the welfare office and chastised Agustin for her response. Eventually, he got up and started walking out of the hotel. He cursed at Agustin, threatened her, threatened to have his mother beat her up, and threatened to mess up her vehicle. Perhaps feeling the effect of the alcohol, Agustin got “a little bold” and told him that the last time he hit her was goingto be the last time he hit her. She told him that if he hit her again, she would goto the police andtell them everything she knew about him. Johnson becameextremely angry, and Agustin ran inside a McDonald’s when he came towardher. Sheasked the assistant managerto call the police. Agustin went to her car, but Johnson reachedit just before she did. He threw a rock through one of the Expedition’s windows. Agustin saw someone walking and asked to borrow his cell phone to call the police. Johnson started walking away, and Agustin called the police. She then waited with her vehicle, but, when no one cameafter what 47. seemed like a long time, she drove it back to the hotel. By the time she reached her room and fell asleep inside, it possibly was after midnight of Wednesday, August 15. Agustin was awakened by a knock at the door. Looking through the peephole, she saw someone who appearedto be the light homie. She stepped away from the door, frightened, then looked through the peephole again. This time, she saw Johnson. He asked her to let him in. She refused. She saw him walking towardtheoffice, then he entered the motel room withthe light homie. Johnson ran toward Agustin andstruck her in the forehead with his fist right above the left eye. She started gushing blood, and he started to punch and kick her. Hetold his friendto get everything out of the room. Agustin beggedthe friend to get Johnson to stop. Johnsongot Agustin down onto the ground,then grabbed a pillow and began smothering her with it. At last, he let up. He told her.that if he had his gun on him, he would kill herbecause she called the police. He then told herto get inside the bathtub. She obeyed. The last thing he said to her wasthat he was going to go back and kill her son. She believed he would doit. WhenAgustinheard the doorclose, she called 911 and begged the Las Vegas police to call the Bakersfield Police Departmentandalert them to the threat Johnson had just made against her son’s life. Atfirst, the Las Vegas police did not take her seriously --and accused-her ofbeingdrunk—Asshe-toldtheofficerabouttheincidentsin-which—- sons Johnson had been involved, however,the officer’s attitude toward her changed. A short time later, she was able to talk to Bakersfield Police Detective Burdick and tell him what had happened and what Johnsonhad told her. Upon her returnfrom Las Vegas to Bakersfield, Agustin lived in battered women’s shelters. At somepoint, she agreedto testify if this case went to court. In September, she was placed in the Witness Relocation Program and remainedthere as of January 2009, when shetestifiedat trial. Through the program,her rent was paid, and she was given $450 a month for her other expenses, by an investigator for the district 48. attorney’s office. In addition, in late August, the district attorney’s office or law enforcement gave her money so she could return to Las Vegas and get her vehicle out of impound, as well as food and travel expenses. They also bought her a cell phone. Prior to the Las Vegas incident, Agustin did not report any of the domestic violence to law enforcement, nor did she report any of the crimes Johnson hadtold her about committing. She continuedto live with and support Johnson despite the various incidents, even after learning a pregnant woman had beenkilled. She left Bakersfield for Las Vegas because Johnson asked her to, and she wanted to be with him. She estimated 6that, between January and August, she spent thousandsof dollars on Johnson.3 Dupree Jackson’s Testimony Atthe time of trial, Dupree Jackson, whotestified under a grant of immunity, was imprisoned on a parole violation. For mostofhis life, he lived in the south part of Bakersfield known as the Country. When he waslittle, he often saw sales of rock cocaine going on in front of his home. He also saw gunsand drive-by shootings. When he was around 13 years old, he began thinking about becoming a memberof the Country Boy Crips. All his family was “from there,” and he did not see anything else to do. He hoped to make moneyselling drugs. Someone was not allowedto do that “in the hood” unless the person wasin the gang. Jackson was “jumped in” to the gang, meaning two people physically beat him, | when he was not quite 14. The point of being “jumped in”1s to show the personis not scared of anything, and to give that person more reputation. Reputation for being tough 36 Psychologist Michael Musaccotestified concerning Battered Women’s Syndrome (BWS), its cycle of violence, and its effects. He also discussed common symptoms of victims suffering from BWS,and whya battered woman would stay in an abusive relationship and not report the abuse to law enforcement. As defendants raise no issues concerning this testimony and the jury wasinstructed the testimony was not evidence Johnson committed any acts of violence, we do not summarize it further. 49. is important“in the hood.”37 Oncein the gang, Jackson got to know other members. He had daily contact with them, and they would discuss their variousactivities. At the time, the Country Boy Crips were engagedin selling drugs, gangbanging, and “riding on the enemies,” meaning they would shootat rival gang members. Older people in the gang were called big homies, which wasthe same thing as an OG, meaning someone who had been there for a long time and had “a lot of say-so over the hood.” Younger gang” members had a personal big homie, wholookedout for the younger member and taught him things. During the time Jackson was a Country Boy Crip, the gang’s enemies were the Eastside Crips and Westside Piru Bloods. Eastside was considered worse than the Bloods.38 The Country Boy Crips were different than the Eastside, in that the Country BoyCripsdid not jumpin outsiders. They were more like a family, with generation after generation growing up in the gang. By contrast, the Eastside jumped anybodyin. There were roles within the Country Boy Crips that certain gang members would have. Some — like Jackson — wouldsell drugs,particularly rock cocaine and marijuana, the proceeds from which would go toward buying guns, providing moneyfor gang members in custody, and the like.39 Some were “pretty. boys,” who would affiliate “37~~Jackson explainéd that if a persongrew up in theCountryorspent’alot oftime =~ there, he was then Country automatically and did not really need to get jumpedin. Jackson wasfamiliar with Wingstone. It was off of Watts, in the Country. — (Jackson made a brief referenceto the Country Girl Crips. Because we have no information concerning whetherthe practices of female gang membersare the same as the practices of male gang members, we use only masculine pronounsto refer to gang members in general.) oe 38 Prior to Jackson’s involvementin the gang, the Westside Crips and Country Boy Crips were enemies. By the time he had joined the gang, however,the “beef” between the two had died down andthere was some sort of truce. 39 Jackson’s role in the gang was a drug dealer. He sold rock cocaine. 50. with the gang and bring 1n females, but who otherwise did not do muchfor the gang or get involved in anything serious. Some would patrol the boundaries of “the hood,” keeping out outsiders and enemies.49 Some would “hang out.” Others would “ride with the guns, go putit down.” killing the gang’s enemies by walk-up and drive-by shootings. The OG’s basically would “call shots.” Those who “r[o]de on the enemies” had the highest status in the gang. They were respected and feared. Firearms played an important role in the gang. They were usedto protect the hood, to protect the gang member himself, and to go “riding on” the enemies. Gang members mighttradeorsell guns to other members, or might keep a gun on one’s person sometimesandhideit other times. Jackson had never heard of hiding a gun underground. At a Country Boy meeting, one of the OG homiesinstructed that walk-up shootings were preferable, because in drive-bys the enemy wasoften missed and innocent bystanders were hit instead. Jackson explained that a walk-up shooting involvedtaking a car to the enemy’s territory, getting out, and shooting at the enemy. A drive-by shooting involved shooting out of a car toward the enemy. Ifa participant in a walk-up shooting did not have a gun, he would notget out of the car. The driver would remain withthe car; his role would be to get the shooter to and from the location in rival gangterritory at which the shooting took place. The driver would use a cell phone to communicate with the shooter about when the shooter would return, that the driver was to havethe car started, and similar subjects. 40 Seeing a rival gang memberin one’s hood would be a sign of disrespect to the Country, unless the rival had a relative in the Country. In that case, the rival would be given a pass, and it wouldnot be disrespectful for him to be there. A rival mightalso be given a pass if he was incarcerated with one of the gang members and becamefriends with him. Crip factions are not kept separate in prison, and Crips in prison from Kern County have a kind of bond andcall themselves “805,” for the old Bakersfield area code. 51. During the time Jackson was a teenager, he estimated the Country Boy Crips had about 100 to 200 members. He personally knew the majority of them, or was aware of their reputation in the gang. The gang had subsets,called cliques. Jackson wasin the Cottonwood clique, also called the Deep because it was in the area ofthe Country that was farthest to the south, away from the Eastside. Other Country Boy Crip cliques were Reese and Cheatham, Mad Blocc, and Watts and Lotus. There were no territorial boundaries amongthe cliques, whichall got along together. Theterritorial boundaries of the Country Boy Crips were Belle Terrace on the north, Panama on the south, Union on the west, and Cottonwood Road on the east. There was a rival gangto the north of Belle Terrace, namelytheStroller Boys, whowere part of the Eastside Crips. On the otherside of the western border werethe Westside Crips. There was nothing beyond Cottonwood Road,as it was mostlyfields. The Bloods did not have a big territory. Theirterritory consisted of a large apartment complex near Bakersfield Memorial Hospital, in the area of 31st Street, Jewett Avenue, Columbus, and Union. Bloods would also congregate in the area of Pacheco Road and Calcutta. The boundaries remainedpretty much the samethe entire time Jackson wasin the gang. Duringthe time Jackson was a Country Boy Crip, he observed that some Country Boy Crip membershadtattoos, while others did not. Some people hadtattoos that were --not gangrelated;-while-others-had-gangtattoos.-Typical-ones. were“CBC,”which-stood— ~~ » - for Country Boy Crip; “SS,” which stood for South Side; and Watts and Lotus. There were also tattoos about rival gangs. For instance, “ESK”stood for Eggshell killer, with eggshell being a derogatory term for the Eastside Crips.4! Sometattoos would be pictures ratherthan letters or words. For instance, someone might have a portrait of a dead homie, which would show that person respect; or a picture of an egg, which would 41 Bloods were derogatorily called “dead rags” or “slobs.” 52. be disrespecting the Eastside. Someone might havea tattoo of hands throwing gang signs. Powderblue wasthe color associated with the Country Boy Crips.4? Although someone did not have to wear that color to be in the gang, doing so let people know wherethe individual was from. Wearing the color meant both that the person was from the Country and that he was a gang member. Although gang membersdid not wear powderblue every day, every gang memberworethe color at some time or another. Country Boy Crip membersalso used graffiti to label their territory and let people know where their hood was at. Jackson had seen words in which CK wasreplaced with CC. This was because CK stood for Crip killer, which would be disrespecting one’s own hood. In 2005, when he was 17 years old, Jackson pled guilty to possession of cocaine for sale and served 22 months in prison. He wasinitially released on parole in October or November of 2006, returned to Bakersfield, and again lived in the Country. Following a parole violation for assault with a deadly weapon againsthis sister, he was imprisoned from January 7 to June 7, then out of custody and living in the Country until his arrest on August 23 for absconding from parole. He was released again in December 2007 or January 2008, and was in the Witness Relocation Program from then until June 2008, in connection with this case. In June 2008, he again violated parole, this time by being around gang members, and was returnedto custody. He expected to be released later in the month thathe testified at trial (February 2009). Jackson and Johnson were cousins, although they first met in junior high school. After that, they got to know eachother fairly well. Johnson did not grow up in the 42. Thecolors of the Eastside Crips were royal blue.and dark blue. The Eastside Crips were enemies of the Country Boy Crips because they killed some Country Boy Crips “back in the days.” 53. Country Boy Crip neighborhood, but would visit about every other day and claimed Country Boy Crip. Jackson and Johnson both were active gang members. Jackson saw Johnsonsell rock cocaine, “ride,” pack a gun, steal cars, and similar activity. Jackson | was aware of Johnson’s reputation; from that reputation, Jackson knew that Johnson’s role in the gang was as a shooter. Johnson’s monikerwas Little Rifleman; he took the name from a big homie. When Jackson wasreleased from prison in the fall of 2006, he made contact with Johnson, who wasliving with his girlfriend, a Hispanic womanin herlate 30’s. When Jackson was released again in June, he becameactive in the gang again, hangingout, selling drugs, and smoking marijuana. During June, July, and August, he saw Johnson “Salil the time” “[i]n the hood.” Johnson was hangingout, selling a bit of drugs, smoking marijuana, drinking, and “banging” — being wild, packing a gun, and having an I-don’t- care attitude. Johnson wasstill claiming Watts and Lotus clique, and wasactive during that time, riding for the Country. Jackson knew these things because he saw them, and heard them from Johnson andother people in the hood. Jackson first met Dixon when Jackson was nine or 10.. When Jackson was young, he was aware that Dixon wentto prisonfor manslaughter for killing an Eastside Crip named “Freeway Joe.” Jackson knew Dixonfairly well before Dixon went to prison and -knew,-from Dixon’stattoos;associates; and-the-colors-hewore,that he-was-a-Country——----— ~~ BoyCrip in the Watts and Lotus:clique. His moniker was Dodo. WhenJackson wasreleased from prison in June 2007, Dixon wasalso out of custody. The two got together almost every day in the hood. Dixon was in the gang at that time. Jackson saw him selling drugs, hanging with the homies, smoking marijuana, and riding for the hood. He was kind of a leader in the gang. He had status based on going to prison for what hedid, and he also had family status, because his mother’s family had a lot of reputation in the hood. Dixon grew up‘in the Country Boy Crip neighborhood. 54. Jackson also knew Lee, having met him long ago at Lee’s mother’s house. Lee did not grow up in the neighborhood, but had relatives who lived there. Jackson knew Lee to be a memberof the Country Boy Crips, because Lee was from Watts and Lotus. Lee’s role was “kind of low key,” basically hanging out with other people. Lee was “on the down low,” almost like undercover. For instance, he did not dress like a gang member. Lee got his reputation from his older brothers, “Big Critter” and “Little Critter.” Before Jackson went to prison the first time, however, he saw Lee selling drugs, hanging out on the comers, and riding. When Jackson wasout of custody during the summerof 2007, he would see Lee at various locations in the hood, including at functions at homies’ houses, and at Lee’s mother’s house.43 Lee claimed Country Boy Crip at that time. His role in the gang was being a driver. He would drive people around orrent cars for them, as he had money. Lee hungout with Johnson and Dixon, his brothers, and some of the other homies from the hood. During that summer, Jackson saw Lee in the neighborhood about every other day. Jackson did not know Lee to have a moniker, but he would see Lee sometimes wear the hood’s colors. Jackson and Lee werenot best of friends; Jackson learned, when he was released from prison, that the mother of his child had had a sexual relationship with Lee while Jackson was in custody. Jackson never discussed it with Lee, and it was his impression the relationship had ended. Jackson knew the roles of a number of people who were Country Boy Crips during the summerof 2007. For instance, Tonriko Shropshire’s role was drug dealer and gangbanger, meaning an active memberin a gang. The role of Big Gage (true name, Joseph Gage) was hustling (selling drugs) and banging, and he was an OG. Therole of D-Keys (true name, Darius Keys) wasselling drugs, hanging out, and being an active gang member. The role of Bus Loc (true name, Bradley Walker) was gangbanger and 43 Lee’s motherlived on Wingstone. 55. drug dealer. Walker and Dixon were fairly close friends. Jackson did not know anyone whose moniker was Big Boy. He did, however, know Big Jim, who had been a volunteer football coach when Jackson was growing up. Big Jim was an OG whosold marijuana, hung around,and “produce[d]a lot of stuff for the Country,” meaning he distributed moneyto buy guns and “call[ed] some shots.” Jackson also knew Two C’s (true name, Marcus. Bolden or Bowen), whoserole was a drug dealer; he would push “major weight” by selling ounces of rock cocaine. Jackson also knew Nip(true name, Trent Abraham); his role was a drug dealer, active gang member, gangbanging, and riding. Jackson knew someonereferredto as the light homie. The person’s name was Chris Haynes; he was very light skinned, with hazel eyes, and was a member of the gang. He drove a Lexus with Nevadalicense plates. His role was being a pretty boy, gangbanging, and hustling. Fat-Fat’s last name was Killebrew. He was from the Country, although he had family who were Eastside. Before Jackson went to prison,Fat- Fat’s role wasbeing a hustler and active gang member. Jackson did not rememberif he saw him out onthestreets in the summer of 2007. Jackson also knew Goo, although he could not rememberhis real name. Goo was a member ofthe Country Boy Crips; he was like a little homie, but always listened to what older homiessaid and “was downfor whatever.” Pookie (true name, Columbus Holford) drove people around and sold Ecstasy and marijuana:Maniac (true-name,-Sterling-Endsley)-hadtheroleofbeing-an-older woe homie, gangbanger,selling drugs, and riding. During the summerof 2007, Jackson saw defendants associate with each other, Bus Loc, Goo, Maniac, Two C’s, Big Jim, and a couple of others. During the summerof 2007, a numberofpeople sold marijuana from a house in the vicinity of Cheatham Street and Cottonwood Road. The house belongedto John B. It wascalled the dodie house, because Jackson andthe others were selling chronic (high- 56. grade marijuana).*4 Jackson heard of a robbery that took place at the dodie housein the summer of 2007, and learned that Johnson and Dixon were suspected. John B told Jackson that he believed his cousin, Big Jim, sent them over to rob him because he was making more money selling marijuana in the hood than Big Jim. John B also believed they robbed him because his cousin “Third,” an Eastsider, was allowed to sell marijuana there. It angered Jackson to learn the perpetrators were members of the same gang as the victims, and he started to question the loyalty of the Country Boy Crips toward each other. Johnson also told Jackson about this robbery, and admitted defendants were the perpetrators. He said that Barry, Third (whose real name was Keathon), and Keshawn were the only people in the house. Lee acted as a decoyto go into the house, then Dixon entered and then Johnson. They pointed weapons toward everyone’s heads and told them to get down. Johnson said they took an ounce of chronic, about $3,200 in cash, and things like video games, computers, and laptops. That same summer, “Raybo,” one of Jackson’s older homies and someonewith whom he wasvery close, was murdered. Jackson learned aboutit on August 9, when Two C’s called him to say that Raybo had been found deadat the chronic spot.4> Jackson learned that Keshawn Johnson,“Fumes” (David Taylor), and John B were suspected of involvement. Raybo, Keshawn, and John B were all Country Boy Crips. Fumes wasnot, but had grown up around a couple of the older homies and wasthe father of Jackson’s sister’s baby. There had been bad blood between Fumes and Raybo; Fumeshadtold Jackson that Raybo had broken into Fumes’s house and robbed him of some guns. 44 Jackson knew a female named Teresa who went by “Reese,” but no male who went by that moniker. 45 The certified death certificate showed that Larry Raymond Bowen waskilled on August 9 at an address in the 1300 block of Cheatham Street, Bakersfield, and that the cause of death was gunshot woundsofthe head. 57. Fumeshad told Jackson that he knew who did it and was going to get the person back. After Raybo waskilled, Keshawntold Jackson that Keshawnset Raybo up and then Fumes gunned Raybo downin the house. The fact one Country Boy had set up another Country Boy made Jackson feel depressed and angry. As a result, Jackson “hooked up” with defendants later the same day, and told them that he knew where Fumes’s father lived. He also gave Johnson Fumes’s cell phone number. Jackson did not know whatstreet the father’s house was on, but offered to take defendants there. Everyonegot in the Expedition. Johnson was driving, Dixon wasthe front passenger, and Jackson and Lee were in the back seat, with Jackson behind the driver. Jackson saw a Tec-9, a nine-millimeter semiautomatic, what appeared to be a Glock semiautomatic that was a bigger handgunthan a nine-millimeter, a.32-caliber revolver, and a 12-gauge shotgun with the stock sawed off and duct tape wrapped aroundit, all in the cargo area of the vehicle. Lee started handing them out. He gave Jackson the .32- caliber revolver, Johnson the Tec-9, Dixon the Glock, and kept the nine-millimeter for himself. The shotgun remained in thecargo area in the back. Jackson and defendants discussed their plan, which was for Jackson toshow the others Fumes’s father’s house, where Jackson believed Fumes washiding out. They -were-“[g]oing-to-go-get-revengeback-forthehomfie],”-i-e.,killFumes-at-hisfather-s—a house.4® To this end, they got ona freeway. Jackson wasable to find the houseafter getting lost a couple of times. Fumes’s father livedby Bakersfield College, off of PanoramaDrive.47 46 Jackson did not believe he was going up there to kill Fumes’s father; his intention was simply to point out the location. He took the gun when they offered it to him because he did not want to look scared or like “a punk.” 47 ~~ Records for Lee’s céll phorieshowed a call madeat 8:58 p-m. on August9, that registered on the cell phone antenna near Bakersfield College. Phonerecords also 58. After Jackson located the house, the group circled around for a while to plan their escape route. They then parked acrossthe street and “scop[ed] out” the house. Nothing got done that day, however. Defendants said they were going to come back and get Jackson later on that night, but they never did. Jackson did not know whether anybody went back to the house. He himself abandoned the plan to shoot Fumes. Johnson drove them back down from the bluffs to the apartment complex on Eye | Street, then defendants took the guns and headed toward the apartments. They did not say why they were taking guns into those apartments or what was going on; Jackson just knew it was “a spot,” meaning a hangout. Defendants had always told him they were going to Eye Street, that they had a spot over on the Westside. Jackson remained in the Expedition. During the five to eight minutes before defendants returned to the vehicle, he saw a newer-model, red, four-door compactcar, possibly a Toyota or a Kia, without tinted windows. On August 23, the day Jackson wasarrested for violating parole, he saw the car again, this time in the area of Casino Street and Cottonwood Road. Dixon and Bus Loc werein it. | During the timeJackson wasout of custody in the summer of 2007, Johnson talked to him abouthis involvement in some shootings and robberies. Nearthe end of June or early July, the two were sitting in the Expedition on Cheatham Street, smoking marijuana, when Johnsontalked abouta shooting that had happenedin the Stroller Boys area, off McNew Court. Healso talked about a shooting off South Real Road and Planz. showed three calls on August 9, and two on August 10, from Lee’s phone to what may have been Fumes’s cell phone. Those were the only calls to that number between February and September. (Tam Hodgson,the district attorney’s investigator who obtained and analyzed the various phone records, had information from some sourcesthat Fumeshad onecell phone number, and from other sources that he had slightly different number. Hodgson could not say which number wascorrect.) 59. Johnson said he was stressing, and thatif stuff hit the fan, it would link him back to the crimes.*8 Jackson had a second conversation with Johnson on the subject at a gathering on Anderson Street about a week after Raybo’s funeral. Johnson again said he wasstressed out, and that if the stuff came back on him, it would link him to the McNew Court shooting, where a female was supposed to have gotten shot. Johnson said he was going over there to get at some Eastsider — Anthony Lyons — but then stuff went“all bad.” Johnson related that he and Dixon were the shooters, while Lee was the driver and waited for them to come back.49 Things went haywire. The police came or something, and Johnson accidentally dropped a hoodie and a cell phone and some stuff. Johnson was upset whenhetold this to Jackson. Johnsonalso said that while he was attending a 48 The record is somewhat confusing as to when Jackson claimedto havefirst been told about the Real Road and Planz shooting by Johnson. Jackson wasspecifically asked how longit was after he got out of custody on June 9 until he hadthe conversation with Johnson in the Expedition about the Stroller Boys (McNew Court) shooting. Jackson respondedthat the conversation occurred at the end of June or beginning of July. Jackson also testified, however, that Johnson told him about two shootings during this conversation. One wasin the Stroller Boys area off of McNew Court, and the other was off of South Real Road and Planz. On cross-examination, Jackson testified that Johnson ~~toldhimaboutthe Real Road shooting while they were in theExpedition on Cheatham Street, and that this was more than three weeks beforeRaybo waskilled. Jackson - testified that he learned about Raybo’s murder on August 9. The implication is that he learned aboutthis shortly after it happened, since when he was on Cheatham Street talking to Keshawn Johnson about what had happened,the police werestill at the scene. Yet the shooting at Real Road and Planz,in which Adrian Bonner was wounded,took place on August 11, after Raybo was killed, not before, as necessarily would have had to be the case in order for Johnson to discuss it with Jackson in late June or early July. 49 Oncross-examination, Jackson testified that Johnson did not say anything about Lee being involvedin this incident, but only that Johnson and Dixon did the shooting. Jacksontold the police that Johnson did nottell him anything about a car or howthey got away. 60. funeral for his and Jackson’s deceased homie, a police officer named Mario was following him around. Johnson wasnervous about that.5° Johnson related that he had also been involved in another shooting. He said he, Dixon, and Lee were “rolling around” at night when they bumped into some Bloodsat a mini market somewhere off of South Real Road and Planz. They saw the Bloods again at the stoplight, and Johnson cameout of the windowandstarted shooting at the Bloods. _ Johnson said he waspretty sure he hit one, and he heardlater that the person was paralyzed. Johnsonsaid the shooting wasretaliation for Cutty Pete. Cutty Pete was a Country Boy Crip who was shot by the Bloods. Jackson knew about that shooting from his homies and from what Cutty Pete told him.*! In addition to Johnson, Jackson received information about the Real Road and Planz shooting from his brother, who had a relationship with a Blood’s sister. Jackson was arrested on August 23 as a parole absconder. He told the officer that he could not afford to get locked up because he had a family to take care of, and that he knew some information about some shootings. Jackson decidedto talk about what he knew because he was fed up with the Country due to the death of Raybo and the robbery, and he wanted out. He wanted a normallifestyle. Officer Beasley, who arrested Jackson, 50 Raybo’s funeral was held at the Church of Higher Ground on August 18. Because of information there was a disturbance brewing between rival gang membersat the church, the Bakersfield Police Department’s gang unit had officers there, as was common with respect to gang members’ funerals. Sergeant Jehle, whose nickname in the gang area was Mario, waspresentat the funeral and made eye contact with Johnson, whom he then observed for a couple of minutes. When people were dispersing, Jehle may have seen Johnson again. There were tensionsat the funeral because factions from both the Eastside Crips and Country Boy Crips were there, as Bowen had friends and family on both sides. Although there were posturing and verbal exchanges, there was no physical altercation. 51 According to Adrian Bonner, Cutty Pete appeared to be in “okay” physical condition at the time of their verbal altercation the morning Bonner wasshot. Asfar as Bonnercould tell, Cutty Pete had not been shot. 61. put Jackson in touch with Detectives Heredia and Darbee. Jackson spoke with them later that night and told them about the McNew Court and Real Road shootings, but he held back some details because he was not sure how muchhe could trust them. They were former gang officers who had harassed Jackson a couple of times. In later interviews, he told everything he knew about the shootings. Following his arrest, Jacksan was booked into jail. He was in a holding cell when he saw Dixon, who wasin a different holding cell. Later, they were placed in the same cell. Dixon told Jackson he was accused of running from the police out of a car with Lee. Dixon said there was a Tec-9 in the car, and that Maniac wasin the car with them but got away. Dixon said he never even got to use the gun. Dixon said he (Dixon) also got away and made it home, but then the police cameto his house and arrested him andaccused him of running from the car. Dixon was angry at Lee because he thought Lee told on him, : Dixon and Jackson were in the samecell for three or four days.>* Duringthat time, Dixon told Jackson that he was involvedin the shootings on McNew Court. Dixon said he and Johnsonboth were shooting and did not know which onehit the victims. After the shootings, they started going back tothe car.: Police or someone came, and Johnson dropped a hoodie or cell phone. Lee was waiting in the car, and they went back ~-and got:in‘Dixonsaidhe-got:picked-uplater.onand,questioned.aboutthat-case,-buthe~~ was not arrested forit.’53 Dixon said that when hegot “out of this gun beef case,”he was 52 Jail records showed Jackson andDixonwere assigned to the same.cell from August 24 toAugust29. - 53 On cross-examination, Jackson testified thatwhen he first spoke to Dixon, Dixon said he and Johnson wereinvolved in the McNew Court shooting. He said nothingabout Lee. On redirect examination, however, Jacksontestified that he remembered tellingthe grand jury thatDixonsaid Lee was the driver duringthe Stroller Boy (McNew Court) | shooting, andreiterated that Dixon toldhim, in jail;that Lee’was. the driver ofthe car . during the McNew Court incident. : 62. going to slow down. Hejust wanted to get out and take care of his son. Dixonalso said he thoughthe killed his own cousin “over there.”°4 Dixon said he had donethingsfor the hood, but the homies were not showing him recognition and giving him money and thingslike that. Dixon also told Jackson about the shooting on South Real Road. He said he was in the car when Johnson came out of the window onthe “red rags,” meaning Bloods. Lee was driving, and Dixon was the one who pointed out the Bloods.>> On August 29, Darbee and another detective asked Jackson if he would agree to testify if this case went to court. Jackson stated he was willing to do so, despite the fact it would make him a marked manforthe rest of his life. Jackson then did his time on his parole violation and was released in January 2008, without any intervention from the Bakersfield Police Department. Uponhis release, he went into the Witness Relocation Program. He was in the program for about five months, during which timehis rent was paid and he was given $400 to $500 per month for his other expenses. In June 2008, his parole wasviolated for beingaround a gang member.*® It was his understanding that he would be placed back in the Witness Relocation Program after he finishedtestifying. Jackson was brought from prison to the county jail on October 31, in preparation. for his testimonyat trial. Early in November, he was placed in a holding cell next to Lee, 34 Dixon did not go into further detail, although Jackson knew Dixon wasrelated to the Wallaces who lived on Watts Street. In one of his interviews with detectives, Jackson related that Dixon said his cousin’s name was James Wallace. 55 Oncross-examination, Jacksontestified that when he was hearingthis story, he wasnot hearing that Lee wasin the car and,in fact, he told detectives that Dixon was the driver. On redirect examination, however, Jackson testified that he had told the grand jury that Dixon said Johnson shot the person on the corner of Real Road and Planz, and Lee wasthe driver of the car. Jackson reiterated that that was indeed what Dixon told bim while in custody on August 24. 56 This person had come to Jackson’s location. Jackson did not go into the Country; he left the Country Boy Crips when he decidedto testify. 63. who saw him and wanted to know what Lee did to Jackson, and whether this was about Lee having a relationship with the mother of Jackson’s baby. When Jacksonsaid it did not have anything to do with her, Lee wanted to know if Jackson wasgoing to get on the stand and testify against them. Jackson said he did not know because he wanted Lee to leave him alone. When Lee kept on pressuring him, Jackson said he would nottestify. Lee then told Jackson to sabotage the case by saying it was something about the mother of Jackson’s child that made Jackson mad and caused him to lie. Jackson agreed he would do that so Lee would leave him alone. At some point during the conversation, Lee said Rifleman wanted Jackson to say Jackson washaving a relationship with Rifleman’s girl who drove the Expedition. Jackson knew nothing about whethera girlfriend of Johnson wasgoingto testify, but told Lee thatif it would help them, to “lay it out” to him. The last time Jackson saw ortalked to Johnson’s girlfriend was in 2006, when he first got out of prison. After this conversation with Lee, Jackson had a conversation with Johnson. Johnson told Jackson the same thing Lee had. Johnson asked if Jackson wasbeingpaid for his testimony, having heard Jackson received $10,000. Johnson also said that when he beatuphisgirl in Las Vegas, he got a ride back to Bakersfield with Chris Haynes. Johnson said he knew where Jackson wasstaying, and he mentioned a motel. ~On-anotheroecasion in-jail, Jackson- wasbeingplaced:in-a-holdingtank when-he--— saw Johnson in another holding tank. Johnson called Jacksona “bitchass nigga.” In November2008, Jackson’s custody situation was changed, and hewas housedin his own isolated cell with his own television, and transported to court by a special team. He was testifying because he believed it was the right thing to do. if he were to serve his parole violation in prison, however, he would not get his own cell or television. Testimony ofLaw Enforcement Gang Experts ‘As of April 19, Kern County Sheriff's Senior Deputy Little was inthe gang unit, and responsible for all Black gang activity in Kern County. He was an expert on gangs, 64. andparticularly African-American gangs. Thefirst time he learned of Lee was in April, after the McNew Court shootings. However, in April 2007, there were approximately 750 to 1,000 members and affiliates of African-American gangs, and he did not know them all. He had known Johnson since 1998 or 1999 when Johnson’s namefirst came up in a gang context. Little had heard of Dixonin the context of Dixon’s manslaughter conviction, but did not know much about him. Little was unaware of any instances in which Johnson was searched and a firearm was found, or in which his or his family’s residence was searchedand a gun or ammunition was found. On July 7, Little conducted a search of a residence in the 2900 block of North Half Moon, whereDixon wasresiding. Little found one letter from Juaqkeib Oliver and another from Frankie Baker. Both contained gang references. The letter from Oliver was signed “Munchy Locsta” and talked about the author being on an “egg hunt” because of being sentenced to a lengthy prison term. “Egg”is a derogatory term for Eastside Crip gang members.°’ Little found no hoodies, black pants, guns, or ammunition. During the course ofhis investigation, Little searched the Internet site MySpace.com,to see if any defendants had a MySpace page.>8 Little was unable to locate a MySpace page for Dixon or Johnson, but found one registered to a David Lee from Bakersfield that displayed photographs of the David Lee who was a defendant in this case. The screen name was “Gunner,” and next to it was the acronym “P.E.N.U.T.E.” A photograph of Lee and Johnson had been selected as the “this-is-who- I-am”photograph. 37 “Cornbread”is a derogatory term for Country Boy Crips. 58 It was Little’s experience that gang membersare often proud of their membership. They may use a social network, such as MySpace, to advertise their membership, sometimes posting photographsof themselves displaying gang signs, writing about their gang ideology, andthelike. 65. By meansof a search warrant, Little obtained public and private informationfor the page from MySpace in August.>? Public information included a photograph of Lee and Johnson and, under “Gunner’s interests,” a flashing message “Keepin’ it Gangsta.” There wasalso a photograph of Lee and a person knowntoLittle to have Country Boy Crip connections. Private information included a subscriber’s birth date, city of residence, and occupation that were consistent with Lee, as well as unread messages that were consistent with the dates Lee was in custody. Some comments contained gang references, such as “Cuz” (which Crip gang members call each other) and “South” (another name for Country Boy Crips, who also go by South Side Crips). A number of messages also contained gangreferences. Included in these was “900 block,” which refers specifically to the Stroller Boy Crip subset of the Eastside Crips and which derives from an address on Feliz Drive that is a famous location for the Stroller Boy Crip subset. Oneof the messages, which wassent the morning of March 22 by someoneaccessing Lee’s MySpace page,referred to the Tahoe being shot up the previous night on Pacheco Road andthe writer “bounc[ing] bacc,” and concluded,“it’s still ESK till I die. P.E.N.U.T.E. Bitch.” This message was consistent with the shooting of Lee’s Tahoe on Deanna Way,a location one or two blocks north of Pacheco Road. In Little’s opinion, . based on his overall experience, the reference to bouncing back wasindicative of ~someone-bouncing-back andtakingretaliation:—It-wasplausiblethat theretaliation-was-~-- ~~~ ~~ the McGowan shooting,whichfitwith the timeline.® 59 If a MySpace account has beenset to private, only those who request to be and are accepted by the account holder as MySpace friends can access the private portion. 60 Little testified he could not cite a case in which gang memberssaid something to the effect of, “I bounced back,”to refer to a shooting of a rival. Little foundno references to the McNewCourt shooting or the shooting at Real-Road and Planz.onthe MySpace page. 66. Ultimately, Little obtained search warrants for various other MySpacesites, including those of Lee’s family members. Asa result, he learned P.E.N.U.T.E. stood for “Putting Egg Niggas Under the Earth.” From interviews with some who used the acronym,Little learned it was a clique of Westside Crips and Country Boy Crips, but did not last long and wasnot considered to be an active clique anymore. Based on the Agustin interviews, the materials he reviewed, and particularly the MySpace investigation, Little opined that Lee was the owner of the MySpace account under his name. Little further opined that the Web site was indicative of gang activity on Lee’s part. Senior Officer Sherman of the Bakersfield Police Departmenttestified as the People’s primary expert on gangs. He was familiar with the Country Boy Crips, which existed in 2007, from personal contact with Country Boy Crp members, their rival gang members, and investigating gang crimes in which Country Boy Crips were victims and suspects. In his opinion, the Country Boy Crips wasa criminal street gang in 2007,asit had three or more people, its members had a commonsign or symbol, and its members were involved in an ongoing pattern of criminal activity involving criminal offenses listed in the Penal Code. Shermanrecounted the history and growth of the Crip movementin Bakersfield; the development of the Eastside, Westside, and Country Boy Crip factions;the traditional territories of those factions; and the various subsets of the Country Boy and Eastside Crips. Shermantestified that powderblue is the color associated with the Country Boy Crips, and that the North Carolina college team uses the same color. Sherman also explained the role played bygraffiti, to both mark territory and show disrespectto rivals. Healso explainedtherole oftattoos, which, depending onthe actualtattoo, show gang membership or allegiance. They mayalso be indicative of disrespect to rivals, or pay tribute to deceased fellow gang members. Sherman explained that, while there will be members in every gang whohavetattoosrelated to that gang, not every member will 67. havea tattoo. Sherman also explained that clothing can be used to show membership in a gang or to show disrespect to a rival gang. However, not all gang members weartheir colorsall the time, because they know the consequences of being documented by law enforcement in gang clothing and howit can affect a possible criminal trial. Just because someone does not wear colors does not mean he is not a gang member. In addition, gang membersalso use hand signs to communicate and show wherethey are from or that they are a rival. Sherman explained that respectis a very large part of the gang lifestyle, and tn fact a lot of gang membersgetinto the gang because they want that respect. A gang member can get respect by havinga lot of money, being a good narcotic dealer, or being willing to go around with a weapon and shoot rival gang members. If a person who belongsto a gangis disrespected, that person has to answer back. If he does not, he ruins not only his ownrespect, but showsthe other gangsthat his gangis not very strong. Often, the | retaliation must go above and beyondthe nature of the disrespect. For stance, disrespect with words will be answered with physical assault. A physical assault might be answered with a shooting. A shooting might be answered with murder. Although the retaliation does not have to be immediate,it has to occur. In 2007, there were several Country Boy Crip hangouts — places where the gang - members-would-congregate;usually-either-to-conducttheir-eriminalactivityorto throw parties. The main ones were the D&A Market on Cottonwood Road, the Hollywood Market on East Planz, the Watts Market at Watts and Lotus, and residences in the 900 block of Bradshaw, the 1100 block of Altus, andthe residence on Deanna Wayat which Lee’s vehicle was shot in March. The Eastside Cripsalso hadparticular hangouts, as did the Westside Crips. In 2007, a weak alliance existed between the Country Boy Crips and the Westside Crips.. That year, one of the latter’s common hangouts was a residence in the400 block of Eye Street. 68. In 2007, the Country Boy Crips had over 200 members. Their main rivals were the Eastside Crips and the Bloods. The rivalries were long-standing and ranged from simple assaults and fights to drive-by shootings to homicides. One of the major incidents between Eastside and Country was the Casa Lomashooting in 1999. Several Country Boy Crip and Westside Crip gang members were at a wake at Casa Loma Park when several Eastside Crip gang members cameby, fired into the large crowd of peoplethere, and so shotseveralaffiliates and family membersof both gangs. Beginning in January 2007, the Eastside-Country rivalry showeditself in a numberof shootings going back and forth between the two, where members from each gang were victims of gang violence. Sherman opined that the McNew Court shootings in April were part of this pattern, which continued on into May. The Eastside Crips’ primary activities were narcotics possession for sale, weapons possession, assaults, and homicides. In Sherman’s opinion, the Eastside Crips were an active criminal street gang in 2007. Based on his research, he opined that Anthony - Lyons, Othelon Lyons, Curtis Miller, and Albert Darrett were all Eastside Crip gang members in 2007. Sherman found no information, however, to indicate James Wallace or Vanessa Alcala were gang members. In 2007, the Bloods and Country Boy Crips wererivals. The Bloods’ primary activities were narcotic possession for sale, weapons possession, assaults, and homicides. The Bloodsin Bakersfield did not havea traditional territorial boundary; rather, because they were small in number, they were more migrant and controlled small apartment complexes or a few blocks in an area for a while until they usually were run out. In 2007, their hangouts included Monterey and Inyo Streets and the Grinnage residence on DeborahStreet. A lot of rock cocaine sales were conducted at Inyo and Monterey Streets. In 2007, there were tensions between the Bloods and other rival gangs in Bakersfield. 69. Based on his investigations, Sherman opined that the Bloods were an active criminalstreet gang in 2007. From his research, he concludedthat Adrian Bonner wasat least affiliated with the Bloods, and Edwin McGowan was a Blood gang member,in 2007. In Sherman’s opinion, in 2007, the primary activities of the Country Boy Crips were sales and possessionforsale of narcotics, including rock cocaine (the primarydrug sold), methamphetamine, and heroin; possession of concealed and loaded firearms; threats and intimidation of witnesses and victims; burglaries; shootings; and murders. In Sherman’s experience, the sale of narcotics is used to fundthe gang, allowingit to buy more narcotics and firearms,and to rent cars and properties. and facilitate gang activities. The possession of concealed andloadedfirearmsassists the gang in that firearms are used to fight against rival gang members, to protect gang members from rival gang members, to protect their narcotic trafficking endeavors, andas a form of respect. A gang member whocarries a firearm will be “more macho” than one who does not. Burglaries are committed by gang membersto steal itemsto sell to gain money to further the gang’s narcotic activity, and.also in an effort to locate firearms. Shootings and murders are used to fight against rival gang members, to show other gangs that they are not a gang to be “messed with,” and to get respect. -.- Based-on-his-investigationsand-theinformationhe-gathered.from-speakingwith ——- other officers and from working in the gang unit, Sherman opined that in 2007, the Country Boy Crip criminal street gang was engaged in a pattern of criminalactivity. Basedon his training and experience, he further opinedthatgang members discussed crimes and court cases among themselves (and sometimes with law enforcement officers), and that the pattern of criminalactivity by the Country Boy Crips was a matter of common knowledge for gang members. | For purposes of showing predicate offenses and a pattern of criminalactivity, Sherman described the following cases: 70. ° Case No. BF95016A, involving Dixon. In that matter, in March 2001, Dixon and another African-American male were walking in Eastside Crp territory when they shot at several teenagers sitting on a porch. A month later, Dixon shot and killed an Eastside Crip member whowasin Country Boy Crip territory. On September 11, 2001, Dixon pled to manslaughter and was sentenced to prison. In Sherman’s opinion, Dixon was a memberof the Country Boy Crip gang when the offense was committed. ° Case No. BF105692, involving Vertis Bayne. In that matter, in August 2003, Bayne shot an Eastside Crip while riding past on a bicycle. He was convicted of attempted murder, assault with a firearm, and ex-felon in possession of a firearm with gang enhancements, and sentenced to prison. In Sherman’s opinion, Bayne was a memberof the Country Boy Crips when the shooting was committed. e Case No. BF106522, involving Joseph Ferguson. In that matter, in April 2004, officers investigating a shootingtried to stop a vehicle driven by Ferguson, but a pursuit ensued. During the pursuit, an Uzi-type firearm was thrown from the vehicle. Ferguson was convicted of weapons violations, including gang memberin possession ofa firearm, and evading police with a gang enhancement, and sentenced to prison. In Sherman’s opinion, Ferguson was a memberof the Country Boy Cripsat the time of the offenses. e Case No. BF115529, involving Eddie Peterson, Sr. In that matter, in March 2006, officers conducting a parole search of Peterson’s motel room found narcotics and sales indicia. Peterson was convicted of possession of narcotics for sale and sentenced to prison. In Sherman’s opinion, Peterson was a memberof the Country BoyCripsat the time ofthe offense. - In connection with the present case, Sherman researched the criminal history of defendants in order to determineif they were active gang membersat the time the crimes were committed. He determined that Johnson, whose birthday was April 12, 1986, had the monikers Lil C, Rifle, and Little Rifleman, and that he had gang-related tattoos in 71. several places on his body. He also determined that Johnson had numerous police contacts, dating back to October 2000, in which Johnson variously associated with Country Boy Crip members, was in Country Boy Cripterritory although he did not live there, admitted his own Country Boy Crip membership, or was involved in gang-related activity. Twoofthe contacts involved Johnson being the victim of gang-related shootings, and anotherresulted in Johnson being convicted of being an accessory to a gang-related murder that took place in Eastside Crip territory. In addition, what was written on the shirt Johnson woreat the picnic in January 2007, showed his Country Boy Crip membership andhis disrespect toward Eastside Crips. Also, rap lyrics written by Johnson referred to the gang, gang lifestyle, and violence associated with thatlifestyle. Sherman also reviewed Johnson’s jail bookings. In the bookings between December 2004 and September 2007, he claimed Crip and requested keep-away from the Bloods.®! Based on everything Sherman reviewedandpersonal contact he had had with Johnson, Sherman opined that between March. 1 and August 22, 2007, Johnson was an active memberofthe Country Boy Crips. Agustin’s and Jackson’s testimoniesreinforced his opinion. | | Shermanalso researched Lee, whose date of birth was October 17, 1984. Lee had what appeared to be a gang-related tattoo. His moniker was Gunner or Gunman. Lee had ---several-prior-contacts-withlaw-enforcement-datingbacktoJuly 30,2005,-at whicb-time. ~~...- he was with known Country Boy Crip gang membersand associates. In February 2007, he was stopped in the company of Johnson and other Country Boy Crip members,in © Country BoyCrip territory, although he did notlive in that area. On March 21, 2007,- Lee wasthe victim of a shooting at a Country Boy Crip hangout on Deanna Way, but did not stay at the crime scene because he did not wantto have police contact at the time for 61 The jail does not have enough housingto keep apart the various cliquesof the gangs. . 72. “whatever personal reasons.” On March 22, he was again the victim of a shooting,this time in the vicinity of a Blood hangout near the Country Boy Crip hangout on Deanna Way. Again,heinitially did not wantto tell police about being shot, but later provided a statement.®2 When contacted by Sherman and anotherofficer the next day, Lee admitted that his friends and family were Country Boy Crips, although he did not admit that he himself was. In August, Lee was arrested with Dixonafter a vehicle pursuit, and a Tec-9 handgun was foundin the vehicle. Sherman also reviewed Lee’s MySpace page. There were gang references in some of the incoming and outgoing messages, with the writer (who gave Lee’s telephone number) identifying himself as a Country Boy Crip, referencing other Country Boy Crip members, and trading threats with an Eastside Crip.®3 The page also contained a photograph of Lee making a “W”hand sign for Watts. In addition, letters seized during the search of Lee’s residence on Myrtle Street contained gang references andindicia. One of the letters from Robert (“Critter”) Lee expressed surprise that Lee was giving up his job “for the hood,” and warned that if Lee was going to do that, he could only trust a few people. Another from Robert Lee warned Leenotto tell their parents about what Lee and hisbrother, a Country Boy Crip, were doing. By contrast, Robert Lee’s letters to his father contained no gang references. Sherman also reviewed Lee’s jail bookings. Lee did not claim a gang or request to be kept away from anyone. Based on everything he reviewed, however, Sherman opined that Lee was an active memberof the Country Boy Crips between March 1 and August 22, 2007. Agustin’s and Jackson’s testimonies reinforced this opinion. 62 In Sherman’s experience, people who are in gangsare often victims of gang violence because of the lifestyle they are in. 63 Sherman concededhe did not have personal knowledgeof the identity of the author of anyof the entries, and did not comparethe dates and times with records of Lee’s work history. 73. Sherman also researched Dixon, whose date of birth was October 11, 1983. Dixon had the monikers Dodo and Baby Clacc, and he had gang-related tattoos on various parts of his body. Prior police contacts revealed that inMay 1998, Dixon wasarrested for possession for sale of rock cocaine while in the companyofindividuals wholater became documented Country Boy Crip members. The next month, he wasacting as a lookout for narcotics sellers in Country Boy Cripterritory. In September 1998, Dixon wasarrested for possession of rock cocaine and a firearm. In December 1999, Dixon was arrested in " Country Boy Cripterritory for possessing a loaded firearm. In November 2000, Dixon was the victim ofa drive-by shooting while in Country Boy Crip territory. In March 2001, Dixon was contacted at Watts and Lotus,although hedid notlive in Country Boy Crip territory. In April 2001 was the gang-related shooting that resulted in Dixon’s manslaughter conviction. During a July 2007 parole search of Dixon’s residence, officers found letters containing gang references addressed to Dixon. In August 2007, Dixon was with Lee during the vehicle pursuit. Dixon fled, but was later arrested at his apartment. He was seen wearing light powderblue clothing, and a loaded Tec-9 was foundin the vehicle. Sherman also reviewed Dixon’s jail bookings. InMay and August 2007, Dixon claimed Crip, with Country Boy Crip as the subset, and requested a keep-away from --Bloods:Based-oneverything-he-reviewed;-Sherman-opinedthat-Dixon-was-an-active ~~ memberof the Country Boy Crips between March and August 2007. Sherman did background checks on persons mentioned by Agustin and Jacksonin their testimonies. In addition to determining their true names, he opined that Bus.Loc, Fat-Fat, D-Keys, Goo, Big Jim, Raybo, Two C’s, Nip, Cutty Pete, Riko, and Big Gage were all Country Boy Crip members, with Gage being an OG. Sherman also researched Agustin’s background. He found no gang-related contact with police for her. Sherman explainedthatall gang members are expected to “put[] inwork”for the ang. “Putting in work” can meanselling narcotics, stealing items, gettin ns, or even3 74. committing a shooting or assault. The type of work may vary according to the gang ‘member’s personality or strengths. A shot-caller is an old gangster who has been around for a while, has put in his work, and is well respected. He may be the onewhodirects the actions of others. There are shooters within the gang; these are the people who commit the assaults, drive-by shootings, and even homicides. They are the aggressors and enforcers. These persons are respected because they are feared, even by fellow gang members. The status of the victim has an effect on the status of the shooter; if he shoots a rival gang member, he gains status and respect. By contrast, if, in trying to shoot a rival member he misses and kills an innocentparty, it will not necessarily create a backlash against him, but he will not get as much respect. It is common for shooters in a gang to brag to fellow gang members about whom they shot. They will not, however, take credit for something someoneelse did, as that would constitute disrespect toward the actual shooter. The bragging, which is doneto get credit for the shooting, does not commonly involve a recitation of intricate details. Shermanexplained that a walk-up shooting involves walking up to the intended target and shooting. If it is done in rival gangterritory, the perpetrators usually will have some sort of transportation. They will either drive throughtheterritory to scope out the target or see if it is available, then park somewhere close, physically get out of their vehicle, walk up to the target, shoot, and then return to the vehicle andflee the rival gang territory. Communication with other gang membersduring walk-up shootings usually is by phone; there needs to be communication between the shooters and the personleft in the car in case something goes wrong and plans change. Clothing also plays part; the shooters commonly wear neutral colors that will not make them stand out to witnesses. On the other hand, it can also be used as a ruse to throw suspicion onto a rival gang. Layers of clothing may be worn so the shooters can change their physical appearance after committing the crime and thus will not fit the descriptions givento police. 75. Sometimes, gang memberswill stash clothing before the shooting and then changeinto it later. Sherman also explained that a drive-by shooting involves driving the car upto the target. Disadvantagesare that the shooters’ vehicle is seen and a vehicle leaving the scene at a high rate of speed drawsthe attention of arriving law enforcementofficers. Shooters on foot can find somewhereto hide and even wait out thepolice. According to Sherman, womenplay a supportiverole in the Country Boy Crips and other gangs. They provide the male gang member with financial support, a place to live, a car to use, or a cell phone or clothing. They also conceal or stash the male gang member’sillegal activities, such as gunsor narcotics. Whether gang membersdiscuss gang activities with the women dependson the trust factor between them. If the two are in an ongoing, serious relationship, he may divulge somethingsto her, but is unlikely to go into depth regarding the inner workings of the gang. The male will instill in the female the idea that she is notto tell; if she does, she risks assault or death. Gangs have rules about not cooperating with law enforcement. One who cooperates is considereda snitch. Even a gang member whois.a victim of gang violence often will not cooperate, becausehe wants to get his respect back, and allowing the police to take care of it will not achieve that. Similarly, a gang member will not want to come -to-courtandtestify,-even-against-arivalgang-memberfor-that-is-considered-snitching.A-— ~~ - gang member whotestifies may face threats, intimidation, and assault, both to him and to his family. | In answer to hypothetical questions based on the prosecution’s evidence, Sherman opinedthat the shooting at Monterey and Inyo, shootings at McNew Court, and shooting at Real Road and Planz were committed for the benefit of the Country Boy Crips, and were done with theintent to promote, further, or assist criminal conduct by the Country. Boy Crips. Sherman further opinedthatifthere was an agreement between the involved Country Boy Cripsto do the shootingorthe killing, plus an act oftraveling to the 76. location for that purpose, those acts also were committed for the benefit of the Country Boy Crips. A Country Boy Crip member promoteshis gang by shooting at a rival gang. Sherman further opined that if a Country Boy Crip who wasa convicted felon was in possession of a loaded firearm in the vicinity of McNew Court, that act would promote or benefit the Country Boy Crips gang, because that gang member waswilling to carry the firearm and commit an act for the benefit of the gang. In addition, Sherman opined that if four Country Boy Crips, each armed and in agreementto locate and kill the person (or a relative of the person) they believed had murderedtheir fellow gang member, drove to a location near PanoramaDriveto carry out their intention, those acts were committed for the benefit of, and with the intent to promote, further, or assist conduct by, the Country Boy Crips. The Country Boy Crip who was killed was thereby disrespected, and the four Country Boy Crips wereacting to get the respect back for their gang andtheir deceased friend. Even the act of getting together with guns and going to the location would earn them respect, as they were willing to take matters into their own hands. If the felon who possesseda firearm helped a second Country Boy Crip sell a firearm so the latter could leave Bakersfield after shooting a rival gang member, his acts would be done with the intent to promote or benefit the Country Boy Crips. I DEFENSE EVIDENCE Johnson's Case Jim Dill lived in the Encina Street residence in mid-September 2007. Before he cleaned the fireplace, there was a quarter inch of ashin it, but no burnt clothes or metal _ Zippers. Theodore Richard was a cement masonatthe time of trial, and had been doingthat since June 2008. As of the time he testified, he was not doing anything else for money. 77. Richard was Jackson’s cousin. Jackson was“like a brother” to Richard, who was testifying because of the various things Jacksonhadtold him aboutthis situation. Jackson had been frequently seeking Richard out ever since Richard came home. jackson told Richard that Jackson wasnot going to testify in this case. Jackson related that law enforcement had threatenédto charge him with Raybo’s murder, and he was afraid of being prosecuted for that offense. During their conversations, Jackson mentioned a girl named Sara that he was dating. Jackson said she was supposedto be the ex-girlfriend of one of the defendants in this case. Jackson told Richard that he was lying about defendants. Richard never told Jackson not to come to court or whatto say if he took the witness stand, but he did tell Jackson notto testify to the lies Jackson wastelling Richard. Richard denied ever being told by Johnson (whom he had never met) or anyone else to intimidate Jackson ortry to convince him notto come to court. He admitted, however, having been convicted in federal court in February 1999 of conspiracy to distribute andpossessionfor sale of cocaine. While in federal custody in April 2000, he pled no contest in Kern County to felony assault with a firearm. | Kevin Griffith saw the car involved in the shooting of Adrian Bonner. It waslike a red Nissan Sentra, and the paint on the back trunk hood was bleached or oxidized bythe -sun.- Later-that night orpossiblyearlythenextmorning; he-saw-what-he-was “pretty--—. -- sure” was the samecar again.® It had been pulled over at Fastrip on Real Road and Ming. Shannon Fowler’s car was notthe car Griffith saw at the time of the shooting or later. Griffith was not able to clearly identify anyone in the car.at the time ofthe shooting. Whenhesawthe carlater, it contained three African-American men. The 64 In his 911 call, he said he was positive it was the car. 78. driver appeared older than defendants. The others in the car were “[mJostly older” than defendants, perhapsin their late 30’s.® Dixon's Case On August 11, 2007, Pamela Ginn’s grandson had a birthday party at Camelot Park, an amusement park on Oak Street. The party began about 2:00 p.m.and lasted until it started to-get dark. Ginn, who had known Dixon most ofhis life, saw him at Camelot Park that day. He wasthere until the party ended, and helped put the gifts in the car. At no time did she see him leave the party. Dixontestified that he was born in Bakersfield and raised in the Country. Growing up in that area, Dixon —— who acquired the nickname Dodo during childhood — saw drug sales and shootings every day. He grew up with a bunch of kids whogotinto the gang. They hung out together because they were friends and grew up with each other. Dixon admitted that in addition to being called Dodo, he was sometimescalled Baby Clacc, a namehe took for himself because he wantedto be like his cousin, Frankie Baker, who was knownas Big Clacc. Dixon knew the Country Boy Crips were a criminal gang, but explained that those in the gang looked on each otheras family, as 65 In the summer of 2007, Aaron Norwood drove a red 1991 or 1992 Ford Tempo. The paint on Norwood’s car was pretty faded and dull. On August 11, Norwood worked the 6:00 p.m. to 10:00 p.m. shift at PetsMart. He took no breaks, although the store’s employees may haveleft around 9:30 that evening at the manager’s behest. He drove his car to work that day and parkedit in front of the store. He did not drive the car during his shift, no one borrowedit, and when heleft to go home, it was in the sameplace that he had left it. After work, he went to a party, then, around 2:00 a.m., he was pulled over at the Fastrip at Ming and Real Road, which was about a mile from Real Road and Planz. At the time, he was with his cousin and a friend. The police searched the car, and the next day searched Norwood’s house. They found a live .38-caliber round of ammunition. It hadbelonged to Norwood’s late brother, and Norwood had kept it. Norwood was interviewedat the police station and,after it had been confirmed with his boss that he and his vehicle had both been present at PetsMart at the time of the Adrian Bonnershooting, released. 79, there were several generations of people within the gang. In addition, because Bakersfield was so small, it was not unusual to have family members in the other gangs. For example, Dixon’s father used to be an Eastside Crip. Dixon was 14 years old when he became a Country Boy Crip. The only crimes he ever committed were possessing firearmsandselling rock cocaine. He never shot a gun, but simply carried a firearm for protection. He sold drugsfor himself, He did this in Country BoyCripterritory. The gang left him alone because his motherlivedthere and he wasraised there. Dixon denied committing the killing for which he pled no contest to voluntary manslaughter in 2001; he was charged with murder and wantedto go to trial, but his then-attorney told him juries did not like gangs. His attorney told him that he wasfacing a sentence of 56 yearsto life in prison versus six years. Dixon, who wasonly 17 at the time, did not wantto do life. Dixon did not have any tattoos until he wentto prison. He got almostall of his tattoos when he was 18 and in prison, wheretattoos are “just fashion.” Dixon was paroled onMarch 4, 2007. Hemoved in with his cousin Keshiea, who lived off of Pacheco Road, butshe got evicted. He then moved in with Myeshia Herring on Chandler, then movedto an apartment on North Half Moon with Keanna King. Each ~ time he moved;henotified his parole officer--Afterheparoled; he didnot do-anything-~~ for the gang, but just socializedwith Country Boy Crips becauseall his friends were from there. As for Johnson, Dixon knew he was a gang member,but did not know what his role was in the gang. The two merely socialized, and Dixon never sawJohnson do any criminal activities. Around March or April, Johnsonwas cutting hair in different neighborhoods. When hecut hair, he sometimes wore his brown barber’s smock. Dixon had known Leesince elementary school. Lee was only known as Dave. Dixon never saw him sell any‘drugs: Leedid not grow up like that. When Dixon wasin prison, he would hear that Lee’s brothers were “hangingout,” but not Lee. Dixon had 80. seen Lee smoke marijuana, but never with a mask. Dixon never saw him with any weaponsof any kind. Lee never wore powderblue clothes. How he dressed in court was how he dressed onthestreet. Dixon did not have a cell phone when he wasfirst paroled, but Myeshia and the others could not get in contact with him so shesaid her sister had a phone for him. Helet other people use the phone if they needed it. He last saw that phone on April 18, in Agustin’s Expedition. Johnson dropped Dixonoff, and Dixon forgot the phone. Dixon called Johnson from the house phone at Keanna King’s residence and told Johnson he would get it from him the next day. —— _ The next dayor shortly after, however, Myeshia contacted him and said Deputy Little wanted to talk to him. Dixon called Little, who asked him to comein for an interview. Dixon went, but denied he was known as Dodo, because that name had been used against him back in 2001. He also denied that the cell phone found at the scene was his, because the officers were telling him they had an eyewitness who had seen him on McNew Court. They asked whether he was Rifleman. That was-why Dixon subsequently called Johnson; Dixon asked him why Dixon’s phonewasat a crime scene. Dixon could not explain to the detectives about forgetting the cell phone in the Expedition, because if someone becomes a snitch, his family will disown him, and Dixon’s whole family was from the gang. After Dixon asked Johnson why Dixon’s phonewasat a crime scene, Johnsonleft and went to San Jose. Johnson never explained why the phone was there. Dixon denied being present at the shootings on McNew Court. James Wallace washis cousin, although they did not grow up together. Dixon denied robbing any dug dealer on Cheatham Street or Reese Street. Robbing one’s own homie would bring repercussions and would probably cause one’s own gang to turn against the robber. Dixon was acquainted with Shannon Fowler. Among the people wholived in the apartments in the 200 block of Eye Street during August 2007 were Fowler, who was 81. having a sexualrelationship with Lee, and Krystle, who was seeing Johnson. In addition, a girl Dixon was seeing often visited her friends in the complex. Fowler had a redcar, but she never let Dixon andthe others drive it. Dixon had never been in that car. Dixon was familiar with the house in the 400 block of Eye Street. The man who lived there sold drugs. Dixon grew up with the daughters of the woman wholivedthere. Dixon never went to that location to help Johnsontry to sell a gun so he could go to Las Vegas. Johnson never took Dixon to the intersection at Real Road and Planz to show him a camera. Dixon grew up with Raybo. When he learned from his auntthat Raybo had been killed, he borrowedhissister’s car and drove over to Reese and Cheatham Streets. He estimated there were about 200 people there when he arrived, including Johnson,Lee, - and Raybo’s brothers. Everybody was discussing what had happened; everyone knewit was an inside job, meaning ithad to be a homie whodid it. During thisdiscussion, Jackson arrived. Johnson walked over to-him, and Dixon, Lee, Raybo’s brothers, and some other homies followed. They all told Jackson that they had heard he killed Raybo. Jackson denied it and blamedit on Fumes (David Taylor). : While everyone wastalking to Jackson; Dixonleft to pick up his sisters. He — returned later to the area of Reese and Cheatham, but never got into a vehicle with -- Jackson;Johnson;-andLee to-go-totheBakersfield-College-area-_to-killFumes-or-his--———- —-- father. Jackson wastelling everyone that he knew where Fumes or Fumes’s father stayed, but to Dixon’s knowledge, no one went up there. Dixon denied knowing Adrian Bonner or being at South Real Road and Planz at the time Bonner was shot. He was at Camelot Park, off California and Oak, at the time of the shooting. Dixon learned of the Bonner shooting shortly after it happened. When he and Ginn’s son left Camelot Park, they went to the residence of Columbus Holford. Bonner’s sister and Holford were friends, and she had called Holfordrightafterthe shooting. - 82. On August 23, the day he was arrested, Dixon wasthe driver of a car that also contained Lee and someonecalled “Set Trip,” whose real name Dixon did not know. The three were just talking. Dixon did not know there was a Tec-9 in the car until Set Trip told him to drive off because he had the gun in the lunch pail. Set Trip tossed the gun in the back seat, and Dixon let him out. Dixon jumpedout of the car and ran because he did not want to go back to prison. After his arrest, he was booked into the Kern Countyjail and wasplaced in the samecell as Jackson. He never discussed the shootings with Jackson, however. Although Dixon and Jackson talked while celled, the talk was about them both changing and leaving the gang. Jackson wasparticularly worried abouthis parole violation.® Dixon pled guilty to participating in a criminal street gang in the case arising out of the vehicle pursuit, and was sentenced to prison. While housed at WascoState Prison, Dixon heard that Othelon Lyons was also imprisoned there. They were neveron the same yard, however, and never had any contact or conversation. Emmanuel Burts, Jr., married Agustin in September 2008. At the time hetestified, | he wasin jail as the result of her bringing charges against him.®7? When he was arrested, he telephoned and wantedto let the defense attorneys in this case know Agustin hadlied on the stand. Before she hadtestified, Agustin and Burts lived in Fresno. Agustin had transcripts and went over them. She also went on the Internet and looked at maps. She told Burts she was refreshing her memoryofthe locations to which she went with her ex- boyfriend. 66 According to Dixon, he himself gave up the gang lifestyle when he wasarrested for possession of the Tec-9. 67 Burts was pending charges of spousal abuse and felony threats. He had suffered a numberof prior felony and misdemeanorconvictions for various offenses. _ 83. While Agustin was in Bakersfield testifying in this trial, she telephoned Burts every day to let him know whenshe wasback in her room. She told Burts that she was testifying truthfully, but was leaving out parts. She said she wasnotbeingtruthful about certain things because she did not want her son involved. Johnson sold a gun to Agustin’s son, in Agustin’s presence, right before they went to Las Vegas. Agustin said it was the gun usedin the homicide. In addition, Agustin told Burts that either Lee or Dixon (Burts could not remember which) had nothing to do with the murder. In the time he had known Agustin, Burts formed the opinion that she was very deceiving and conniving. Burts was aware Agustin received $750 for rent and $450 for her personal things each month as a witness for the prosecution in this case. In Fresno County, however, she applied for food stamps and welfare, and neverreported she was receiving that money. Lee’s Case According to Marc Taylor, a forensic scientist/criminalist and laboratory director of-Technical Associates, Incorporated, in Ventura, California, there are ways to preserve and process items, such as expendedshell casings, so that they can be tested for fingerprints and potential DNA without interfering one with the other. Latent fingerprints and DNA both can be recovered from expended shell casings. In his opinion, — placingindividual-shell-casings-inon-cottonycushioningin-small whiteboxes;aswas---—~- done in this case, could result in ridge lines left by whoever touchedthe casing being wiped off by the cotton. Similarly, packaging multiple expended shell casings together in an envelope could lead to a transfer taking place orto the ability to detect a fingerprint being affected due to the rubbing togetherof variouspieces of evidence. He could not, however, say whether that happenedin this case. In DNAtesting, when there is a good quantity of DNA,the peaks on the electropherogram will be well within the normalanalytical range. There are specific proceduresto test the analytical thresholds of the instrumentto be sure that when there is 84. a peak abovea certain height, it represents a reliable result. If low levels of DNA from an individualare present, things may show up in certain areas of the electropherograms but disappear in others. Whether to include or exclude an individualas being in the profile can then becomesubjective. For example, when anallele is present but in a weakerrange, there are limitations on what interpretations can be madeofthat allele being present. Sometimes, the results are inconclusive. Taylor could not say whether there was a subjectivity to the analysis of the DNA results in this case or whether there were low quantities of DNA. DISCUSSION® I PRETRIAL ISSUES A. Change of Venue Dixon and Johnson contendthetrial court erroneously denied a defense motion for change of venue, thereby denying them due process, a fair trial, and trial by an impartial jury, as guaranteed bythe state and federal Constitutions. The People say the motion was properly denied. 1. Background Johnson moved,in limine, for a change of venue based onpretrial publicity. Johnson pointed to a June 10, 2008,article in the Bakersfield newspaper in which he was called one of the top gang members in Kern County; a September 3, 2008,local television newsstory in whicha liquorstore surveillance video wasplayedthat depicted 68 Althoughthe issues often overlap, we have organized them to conform as closely as possible to the chronology of eventsat trial. In any instance where wefind or assumeerror, we will discuss whether theerror, standing alone,is cause for reversal. If it is not, we will discuss any adverse effect it may have had in conjunction with other errors when we address defendants’ claims of cumulative prejudice. 85. an unknownAfrican-American male shooting a clerk in a February 2006 robbery,and which reported that Johnson had now been named asthe suspect in the shooting; and an October 21, 2008, article in the Bakersfield newspapertitled “Shot-callers, the 66,” in whichthedistrict attorney’s office included defendants among the 66 most dangerous or significant gang membersin Bakersfield. Dixon joined in the motion and noted that the information was also on the Internet.” The People opposed the motion, claiming Johnson and Dixon had failed to meet their burden of showing they could notreceive a fair trial in Kern County. Attached to the People’s opposition were copies of the newspaperarticles the People were aware of regarding the case and defendants. There were three blurbsin the “(plublic safety” section the day after each of the three shootings; a larger story, dated December31, 2007, andtitled “Homicides drop in 2007,”that briefly described the year’s homicides, including the McNew Court shootings; an article dated May 7, 2008, andtitled “MySpace pages help lead deputies to 2007 murder suspects,” that discussed defendants’ arrests and charges; an article dated May 10, 2008,titled “Search warrants reveal how murder suspects were tracked down,”that discussed the case and contained a photograph of Vanessa Alcala and her child; and an article dated June 10, 2008, titled “New D.A. gang unit to target top offenders,” that contained a list of 27 gang memberscalled “shot- callers”by-the Kern-CGountyDistrictAttorney-and-whohadcases-pending-against-them..-- Defendants were included on the list and named as Country Boy Crips, and the article was accompanied by a photograph of the district attorney at a news conference, standing nextto a poster that included Johnson’s and Lee’s pictures, monikers, and charges. 69 Accordingto Johnson, the video wasalso featured on America’s Most Wanted and the national news. 70 Lee expressly declined to join in the motion. 86. After hearing argument and viewing the poster, the trial court addressed the relevant considerations (discussed post) and denied the motion. It deferred to voir dire a determination whetherthe article had prejudiced the panel and an evaluation of whether a renewal of the motion would be justified. Jury selection began on November 17, 2008. Prospective jurors were questioned, inter alia, about any media exposure they had had to defendants or the case, as well as any exposureto or personal knowledge of gangs. Those whose answers suggested a fixed prejudgmentof the case, either because defendants purportedly were gang members or because of what was known about the case through media exposure, were excused for cause. At the timeall sides accepted the panel as constituted, the defense had not exhausted all of its peremptory challenges. At the time the alternates were accepted, only Dixonhad exercised all of his peremptory challenges. At no time did any defendant request that the change of venue motion be renewed. 2. Analysis | “*A change of venue must be granted when the defendant showsa reasonable likelihood that in the absence of suchrelief, a fair trial cannot be had.’” (People v. Panah (2005) 35 Cal.4th 395, 447; § 1033, subd. (a).) “‘[R]easonable likelihood’” means 299something less than “‘more probable than not,’”” but something more than “merely ‘possible.’” (People v. Bonin (1988) 46 Cal.3d 659, 673, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Each case is resolved on its own facts, and the moving party bears the burden of proof. (People v. Sanders (1995) 11 Cal.4th 475, 505.) “In contrast to pretrial appellate review by wayofa petition for a writ of mandate, review on appealis retrospective. Thus, ‘any presumption in favor of a venue change 1s unnecessary, for the matter may then be analyzed inlight of the voirdire of the actual, available jury pool and the actual jury panel selected. The question then is whether,in light of the failure to change venue,it is reasonably likely that the defendant in fact 87. received fair trial.’ {Citation.]” (People v. Jennings (1991) 53 Cal.3d 334, 360.) “On appeal, “the defendant must show boththat the [trial] court erred in denying the change- of venue motion,i.e., that at the time of the motion it was reasonablylikely that a fair trial could not be had, and that the error was prejudicial, i.e., that it [1s] reasonably likely that a fair trial was not in fact had.” [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 943.) On appeal, we review thetrial court’s resolution of factual questions for substantial evidence, but we independently determine the ultimate question of whether a fair trial was obtainable. (Peoplev. Sanders, supra, 11 Cal.4th at pp. 505-506; Peoplev. Jennings, supra, 53 Cal.3d at pp. 359-360.) This de novo standard of review applies to our consideration of the five factors we must examine in making that determination: (1) the nature and gravity of the offenses; (2) the nature andextent of the media coverage; (3) the size of the community; (4) the status of the defendants in the community; and (5) the popularity and prominence ofthe victims. (People v. Panah, supra, 35 Cal.4th at p. 447; People v. Jennings, supra, 53 Cal.3d at p. 360; People v. Harris (1981) 28 Cal.3d 935, 948.) With regard to the first factor, “[t]he peculiar facts or aspects of a crime which makeit sensational,or otherwise bring it to the consciousness of the community, define —jts-‘nature?;-thetern‘gravity’-ofa-crime refers-to-its-seriousness-in-thelaw-and-to-the—~- - . possible consequences to an accused in the event of a guilty verdict.” (Martinez v. ~ Superior Court (1981) 29 Cal.3d 574, 582.) Special-circumstance murderis an offense of “utmost gravity,” even when the death penalty is not sought. (Williams v. Superior Court (1983) 34 Cal.3d 584;593.) The multiple murders and attempted murders involved here are extremely serious offenses: thus, this factor favors grantinga change of venue, butit is not dispositive. (People v. Davis (2009) 46 Cal.4th 539, 578; People v. Weaver (2001) 26 Cal.4th 876, 905.) Althoughthe fact a pregnant womanand her ~ unborn child were amongthe victims impactsthe natureof this case, this is something 88. that “will not change with a change of venue.” (People v. Edwards (1991) 54 Cal.3d 787, 808.) ‘“‘Prospective jurors would sympathize with the [victims’] fate’ no matter where the trial was held, and this sympathy stems from the nature of the crime, ‘not the locale of trial.’ [Citation.]” (People v. Davis, supra, 46 Cal.4th at p. 578.) The second factor, the nature and extent.of the media coverage weighs against a change of venue. It simply cannot be deemed “persistent and pervasive.” (Martinezv. Superior Court, supra, 29 Cal.3d at p. 585; see, e.g., People v. Lewis (2008) 43 Cal.4th 415, 448-449 [39 newspaperarticles, and 95 minutes of videotaped television coverage, spanning period of 13 months, “considerably less extensive” than in other cases in which California Supreme Court affirmed denials of motions to change venue]; Peoplev. Panah, supra, 35 Cal.4th at p. 448 [18 articles over 12-month period “can hardly be characterized as ‘extensive’”].) The coverage was largely factual and noninflammatory; although naming defendants as gang “shot-callers” was potentially prejudicial, evidence of defendants’ gangaffiliation and level of involvement was admitted at trial, so no prejudice resulted. (See People v. Lewis, supra, 43 Cal.4th at pp. 449-450.) “(T]he fact that prospective jurors may have been exposedto pretrial publicity about the case does not necessarily require a change of venue. [Citation.] ‘““It is sufficient if the juror can lay aside his impression or opinion and rendera verdict based on the evidence presented in court.”” [Citations.]” (People v. Panah, supra, 35 Cal.4th at p. 448.) Here, the prospective jurors had, at most, vague recollections of past news coverage, and any who appeared to have prejudged defendants’ guilt were excused. ‘Defendants’ failure to exhaust their peremptory challenges strongly suggests they themselves concluded the jurors werefair. ([bid.) Also weighing against a change of venueis the size of the community, the third factor. “The larger the local population, the morelikely it is that preconceptions about the case have not become imbedded in the public consciousness. [Citation.]” (People v. Balderas (1985) 41 Cal.3d 144, 178.) During the hearing on defendants’ motion, the 89. prosecutor represented, without contradiction, that Kern County had a population of almost 800,000 people. According to California Departmentof Financefigures for 2007, the latest year available, Kern County had a population ofjust under 810,000, makingit the 13th most populous of California’s 58 counties. (Cal. Statistical Abstract (48th ed. 2009) Dept. ofFinance, table B-3, at [as of Nov. 15, 2009].) Venue changes have, almost without fail, not been granted or ordered on review in cases involving counties with such large populations. (See, e.g., People v. Weaver, supra, 26 Cal.4th at p. 905 [where adverse 3 ce publicity “neither relentless nor virulent,” Kern County’s “moderate size” (then exceeding 450,000) did not underminetrial court’s decision to deny change of venue motion]; People v. Webb (1993) 6 Cal.4th 494, 514 [motions to change venue granted where countyrelatively isolated and small, in contrast to San Luis Obispo County (population then almost 200,000)]; People v. Fauber (1992) 2 Cal.4th 792, 818 [size-and nature of Ventura County (population then of 619,300) did not support venue change; “(vjenue changes are seldom granted from counties of such a large size”’|; People v. Daniels (1991) 52 Cal.3d 815, 852 [no change of venue; murder of two police officers gamered extensive media coverage, but community (Riverside County) had population exceeding 600,000]; People v. Hamilton (1989) 48 Cal.3d 1142, 1158 [most recent -successful -venue-casesinvolved-nonurbancounties with-substantiaHy-smallerpopulations - than Tulare County (population then approximately 250,000, ranking it 20th among California counties in population size)]; People v. Balderas, supra, 41 Cal.3d at pp..178- 179 [cases in which venue changes granted or ordered onreview. generally involved counties with much smaller populations than Kern (population then 405,600, rankingit 14th among California counties in that respect)].) We haveno doubt Kern County’s population was ofsucha size that it neutralized or diluted the impact of what scant media coverage there was. (See People v. Weaver, supra,26 Cal.4th atp. 905.) 90. Turning to the final factors — the status of the defendants, and prominence and popularity of the victims — we conclude they too weigh against a change of venue. Neither defendants nor the victims were outsiders to the community, nor were they prominent personages. (See People v. Alfaro (2007) 41 Cal.4th 1277, 1323; People v. Daniels, supra, 52 Cal.3d at p. 852.) Any prominence achievedbythe victims through news accounts ofthe shootings did not favor a change of venue;since all led relatively obscure lives, “the community was notlikely to have experienced a uniquely heightened sense of loss or anger which would presumably bealleviated by trial in another county. Any sympathetic features of the case would be apparent wherever it was tried.” (People v. Webb, supra, 6 Cal.4th at pp. 514-515.) Likewise, any unsympathetic features of the case — the gang allegations and evidence — would also be apparent wherever the case wastried. In sum, the gravity and nature of the crimes supported a change of venue. The other relevant factors did not. Accordingly, we concludethe trial court did not err in denying the motion madeprior to jury selection. «(Whena trial court initially denies a change of venue motion withoutprejudice, a defendant must renew the motion after voir dire of the jury to preserve the issue for appeal.’” (People v. Maury (2003) 30 Cal.4th 342, 388-389.) Here, as we have noted, defendants did not renew the motion after voir dire. Even if we found no forfeiture, however(see People v. Prince (2007) 40 Cal.4th 1179, 1215-1216), we would conclude _ defendants’ failure to renew the motion and to exhaust their peremptory challenges | signified their apt recognitionthat the jury, as selected, was fair and impartial. (People v. Beames (2007) 40 Cal.4th 907, 922.)71 7” Accordingly, we do not address defendants’ alternative claim of ineffective assistance of counsel. 91. Asthe California Supreme Court stated in People v. Lewis, supra, 43 Cal.4th at page 450: “We ... conclude that on appeal defendant[s have] not shown a reasonable likelihood that [they] did not receive fair trial before an impartial jury. The jury voir dire bore outthe trial court’s conclusion that a fair jury could be chosen. Each juror assuredthetrial court that he or she could be unbiased notwithstanding exposure to media reports about the case. Although the jurors’ assurances of impartiality are not dispositive [citations], neither are we free to ignore them [citations]. [Courts] have in the past relied on jurors’ assurancesthat they could be impartial. [Citations.] Absent a showingthat the pretrial publicity was so pervasive and damaging that we must presume prejudice [citations], we do the same here. Considering all the circumstances, defendant{s have] not established a- reasonable likelihood, as opposed to a mere possibility, that [they] did not in fact receive a fair trial before impartial jurors. [Citation.]” B. Severance Lee and Dixon contendthe trial court abused its discretion by denying their pretrial motions for severance. Theysaythe trial court’s ruling resulted in gross unfairness and denied them their constitutional nghtto afair trial. The People say a joint trial was proper. 1. Background - Sa Prior-totrial,Leemoved-to-sever-histrial-fromthatoftheotherdefendants,should— the trial court deny his in limine motionsto (1) exclude testimony related to Lee being arrested, charged, and convictedin the case involving the Tec-9 found in the backseat of the car driven by Dixon; (2) exclude any testimony by Agustin that Johnson told her Lee performedcertain acts; (3) preclude the People from questioning anyof its witnesses about Lee’s criminal history, allegations, or character evidence; (4) preclude any testimony concerning Agustin’s, Jackson’s, and Bonner’s fear of defendants; and/or 92. (5) exclude any testimony concerning the domestic violence incident between Johnson and Agustin that occurred in Las Vegas in August 2007.72 The People opposed the motion, arguing in pertinent part that (1) a joint trial was preferred; (2) there existed no Aranda-Bruton™ issues that required severance; (3) incriminating statements made by defendants were declarations against interest; (4) no severance was required where inconsistent defenses were to be presented; and (5) no severance wasrequired since the evidence against all defendants wasstrong. During argument on various evidentiary in limine motions,all defendants joined in the motion for severance. After a lengthy discussion, the trial court found no basis upon which to grant severance dueto the introduction of expert testimony on BWSor evidence of domestic violence as it related to Johnson and Agustin. Accordingly, it denied the motion for severanceas to that issue, but reservedits ruling insofar as the motion was based on otherissues. Defendants subsequently requested an Evidence Codesection 402 hearingto determine whether Senior Officer Sherman wasqualified to testify asa gang expert. In part, his testimony concerned Dixon’s prior voluntary manslaughter conviction and involvementin an earlier shooting. The People sought admission of evidence concerning the prior incidents both in termsof the information upon which Shermanrelied in forming his opinions, and also pursuant to EvidenceCode section 1101, subdivision (b). After arguing admissibility of the evidence under that statute, Lee asserted that admission of prior gang-related shootings by another defendant was unduly prejudicial to him, especially in light of the disparity in gang-related evidence vis-a-vis Lee as opposed to 2 Although Lee specified that particular incident, his argument appears to have encompassed any incidents of domestic violence between Johnson and Agustin. 73 Bruton v. United States (1968) 391 U.S. 123; People v. Aranda (1965) 63 Cal.2d 518. . 93. the other defendants, andthat the court could not mitigate the prejudice through an admonishment. Johnsonjoined. After extensive argument, thetrial court ruled that Dixon’s prior acts were admissible under Evidence Code section 1101, subdivision (b), and not subject to exclusion under Evidence Code section 352.74 Lee then renewed his motion for severance,citing the “vast[ly]” disproportionate evidence. Johnson joined the motion, requesting severance from Dixon. The People responded that severance would serve no purpose because Lee and Johnson were charged with identical crimes, the evidence was strong against all defendants, and the evidence would be admissible against each in | separate trials. After further argument concerning,in large part, the admissibility against nondeclarant defendants of statements made by another defendant to Agustin or Jackson, the trial court deniedthe motion to sever without prejudice. Just before the start ofjury selection, Lee again moved for severanceofhis trial from that of theother defendants. Lee cited the domestic violence incidentsthat were going-to be admitted against Johnson; the testimonyofthe BWSexpert that was going to be admitted with respect to Agustin; the lengthy amountof gang evidence that was going to be produced against Johnson; the statementsmade between Johnson and Agustin, some of which would not be cross-admissible; the statements between Johnson and -Jackson;some-of-whichwould-not-be-cross-admissible;Dixon’s-priormanslaughter- conviction, service of time in prison, and subsequentparole status; the tattoos and. photographs of Johnson and Dixon, that would not be cross-admissible againstLee; statements betweenDixon and Agustin that would not be cross-admissible; statements between Dixon and Jackson that would not be cross-admissible; and the gang evidence as to Johnson and Dixon that would notbe cross-admissible against Lee. Lee expressed particular concer about spillover prejudice, and the disparate amounts andstrength of 74 Wewill discussthe propriety of these rulings, post. 94. the evidence against each defendant. The People opposed the motion on the groundsthat the evidence wasstrong as to each defendant, as well as cross-admissible. Finding Lee could receive a fair trial, the court denied the motion. 2. Analysis Section 1098 provides in part: “When two or more defendants are jointly charged with any public offense, ... they must be tried jointly, unless the court order separate trials.” Underthis section, “a trial court must order a jointtrial as the ‘rule’ and may order separate trials only as an ‘exception.’ [Citation.]” (People v. Alvarez (1996) 14 Cal.4th 155, 190.) “A “classic” case for joint trial is presented when defendants are charged with common crimes involving common events and victims.’ [Citation.] Though severance is eee in thein the sound discretion ofthetrial court, severance should generally be granted face of an incriminating confession [by a codefendant], prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separatetrial a codefendant would give exonerating testimony.” [Citations.]” (People v. Pinholster (1992) 1 Cal.4th 865, 932, disapproved on another ground in People v. Williams(2010) 49 Cal.4th 405, 459; People v. Massie (1967) 66 Cal.2d 899, 916-917; cf. Zafiro v. United States (1993) 506 U.S. 534, 539.) The foregoing factors are not exclusive and are most often applied in cases involving defendants who are charged with crimesarising out of the same episode(s), as opposed to separate occasions. (Calderon v. Superior Court (2001) 87 Cal.App.4th 933, 938.) In the present case, defendants were jointly chargedwith crimesarising out of the sameepisodesfor the most part, but Dixon was not charged in count one, and Lee was not charged in counts six and ten. Under such circumstances,it has been held that the criteria guidingtrial court discretion with respect to joinder of counts (§ 954) are also instructive. (Calderon, supra, at pp. 938-939.) They are: “(1) whether evidence ofthe crimes would be cross-admissible; (2) whether some chargesare likely to inflame the 95. jury against the defendant: (3) whether a weak case has been joined with a strong one, or with another weak case; and (4) whether any of the charges is a potentially capital offense.” (/d. at p. 939.) “We review a trial court’s denial of a severance motion for abuse of discretion based onthe facts as they appeared at the time the court ruled on the motion. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 575; accord, People v. Mendoza (2000) 24 Cal.4th 130, 160-161 [discussing review under § 954].) A trial court abusesits discretion whenits ruling “falls outside the bounds of reason.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.) “If we concludethetrial court abusedits discretion, reversalis required only if it is reasonably probable that the defendant would have obtained a more favorable result at a separate trial. [Citations.] If the court’s joinder ruling was proper when it was made, however, we may reverse a judgmentonly on a showingthat joinder “resulted in ‘gross unfairness’ amounting to a denial of due process.”” [Citation.|” (People v. Lewis, supra, 43 Cal.4th at p. 452.) At the time ofits rulings, the trial court reasonably could have concluded the potentially prejudicial evidence either would have been admissible in separate trials or, to the extent it would not have been, could be adequately compartmentalized among | defendants by meansoflimiting instructions. “The fact that evidenceof other incidents was-admissible-against-some-defendants-andnot-others-does-not-requireseparatetrials. [Citation.]” (People v. Goodall (1982) 131 Cal.App.3d 129,141.) The court also reasonably could have concluded severance was not warranted by potentially antagonistic defenses (see People v. Letner and Tobin (2010) 50 Cal.4th 99, 150 [trial court abusesits’ discretion in denying severance only where conflict between defendants alone will demonstrate to jury that defendants areguilty]), by the relative dissimilarity of the quantity and quality of the evidence implicating one defendantas compared to the others (see id. at p. 151; People v.Coffman andMarlow (2004) 34 Cal.4th 1, 43), or by prejudicial association (see Letner and Tobin, supra, at p. 152 [prejudicial association 96. justifying severance occurs where evidence regarding one defendant might makeit likely jury would convict that defendant, and morelikely find codefendant guilty based on relationship between the defendants rather than upon evidence separately implicating codefendant}). Oneasserting prejudice in this situation must proveit; a bald assertion is not enough. (People v. Kemp (1961) 55 Cal.2d 458, 477.) “{D]Jefendants are not entitled to severance merely because they may have a better chance of acquittal in separatetrials. [Citations.]” (Zafiro v. United States, supra, 506 U.S. at p. 540.) We concludethetrial court did not abuseits discretion by denying the severance motions. However, we cannotreject, out of hand, Lee and Dixon’s claimsthat joinder resulted in such unfairness as to violate due process. We recognize that jurors are presumed to follow instructions limiting the purpose(s) for which evidence can be considered or the defendant(s) against whom it can be considered. (People v. Coffman and Marlow, supra, 34 Cal.4th at pp. 43-44.) Nevertheless, there can be no doubtin the present case that these matters sometimes were complex. “Prejudice cannot be understood in a vacuum. The touchstoneofthe court’s analysis is the effect ofjoinder on the ability of the jury to render a fair and honest verdict. Prejudice will exist if the jury is unableto assess the guilt or innocence of each defendant on an individual andindependentbasis. ‘Rather, the ultimate question is whether underall of the circumstances, it is within the capacity of the jurors to follow the court’s admonitory instructions and, correspondingly whether theycan collate and -appraise the independent evidence against each defendant solely upon the defendant’s ownacts, statements, and conduct.’ [Citation.]” (United States v. Tootick (9th Cir. 1991) 952 F.2d 1078, 1082 [discussing joinder and severance under Fed. Rules Crim.Proc.].) As we cannotassess the fairness of trial without reviewing the trial record and analyzing many of the other claims of errormade by defendants on this appeal (see Peoplev. O97. Cleveland (2004) 32 Cal.4th 704, 726), we will revisit the issue of severance in our discussion of cumulative prejudice, post. C. Batson-Wheeler Defendants challengethe trial court’s denial of their Batson- Wheeler™> motions, which were predicated on the prosecution’s peremptory excusals of physically disabled and African-American prospective jurors.’ The People say the challenged peremptory strikes were constitutionally permissible. “The purpose of peremptory challengesis to allow a party to exclude prospective jurors whotheparty believes may be consciously or unconsciously biased against him or her.” (People v. Jackson (1992) 10 Cal.App.4th 13, 17.) “There is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burdenis - on the opposing party to demonstrate impermissible discrimination. [Citations.]” (People v. Bonilla (2007) 41 Cal.4th 313, 341.) | Peremptory challenges may properly be usedto remove prospective jurors believed to entertain specific bias, i.e., bias regarding theparticular case being tried or the parties or witnesses thereto. (Wheeler; supra, 22 Cal.3datp. 274.) However, “‘{a] - prosecutor’s use of peremptory challengesto strike prospective jurors on the basis of: group bias — thatis, bias against “membersof an identifiable group distinguished on racial, religious;-ethnic;orsimilargrounds”.—violatestheright-ofa-criminal-defendant—-- to trial by a jury drawn from a representative cross-section of the community under 5 Batson v. Kentucky (1986) 476 U.S. 79 (Batson);People v. Wheeler (1978) 22° Cal.3d 258 (Wheeler). Wheeler has been overruledin part by Johnsonv. California. (2005) 545 U.S. 162 Vohnson). 76 Defendants are African-American. Although thereis no indication anyis hearing impaired or otherwise physically disabled, a defendant and prospective juror(s) alleged to have been wrongly excused neednot be members of the same group inorderforthe. defendantto complain. (Powers v. Ohio (1991) 499 U.S. 400, 416.) a 98. article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendmentto the United States Constitution. [Citations.]’ [Citation.]’ (People v. Bell (2007) 40 Cal.4th 582, 596; see Batson, supra, 476 US. at pp. 88-89; Wheeler, supra, 22 Cal.3d at pp. 276- 277.77 “The United States Supreme Court has ... reaffirmed that Batsonstates the procedure and standardto be used bytrial courts when motions challenging peremptory strikes are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a primafacie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide ... whether the opponentof the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” (People v. Avila, supra, 38 Cal.4th at p. 541, quoting Johnson, supra, 545 U.S. at p. 168.) The California Supreme Court has “endorsed the same three-part structure of proof for state constitutional claims. [Citations.]” (People v. Bell, supra,40 Cal.4th at p. 596; see — Wheeler, supra, 22 Cal.3d at pp. 280-282.) With these principles in mind, weturn to the case before us. 77 Defendants raise a separate equal protection claim underthe state Constitution. “Ourstate constitutional guarantee of equal protection (Cal. Const., art. I, § 7) is substantially equivalent to that contained in the United States Constitution (U.S. Const., 14th Amend.), and our analysis of state and federal equal protection claimsis substantially the same. [Citations.].” (People v. Hofsheier (2006) 37 Cal.4th 1185, 1211; accord, People v. Leng (1999) 71 Cal.App.4th I, 11; see People v. Tavlor (2001) 93 Cal.App.4th 318, 322; In re Evans (1996) 49 Cal.App.4th 1263, 1270.) Accordingly, defendants’ contention is subsumed within our existing discussion, and we do not separately addressit. 99, l. Physical Disabilities a. Background L. H.D. Prospective Juror H.D. was employed as a caterer. She was also a studentat Bakersfield Adult School, where she was halfwayto getting her high school diploma and . was taking regular high schoolclasses. In addition, she taught a parenting class at a counseling center. She helped the director with parents whohadlosttheir children, especially through adoption. Her son wasbeingraised byhersister. She had two brothers in gangs, but had no contact with them. She hadno priorjury service, no close friends.or relatives in law enforcement, and did not know anyone involvedin thetrial. She did not believe there was anything about the nature of the case or charges that would affect her ability to be fair and impartial. Her home had been burglarized about eight monthsearlier, and she had pled no contest to misdemeanordisturbing the peace about 15 years earlier. She had never.had an unpleasant experience with law enforcement. She promised she could andwould be fair to both sides in this case. Because ofher eyesight and hearing, H.D. did not watch much television or read muchofthepaper, and so had not heard anything aboutthis case other than what she had heard in court. She had heardall the questions asked by the:attorneys of, and answers -~-given-by,-her fellowprospective-jurors:-——————=-— oo ~ a H.D. initially could not hear the prosecutor, whose microphone maynot have been on atthe start of the prosecution’s voir dire. When H.D.erroneously called the prosecutor“sir” and then apologized, the prosecutor said, “There area lot of them here.”78 HD: responded, “They're handsometoo.” 78 . All three defense attorneys, and one ofthe two prosecutors, were male. The lead. prosecutor was female. (For the most part, we refer to “the prosecutor” as.a single entity.) 100. H.D. was using a deviceto help her hear better, and she confirmed she had been able to hear the proceedings.”” She waspartially sighted, but could see the attorneys and the wall behind them. She had trouble with small things and used a magnifier to read small print. If she brought her magnifier, she would be able to read something like a typewritten document. It would notbe too difficult for her to read thingsin this case; she wasthe kind of person, she told the prosecutor, who, whatever was given, would do her work. She was very independent, too. Outside the presence of the prospective jurors, the prosecutor related that she had “some concerms” about H.D.’s mental abilities. The prosecutor felt some of H.D.’s answers were somewhatappropriate, but that a lot were inappropriate. The prosecutor wanted to ask additional questions, and it was agreed H.D. would be questioned in chambers. During this further questioning, H.D. related that she had never been under a conservatorship and did not have a payee for the SSI benefits she received dueto her eyesight. She was prohibited from having a driver’s license due to her eyesight, but could get a ride or take the bus to court. On a couple of occasions during this questioning, H.D. had to ask the prosecutor to repeat.a question. At one point, the prosecutor asked if H.D. remembered the previous discussion of the People’s burden of proof in the case. H.D. answered affirmatively; when asked what that burden was, H.D. answered, “I’m okay with that.” She then asked the prosecutor to repeat the question, and this time responded, “I have no burden of proof.” Once remindedofthe People’s burden, H.D.said she had no problem withit. The prosecutor then asked if H.D. remembered the discussion about past misconduct of defendants, and that it could be used for specific purposes. When H.D.said yes, the 79 For best reception, the device had to be kept zeroed in on the other half of the court’s apparatus for hearing-impaired jurors, which wassituated above the judge’s head. 101. prosecutoraskedif she remembered what those purposes were. H.D. responded, “Only on somethingthat’s related to that and no other.” The prosecutor then questioned H.D. about her commentthatthe defense attorneys or the gentlemen at the table were handsome. Asked which ones she thought were good looking, H.D. respondedthat they were all good looking. Shealso told Lee’s attorney he had a good smile. Whenthelead prosecutor asked what aboutthe male prosecutor, H.D. stated that he had a beard. Asked who did, H.D.referred to Lee’s counselandsaid it was white. She thought about Christmastime when she saw it, because she thought he looked - like Santa Claus. Askedif that would cause her to favor his side, she said no. It was just something nice on herpart. It was a joke, and she did not feel she wasrooting for either | side. Questioning thenpassed to the defense. H.D. apparently could not hear counsel for Dixon until he turned on his microphone. H.D.related that she had no problem seeing him at counseltable, that she was born completely blind and partially deaf, and that she had undergone manysurgeries in her eyes and ears. When she went to school, she had trouble learning becauseofher hearing and eyesight. She did not get hearing aids until she was 19. They worked well, but it was difficult for her to hear in court with just her hearing aid becauseof interference from the background sound. She could hear --everything-with the-court’sdevice,however. H.D--felt-that-in-thejury-room;-she-would-—— ~ - have no problem talking to theother jurors or listening to them. She felt she was on. an equal basis with them and wantedto betreated that way. _ Defense counselall expressly passed for cause, and the prosecutor did not challenge for cause. The court found H.D. qualified to serve as a juror, stating: “I listened to her. I watched her body language. Andsure, she has somechallenges, but she’s been able to overcomethose handicaps. I don’t know if I could have doneas well as she’s done.” It also observedthat thejudicial branch’s goals included fairness, diversity, and access. 102. The next peremptory challenge belonged to the People, and the prosecutor excused H.D. Told by the court that she was excused, H.D. responded, “Who, me?” Counsel for Johnson then asked to take up a matter at sidebar. When he asked if H.D. could stay fora moment, a prospective juror said, “She can’t hear you.” The clerk said she would take care of H.D. After a brief conference, the court asked the prospective jurors, including H.D., to leave the courtroom while it heard a motion. Outside their presence, it asked if counsel for Johnson had any support for the notion that persons with visual and hearing impairments were cognizable groups for purposes of the Batson- Wheeler motion he had made at sidebar. Counsel respondedthat it was his understanding being blind or hearing impaired were not appropriate grounds upon whichto challenge a prospective juror, that H.D. could overcomeher impairments with certain aids, and that she could keep an open mind. The court expressed its feeling that H.D. was not a memberof a cognizable group for Batson-Wheeler purposes. The prosecutor stated that assuming a cognizable class existed, no prima facie showing had been made that H.D. was excused because of her physical disabilities. The prosecutor declined to offer reasons for excusing H.D. absent a request by the .court because she did not think a prima facie case had been shown,but she stated for the record that after the sidebar was requested, H.D. was wandering around the courtroom andtried to go in the back with the court and counsel. The court notedthat she did not have her hearing-impaired device with her. The prosecutor agreed, and pointed outthat shetried to go behind defendants, then toward an exit door, and another juror had to catch her and bring her back in. The prosecutor asserted her confusion was obvious, and that if someone merely does not know whatis happening, that person does not try to go back into the judge’s chambers. The court invited counsel to address whether a primafacie case of systematic exclusion had been shown. Counsel for Johnson argued that he saw no reason for 103. excusing H.D. other than her special needs, as she did not show preferenceforeither side. The court stated: “I don’t feel that she’s part of a cognizable group, but I can see good arguments for why she shouldbe in a cognizable group. [{]] But based on what I’ve seen here, I don’t feel that a prima facie case of group bias has been established in this case or evidence sufficient to permit me to draw an inference that discrimination has occurredin this case.” Asked aboutthe possibility counsel might find case law showing she was part of a cognizable group, the court stated it was assuming she was a memberof a cognizable group, and was making that finding. Accordingly,it denied the Batson- Wheeler motion for failure to show a primafacie case. 2. MLR. Prospective Juror M.R., a former school teacher, had beenretired for about 15 years. She had prior jury service in both criminal and civil cases. She knew of no close friendsorrelatives in law enforcement, did not know anyone involvedin the case, | and saw nothing about the nature ofthe case or charges that wouldaffect her ability to be fair and impartial: She had no knowledgeof anypretrial publicity or the facts of this case. She heard all the questions askedof her fellow prospective jurors and the answers given; they brought nothing to mind that she wanted to discuss. When the prosecutor askedin what county M.R.hadtaught, M.R. respondedit -was-in-LosAngeles-County.—When-theprosecutor-askedifshe-was-“from-L-A:,”M.R.——— responded, “Am Imarried?” When the question was repeated, M.R. began her answer by calling the prosecutor “Dear.” A short time later, the prosecutor asked whatbrought M.R.and her husband to Kern County. M:R. answered, “Fourteen years.” She subsequently echoed several of the prosecutor’s questions, suggesting she did not hear _ them well.8° Asked if she knew anything about gangs in Kern County or elsewhere, 80 For example, when the prosecutorasked, “What does he[M.R.’s son] do fora living?” M.R. answered, “What does hé do?” 104. M.R.related that she had read little bit about them in the paper, but not so much that she knew about them. She did not think she had developed an opinion about them. Whenthe prosecutor then said jurors could not consider penalty or punishment when - deliberating, M.R. responded that she could not hear the prosecutor. A short timelater, she said she was having “a terrible time” hearing the prosecutor. She foundit “alittle better” when the prosecutor spoke in the microphone “up close.” The prosecutor and counsel for Johnson passed for cause, as did counsel for Dixon after further questioning. Counsel for Lee moved around to ascertain where M.R. could best hear him. M.R.said she did not think it would interfere with her ability to hear everything if an attorney were to walk from the witness box to the projector and point to something being projected without wearing a microphone. M.R. promised that she would raise her hand every timeshe did not hear a question or answer. Shealso related that she had a hearing device, but did not have the batteries neededfor it at that time. She promised to get them over the weekend. Offered use of the court’s hearing-impaired device or to have the court bring batteries, M.R. declined, stating she would bring her: ownhearing aid. Counsel for Lee passed for cause. The next challenge was with the People; the prosecutor excused M.R. No objection wasraised, nor was the Batson-Wheeler motion renewed. b. Analysis “In order to make a prima facie showing,‘a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are membersof a cognizable class.’{81] [Citation.] The high court [has] explained that ‘a 81 Wehavebeen unable to find any case directly holding that the physically disabled are a cognizable class for Batson and/or Wheeler purposes. In United States v. Watson (D.C.Cir. 2007) 483 F.3d 828, 829-835, a case dealing with visually impaired prospective jurors, the federal court determined that disability was not to be accorded 105. defendantsatisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.] ‘An “inference” is generally understood to be a “conclusion reached by considering other facts and deducing a logical consequence from them.”’ [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 186; Johnson, supra, 545 U.S. at pp. 168-170 & fn. 4; Batson, supra, 476 U.S. at p..96.) “Though proofof a prima facie case may be made from any information in the record available to the trial court, [the California Supreme Court has] mentioned ‘certain types of evidence that will be relevant for this purpose. Thus the party may show that his opponent has struck mostorall of the membersof the identified group from the venire, or has useda disproportionate number ofhis peremptories against the group. He mayalso demonstrate that the jurors in questionshare only this one. characteristic— their membership in the group — andthatin all other respects they are as heterogeneous as the community as a whole. Next, the showing may be supplemented when appropriate by » such circumstancesas the failure ofhisopponent to engage these same jurors in more .. than desultory voir dire, or indeed to ask them any questionsatall. Lastly, ....the defendant need not be a member.ofthe excluded group in order to complain of a violation of the representative cross-section rule; yet if heis, and especially if in addition his - alleged-victim is-a-member-ofthegroup-to-which: themajority ofthe-remaining jurors--——---- -—-- belong, these facts may also be called to the court’s attention.” [Citations.]” (People v. Bell, supra, 40 Cal.4th at p. 597.) heightened scrutiny for equal protection analysis. In People v. Green (Cty. Ct. 1990) 561 N.Y.S.2d 130, 131, 132-133, a lower court found a peremptory challenge intended to eliminate a prospective juror solely becauseshe could nothear,to violate New York’s state constitution.. The soundness of Green’s analysis was questioned in Lawlerv. MacDuff(UI-Ct-App. 2002). 779.NE.2d 311, 320. We assume,for purposes of our analysis, that the physically disabled area cognizable class. 106. “Whenthe trial court concludes that a defendant has failed to make a primafacie case, we review the voir dire of the challenged jurors to determine whetherthe totality of the relevant facts supports an inference of discrimination. [Citations.]” (People v. Lancaster (2007) 41 Cal.4th 50, 74.) We find no such inferencehere. The information elicited during voir dire established ample disability-neutral reasons for excusing H.D. (See People v. Bonilla, supra, 41 Cal.4th at p. 343.) For instance, her lack of education made her a less-than-desirable juror for a complex case such as this. She had brothers who were gang membersand had been in and out of prison, and she herself had a pnior misdemeanor conviction. (See People v. Davis, supra, 46 Cal.4th at p. 584.) More importantly, a number of her answers were inappropriate, and the prosecutor was not required to accept the explanation that H.D. was joking with regard to her statements about defense counsel. In addition, the record supports the prosecutor’s claim that H.D. was confused for reasons beyond her hearing impairment when the sidebar conference wascalled, a claim the trial court was in-the best position to evaluate.82 In light of H.D.’s answers and behavior, we decline to equate the prosecutor’s questioning her mental abilities, or peremptorily excusing her, with bias or the stereotyping of people with disabilities. Defendants say we should consider the prosecutor’s excusal of M.R. in determining whether there was sufficient evidence to support an inference of 82 In order to make asfull a record ds possible in Batson- Wheeler proceedings, the California Supreme Court has encouragedtrial courts to solicit explanations for contested peremptory challenges from prosecutors, even in the absence of a prima facie showing. Although the prosecutor here was within her rights to decline to state her reasons unless and until the court found a prima facie case, her voluntary decision to do so would not have constituted an admission or concession that a prima facie case existed, and so would not have converteda first-stage Batson-Wheeler case into a third-stage one. (People v. Howard (2008) 42 Cal.4th 1000, 1020; People v. Zambrano (2007) 41 Cal.4th 1082, 1105, fn. 3, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) 107. discriminatory intent. We decline to do so, because defendants did not renew their motion following her excusal and sofailed to preserve the issue for appeal. “[T]he trial court’s finding is reviewed onthe record asit stands at the time the Wheeler/Batson ruling is made. If the defendant believes that subsequent events should be considered by the trial court, a renewed objection is required to permit appellate consideration of these subsequent developments.” (People v. Lenix (2008) 44 Cal.4th 602, 624; see also People v. Hartsch (2010) 49 Cal.4th 472, 490,fn. 18; People v. Irvin (1996) 46 Cal.App.4th . 1340, 1352.) Defendants claim any further objection would have been futile because it would not have changedthetrial court’s finding that people with disabilities are not a cognizable group for Batson-Wheeler purposes. This assertion ignoresthe factthetrial court, while expressing doubtthat persons with physical disabilities constituted a cognizable group, made anexpress finding that H.D. was indeed part of a cognizable group but that no primafacie case had been shown. Under these circumstances, it would hardly have been futile to renew a motion following the presentation of circumstances defendants could have used as additional evidence in support of a primafacie showing.83 Were we to considerthe prosecutor’s excusal ofM.R., we wouldstill find no inference of discriminatory intent. “‘[E]ven the exclusion of a single prospective juror maybethe product of an improper group bias. As a practical matter, however, the : challengeofoneortwojurorscan-rarelysuggestapattern-ofimpermissibleexclusion.” (People v. Bell, supra, 40 Cal.4th at p. 598.) Defendants say H.D. and MLR.were the only remaining potential jurors with disabilities, but we do not knowthis to be true. Moreover, we decline to take intoaccount challenges for cause in determining whether the prosecution removed all prospective jurors with disabilities from the panel, thereby 83 Wedonotfind counsel ineffective for failing to renew the motion, because the. record doesnot affirmatively show counsel had norationaltactical purpose for the omission. (People v. Jackson (1989) 49 Cal.3d 1170, 1202; see Peoplev. Holt (1997) 15 Cal.4th 619, 657.) 108. evidencing discriminatory intent, as defendants apparently would have us do: The excusal of a prospective juror whose physical disabilities would interfere with jury service simply does not raise an inference of discrimination, alone or in combination with other circumstances. Similarly, the fact that a prospective juror was not subject to exclusion for cause does not support an inference that the exercise of a peremptory challenge against him or her was motivated by group bias. (People v. Cornwell (2005) 37 Cal.4th 50, 70, disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Additionally, voir dire elicited disability-neutral reasons for excusing M.R. For instance, any prosecutor might have been concerned about her not having developed any opinion about gangs despite having lived in Los Angeles and Kern Counties. In addition, questions remained about the extent of her hearing problem andits potential impact on herabilities as a juror, since she neither got batteries for her own hearing aid despite necessarily knowing she was coming to court for jury service, nor accepted the court’s offer of the use of its device. Underthe circumstances, the prosecutor was not required to assume M.R. would be able adequately to hear everything, or that she would carry through on her promiseto raise her hand every time she could not. Thetrial court did not err by finding no primafacie case of discrimination was shown. Accordingly, having assumed for purposes of our analysis that the physically disabled constitute a cognizable group for Batson-Wheeler purposes, we need not determine whetherthat is indeed so. | 2. Race a. | Background Prospective Juror E.B. had been employed as a derrick hand ona drilling rig in the oul fields for approximately three years. E.B. was single, had no priorjury service, and had no close friendsor relatives in law enforcement. Asked if there was any reason he could not be fair and impartial, E.B. answered no, but, when the court noted he had 109. paused, stated, “I just want to go back to work, pretty much.” E.B. explained that he normally worked, and was paid for, a 12-hour tour, but this was decreasedto eight hours when he was onjury duty. Asked ifhe would be ableto get by financially if he served on the jury, he responded,“I don’t know. I got a lotof bills.” The prosecutor questioned E.B. further abouthis financialsituation and ascertained that E.B. would belosing substantially more than a third of his paycheck if he did not receive overtime payfor the extra four hours per tour. Asked if he could weather that kind ofpaycutifthe trial went into January, E.B. answered, “I don’t know. I have to see what my check is like Friday.” E.B. did not think he would be worrying abouthis financesrather than giving his full attention to the case. He acknowledged, however, that because his shift was four days on, four days off, there might be.times when he would be working two 12-hour days on the weekend. E.B. was not familiar with MySpace or Facebook. He liked to watch sports on © television, and sometimes a show called “Wife Swap.” Hedid notreally liked to read, as he read enough at work. Noting that E.B. appearedto’be similar in age to defendants, the prosecutor asked if he was concerned about any kindofsympathy he might have toward them. E.B. respondedthat he did not have any sympathy. Asked about victims who might be aroundhisage,he said, “I don’t know them.” - - --Phe prosecutor-then called-E.B.’s-attention-to the-prior-discussion-aboutthe-——-~ ~~ standards usedfor evaluating witnesses, andasked if he had.ever been in a situation at work where hehadto evaluate whether someonewastelling himthe truth. When EB. answered affirmatively, the prosecutor asked whatsorts of situations. E.B. answered, “Just make sure they did their job, because most of the time they lie to you trying to just -- you have to go and check it.” E.B. explained that he was in charge of two other people on the job. Asked what kind of responsibilitieshe wouldhave in a situation | in which, for example, one ofhis employees wasa couple of hourslate and had obviously 110. been drinking, E.B. said he would have no responsibilities, as he was just supposedto make sure they did their job and to keep thembusy. The prosecutor then asked what type of responsibilities E.B. had if there were problemswith the people he supervised. This ensued: “Q. Well, do you have any responsibilities for discipline, for instance? “A. If they talk too crazy or something to you crazy, justtell them to meet you after work. [{] ... [{] “Q. Like to settle it in the parking lot kind of thing? “A. Yeah. [4]... [{] “Q. And what if someone that you’re supposedto tell them what to do, what if they don’t do what they’ re supposed to, what are you supposed to do? “A. Just cuss them out. Just let them know what’s up. They gotta respect what your position is. If not, you just try to send them home. “Q. Does that involve any paperwork? Do you haveto fill out a -- you know, write some paper on them about some problem you have with them? “A. No, I don’t have to. Just keep yelling at them all day until you make them quit. “Q. Do youlike that part of your job? “A. Notreally.” E.B. subsequently confirmedthat he believed he would be ableto judge which witnesses weretelling the truth and which were lying. He was not familiar with the state’s gang laws, did not pay attention to them, and did not watch or follow the news. It did not cause him any concern when he heard there would be evidencein this case about previous convictions; he did not think anything when heheard that. It did not bother him 111. at all. The judge’s explanation of how that evidence would be evaluated and used seemedfair. When counsel for Dixon noted that E.B. spoke softly, E.B. responded that he was nervous. He felt, however, that he wouldbe able to express his opinionsto the other jurors during deliberations, as well asto listen to their opinions and changehisif he found they wereright. He would also be able to hold onto his opinion if he felt he was right. | Counsel for Lee questioned E.B. further about how he handled those he supervised. This ensued: “Q. And taking them downto the parking lot is a way to take them apart and tell them what’s up. If they want to keep making that kind of money they don’t really have a.choice. They have to do what you want them to do. Right? “A. Yes. “Q. Kindoflike kicking them in the butt, so to speak. Kind oflike riding them during.the day,like you said, right? “A. Yes. “Q. Ifyou don’t want to do thejob that’s up here, then maybe we can find you somereally dirty job and change your mind about being some part of the team,that kind of thing? “A. Yeah. “Q. You didn’t mean you’d ask somebodyto comeoutin the parking lot 0 you:could whoop them, right? “A Sometimes you haveto do that. [{] ... [{] “Q. Whowinsthose things? “A. Youjust don’t tell nobody.” | All counsel passedfor cause. Later, however, the People peremptorily excused E.B., prompting defendants to object to what they asserted was the systematic exclusion 112. of African-Americans and minorities. Counsel for Johnson pointed to the excusal of J.C., an African-American male; C.A., a Hispanic-surnamed female; J.H., an African- American male; and E.B., an African-American male. Counsel for Lee added that the challenge to E.B. was the prosecutor’s 10th, and of the 10 challenged, three were African-American. The court estimated that there were seven or eight African-American prospective jurors, including one currently in the box (Juror No. 1336880). Counsel! for Lee argued that a comparison of the percentage of African-Americansin the venire with the percentage of African-Americansstricken by the prosecution alone gaveriseto at least the inference required to show a primafacie case. The prosecutor argued that no prima facie case had been shown,as the defense had not met its burden of showing there was a discriminatory purposein the excusing of E.B. She noted that the People had excusedpeople ofall races from the jury, as had the defense. Counsel for Johnson respondedthat of the prosecution’s 10 challenges, seven had been exercised against minorities. The court found the defense had established an inference that the persons named by counsel for Johnson were challenged because of their group association of being Hispanic or African-American, and it asked the prosecutor to explain the challenges. When the prosecutor asked if she was to explain only with respect to E.B., the court answered affirmatively, saying that was the challenge. The prosecutor then stated E.B. was excused because the prosecution believed he was very young,had limited life experience, was single, had no children, had no post-high school education, did not look at the news and was unaware of the circumstances in the news with respectto the current world, was uncomfortable and fidgeting while being questioned, mumbled, was very nervous, was very immature in failing to check out the financial consequences to him of jury duty, and mostofall, solved workplace disputes in a completely inappropriate manner. The prosecutor argued that violence in the workplace was inappropriate even in the oil fields, and that E.B. was not ashamed ofresorting to violence to resolve his 113. disputes. The prosecutoralso asserted that she felt E.B. was cavalier in some ofhis answers about Dixon’s prior conviction, and she thoughthis style of dress — wearing a black T-shirt with a large skull on the front in a murder case, and sagging pants — was inappropriate and immature and showeda lack of respect for the system. The prosecutor reiterated that this was a case involving people taking their disputes to the street in | retaliation, and E.B.’s manner of dealing with people at work showed him to have no place on the jury. The prosecutor felt him to be a “very immature and mean”person. Counsel for Lee argued that law enforcement and military academies usedtactics such as cursing and beating to instill discipline and prepare studentsfor the dangers of the job. He also argued that people dresseddifferently, and that clothing should not be the hallmark of showing respect in the courtroom. Counselalso asked if the court saw fidgeting. Counsel for Dixon argued that E.B.said he could sit on the jury financially; and that this should be taken at face value. When counselstarted to discuss the T-shirt, the court stated it hadnot seen the garment and so would not rely on it.. As for fidgeting, counsel pointed-out E.B. said he was nervous, andthat other potential jurors were nervous. Counsel alsoargued that E.B. was not as young as the prosecutors believed, but rather was in his mid-20’ s. Counsel further argued that just because E.B. could not alwaysbeheard did not make himdifferent from a numberofother people. Counsel for Johnsonjoinedinthe-other-defense-comments,-and-arguedE.B.’sbodylanguagedidnot—- - reflect an aggressive demeanor, and that E.B. waspolite, attentive, and answered appropriately. Hefurther did not show aggression when interacting with other prospective jurors. The prosecutor responded that while he was talking to E.B., E.B. never stopped moving from side to side in his seat. As for his financial situation, E.B. would not know if there was a problem until he received his paycheck on Friday.84 The prosecutor argued 84 The motion was heard on Wednesday, December 3, 2008. 114. that E.B. had bills to pay and responsibilities, yet had not taken the step of calling his employerto find out what his paycheck would be, and that this was indicative of immaturity. The prosecutor further pointed to E.B.’s mannerof exercising his workplace authority, specifically in terms of committing a crime and then coveringit up. After counsel for Lee responded, the court ruled: “Find that the reasons given for the challenge exercised on [E.B.] are group neutral. I find specifically that the prosecution was sincere in offering their challenges based on demeanor of [E.B.] based uponhis young age, his immaturity, and indication of the type of way in which he settles disputes or exercises control by the exercise of self-help mechanisms in regards to co-employees on the drilling rig, his body language,his movementin his seat in shifting of position. All I think are indicative, especially the way in which he indicates he would discipline or handle employees in the workplace. “Maybeif this was in a restaurant or a bar setting or in a party setting or in somesocial gathering, but the way in which he would handle employees who wereeither underthe influence or not performing to his expectation indicate to me how sincere ... party such as the prosecution could concludethat he is immature in the way in which he would exercise discipline and control other co-employees. So the challenge is denied.” b. Analysis Thetrial court ruled for the defense in step one of the Batson-Wheeler analysis by finding a prima facie case of discrimination with respect to African-Americans and Hispanics.85 African-Americansare a cognizable group (People v. Alvarez, supra, 14 Cal.4th at p. 193), and we assumesubstantial evidence supports the court’s determination (see People v. Silva (2001) 25 Cal.4th 345, 384; Alvarez, supra, at p. 197). Accordingly, we moveto step two. 85 Defendants do not claim thetrial court erred by limiting the hearing to the peremptory excusal of E.B. despite the broader finding with respect to a prima facie showing. Accordingly, our analysis concerns only E.B. 115. At step two, the prosecutor must come forward with a race-neutral explanation for the challenged excusal. (People v. Silva, supra, 25 Cal.4th at p. 384.) “A neutral explanation _.. means an explanation based on something other than the race of the juror. Atthis step of the inquiry, the issueis the facial validity ofthe prosecutor’s explanation. Unlessa discriminatory intentis inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” (Hernandez v. New York (1991) 500 U.S. 352, 360 (plur. opn. of Kennedy, J.).) At this stage, the explanation need not bepersuasive, or even plausible. (Purkett v. Elem (1995) 514 U.S. 765, 767-768.) “‘The justification need not support a challenge for cause, and even a“trivial” reason, if genuineand neutral, will suffice.’ [Citation.] A prospective juror may be excused based upon facial expressions, gestures, hunches, and even forarbitrary or idiosyncratic reasons. [Citations.] Nevertheless, although a prosecutor mayrely onany numberofbases to select jurors, a legitimate reasonis one that does not deny equalprotection. [Citation.]” (Peoplev. Lenix, supra, 44 Cal.4th at p. 613, italics omitted.) Whether the prosecutor has offered a race-neutral reason forhis or her challenges: is a question of law subject to our independentreview. (People v. Alvarez, supra, 14 Cal.4th at p. 198, fn. 9; Paulino v. Harrison (9th Cir. 2008) 542 F.3d 692, 699.) As no discriminatory intent was inherent inanyof the prosecutor’ s reasons, we conclude those -reasons-were race neutral.-(Hernandez v..New York,supra;-500-US: atp- 360.(plur. opm:- of Kennedy, J.).). Hence, the prosecution met its burden with respect to step two of the Batson-Wheeler analysis. | | Accordingly, we moveto step three. Atthis stage of the analysis, the trial court _ must decide whether the opponentof the peremptory strikes has proved purposefulracial discrimination by a preponderanceof the evidence. (Purkett v. Elem, supra, 514 U.S. at p. 767; People v. Hutchins (2007) 147 Cal.App.4th 992,.997-998.) The persuasiveness of implausible or fantastic justifications will be found to be pretexts for purposeful 116. discrimination (Purkett v. Elem, supra, 514 U.S. at p. 768). “What is required are reasonably specific and neutral explanations that are related to the particular case being tried.” (People v. Johnson (1989) 47 Cal.3d 1194, 1218.) Once the prosecutor comes forward with such an explanation, the trial court must then satisfy itself that the explanation is genuine. (People v. Hall (1983) 35 Cal.3d 161, . 167.) “In [this] process, the trial court must determine not only that a valid reason existed but also that the reason actually prompted the prosecutor’s exerciseof the particular peremptory challenge.” (People v. Fuentes (1991) 54 Cal.3d 707, 720.) “This demands of the trial judge a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledgeoftrial techniques, and his observations of the manner in which the prosecutor has examined membersofthe venire and has exercised challenges for cause or peremptorily, for ‘we rely on the good judgmentofthe trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.’ [Citation.]” (People v. Hall, supra, 35 Cal.3d at pp. 167-168; see also People v. Lomax (2010) 49 Cal.4th 530, 570-571.) In undertaking this evaluation, the trial court need not make affirmative inquiries, but must find the race-neutral explanations to be credible. (People v. Hamilton (2009) 45 Cal.4th 863, 907.) “When a trial courthas made a sincere andreasoned effort to evaluate each of the stated reasons fora challenge to a particular juror, we accord great deference to its ruling, reviewing it under the substantial evidence standard. [Citations.]” (People v. Jurado (2006) 38 Cal.4th 72, 104-105; accord, People v. Lenix, supra, 44 Cal.4th at p. 627; see Batson, supra, 476 U.S. at p. 98, fn. 21; Paulino v. Harrison, supra, 542 F.3d at p. 699.) Deference does not, of course, “imply abandonmentor abdication ofjudicial review.” (Miller-El v. Cockrell (2003) 537 U.S. 322, 340.) | The record before us clearly establishes the trial court made a sincere and reasoned effort to evaluate each of the prosecutors’ stated reasons for their peremptory challenge 117. 86 Defendants say thateven if not pretextual, E.B.’s conduct in resolving workplace. Oo of EB. Accordingly, application of the substantial evidence standard is appropriate. Such evidence supports thetrial court’s ruling; the court neither erred by accepting the prosecutors’ explanationsnorfailed in its duty to examine those reasonsfor racial discrimination. The prosecutors’ nondemeanor-basedreasons for excusing E.B. were both inherently plausible and supported by the record. (See People v. Silva, supra, 25 Cal.4th at p. 386.) Youth and a concomitantlimitedlife experienceare valid bases for excusal. (People v. Gonzales (2008) 165 Cal.App.4th 620, 631; People v. Perez (1994) 29 Cal.App.4th 1313, 1328.) By parity of reasoning, so is immaturity. The prosecutors were reasonably specific with respect to their concerns about E.B.’s workplace conduct, and the willingness to engage in violence to enforce one’s authority on the job 1s something that, in a prosecutor’s subjective and sincere estimation, may render the prospective juror not the best type of individual to sit on the case being tried. (See Peoplev. Reynoso (2003) 31 Cal.4th 903, 924-925,)86 As for the demeanor-based explanations,particularly E.B.’s constant movement, they are neither affirmatively contradicted by the record nor inherently improbable. (S ee People v. Reynoso, supra, 31 Cal.4th at pp. 925-926: People.v. Jordan (2006) 146 Cal.App.4th 232, 256.) In fact, E.B.’s movement was implicitly confirmed bythetrial disputes was notrationallyrelated to-his ability to serve asa juror in this case, especially where his conductduring voir dire waspolite and appropriate, and he was unbiased and stated he could listen to others during jury deliberations. We disagree. In our view,there is a clear and rational relationship between the use of violence to resolve workplace disputes or impose one’s authority and will in the workplace, and how one mayact to resolve disputes or impose one’s opinionsin the jury room. Even if there need be no fear the prospective juror would actually use violence in deliberations, the apparent inability to use reasoning and persuasion to resolve disputes demonstrates an immaturity that is rationally connected to his or her ability to serve. In.addition, the present case involve d a form.of“self-help”— gang members taking theirdisputes to the streets insteadof attempting to resolve them by other means. , 118. court. (Contrast Snyder v. Louisiana (2008) 552 U.S. 472, 479.) Generally speaking, a prospective juror’s demeanor may properly be considered by a prosecutor in deciding whether to exercise a peremptory challenge. (See, e.g., People v. Ward (2005) 36 Cal.4th 186, 202; People v. Turner (1994) 8 Cal.4th 137, 170-171, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Cummings (1993) 4 Cal.4th 1233, 1282.) The tral court here wasin the best position to observe E.B., and its acceptance of the prosecutors’ reasonsis entitled to great deference. (People v. Stanley (2006) 39 Cal.4th 913, 939.) Under the circumstances, the fact defense counsel did not observe something,or interpreted it differently than the prosecutors, does notcall into question the credibility of the prosecutors’ stated reason. (People v. Jordan, supra, 146 Cal.App.4th at p. 255.) Moreover, the trial court was in the best position to observe the prosecutors’ demeanors, and the manner in whichthey exercised their peremptory challenges, in assessing the prosecutors’ credibility. (People v. Stanley, supra, 39 Cal.4th at p. 939; see People v. Lomax, supra, 49 Cal.4th at pp. 570-571.) Relying on Miller-El v. Dretke (2005) 545 U.S. 231, defendants put forth several arguments in support of their assertion the prosecutors’ reasons for excusing E.B. were pretexts for excusing him because he was African-American. First, defendants point out that seven of the prosecution’s first 10 challenges were used against minorities, three of whom were African-Americans. Three out of four African-Americansin the jury box were excused peremptorily by the prosecution. Thus, defendants say, a great percentage of African-Americans were removed bythe prosecution, a fact that supports a strong inference of purposeful discrimination on the basis of race. (Seeid. at pp. 240-241.) | Statistics cannot be considered in a vacuum. Here, although defendants were themselves African-American, so too were most of their victims. Thus, this is not a case in. which the defendants were members of the excluded group, while their alleged victims were membersof the group to which the majority of the jurors belonged. (See People v. Cleveland, supra, 32 Cal.4th at pp. 733-734.) In addition, at least onetrial juror, Juror 119. No. 1336880, was African-American. “‘While the fact that the jury included members of a group allegedly discriminated against is not conclusive,it is an indication of good faith in exercising peremptories, and an appropriate factor for the trial judge to consider in ruling on a Wheeler objection.’ [Citation.]” (People v. Ward, supra, 36 Cal.4th at p. 203; accord, People v. Lewis, supra, 43 Cal.4th at p. 480,) In addition, the circumstances surrounding the excusals of the other two African- American prospective jurors cannot be ignored. J.H. had a son serving life in prison for what J.H. believed was a gang-related murder. He had served on twojuries before and felt he never knew when a lawyer was giving him all the facts ortelling the truth. Asked by the prosecutorif, were he in her position, he would think it good to have 12 jurors with his state of mind, J.H. stated he could not be in her position and could not put himself in her position. When the prosecutor questioned J.H. further abouthis prior jury experience, this ensued: “Q. Now,is there anything about that experience that would cause you to -- “A. Absolutely not. “Q, Are you feeling irritated with me right now? “A. Absolutely not. ~~"™)""-Ayeyou sure? Becauseit’s timeto be honest. “A. Why do you ask me the same question over and over? If 1 hed the first time, I’m going to lie the secondtime: I told you the truth the first time. I’m goingto do it again. “[PROSECUTOR]: Your Honor,at this time I think I need to challenge for cause. . “(J.H.]: Good.” Following voir dire by defensecounsel, the trial court denied the prosecutors’ challenge for cause. The next peremptory challenge was the People’s, and the prosecutor 120. used it to excuse J.H. During the hearing on the Batson-Wheeler motion, the trial court observedthat J.H. and been “a little short” with the prosecutor. The other African-American prospective juror who was peremptorily excused by the People was J.C. In pertinent part, J.C. stated that, although he knew jurors were not supposed to consider penalty or punishment, if he were a juror and were to return a guilty verdict, it would be “kind of like morally hard” on him.- He noted that defendants looked to be about his age, and the jury’s decision “could potentially determine the rest of their lives ....” Although J.C. felt he could listen to the evidence, keep an open mind, and reach a fair and just verdict based on the evidence and the law, he admitted he was having a hard time not putting himself in defendants’ position. Although he wouldtry puttingit out of his mind,hefelt it would be hard to not think, during deliberations, about what would happen to defendants if convicted. The prosecutorchallenged for cause, but, as J.C. said he believed he couldfind ‘defendants guilty if the prosecution metits burden of proofand that he would follow the law as the court instructed, the trial court denied the challenge. The prosecution then accepted the panel containing J.C. (and Juror No. 1336880) four times. Only after using _ its next two peremptory challenges against other prospective jurors, and having defendants exercise various peremptory challenges, did the People excuse J.C. During the hearing on the Batson-Wheeler motion, counsel for Lee represented that the defense did not make such a motion with respect to J.C. because J.C. indicated he felt sympathy toward defendants based on their ages. In light of the foregoing, the bare statistics are misleading in this case, and do not support an inference of purposeful discrimination based on race. Defendantssay, however, that the prosecution used a different script for questioning E.B. than it did for other prospective jurors and included trick question designedto elicit cause to strike an African-American male and not discover how he would function as a juror, and that these 121. circumstances werea strong indication ofracial bias in questioning. (See Miller-Elv. Dretke, supra, 545 U.S. at pp. 255-262.) Defendants point to the prosecutor asking E.B. if he had ever had to evaluate someone’s credibility at work and then, rather than questioning E.B. about the process he might use in that regard, instead asking how E.B. would handle a hypothetical situation. Whenanobjection to the question was sustained, the prosecutor asked what type of responsibilities E.B. had if there were problems with the people he was responsible for supervising, and if he was responsible for discipline. In light of E.B.’s previous answers concerning suchthings as his finances, youth, and lack of education beyond high school, and his demeanor, we find no trickery. Rather, the question was designedto probe E.B.’s maturity and ability to work with other people, both of which were related to how he would function as ajuror. The record does not support an inference the prosecutor - anticipated E.B. would answer by admitting to the use of violence or in a way that would generate causeto strike a young African-American male. (Compare Miller-El v. Dretke, supra, 545 U.S.at pp. 261-262.) As for allegedly disparate questioning, defendants point to the questions asked a number of non-African-American jurorsand prospectivejurors. However, the majority» of these jurors were examined after denial of the Batson-Wheeler motion. Since we ~-reviewthetrial-court’s findingonthe reeord-as-itstood atthetime-theBatson-Wheeler—~--~— —-- ruling was made (People v. Lenix, supra, 44 Cal.4th atp. 624), we question defendants’ inclusion ofjurors and prospective jurors who had not been the subject of voir dire at the. time the trial court denied the Batson-Wheeler motion. Nevertheless, we include them in our analysis and accept defendants’ representation that those jurors and nonjurors were in fact not African-American. | Defendantsfirst point to Juror No. 1314332, who workedintheoil fields as a compressor operator for a majoroil company. When the prosecutor ascertained thejuror was the only oneat the plant, this took place: 122. “Q. You would not advocate violence out there in the oil fields, would you? “A. No. “Q. You wouldagree that that’s not the right thing to do. “A. No, it’s not.” Defendants say this was clearly a reference to E.B. and not a sincere question going to Juror No. 1314332’s suitability as a juror. While clearly engendered by E.B.’s responses, we find the questions proper, especially in light of the argument of Lee’s attorney at the time of the Batson-Wheeler motion concerning the training techniques used by law enforcement and military academies. The prosecutor asked prospective alternate juror B.R., a supervisorfor an oil company, if he had a “basic management philosophy”for dealing with problems with employees. B.R. replied, “Get nd of them.” Asked if he considered himself a tough boss, B.R. stated, “Well, I think that we are only accountable to each other for ourselves.” Defendants say this answer puts E.B.’s response into perspective. Indeed: It demonstrates that, while the oil fields may not be a workplace environment for sensitive people, neither 1s it necessary or commonto resort to violence in order to deal with problem employees. | Defendants say the prosecution did not ask similar questions about workplace conflict or discipline of G.H., Juror No. 1222064, B.M., Juror No. 1355968, M.B., or G-F., all of whom were non-African-Americans with similar jobs. However, the record supports the People’s response on appeal, namely that the prosecution’s questions were tailored to address potential concerns for each prospective jurorin light of that individual’s previous answers. For instance, the prosecutor questioned G.H.at length about how he would determine credibility, especially since he was a friend of one of the law enforcement witnessesin this case. G.H. ultimately was excused pursuant to a defense challenge for cause. The record also showsstriking dissimilarities between E.B. 123. and the individualsidentified by defendants. For example, Juror No. 1222064 had not workedin the oil fields in at least 12 years and, being retired, was clearly considerably older than E.B. Similarly, B.M. had not workedin the oil business for 16 years. Juror No. 1355968 was several jobs removed from contact with the oil fields, and even then sold oil field equipment as opposed to workingin the oil fields perse. M.B. was not a supervisor, but rather worked in a job in which he had someonetelling him whatto do. Prospective alternate juror G.F. was a lease operator who helped maintain production for several hundred oil wells. Having lived in Kern County for 55 years, he was considerably older than EB., and the prosecutorascertainedthat he did not supervise people, but rather worked together with three other people, with G.F. usually being in th e office and the otherthree beingoutin the field. In light of the foregoing, the record doe s not support defendants’ claim that the disparate questioning was a strong indication of racialbias. | a | Defendants also say the prosecution did not ask questions about employee conflict resolution or discipline during voir dire of similarly situated non-African-American | prospective jurors SF., KM., L.D., and T.C. However, S.F.’s employees were in sales and marketing. KM. had been employed for at least 31 years and had adult children. He wasClearly significantly older than E.B. L.D. didnot work in the oil fields, was ~ significantly.older thanE:Bz,and-was-questionedby-counselfor Johnson.about.makin g: credibility determinations. Similarly, T.C. did not workintheoil fields and, with a 16 - year--old son, was at least somewhatolder than E.B. Given these differences, weagain find no indication of racial bias in questioning, | Last, defendants say the record reflectssome sworn jurors shared characteristics with E.B. that the prosecution listed as reasons for dismissing him. (See Miller-Elv. Dretke, supra, 345 U. S. at pp. 241 -248.) We recognize that “[i]f a prosecutor S proffere d reason for strikinga black panelist applies just as well to an otherwise-similar nonblack” who is permitted to serve, that is evidence tending to prove purposefuldiscrimination to 124. be considered at Batson’s third step. [Citation.]” (/d. at p. 241, italics added.) Accordingly, we have undertaken the requisite comparative analysis (see People v. Lenix, supra, 44 Cal.4th at pp. 607, 621-622), keeping in mind that “[t]wo panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn trial court’s factual finding.” (/d. at p. 624.) “Viewing such comparative evidencein light of the totality of evidence relevant on the claim, we conclude it does not demonstrate purposeful discrimination.” (People v. Cruz (2008) 44 Cal.4th 636, 659.) Like E.B., Juror Nos. 1181469, 1227832, 1228043, and 1355968 were single and/or had no children. However, Juror No. 1181469 was an accountant who was older than E.B., having lived in Kern County for 35 years. The juror had prior jury experience and read books or magazinesthat helped him with his job. Juror No. 1227832 was considerably older than E.B., havingretired in 1989 after 27 years in the Air Force. During that career, he was stationed all over the United States, Europe, and Asia. He supervised numerouspeople during his career, and part of his duties involved disciplinary actions. When he had to deal with someonehe perceived had a problem, the commander,not the juror, usually hadthe last word concerning what would happen. Most of the time, the commanderaccepted the juror’s recommendation. The juror had a lot of responsibility in evaluating the soldiers and figuring out the appropriate thing to do, based ontalking to them and other witnesses. Juror No. 1228043 wasa public health nurse with prior jury experience. Shesat on various boards. An inference can be drawn that she was considerably older than E.B., since she had nieces in their 30’s and had been a nurse for about 30 years. Shetried to follow the news. Juror No. 1355968 hadprior jury experience. Given her lengthy employmenthistory andthe fact she had a 36-year-old child, it is apparent she wassignificantly older than E.B. 125. Juror Nos. 1286800, 1343211, 1477749, and 1336880 all stated that a prior conviction would not have an impact on how they viewed the murdercase, though they do not appear to have said so in the same manner as E.B. That there may have been “>> that just because the authorities were holding off filing should not deprive his client of his Fifth or Sixth Amendment rights. The court found no Sixth Amendmentviolation. Accordingly, it ruled the statements were admissible.1°7 Jackson'subsequently testified concerning the » 107. Lee challenged admission of Jackson’s testimony-on-statutory grounds, because of moneyand assistance Jackson had been given. That issue is not raised on appeal. 180. circumstances under which he and Dixon werecelled together, and statements Dixon made to him about some of the offenses charged in this case. 2. Analysis The California Supreme Court hasstated: “The Sixth Amendment[to the United States Constitution] provides that ‘in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.’ “In Massiah{[, supra,| 377 U.S. 201, and its progeny, the United States Supreme Court held that ‘the government’ —- whether federal or state — ‘may not use an undercoveragent to circumvent the Sixth Amendmentrightto counsel once’ that right has attached. [Citation.] After attachment, ‘the Sixth Amendment prevents the government from interfering with the accused’s right to counsel.’ [Citation.] Before attachment, by contrast, the constitutional provision is not implicated. [Citation.] . “The Sixth Amendmentright to counsel ‘doesnot attach until a prosecution is commenced,thatis, “‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” [Citations.] It is not enough, for example, that the defendant has become the focus of the underlying criminal investigation. [Citations.| “The Sixth Amendmentright to counsel, the United States Supreme Court has ... declared, is ‘offensespecific.’ [Citation.] That is to say,it attachesto offenses as to which adversary judicial criminal proceedings have beeninitiated — and to such offenses alone. [Citation.]” (People v. Clair (1992) 2 Cal.4th 629, 657; see also McNeil v. Wisconsin (1991) 501 U.S. 171, 175; Illinois v. Perkins (1990) 496 U.S. 292, 299-300; United States v. Gouveia (1984) 467 U.S. 180, 187-188; United States v. Henry (1980) 447 U.S. 264, 270.) Thetrial court here implicitly found Dixon’s Sixth Amendment right to counsel had not attached as to the offenses charged in this case. We examine this conclusion independently, while scrutinizing underlying findings for substantial evidence. (People v. Clair, supra, 2 Cal.4th at p. 657.) So reviewed,the trial court’s determinationis correct. Indeed, no other conclusion can be drawn from the record. 181. Dixon says, however, that the trial court erred in accepting the prosecutor's view that no hearing on intentional charging delay was required. Inreality, the record shows the prosecutor never expressed such a view. Rather, her argument wasthat because Dixon’s Sixth Amendmentright to counsel had not attached, whether Jackson was merely listening to Dixonoractively eliciting information from him was irrelevant, and so no hearing neededto be held to makethat determination. (See United States v. Henry, supra, 447 U.S.at pp. 271-272 & fn. 9 [distinguishing, in case involving postindictment communications, betweeninformant whois passive listener and one whodeliberately elicits information].) Weassume, for purposesof ouranalysis, that intentional and unnecessary delay by the governmentin bringing charges can implicate a defendant’s Sixth Amendmentright to counsel. (See Flittie v. Solem (8th Cir. 1985) 775 F.2d 933, 943; State v. McNeil (Wis. 1990) 454 N.W.2d 742, 149-750; but see People v. Webb, supra, 6 Cal.4th at pp. 527- 528.) In the present case, however, counsel for Dixon merely ;asked the court to assume a scenario in whichthere was such delay. Defense counsel neither asserted that intentional delay occurred (or even:may have occurred). in the present case, nor asked for a hearing on that issue... On the record before us, the court was under no dutyto hold such a hearing absent a request. Accordingly, although defendants clearly raiseda substantive Massiah | ‘claim, they cannot predicate ©error orthe:triatcourt’sdeniatof-the motiomwithout — holding a hearing. (See People Vv. Wilson(2005) 36. Cal.4th 309, 347-348: cf. People v. Hoyos (2007)41 Cal.4th 872,897-898, overruled on another groundinPeople v. McKinnon, supra, 52 Cal.4th at PP. 637-643; People v. Hughes (2002) 27 Cal.4th 287, 325-326.) The courtdid not err by findingno Sixth Amendment violation, and defendants are entitled tyto neither reversal nor remand for a hearing on delay.!° 108 Because the recordis insufficient to allow usto determine whether unnecessary — and intentional delaycouldhave‘beenestablished suchthat Jackson’s testimonyshould have been excluded, we cannot assess whether defense counsel were ineffective in failing 182. b. Testimony Concerning Cell Phone Practices L. Background During the course of his testimony, Jackson explained that during walk-up shootings, sometimes people remain in the car. Such a person would bethe driver, whose role would be to take the shooters to the rival gang territory and, after the shooting,get them quickly back to their own “hood.” Asked if there was ever communication between the driver and those whoget out of the car to do the shooting, Jackson replied affirmatively. When counsel for Lee objected that the testimony lacked foundation, the court confirmed with Jackson that the answer was based on Jackson’s personal experience. Counsel for Lee then took Jackson on voir dire. Jackson testified that he had never done a shooting, but he had been the driver in a gang shooting and, when he was the driver, had communicated with the people who were out to do the shooting. Jackson did not know the nameofthe victim in the incident in which he participated and could not recall when it happened. The court foundthat Jackson’s lack of recollection wentto “weight rather than admissibility, and allowedthe testimony. The prosecutorthen elicited, without objection, that Jackson had alsotalked to other people who hadparticipated in such shootings, and that they had told him about what they did. Based on what he had been told and what he had seen, Jackson testified that the driver would communicate with the shooter on a cell phone. The kindof information exchanged would be where someone wasand what he wasdoing,to have the car started by the time the shooter got back, and the like. Thetrial court granted the defense continuing objections on foundation and speculation grounds, but overruled those objections. to request a hearing or whether defendants were prejudiced thereby. Accordingly, we reject defendants’ alternative claims of ineffective assistance of counsel. 183. On cross-examination by counsel for Lee, Jacksontestified that on the occasion he wasthe driver, the two who did the shooting ran back to the car and did not call him on the cell phone. On another occasion, however, he wascalled to cometo the scene to pick up someone whohad donea shooting. Senior Officer Sherman subsequentlytestified that during walk-up shootings, communication with other members of the gang is usually done by phone. There must be communication;if things go wrong and oneofthe perpetrators hasto take offor is caught, he has to be able to communicate with the other parties involved. The person with the vehicle is not just goingto sit there and wait. He hasto be told to go to another location or leave, because otherwiseheis sitting in rival gang territory andis a potential target both for rival gang membersand for the police. Sherman related that if law — enforcement comesinto an area becauseofa shooting; they do not immediately go to the crime scene, but scope outthe area, looking for vehicles and people whoare out ofplace. 2. Analysis “Subject to [Evidence Code]Section 801 [concerning opinion testimony of.expert witnesses], the testimony of a witness concerninga particular matter is inadmissible unless he has personal knowledge ofthe matter. Against the objection of a party, such personal knowledgemust be shown before the witness maytestify concerning the matter:”(Evid:Code,§-702;subd:(a):)Anyadmissibleevidence,includingthe~~~ee witness’s own testimony,- maybe used to show the requisite personal knowledge. (/d., subd. (b).)- Although the testimony must be excluded unless there is evidence sufficient to sustain a finding that the witness has such knowledge, a court may exclude testimony. for lack of personal knowledge only if no jury reasonably could find the witness has such | knowledge. (People v. Anderson (2001) 25 Cal.4th 543, 573.) “A lay witness maytestify to an opinion ifit is rationallybased on the witness’s perception and ifit is helpful to aclear understandingofhis testimony. (Evid. Code, | § 800.)” (People v. Farnam (2002) 28 Cal.4th 107, 153.) “‘[P]erception’”is “the 184. process of acquiring knowledge ‘through one’s senses’ [citation], i.e., by personal observation.” (People v. McAlpin (1991) 53 Cal.3d 1289, 1306, fn. omitted.) Thus, “flor a nonexpert to be competent to give an opinion ... he must be testifying aboutfacts that he has personally observed ....” (Manney v. Housing Authority (1947) 79 Cal.App:2d 453, 459.) In contrast, “California law permits a person with ‘special knowledge, skill, experience,training, or education’ in a particular field to qualify as an expert witness (Evid. Code, § 720) and to give testimony in the form of an opinion (id., § 801). Under Evidence Code section 801, expert opinion testimony is admissible only if the subject matter of the testimonyis ‘sufficiently beyond common experience that the opinion of an expert would assistthe trier of fact.’ U/d., subd. (a).)” (People v. Gardeley (1996) 14 Cal.4th 605, 617.) “Evidence Codesection 801 limits expert opinion testimony to an opinion that is ‘[b]ased on matter ... perceived by or personally knownto the witness or made knownto [the witness] at or before the hearing, whether or not admissible, that is of a type that reasonably mayberelied upon by an expert in forming an opinion upon the subject to which [the expert] testimonyrelates ....’ (/d., subd. (b).)” (bid.) “Expert testimony may ... be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.]” (People v. Gardeley, supra, 14 Cal.4th at p. 618.) Although material that forms the basis of an expert’s opinion testimony mustbe reliable, once that threshold requirementis satisfied, matter that is ordinarily inadmissible — including hearsay —- can form the proper basis for an expert witness’s opinion testimony. (/d. at pp. 618-619.) A trial court’s decision whether to admit lay opinion or the testimony of an expert, as well as its ruling on the question of an expert’s qualifications, are reviewed for abuse of discretion. (People v. Lindberg, supra, 45 Cal.4th at p. 45; People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063; People v. Mixon (1982) 129 Cal.App.3d 118, 127; see 185. People v. Medina (1990) 51 Cal.3d 870, 887, affd. sub nom. Medina v. California (1992) 505 U.S. 437.) Theparties proceed from the premisethat Jackson wastestifying as a lay witness. To the contrary, we believe his testimony concerning gangs and the Country Boy Cnpsin general was that of an expert. His uncontradicted testimony showed he had been a memberof the Country Boy Crips for years,-and had been around andobserved gang activity since’his childhood. This certainly gave him “special knowledge” and “experience” on the subject to which his testimony related, as is required by Evidence Codesection 720, subdivision (a) in order to qualify someone as an expert, andthe fact such knowledge and experience were shownbyhis owntestimonyis of no import (see id., subd.-(b)). That he was being proffered as an expert on the subject was madeclear when,in response to a relevance objection raised to questions about what he saw as a child, the prosecutor responded, “He became a gang member and he’s going to testify about expertise in gangs.” Although somewhat awkwardly phrased,the trial court overruled the objection. The defense’s recognition that he was testifying as an expert at least on some subjects 1s shownbythe fact no hearsay objection was interposed when. he testified he hadtalked to people who were involved in shootings and they told him about what they did. Such an objection would not have beenfutile had Jackson not been. ~ testifying asan’expert;andthesubsequentobjectiononfoundationgroundssimply~~~ indicates defense counsel felt the foundation was insufficient even where an expert was concerned.109 109 Althoughthebetter practice would have been for the prosecutor to offer him, and the trial court to rule he wasqualified to testify, as an expert witness in the jury’s presence, it does not appear this occurred with any of the parties’ experts. ‘Thus, the fact there was no-formal or express acknowledgement that Jackson wastestifying as an expert does not suggest he wasnotsotestifying. 186. Since Jackson wastestifying as an expert witness pursuant to Evidence Code section 801, Evidence Code section 702’s requirement of personal knowledge, and Evidence Code section 800’s limitations on lay opinion testimony, did not apply. (See People v. Smith (2005) 35 Cal.4th 334, 363.) The subject of his testimony was a proper one for expert testimony (see People v. Gardeley, supra, 14 Cal.4th at p. 617), and we conclude the foundation with respect to cell phone practices was adequate to allow admission of the testimony(see id. at p. 620). Were weto find error, however, we would concludeit is not reasonably probable a result more favorable to defendants would have been reachedin its absence (see People v. Prieto (2003) 30 Cal.4th 226, 247 [applying Watson standard to erroneous admission of expert testimony]; People v. Brown (1985) 40 Cal.3d 512, 535 [same re: inadequate foundation], revd. on another ground by California v. Brown (1987) 479 U.S. 538), and that admission of the evidence did not render the trial so fundamentally unfair as to violate due process (Randolph v. People of the State of Cal. (9th Cir. 2004) 380 F.3d 1133, 1147 [violation of state evidencerules is insufficient to constitute due process violation]). The challenged testimony wasbasedat least to some extent on what Jackson personally had perceived, Sherman testified concerning cell phone use in walk-up gang shootings, and the People presented evidence concerningthe activity of specific cell phones aroundthe time andin the vicinity of the McNew Court shootings. 6. Shannon Fowler’s Car Lee contendsthetrial court erred by admitting evidence that Shannon Fowler owned a burgundy 2006 Toyota Corolla around the time.of the Real Road and Planz shooting. Lee says the evidence wasirrelevant because, aside from its color, this car did not match the descriptions given by eyewitnesses to the shooting of the car used therein. Lee says admission of the evidenceviolated his right to a fair trial, because the evidence served to confuse the jury and create the illusion Fowler’s car was used in the shooting, which in turn explained away the absence of evidence linking defendants to the suspect 187. car. Johnson and Dixon join. The People say Lee’s claim is based on a “selective view of the prosecution’s case,” and that the evidence was properly admitted, a. Background On March 21, 2007, Officer Shaff went to Lee’s house to investigate the shooting of Lee’s vehicle. Shaff did not recall seeing a burgundy or red car in the garage or immediate area. During the courseof his investigation in this case, Senior DeputyLittle did not comeacross any red or burgundy vehicles that were registered to Lee. Adrian Bonnertestified that on the afternoon he wasshot, he saw Lee in a burgundycar as he wasleavingthe parking lot of the Taco Bell where he had eaten. The car Lee was driving was a small, four-door burgundy Suzuki or Hyundai Elantra. Bonner clarified that he was not saying for sure it was that kind ofcar; he was just trying to give an exampleof what thecar lookedlike. It had rounded edges and a boxy roof. It was ~ reddish burgundy. It was not brand new, but was a newer model, which toBonner meant 2001 and morerecent. It possibly could have been a 2005 automobile. It had newer ~ licenseplates. Bonner was able to see into the car; only Lee wasinside. Approximately 15 to 20 minutes later, when Bonner wasstoppedfora red light at Real Road and Planz, he wasshot. Out of the cornerof his eye, he saw a burgundy vehicle passing on the passengerside of his vehicle. He could not see anyone inside, ~~because thevehiclewasdrivingaway.” Hedidnotknowifitwas-the-same-carheshad-—ee seen Lee driving earlier, although he got a good look at the color and believed it was the same as the car Lee had beendriving. Bonnerrecalled telling the grand jury that it was a burgundy car and he couldnot see how manypeople were inside because the windows were tinted. Attrial, however, he testified that he may have thought the windowswere tintedbecause’ of how dark it was 188. getting, how far awaythe car was, and the direction it was going. He thought there may have been a shadow making the window look tinted.!!@ Christopher Calloway witnessed the Bonner shooting. He described the car from which the shots werefired as a burgundy color, maybe a newer model Ford Taurus. To him, newer model meantthe later 1990’s or early 2000’s. He believed the car was “Tslomething of [the] nature” of a Ford Taurus. The car looked more rounded, not more boxy and edgy. The paint was not new or old, but instead was in “[w]ell-kept shape.” Ruben Gonzaga also witnessed the shooting. He considered the car “mostly a cherry red,” possibly a Chevrolet. Talia Zarate was another witness to the shooting. She testified the car from which the shots were fired was a small four-door vehicle, and like a maroon or cranberry color. She did not rememberthe type, anddid notrecall telling officers that it lookedto be a late 1990’s Ford Taurus. Bryan Kunzmannalso saw the-shooting. He described the carat trial as either a dark red or burgundycolor, late model, and like a Ford Taurus or with that kind of rounded bodystyle. It had four doors. . During the time Agustin was with Johnson, she saw Lee in various automobiles. His own vehicle was black. Hetold her that he rented vehicles. The one she saw him in _ the most was a powder blue Magnum. She never saw Lee drive a red vehicle. On August 23, 2007, Senior Officer Findley responded to an apartment complex in the 200 block of Eye Street upon learning that the Nissan involved ina pursuit had been reported stolen from that address. Parkedin the lot at the back of the apartment complex about 8:30 that night was a red car. Findley took photographs of the area that included 110 Bonner admitted that the first time he saidthe window’s darkness may have been caused by a change oflight and not tinting wasat trial. 189. the car. He was not aware of a photograph ofthe car ever being shown to Bonneror any of the witnesses to Bonner’s shooting. Jacksontestified that he had only seen Lee in two different cars. One was a brownishor goldish Lexus with tinted windows. The other was a red car. Jackson saw Lee in the red car around June,in the three-month period Jackson was out of custody. It was a newer — possibly 2003 to 2005 — red compactcar,like a Toyota or something similar. He did not know the model. It was a shiny red, although not a bright red. Lee told Jacksonhe had rented the car. On August 23, 2007, Jackson saw Dixon and Bus Loc in a red car that looked like a Toyota. He thought it was the samecarhehad previously seen parked behind some apartments on Eye Street. It looked like the same.car he had seen Lee driving twoor three times. Shannon Fowlertestified that in August 2007, she lived in an apartment on Eye Street. .She had a burgundy Toyota Corolla. Over defense objection that the car was irrelevant because it had never been identified by anyoneas being involved in any shootings, Fowlertestified thatthe car was a four-door 2006 model, andthat she believed it was the only red car that belongedto the occupants of the apartmentsat the time. She had control of the only set ofkeys, but let her brothers drive the carwheneverthey wanted. Fowler got-the car at the end of2006, and hadit for almost.a year. It did not --havetinted windows:-Atsomepoint-afterAugust2007,itwasrepossessed Overdefense objection, Fowler identified photographs as being of her car, which she co-owned with her boyfriend, who wasincarcerated at the time.!!!_ The photographs 111 Counsel for Johnson asked foran offer of proof as to what witness would identify the car as being one involved in any shooting. Asked to respond, the prosecutor stated: “Your Honor, Dupree Jackson -- I don’t really want to go into this in front of this witness. I think this is unfair and I think the evidence is obvious.” The court then overruled the defense objections. We cannothelp butnote that the prosecutor tended to respondto relevance objectionsbystating herbeliefthat theevidence inquestion was relevant. Since it was the court’s duty t¢to make the necessary rulings, it would have been 190. depicted the vehicle as it looked in August 2007. The photographs were admitted over defense objection. Fowler identified them as having been taken at the Orange County Police Departmentin connection with her prior boyfriend’s case. Fowler acknowledged being acquainted with Lee, but denied ever having a romantic relationship with him. He never telephoned her from jail, and she never gave him a ride in-her red car. His clothes were never in her car. To impeach Fowler, the prosecutor played a recorded telephone call made from Lee, who wasin jail, to a person whose voice Sherman recognized as being that of Fowler. In the course of the conversation (which made it apparent Fowler and Lee had an intimaterelationship), Fowler mentioned Lee’s brother getting Lee’s clothes from hercar. Detective Herediawas involved in attempting to locate the red car that was used in the shooting of Adrian Bonner. On January 14, 2009, he received information regarding Fowler, and then interviewed her. Asa result, he contacted the Orange County Shenff’s Department, got the license numberof a vehicle that belonged to her; and eventually obtained photographs of the vehicle that were taken in 2007. Heredia ran a DMV registration check on the license number, and learned Fowler was oneofthe registered owners of the car from February 8, 2007, to February 8, 2008. Heredia learned the car had been assigned a new license plate on April 24, 2008, and he learned the nameofthe new owner. Heredia located the car on January 16, 2009, at an address in Bakersfield. The car had tinted windowsanda fin in the back, whichit did not have in the Orange County photographs. Over relevancy objections, photographs ofthe car as it appeared when Heredia found it were admitted into evidence. Heredia was unable to say how the car appeared on April 11, 2007. He neither showed photographsofthe car to the witnesses to the Bonnershooting nor directed anyone to do so. preferable for it to do so on a basis other than the prosecutor’s determination of relevance. 19]. Adrian Bonnerwasrecalled to the stand, andtestified that he wasfairly familiar with makes and models ofcars, and thought Lee was in a burgundy Suzuki Forenza when Bonner saw him about 20 minutes before the shooting, At the prosecutor’s request, Bonner had looked onthe Internet for photographs of Suzuki Forenzas. He found some, and confirmed they were consistent with the car he saw. On cross-examination, Bonner testified that he could “pretty much”tell the difference between a Suzuki Forenza and a Toyota. Shown photographsof the car that Heredia had taken on January 16, 2009, defense witness Kevin Griffith testified it was not the car he saw involved in the shooting on August 11, 2007,nor wasit the one he saw later that night. Griffith’s best recollection of the car involved in the shooting was that it waslike a red Nissan Sentra. The paint on the - hood of the trunk waskindof bleached outor oxidized by the sun. Thecar looked “fairly newer”to him,but he could not tell the age by lookingatit: - In her argumenttothe jury, the prosecutor showed side-by-side photographs of Fowler’s car before it was sold and a Suzuki Forenza. The prosecutor argued that at a glance, the two cars were ‘almost identical, and she pointed out.that Kunzmann said the . car involved was a Toyota Corolla.!!? She further told jurors that Heredia found the car duringthe courseoftrial, which was why photographs of it were not shown to the vario us -witnesses.~Without-objection;*she‘asserted:“LAJnd-MartinHeredia-tracked-downthat-— — car and found out that that is the red car that they used to shoot Adrian Bonner in.” (Italics added.) Defense counsel countered byarguingit was not the same car and there was no evidence linking Fowler’s car to the one used in the shooting. b.. ~ Analysis» As previously stated, “Evidenceis relevant when no matter how weak it may be, it tends to prove the issue before the jury.’ -[Citation.]” (People v. Freeman, supra, 8 112 This was a referenceto the description Kunzmann gavein his 911 call. 192. Cal.4th at p. 491.) Defendants cite People v. Cox (2003) 30 Cal.4th 916 (Cox), disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at page 421, footnote 22, as support for their claim evidence that Fowler’s car wasirrelevant. We find Cox dispositive and supportive of the trial court’s ruling. In Cox, a witnesstestified that she and the defendant often went camping,and that the defendant had handcuffs, guns, and a knife in his car. When the prosecutor sought to ask her how manyguns, the defense objected on relevance grounds arguing that, because the witness wouldtestify that the defendant stabbed the victims, there was no evidence guns were used. Thetrial court sustained the objection on Evidence Code section 352 grounds. It later reversed its ruling, however, reasoning that because the cause of death was not known,the prosecution should be allowed to show the defendant had instruments that would allow him to overpowerandkill his victims. (Cox, supra, 30 Cal.4th at p. 955.) | On appeal, the defendant contended the introduction of the three guns found during the search of his car was prejudicial error, because the guns were never shown to - have any connection with the commission of the charged offenses. (Cox, supra, 30 Cal.4th at p. 955.) The California Supreme Court rejected the argument, stating: ‘In People v. Riser (1956) 47 Cal.2d 566 [(Riser), disapproved on others ground in People v. Morse (1964) 60 Cal.2d 631, 639, fn. 5, 652 & fn. 17 & People v. Chapman (1959)52 Cal.2d 95, 98], the defendant murdered two people during a robbery. The killing was committed with a Smith and Wesson .38-caliber Special revolver. The gun was never recovered. [Riser, at p. 573.] Riser was found with three holsters, one of which could hold a .38-caliber Smith and Wesson Special revolver. Riser also possessed a Colt .38-caliber revolver, which could not have been the murder weapon. (/d. at p.577.) Westated the rule of admissibility as follows: ‘Whenthe specific type of weapon used to commit a homicideis not known,it may be permissible to admit into evidence weaponsfound in the defendant’s possession some time after the crime that could have been . the weapons employed. There need be no conclusive demonstration that the weapon in defendant’s possession was the murder weapon. [Citations.] When the prosecution relies, however, on a specific type ofweapon,it is 193. error to admit evidence that other weapons werefound in his possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort ofperson who carries deadly weapons. [Citations.]’ [Citation.] Because the murder weapon was known,weruledthat the admission of the Colt .38-caliber revolver was error, but such error was not prejudicial. [Citation.] “Here,it is not known how the three victims were killed. Although the prosecutor argued that the evidence pointed to a stabbing, such argument did not preclude the reasonable possibility that one or all three of the victims had been shot. [Citation.] “Moreover, given [other evidence], it is also reasonable to infer that defendant, who had unfettered access to three weapons, may have usedthe | same to get [victims] into his car and keep them in his car during the drive to the location of their murder. [{] ... [] “Here, the guns were relevanteither as possible murder weapons, or as weaponsthat could have been used to coerce the victims into defendant’s car or otherwise subdue them, ‘in furtherance of the criminal plan’ to kill them. There was noerror in admitting the guns in evidence.” (Cox, supra, 30 Cal.4th at pp. 955-957,italics added.) Defendants highlight the italicized portion of Riser. In Riser, however, the prosecution’s own witness establishedthat the bullets foundat the scene ofthe crime were fired froma Smith and Wesson .38 Special revolver, and not fromeither the Colt .38 or the P38 that the trial court admitted into evidence. (Riser, supra, 47 Cal.2d at p. 577.) The high court’s statement about theprosecution relying ona specific type of "weapon,must be readinilight ofthose facts. Where the evidenceis not conclusive, as in Cox, the prosecutor’s argument of a‘specific theory does notfall within the Riser holding, because “[t]he trier of fact is not limitedby any hierarchy of theories selected by the prosecution.” (People. v. Manson (1976) 61 Cal.App.3d 102, 207, cited with approvalin Cox, supra, 30 Cal.4th atp. 956.) _ People v. Farnam, supra, 28 Cal.4th 107, illustrates our reasoning i n this regard. In that case, the defendant was arrested, and a knife foundiin his possession, about two monthsafter the homicide. When the prosecution sought admission of the knife to show 194. it could have been the tool used to cut telephone cords at and gain entry into the victim’s house, the defendant objected on relevance, due process, and Evidence Code section 352 grounds, arguing no connection between the knife and the crimes could be established. Thetrial court overruled the objection, and a criminalist then testified that, although the knife could not be conclusively identified as having been used, it could have been used. (People v. Farnam, supra, 28 Cal.4th at p. 156.) On appeal, the defendant claimed the tral court abusedits discretion and denied him due process by admitting the knife and related testimony, since the knife was irrelevant and its improper introduction led jurors to infer he was the murderer simply because he possessed a similar knife two monthsafter the homicide. (People v. Farnam, supra, 28 Cal.4th at p. 156.) The California Supreme Court rejected the claim, finding that evidence the defendant possessed a knife two monthsafter the crimes, coupled with evidence the perpetrator used a sharp instrument consistent with the knife, tended to establish the defendant wasthe perpetrator. The court observedthat the fact many people may also have possessed such a knife might diminish the strength of the evidence, but did not makeit irrelevant. (/d. at pp. 156-157; see also People v. Freeman, supra, 8 Cal.4th at p. 491113.) That the prosecution could not conclusively connect the knife to the crime scene did not matter, because the knife could have been the one used. (Farnam,at p. 157.) Furthermore, admission of the knife was not error under Evidence Code section 352, because, in light of the criminalist’s testimony, the trial court reasonably could have concluded the jury would not be. confused or misled. (Farnam, at p. 157.) Thus, the court concluded, “although the probative value of the knife was not that strong, the danger of confusion, speculation, or prejudice was minimal. Wefind no abuse of 113° Tn People v. Freeman, supra, 8 Cal.4th at pages 490-492,the state high court rejected the argument that evidence of a garbage bag found in the defendant’s car shortly after a robbery wasirrelevant because no oneidentified it as having been used in the robbery, and numerous people must possess such commonitemsin their cars. 195. discretion and no deprivation of defendant’s due process rights.” (/bid.) This was so even thoughthe criminalist testified that, in his opinion, any other sharp, single-bladed object, including a scalpel, kitchen knife, or scissors blade, could have cut the objects at the crime scene. (/d. at p. 157, fn. 26.) In the present case, Bonner and the eyewitnesses to his shooting gave a variety of descriptionsof the car involved. Although noneofthe descriptionsor other evidence established that Fowler’s car was used, neither did they eliminate that possibility. Because the evidencedid not establish the specific type of car used, Riser is not controlling. | The evidence showed more than that Lee merely was acquainted with someone who had a burgundy car. Rather, a reasonable inference could be drawnthat he had an- intimate relationship, during the relevanttimeframe, with the owner of| such a car, and that she letother people use her vehicle. Under the circumstances, evidence concerning Fowler’s car was relevant, as it had some tendency in reason to show Lee hadaccess to a car that may have been the oneused in the shooting, and thus that he was involved in the crime. Although the probative value of the evidence was not great since no one could identify Fowler’s car as thecar used in the shooting, there was no dangerthe evidence would be used as improper character or disposition evidence, as is a possibility where possessionofweaponsis-involved:-(SeePeoplev.Barnwell-2007) 44-Cal-4th 1038-—----- =~ 1055-1056; People v. Archer(2000)82 Cal.App.4th 1380, 1392-1393.) Moreover, in lightof the various deseriptions of the car involvedandthe fact Griffith said Fowler’s car was not the one used, there was, contrary to defendants’ argument,little danger of confusion, speculation, or prejudice. It is true the prosecutor wenttoo far in arguing Heredia found out Fowler’s car wasthe one used in the shooting: Heredia’s testimony:suggested nothing of the sort. ‘This did not affect the ‘evidence’ S admissibility, however. (People v. Harrison, supra, 35 Cal.4th at p. 230.) Defendants did not object to the prosecutor’s assertion, but reasonably 196. countered her argument with argument emphasizing the lack of evidence linking Fowler’s car to the shooting. Admission of the evidence neither constituted error under state law nor a deprivation of defendants’ nghts to due process and fair trial. 7. Gang Experts’ Testimonies The testimonies of the gang experts are set out in the statementof facts, ante. Defendants now challenge portions of the testimonies’ content, as well as the sufficiency. a. Lee’s Tattoo Lee challenges the admission of evidence concerning his tattoo. He says the prosecution’s gang experts should not have been permitted to testify he had a tattoo, or that it was a gangtattoo and indicated Lee’s involvement in shootings or criminal activity. Lee further contends introduction of his purported admissions regarding the tattoo violated Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) andhis constitutional _ right against self-incrimination. Dixon joins both arguments. The Peoplesay the trial court did not err in admitting the evidence, and, assuming Miranda was implicated, any error was harmless beyonda reasonable doubt. 1. Background Lee moved,in limine, to preclude any mention ofhis tattoo without an Evidence Code section 402 hearingto determineits relevance and admissibility. At the hearing, Senior Deputy Shermantestified, in pertinent part, to his qualifications as an expert on gangs in general and the Country Boy Crips in particular. Hetestified that tattoos show a gang member’s allegiance to the person’s gang and specific set within the gang. Commontattoos for Country Boy Crips are “CBC”for “Country Boy Crips,” “NC” for “Notorious Country,” “W”and “L”for “Watts and Lotus,” and “Madd Bloce.” Country Boy Crip members mayalso have tattoos such as “ESK”for “East Side Killer,” “WSK” for “West Side Killer,” or “BK” for “Blood Killer.” Johnson and Dixon both had multiple tattoos along thoselines. 197. Lee had onetattoo on his forearm. It depicted a firearm with four apparent bullet holes and somecartridges. The tattoo was significant to Shermanin a gang context because Lee’s moniker was Gunner. Although Sherman often saw tattoos of guns on gang members, such a tattoo was not common among Country Boy Crips. Sherman had never seen a semiautomatic handgun tattooed on another Country Boy Crip. As for the numberofcartridges (four or five, in Lee’s case), Sherman had noticed onother people with such tattoos that they could be significant in regard to how manyshootingsthe person had done and how manytimes the person had been shot.114 Sherman had read reports concerning Lee’s activities and was unable to find such a nexus here. He agreed that Lee had none of the common Country Boy Crip tattoos such as were seen on Johnson and Dixon. Counsel for Lee asked thatSherman’s opinion with respect to Lee’s tattoo be precluded on foundation and relevance grounds, and as prejudicial under Evidence Code section 352. The.prosecutorthen elicited testimony from Sherman concerning Lee's. MySpace page. Shermanopinedthat the fact Lee had a MySpacepage with “Gunner” written on it showeda correlation between Lee’s moniker and the tattoo. Having a gun tattooed on an arm was consistent. with being a gang member, especially when the person’s moniker was:Gunner. The court overruled theobjections. ~~ ~~ Pater, BakersfieldPolice-OfficerWilliamson-testifiedabout-his-contact-withLeeon after Lee’s car was shot. Outsidethejury’s presence, the prosecutor informed the court that Williamson hadarrested Lee on‘outstanding warrants, and had seen Lee’s tattoo « during bookingand had spoken to him about it. The prosecutor represented that the incident was something Sherman wasgoingto useas part of his evaluation of Leefrom a gang standpoint, and that Williamson could establish Leehadthe tattoo inMarch 2007. © 1144. Sherman-could not recall who told him about the possible significance ofthe - numberof bullets, or when or where he had talked to that person. 198. Whencounsel for Lee asked if Lee had beenreadhisrights first, the trial court decided to hold an additional Evidence Code section 402 hearing. Williamsontestified at the hearing that on March 21, 2007, his first contact with Lee was at the Myrtle Street residence, where he was responding to a call of Lee’s vehicle being shot. He did not see Lee’s tattoo at that time. Lee had an active misdemeanor warrant or warrants, and Williamson participated in transporting him to jail and booking him. Williamson saw the tattoo while Lee was being booked. Williamson told Lee he liked it. Lee looked kind of perplexed,as if he did not know exactly what Williamson meant. Williamson asked if Lee fancied himself as a shooter. Lee looked over at Williamson and smiled a bit. Williamson said it wasall right; Williamson was, too. Williamson then counted the bullet strikes, said that was a lot, and asked if it was shootings or kills. At that point, Lee looked straight ahead and did not say anything. Williamson explained that, in order to identify the person, identification oftattoos typically is part of the general booking process. He did not advise Lee of his rights at any point. He did notfeel it was necessary in orderto talk to Lee about his tattoo. Williamson was not investigating anything concerning the warrant pursuant to which Lee was being booked, and did not ask questions about that matter. At the time, Williamson wasin the gang unit. Although he was not aware then of the address on Deanna Way and its significance, he had received training that tattoos of firearms were significant andthat, while commonon Hispanic gang members and seen on Caucasian gang members, they were not often seen on African-American gang members. While a firearm alone may not have drawnhis interest, there is a significance when bulletstrikes, hash marks, or rounds of ammunition stacked up on each other are consideredin relation to the firearm. Williamson did not have any knowledge of Leeat the time. By observing and asking aboutthe tattoo, however, he was “absolutely” gathering intelligence for the gang unit, and hefelt it might be pertinent in the future. Accordingly, Williamson immediately told his partner, who waswriting a report, what he had seen so it could be documented. 199. Williamson acknowledgedhe did not have to ask Lee questions aboutthe tattoo in order to have Lee bookedinto the jail. The prosecutor argued Williamson was just gathering basic information, and that, since the warrant was for charges of reckless driving, resisting arrest, and not having insurance, Lee was not in custody for purposes of Miranda because the questions asked of him were notrelated to the charges on which he wasin custody. Moreover, the questions were not designedto elicit any information concerning those charges. The court ruled Miranda had notattached because Lee was not questioned regarding the matters for which he was being booked. Accordingly,and in light of the gang-related charge and enhancements and the fact Williamson had some gang expertise, it permitted the prosecutionto question Williamson on the subject in frontof the jury. In the jury’s presence, Williamsontestified that-on March 21, 2007, after Lee’s car was shot, Williamson took Lee into custody on a misdemeanor warrant and transported him to the downtownjail.. While Lee was being booked, Williamson observeda tattoo of a pistol with four bullet strikes on Lee’s forearm. There wasalso tattoo ofa stack of: | five bullets on the outside of the forearm. Williamson said to Lee, “that’s bitchin’.” Lee looked over at Williamson and gave him aperplexed, confused look. Williamson - clarified he meant'the pistol, asked ifLee fancied himself as.a shooter, and.said he did, -too:—Leekindofsmiled-at-him:--Williamsonthen-counted:the-bullet-strikes,;-said-“Wow,;?— ~~— and askedif they stood for shootings or kills. At that point,Lee turned and facedstraight ahead with a solemn, unemotionallook on his face, and nothing further wassaid.1!6 Williamsontestified that through his training and experience, he had learned that tattoos of firearms on individuals indicated they fancied themselves-as shooters: Seeing the firearm with the bullet strikes piqued his interest. Firearm tattoos are common on Caucasianand Hispanic gang members,but are uncommon on African-American gang 115 [_ee’s objections on hearsay and Miranda grounds were overruled. 200. members. A firearm byitself is not as significant as a firearm with marks or bullets or bullet strikes next to it, as the additional marks usually signify events. Williamson was unable to nameany other individual he had seen with a firearm tattoo. Williamson personally had no evidence that evening that Lee was an African-American gang member. Hedid not read Lee his rights before talking to him because Lee was not under arrest for a related offense. Engaging in conversation about tattoos is not required in order to book someoneatthejail, although the observation of tattoos during the booking process is important for identification purposes. Before Williamson saw thetattoo, he had been told someone thought Lee was a gang member, which made the tattoo very interesting. Williamson explained that a gang officer’s primary methodfor gathering intelligenceis to contactpeople onthe street and talk to them. Williamson personally alwaystried to look at tattoos while doing this, because they typically represent affiliations, significant events in the person’s life, and the like. Seeing howthetattoos changeorare improved overtime can be an indication that the person continuesto participate in the gang lifestyle. Often, Williamson asks the person whatthe tattoos mean. This is a standard operational technique used byall officers for gathering intelligence that might be used later, even years downtheroad. The subject of tattoos arose again when Shermantestified. In discussing _ photographsof various gang tattoos, Sherman talked about one depicting someone’s hand holding a revolver. ‘Sherman explained that it was unusualto see tattoos offirearms on Black males, although many Hispanics had them. Nevertheless, the photograph was of an African-American male who wasnot one ofthe defendants. With respectspecifically to Lee’s tattoo, Shermantestified it was the only tattoo Lee had that wasof interest as far as gang indicia were concerned. The gun itself might or might not be significant. Correlated with the bullet strikes around it, however,it appeared to Shermanto be a gang-relatedtattoo, with the bulletstrikes referencing 201. something. Sherman had seen them before on other individuals, whohad told him they signified being shot at or being shot, and were a mark of honor, in essence, for doing something criminal. Lee’s moniker of Gunner wassignificant in termsofits correlation with the firearm and bullet strikes. In addition, in Sherman’s experience, a lot of monikers have something to do with a trait of the person. For instance, if a gang member does crazy thingsall the time, his moniker might be “Psycho.” Asa result, the moniker Gunnertended to suggest to Sherman that the person was an active gunmanorthatthat wasthetrait he had been given. Sherman took Lee’s tattoo into consideration in opining Lee wasan active memberof the Country Boy Crips between March | and August 22, 2007. Shermanalso based his opinion on Lee’s police contacts, MySpace page,andletters and rap lyrics in Lee’s possession. In argument to the jury, the prosecutor discussed the incident in which Lee’s car was shot. She mentioned that this was when the exchange took place about Lee’s tattoo, and that Williamson andShermanboth said it was one thing to have a guntattoo,but the bullet strikes made thistattoo moresignificant in a gang context. In arguing defendants wereall gang members, the prosecutor noted Lee had the moniker Gunner, a gangtattoo, gang contacts and arrests by law enforcement, photographs of him flashing gang signs ~—-and with other documentedCountryBoy-Crips,telephone-contactswithdocumented- Sree Country Boy Crips, letters from his brother acknowledging the gang lifestyle, rap lyrics with gang references, the gang réferences onhis MySpace page, his admission to Agustin that he was a Country Boy Crip, and Jackson’s testimonythat ‘he was a Country Boy Cnp. 2. Analysis a. Significance and Meaning ofthe Tattoo: Lee and Dixon sayLee’s tattoo wasirrelevant, becauseit couldnotbetied to the assertion bullet strikes were related to criminalactivity, or to anything having to do with 202. Country Boy Crips or Lee’s activities. They also say there was insufficient foundation for testimonythe tattoo supported expert opinion Lee was a Country Boy Crip andthe bullet strikes correlated with involvement in shootings or criminalactivity. Finally, they argue that even if relevant, evidence concerning the tattoo was more prejudicial than probative under Evidence Codesection 352. “Evidence possessing any tendency in reason to prove or disprove any disputed material fact is relevant. [Citations.]” (People v. Morrison (2004) 34 Cal.4th 698, 711, italics added.) Evidence leading only to speculative inferences is, however, irrelevant. (Ibid.) That Lee’s tattoo was of a type commonly seen on gang members,albeit Hispanic and Caucasian ones, had at least some tendency in reason to prove the tattoo was gang related, which in turn had some tendency in reason to prove Lee was a gang member. It did not have to be dispositive of the disputed fact in order to be admissible. (People v. Richardson (2008) 43 Cal.4th 959, 1002.) As demonstrated by the photograph Sherman displayed to the jury, firearm tattoos were not unknownin African-American gangs; moreover, even if not in itself indicative of Lee’s membership in the Country Boy Cnps, the tattoo corresponded to Lee’s moniker Gunner. Consideredin light of the other evidence of Lee’s membership in the Country Boy Crips, including his police contacts, references on his MySpace page, and referencesin the letters from his brother and rap lyrics, evidence of the tattoo was not rendered irrelevant simply becauseit did not link him directly with, or was not a tattoo commonly seen on membersof, the Country Boy Crips. Nor wasthere insufficient foundation for the expert testimony related to thetattoo. ““We are required to uphold thetrial judge’s ruling on the question of an expert’s qualifications absent an abuse of discretion. [Citation.] Such abuse of discretion will be found only where “the evidence showsthat a witness clearly lacks qualification as an — expert....’” [Citation.]’ [Citation.]” (People v. Wallace, supra, 44 Cal.4th at pp. 1062- 203. 1063.) Here,the trial court did not abuseits discretion by finding that Sherman and, to a lesser degree, Williamson, had expertise in gangs. “A properly qualified expert may offer an opinion relating to a subject that is beyond commonexperience,if that expert’s opinion will assist the trier of fact. [Citation.| Even so, the expert opinion may not be based on assumptions of: fact that are without evidentiary support or based on factors that are speculative orconjectural, for then the opinion has no evidentiary value and does notassist the trier of fact. [Citation.]’ [Citation.] [{] ‘““[A]n expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasonsand facts on which it is based. (Citations.}” [Citation.]’ [Citation.]” (Brown v. Ransweiler (2009) 171 Cal.App.4th - 516, 529-530; accord, People v. Richardson, supra, 43 Cal.4th at p. 1008.) » In forming an opinion, “a gang expert may rely upon conversations with gang members, onhis or her personal investigations of gang-related crimes, and on information obtained from colleagues-and other law enforcement agencies. [Citations.]” (People v. Hill (2011) 191 Cal.App.4th 1104, 1121-1122.) Shermantestified at length to his qualifications and the sources of his information. The testimony provided a basis from which the jury reasonably could concludethetattooat least was related to Lee’s ~-moniker-which-in-turn-was-indicative-ofhisgangmembership.-(See-Peoplev-Gardeley,- supra, 14 Cal.4th at p. 620.) Lack ofspecificity in terms of the source(s) of the information affected the testimony’s weight rather than its admissibility, and was amply probed during cross-examination. (See People ex rel. Dept. ofTransportationv. Clauser/Wells Partnership (2002) 95.Cal.App.4th 1066, 1085-1086.) In re Alexander L. (2007) 149 Cal.App.4th 605, 611-612, on which Lee and Dixon rely, is distinguishable. There; when asked about the primary activities of the gang, the . witness responded that he knew the gang hadbeen involved in certain crimes. His — testimony was found to lack an adequate foundation, because information conceming the 204. basis of his knowledge, and thusthe reliability of his testimony, was neverelicited from him at trial. In the present case, Shermantestified that he had talkedabout the significance oftattoos of firearms with bullet strikes to individuals who themselves had suchtattoos. In light of his other testimony concerning his training and experience with gangs, he did not need to namethe sources ofhis information in order for thetrier of fact to assess the weight and persuasiveness ofhis testimony. (See People v. Lawley, supra, 27 Cal.4th at p. 132.) Here, the expert witnesses explained to the jury why they found thetattoo of particular interest andits potential significance. It was also madeclearto the jury that such a tattoo was an unusual one for African-American gang members,so there waslittle danger the jury would automatically conclude the bullet strikes or cartridges in Lee’s tattoo correspondedto criminal activity. This is especially true since Lee had the tattoo in March 2007, and there was no evidence he was involved in any shootings before that time. Finally, because of the correlation between the tattoo and Lee’s moniker, and the ample other information that formed the basis of Sherman’s opinion Lee was a Country BoyCrip, evidenceofthe tattoo was not “so uniquely inflammatory that its potential for unfair prejudice clearly outweighed its probative value” suchthat it should have been excluded under Evidence Codesection 352. (People v. Zambrano, supra, 4) Cal.4th at p. 1142; see also People v. Medina (1995) 11 Cal.4th 694, 749.) Sherman and Williamson were properly allowedto testify concerning the tattoo andits significance. (See People v. Ochoa (2001) 26 Cal.4th 398, 437-438, disapproved on another ground in People v. Prieto, supra, 30 Cal.4th at p. 263, fn. 14.) b. Miranda Lee and Dixon contendthat, in questioning Lee aboutthe tattoo during booking, Williamson subjected Lee to custodial interrogation without the benefit of Miranda warnings. As a result, they say, Lee’s responses to the questions should have been 205. excluded, andtheir admission was federal constitutional error. The People say Miranda was not triggered by mere booking questions. | In Miranda, supra, 384 U.S.at page 444, the United States Supreme Court held that “the prosecution maynot use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.... Prior to any questioning, the person must be warnedthathe hasa right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presenceof anattorney, either retained or appointed.” “ defendantis ‘entitled to be tried by 12, not 11, impartial and unprejudicedjurors. “Because a defendant charged with a crime has a right to the unanimous verdict of 12 impartial jurors[citation], it is settled that a conviction cannotstandif even a single juror has been improperly influenced.” [Citations.]’ [Citations.]” (People v. Harris (2008) 43 Cal.4th 1269, 1303.) “[W]here a verdict is attacked for juror taint, the focus is on whether there is any overt event or circumstance, ‘open to [corroboration by] sight, hearing, and the other senses’ [citation], which suggests a likelihood that one or more members of the jury were influenced by improperbias. [§] When the overt event is a direct violation of the oaths, duties, and admonitions imposed on actual or prospective jurors, such as when Juror conceals bias on voir dire, consciously receives outside information, discusses the case with nonjurors, or shares improper information with other jurors, the event is called juror misconduct. [Citations.]” (Un re Hamilton, supra, 20 Cal.4th at p. 294, fn. omitted.) 263. Misconduct can be good causefor discharge of a juror under section 1089 (People v. ~ Ledesma (2006) 39 Cal.4th 641, 743) even ifit is “‘neutral’” in the sense it does not suggest bias towardeither side (People v. Daniels, supra, 52 Cal.3d at pp. 863-864), but removal is not necessarily the remedy required in every case (see People v. Guzman (1977) 66 Cal.App.3d 549, 559). In determining whether discharge is requiredin a particular case, it must be rememberedthat “[m]isconduct by a juror... usually raises a rebuttable ‘presumption’ of prejudice. [Citations.]” (Jn re Hamilton, supra, 20 Cal.4th at p. 295; Remmerv. United States (1954) 347 U.S. 227, 229; People v. Guzman, supra, 66 Cal.App.3dat p. 559.) “Still, whether an individual verdict must be overturned for jury misconductorirregularity ‘“‘isresolved byreference to the substantial likelihoodtest, an objective standard.’”’ [Citations.] Any presumption of prejudiceis rebutted, and the verdict will not be disturbed,if the entire record in the particular case, including thenature of the misconductor other event, and the surroundingcircumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one-or more jurors were actually biased agains the defendant. [Citations. ] “The standard jis a,pragmatic one, mindful of the ‘day-to-day realitiés ofcourtroom life’ [citation] andof society’s strong compéting interest in the stability of criminal verdicts [citations]. It is “virtually. impossible to shieldjurors from every contactor influence that might - theoretically affect their vote.” [Citation.] ‘Moreover, the jury is a “fundamentally human’institution; the unavordane fact that jurors bring| both the strength and the.weakness of the institution. [Citation.] “[T]he criminaljustice system must not be rendered impotent in quest of an ever- elusive perfection’... _ [Jurors] are imbuedwithhumanfrailties as well as virtues. If the system is-to functionatall,.we musttolerate.acertain amount of imperfection shortof actual bias.’ [Citation.]” (n re Hamilton, supra, 20 Cal.4that p. 296; see also People v. Danks (2004) 32 Cal.4th:269, 302- 303.)140 140 Citing Remmerv. United States, supra, 347 U.S.at page 229, defendants contend California’s “‘substantial likelihood’”-test conflicts withUnited. States Supreme Court authority that they say requires a showing ofno actual prejudice. Remmer involved 264. “.]” It did so despite the Bench Note advising that, if other alleged participants in the crimearetestifying, the instruction should not be given or the bracketed portion should be given, exempting the testimony of those witnesses. (Judicial Council of Cal., Crim. Jury Instns. (2007-2008) Bench Notes to CALCRIM No.373, p. 153.) b. Analysis The People are correct that defendants forfeited their claim whentheyfailed to object to, or request modification of, CALCRIM No.373attrial. (People v. Moore, supra, 51 Cal.4th at p. 1134; People v. Sully, supra, 53 Cal.3dat p. 1218.)!42 In any event, defendants’ claim fails on the merits. “««Tthe correctnessofjury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or-from a particular instruction.” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 987.) Accordingly, “[i]n assessing a claim ofinstructional error or ambiguity, we consider the instructions as a whole to determine whetherthere is a reasonable likelihood the jury was 142 For the mostpart, the-cases we andthe parties cite address CALCRIMNo. 373’s. counterpart, CALJIC No,2.11.5. That instruction provides: “There has been evidence in this case indicating thata‘person other than a defendant wasor may have beeninvolved in the crime for-which that defendant is on trial. [{] Theremay.be many reasons why that personis not here ontrial. Therefore, do not speculate or guess as to why the other person is not being prosécuted in this trial or whether[he] [she] hasbeenor'willbé prosecuted. Your[sole], duty.is to. decide whether the People.haveproved |the guilt of [each] [the] defendant ontrial.” (Italics added.) Wereject defendants’ assertion that CALCRIM No.373 is significantly(and improperly) morerestrictive than CALJIC No. 2.11.5becausethe latterincludesthe italicized language. Accordingly, cases dealing _ with CALJIC No.2.11.5 are on ‘point. 270. misled. [Citations.]” (People v. Tate (2010) 49 Cal.4th 635, 696; see Estelle v. McGuire, supra, 502 U.S. at p. 72.)!48 The California Supreme Court has consistently held that an unmodified version of CALJIC No. 2.11.5 (and, by parity of reasoning, CALCRIM No.373) should not be given when,as here, a nonprosecuted participanttestifies, because the jury is entitled to consider the lack of prosecution, and incentive thewitness hadtolie, in assessing the witness’s credibility. (E.g., People v. Williams (1997) 16 Cal.4th 153, 226-227; People v. Hardy (1992) 2 Cal.4th 86, 189-190; People v. Cox, supra, 53 Cal.3d at p. 667 & fn. 13; People v. Carrera (1989) 49 Cal.3d 291,312 & fn. 10; People v. Sheldon, supra, 48 Cal.3d at p. 946.) That court has been Jess consistent as to whether, when given together with instructions that assist jurors in assessing witness credibility, such as were given in the presentcase, the giving of the unmodified instruction does not constitute error(¢.g., People v. Moore, supra, 51 Cal.4th at pp. 1133-1134; People v. Williams, supra, 49 Cal.4th at pp. 457-458: People v. Crew (2003) 31 Cal.4th 822, 845; People v. Brown 143 Somecases state that “‘[i]n determining whetheran instruction interferes with the jury’s consideration of evidence presentedattrial, we must determine“whata reasonable juror could have understood the charge as meaning.” [Citation.]’” (People v. Cox, supra, 53 Cal.3d at p. 667, italics added; see also, e.g., People v. Garrison (1989) 47 Cal.3d 746, 780; People v. Fonseca (2003) 105 Cal-App.4th 543, 549.) Garrison, which wascited by People v. Cox, supra, 53 Cal.3d at p. 667 (whichin turn wascited at p. 549 of Fonseca), cited California v. Brown, supra, 479 U.S. 538, as authority for the standard. In Boyde v. California (1990) 494 U.S. 370, however, Brown was oneofthe cases cited by the United States Supreme Court as providing differing and hence a “less than clear” “legal standard for reviewing jury instructions claimed to restrict impermissibly a jury’s consideration of relevant evidence....” (Boyde, at pp. 378, 379.) Findingit important “to settle upon a single formulation”to be employed in decidingthis kind of question, the high court determined that “the proper inquiry ... is whetherthere is a reasonable likelihood that the jury has applied the challenged instruction in a waythat prevents the consideration of constitutionally relevant evidence.” (Jd. at pp. 379, 380.) Although later United States Supreme Court cases appeared to again endorse the “reasonable juror” standard, Boyde’s “reasonable likelihood” standard was reaffirmed in Estelle v. McGuire, supra, 502 U.S.at pages 72-73, footnote 4. 271. (2003) 31 Cal.4th 518, 560-561; People v. Lawley, supra, 27 Cal.4th at pp. 162-163; People v. Price, supra, | Cal.4th at p. 446), or constitutes error that was harmless whether assessed under Watson or Chapman(e.g., People v. Cornwell, supra, 37 Cal.4th at p. 88; People v. Williams, supra, 16 Cal.4th at p. 227; People v. Hardy, supra, 2 Cal.4th at pp. 190-191; People v. Sully, supra, 53 Cal.3d at pp. 1218-1219; People v. Carrera, supra, 49 Cal.3d at p. 313; People v. Garrison, supra, 47 Cal.3d at p. 780). In the presentcase, the trial court should have expressly excluded Agustin and Jackson from CALCRIM No.373’s ambit. In light of the other instructions given on witness credibility and accomplice testimony, however, we find no reasonable likelihood jurors were misled in termsof their consideration of the testimony of those witnesses. Theinstructions, considered as a whole (whichthe jury was admonished to do), correctly stated the law.144 2: Accomplice Liability Dixon contends the accomplice liability instructions were prejudiciallyerroneous because (1) they gave jurors no guidance on how to determine the degree of murderfor a nonkiller, and (2) they inadvertently included overly broad language on the natural-and- probable-consequences doctrine, Johnsonand Lee jjoin. The People say defendants . forfeited any claim of-error byfailing to object to the instructions, but in anyevent, the ~ _instructions.as_a wholecorrectly statedthelawandiferror.occurred, it_was harmless._ a a. ~ Background The evidence adducedat trial 1S set out in the statement offacts, ante. It suggested that, assumingdefendants were the perpetrators of the’ charged offenses, one ormore ° acted as an aider and abettor rather than the actual shooter. | Duringthe juryinstruction conference, no one objected to, or requested any modification of, CALCRIM Nos. 400 (AidingandAbetting: General Principles) or 401 144 Were we to find ¢error, we would conclude it was harmless under any standard. 272. (Aiding and Abetting: Intended Crimes). With respect to CALCRIM Nos. 402 (Natural and Probable Consequences Doctrine (Target and Non-Target Offenses Charged)) and 403 (Natural and Probable Consequences (Only Non-Target Offense Charged)), counsel for Lee argued defendants were charged with everything possible and Lee had asked for instructions on lesser offenses, so nothing else was left. As a result, the People withdrew their request for those instructions. In addition to aiding and abetting, the People sought to argue conspiracy as a theory ofliability for the nonconspiracy charges.!45 Over Lee’s objection to combining CALCRIM and CALJICinstructions, the People withdrew their request for CALCRIM No. 417 (Liability for Coconspirators’ Acts) in favor of a modified version of CALJIC No. 6.11 (Conspiracy — Joint Responsibility). The jury subsequently wasinstructed that defendants were being prosecuted for first degree murder under twotheories: one, that the murders were willful, deliberate, and premeditated; and two, that the murders were committed by lyingin wait. Both were explained to the jury, and premeditation and deliberation were defined. Jurors were also instructed that the duration of lying in wait had to be substantial enough to showa state of mind equivalent to deliberation or premeditation. Jurors were also instructed on transferred intent, to wit, if the defendant intendedto kill one person but by mistake or accidentkilled another person, the crime (if any) was the same for the unintended killing as for the intended killing. With respect to themultiple-murder special circumstance, jurors were instructedthatif they found a defendant was guilty of first degree murder but wasnotthe actualkiller, they had to find he acted with the intent to kill in order to find the special circumstancetrue. 145 The prosecutor noted that the natural-and-probable-consequences doctrine _ provided a third theory ofliability, but clarified the prosecution was not asking forit in this case. 273. Onthe subject of aiding and abetting, the court instructed, pursuant to CALCRIM No. 400: ‘A person may be guilty of a crime in two ways: “One, he or she may havedirectly committed the crime. I will call that person the perpetrator. “Two, he or she may have aided and abetted a perpetrator who directly committed the crime. “A person is equally guilty ofthe crime whether he or she committed it personally or aided and abetted the perpetrator who committed it. Under some specific circumstancesifthe evidence establishes aiding and abetting ofone crime, a person may also befound guilty ofother crimes that occurredduring the commission ofthefirst crime.” (Italics added.) Pursuant to CALCRIM No.401 »jurors weretold, in pertinent part: “Toyprove that the defendantiis guilty ofaa crime based onaiding and abetting that crime, the People must provethat: “One, the perpetrator committed the crime; “Two, the defendant knew that the perpetratorintended to commit the crime; “Three, before or during the commission ofthecrime the defendant intended to aidand abet the perpetratorin committing the crime; - “And, fourth, the defendant’ S words or conduct did, in fact, aid and abet the perpetrator’ S commission of the:crime. “Someone aids and abets a crimee if he or she knowsof the perpetrator’s unlawful purpose andhe orshe specifically intends to and does,in fact, aid,facilitate, promote, encourage, orinstigate the perpetrator’s commission of that crime.” Jurors were also instructed that conspiracy was a crime and was charged in count nine, and that when the prosecution had not specifically charged conspiracy but had introduced evidence of conspiracy to prove liability for other offenses or to introduce hearsay statements of coconspirators, the evidence could be considered for that purpose. 274. Jurors were told that ‘“‘fa] conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of murder and/or shooting into an occupied vehicle, and with the further specific intent to commit those crimes....” As relevant to defendants’ claim of error on appeal, the court further instructed: “Whether conspiracy is charged or uncharged, each member of a criminal conspiracyis liable for each act and bound by each declaration of every other memberof the conspiracy if that act or declaration is in furtherance of the object of the conspiracy. “The act of one conspirator pursuant to or in furtheranceofthe - commondesign of the conspiracy 1s the act of all conspirators. ‘““A memberof a conspiracy is not only guilty of the particular crime that to his or her knowledgehis or her confederates agreed to and did commit, but is also liable for the natural and probable consequences of any crime or act of a co-conspirator to further the object of the conspiracy even though that crime or act wasnot intended as a part of the agreed-upon objective and even though he or she was not presentat the time of the commission of that crimeoract. “You must determine whether the defendantis guilty as a memberof a conspiracy to committhe originally agreed-upon crime or crimes and,if so, whether the crimealleged in all counts, except for Counts 6 and 10 [both charging Dixonalone with being an ex-felon in possession of a firearm], was perpetrated by co-conspirators in furtheranceofthat conspiracy and wasa natural and probable consequence of the agreed-upon criminal objective of that conspiracy. . “In determining whether a consequenceis natural and probable, you must apply an objective test based not on what the defendant actually intended, but on what.a person of réasonable and ordinary prudence would have expected would belikely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. “A natural consequence is one which 1s within the normal range of outcomes that may be reasonably expected to occurif nothing unusual has intervened. “Probable meanslikely to happen.” 275. The jury retired to deliberate on the afternoon of March 17, 2009. On the morning of March 19, 2009, jurors sent out a note, with the time marked as 10:53 a.m., requesting “reading of 1st and 2nd degree murder & interpretation of the law.” Over counsel for Lee’s objection to doing anything other than directing the jury to CALCRIM Nos. 520 (First or Second Degree Murder With Malice Aforethought (Pen. Code, § 187)) and 521 (First Degree Murder (Pen. Code, § 189)), the court explained to the jury that it could not comment on the evidence, then reread those two instructions andinvited jurors to write an additional note if they desired further assistance. At 3:56 that afternoon, the jury sent out a note stating it had reached a verdict. b. © Analysis Defendants did not object to, or request modification or clarification of, the instructions theynow challenge. Generally, “Tal party may not: complain on appeal that ~ an instruction odtiect in law and responsive to theevidence wa’too general or incomplete unless the party has requested appropriate clarifyingorr amplifying language. [Citation.]” (People v. Lang (1989) 49 Cal.3d 991, 1024.) At least two courts have held that a challenge to the “equallyguilty” language of CALCRIM No. 400%iSforfeited by failure to request clarifyinglanguage. (People.v. Lopez(201 1), 198 Cal.App.ath1 106, 1118-1119;People v.Samaniego,supra, 172Cal.App.4th atP. 1163.yi‘We find it _appropriate to.discuss.defendantsclaimsonthe.merits, however, as‘defendants say the instructions are. not correct inlaw and SO‘implicatevvarious constitutional rights. (See People v:Smithey, supra, 20 Cal.4th at pp. 976-977, fn. 7,, Peoplevv.: Floodd (1998) 18 Cal.4th 470, 482, fn: 7.) Weturnfirst to the“equally guilty” language of CALCRIM No.400. A direct perpetratot and anaider and abettor are equally guiltyof a crimein the sense that an aider and abettor does not escape treatment as a principal merely because he or she is not the actual perpetrator. Thus, section 31 provides in part: “All persons concernedin the commission of a crime, ... whether they directly commit the act constituting the offense, 276. or aid and abetin its commission, or, not being present, have advised and encouragedits commission, ... are principals in any crime so committed.” The problemis, the “equally guilty” language of the instruction can be read as telling jurors that the direct perpetrator.and aider and abettor must be found guilty, if at all, of the same crime(s) and degree(s) thereof. So, for example, if defendants’ jury found Johnson guilty, as the shooter, of first degree murder in the killing of Vanessa Alcala, the jury would have to find Dixon and Leealso guilty of first degree murder once jurors determined they were involved. This is not the law. The California Supreme Court has held that, depending on the circumstances, an aider and abettor can be convicted of a crime greater than the offense for which the actual perpetratoris liable. (People v. McCoy (2001) 25 Cal.4th 1111, 1118-1119, 1122.) Several appellate courts have held that under the same reasoning, an aider and abettor can be convicted of a crime lesser than the offense for which the actual perpetrator 1s liable. (People v. Lopez, supra, 198 Cal.App.4th at p. 1118; People v. Nero (2010) 181 Cal.App.4th 504, 513-518; People v. Samaniego, supra, 172 Cal.App.4th at pp. 1163-1164.) Asa result, CALCRIM No. 400, as given in defendants’ case, was ambiguous, and potentially misleading, on this point.146 Nevertheless, we find no prejudice from the error. As stated in People v. Samaniego, supra, 172 Cal.App.4th at page 1165, “An instruction that omits or misdescribes an element of a charged offense violates the right to jury trial guaranteed by ‘our federal Constitution, and the effect of this violation is measured against the harmless errortest of Chapman{, supra,] 386 U.S. 18, 24. [Citation.] Under that test, an appellate court may find the error harmless only if it determines beyond a reasonable doubt that the jury verdict would have been the same absent the error. [Citation.] CALCRIM No. 400 146 Theinstruction has since been modified to remove the “equally guilty” language. (Judicial Council of Cal., Crim. Jury Instns. (2011) p. 167.) 277. misdescribes the prosecution’s burden in proving the aider and abettor’s guilt offirst degree murderby eliminating its need to prove the aider and abettor’s (1) intent, (2) willfulness, (3) premeditation and (4) deliberation, the mental states for murder.” The Samaniego court found the error harmless beyond a reasonable doubt because the jury necessarily resolved the issues against the defendant under otherinstructions. - (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) Here, jurors necessarily found defendants acted willfully with intent to kill; they were instructed, pursuantto CALCRIM No.521, that a defendant acted willfully if he intended to kill; and, pursuant to CALCRIM No.702,that, in order to find a multiple-murder special circumstance as to a nonkiller, they hadto findthe defendant acted with the intent to kill. Because jurors foundall multiple-murder special circumstancestrue as to all defendants, jurors necessarily determined each defendant had the specific intent to kill. (See Samaniego,at p.1165.) Jurors also necessarily found defendants acted deliberatély and with : premeditation. CALCRIM No.401 requiredjurorsto find the perpetrator committed the crime, the defendant knew the perpetrator intended to commit the crime, the defendant . intendedto aid and abet the perpetrator in committing the crimeeither before or during» the commission of the crime, and the defendant’s words or conduct did in fact aid and ____abet theperpetrator’s commissionof thecrime. Theinstruction further explainedthat. “{sJomeone aids-and abets a crimeif he.or she knowsof the perpetrator’s unlawful- purpose andheor she specifically intends to and does, in fact, aid, facilitate, promote, encourage,or instigate the perpetrator’scommission ofthat crime.” Weagree’with the court in People v. Samaniego, supra, \72 Cal.App.4th at page 1166, which said: “It would be virtually impossible for a person to know of another’s intent to murder and decide to aid in accomplishing the crime withoutat least a brief period of deliberation and premeditation, whichisall that is required, [Citation.]” 278. That the error was found prejudicial in People v. Nero, supra, 181 Cal.App.4th at pages 518-520, does not assist defendants. In that case, the jury expressly askedif an aider and abettor could be found guilty of a lesser offense. Although the correct answer was “yes,” the trial court twice reread CALJIC No. 3.00, including the statement, ““Each principal, regardless of the extent or mannerof the participation, is equally guilty.’” (Nero, at p. 512, italics omitted.) By contrast, CALCRIM No.400, as given in the present case, uses more ambiguous language and, in any event, jurors expressed no confusion on this point. (See People v. Lopez, supra, 198 Cal.App.4th at p. 1120, fn. 6.)147 | Defendants next complain the instructions failed to tell jurors the nonkiller must personally premeditate or the killer’s premeditated murder must be natural and foreseeable to the nonkiller.'48 . The People did not proceed on a natural-and-probable-consequences theory of liability insofar as aiding and abetting was.concerned. “To be guilty of a crime as an aider and abettor, a person must‘aid[] the [direct] perpetrator by acts or encourage[] him for her] by wordsor gestures.’ [Citations.] In addition, except under the natural-and- probable-consequencesdoctrine [citations], ... the person must give such aid or 147 The question asked by the jury about first and second degree murder is too general for us to assume jurors were confused by anything related to aider-and-abettor liability. This is especially true since, insofar as the record shows, the rereading of CALCRIM Nos. 520 and 521 remedied whatever confusion or problem existed. Neither instruction has anything to do with aiding and abetting, and the jury did not ask for further, or more specific, clarification or assistance. 148 The issue whether, in order for an aider and abettor to be convicted of attempted willful, deliberate, and premeditated murder by application of the natural-and-probable- consequencesdoctrine, a premeditated attempt to murder must have been a reasonably foreseeable consequenceof the target offense, is currently before the California Supreme Court. (People v. Favor, review granted Mar. 16, 2011, $189317, formerly 190 Cal.App.4th 770.) 279. encouragement‘with knowledge of the criminal purposeofthe [direct] perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of,’ the crime in question. [Citations.] When the crimeat issue requires a specific intent, in order to be guilty as an aider and abettor the person ‘must share the specific intent of the [direct] perpetrator,’'!4%! thatis to say, the person must ‘know[] the full extent of the [direct] perpetrator’s criminal purpose and [must] give[] aid or encouragement with the intent or purpose offacilitating the [direct] perpetrator’s commission of the crime.’ [Citation.]”. (People v. Lee (2003) 31 Cal.4th 613, 623-624; see People v. Beeman (1984) 35 Cal.3d 547, 560 (Beeman).) In short, “proof of aider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator’s actus reus — a crime.committed by the direct perpetrator, (b) the aider and abettor’s mens rea —~ knowledge of the direct perpetrator’s unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus — conduct by the aider and abettor that in fact assists the achievementof the crime. [Citation.]” (People v. Perez(2005) 35 Cal.4th:1219, 1225.) Weconclude CALCRIM No. 401, especially when considered in conjunction with CALCRIM No.521, adequately conveyed the premeditation requirement. Cases addressing application of the doctrine vis-a-vis aiding and abetting are _ applicable.eventhoughthenatural- and-probable-sonsequencesdoctrinecameintoplay. with respect to the‘conspiracy theory ofliability. | | When application of the natural-and-probable-“consequences doctrine is:triggered ina conspiracy case,‘thetrier offact must find, in addition to the elements ofthe conspiracy, that the defendant’s coconspirator committed an offense.other than the offense that was theobject of the conspiracy, andthe offe nse committed by the : 149 ‘Thedirect (actual) perpetrator must harbor whatever mental state is required for each crime charged. (People v. Mendoza (1998) 18 Cal.4th 1114, 1123.) — 280. coconspirator was a natural and probable consequenceofthe target offense. (See People v. Prettyman (1996) 14 Cal.4th 248, 262.) “The determination whether a particular criminal act wasa natural and probable consequence of another criminalact ... requires application of an objective rather than subjective test. [Citations.] This does not mean that the issue is to be considered in the abstract as a question of law. [Citation.] Rather, the issue is a factual question to be resolved by the jury in lightof all of the circumstances surrounding the incident. [Citations.] Consequently, the issue does not turn on the defendant’s subjective state of mind, but depends upon whether, underall of the circumstancespresented, a reasonable person in the defendant’s position would have or should have knownthat the charged offense was a reasonably foreseeable consequence of the act [that was the object of the conspiracy]. [Citations.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 531.) The crime ultimately committed need not have been specifically planned or agreed upon, nor needit have been substantially certain to result from commission of the planned act. (/d. at p. 530.) The defendant need not have actually foreseen the additional crime; the question is whether, judged objectively, the additional crime was reasonably foreseeable. (People v. Mendoza, supra, 18 Cal.4th at p. 1133.) As previously noted, defendants’ jury was told that “[a] conspiracy is an agreement between two or morepersons with the specific intent to agree to committhe crime of murder and/or shooting into an occupied vehicle, and with the further specific intents to commit those crimes ....” “[A]jury’s finding of the dual specific intents required for conviction of conspiracy to murder necessarily establishes that the target offense of murder was premeditated and deliberated ....” (People v. Cortez (1998) 18 Cal.4th 1223, 1238.) Wefind it difficult to see how a murder committed as a result of a conspiracy to shootinto an occupied vehicle could be anything but premeditated and foreseeable. (Compare People v. Hart (2009) 176 Cal.App.4th 662, 672 [jury could have concluded actual perpetrator premeditated attempted murder, but such premeditation was 281. not natural and probable consequenceof attempted robbery so that accomplice wasguilty of no more than attempted unpremeditated murder].) In any event, the conspiracy instructions, coupled with CALCRIM No. 521, were adequate to ensure jurors found the nonkiller(s) personally premeditated and/or that the perpetrator’s commission of premeditated murder was natural and foreseeable to the nonkiller(s). Finally, defendants say the trial court erred by including thefinal, optional sentence of CALCRIMNo. 400, to wit: “Under some specific circumstances,if the evidence establishes aiding and abetting of one crime, a person mayalso be found guilty of other crimes that occurred during the commissionof the first crime.” They say this languagefailed to identify and define target and nontarget crimes, and so risked a finding of guilt based on intent to aid and abet unspecified conduct. | In People v. Prettyman, supra, 14 Cal.4th 248, the trial court instructed the jury that one who aids and abetsis not only guilty of the crime aided and abetted,but is also liable for the natural and probable consequences of the commission of such crime. The court directed the jury todetermine whether the defendant was guilty of the.crime originally contemplated, and, if so, whether any other-crime charged wasa natural and probable consequenceof such originally contemplated crime. (/d. at pp. 257-258.) The California Supreme:Court found that “once the.trial court ... chose to instruct the jury on __the‘natural andprobable.consequences’rule,it‘hada dutytoissueinstructions0 identifying and‘describing eachpotential target offense supported by the evidence. By failing to do so, the trial court erred.” (/d. at p. 270.) Because“a conviction may not be based on the jury’s generalized belief that the defendant intended to assist and/or . encourage unspecified ‘nefarious’ conduct,” “the trial court should identify and describe the target or predicate crime that the defendant may have aided ‘and abetted.” (Id. at - p. 268, fns. omitted.) . “If the courtfailsto identify and define these target offenses,-we must then ~~ determine whetherthere is a “reasonablelikelihood”that thejury misappliedthetrial 282. court’s instructions on the “natural and probable consequences” doctrine ....”. [Citation.]” (People v. Prieto, supra, 30 Cal.4th at p. 252; accord, People v. Prettyman, supra, 14 Cal.4th at p. 272.) No such reasonablelikelihood exists here. In the first place, the trial court never mentioned the natural-and-probable-consequencesdoctrine in conjunction with aiding and abettingliability, never identified the specific circumstances under which a defendant might be found guilty of other crimes, and neverdirectedthe jury to make any sort of findings on the issue. In the second place, whenit explained aiding and abetting and conspiracytheoriesofliability to the jury, the prosecutordid not even discuss, let alone rely on, the natural-and-probable-consequences doctrine in the context of aiding and abetting. (Compare People v. Lucas (1997) 55 Cal.App.4th 721, 731-732.) Under the circumstances, the challenged language neither introducedthe concept of - natural and probable consequences norraised a risk jurors might basea findingofguilt on intent to aid and abet some unspecified “nefarious” conduct. “Where, as here, the court gives a legally correct, but irrelevant, instruction, the error ‘is usually harmless, having little or no effect “other than to add to the bulk of the charge.”” [Citation.]” (People v. Lee (1990) 219 Cal_App.3d 829, 841.) 93. In-Custody Informant Lee says thetrial court erred by modifying CALCRIM No.336 (In-Custody Informant). He says the modification effectively negated the required caution and close scrutiny the jury wasto give all of Dupree Jackson’s testimony, thereby denying Lee his rightto a fair trial. Johnson and Dixon join. The People say the court properly tailored the instruction. | a. Background Jackson’s testimonyis set out in the statement of facts, ante. He was in and out of custody during the time frame in which the charged offenses occurred andat the time he obtained some of the information he gave to law enforcement and about which he 283. testified. However, he and Dixon werebothin custody at the time Dixon, according to Jackson, madestatements about some ofthe offenses. During the jury instruction conference, the prosecutor drafted a modification of CALCRIM No.336 to specify to which statements the instruction applied. She explained that she did so because Jackson was a percipient witness as well as a jailhouse informant. Counsel for Johnson expressed concern that the modification would lead to juror confusion about whether benefits Jackson was receiving or would receive could be considered. The court found the People’s version of the instruction to be appropriately worded, and ruled it would be given. Accordingly, it subsequently instructed the jury (with the People’s modification italicized): “The testimony of an’ in-custody informant should be viewed with caution.and close-scrutiny.. In evaluating such testimony you should . consider the extent to which it may have been influenced by the receipt of or expectation ‘of any benefits from the party calling that witness. This does not mean that you mayarbitrarily disregard such testimony, but you should giveitthe weight to which you find it to be entitled in light ofall of the evidence in the case. “An in-custody informant is someone other than a co-defendant or percipient witness or accomplice or co-conspirator whose testimony 1S based on statements the defendantallegedly made while both the defendant and the informant were held within a correctional institution. _“Dupree Jacksonis.anin-custody informant.: Kern CountyJailisa correctional institution. This instruction relates only to the statements allegedlymadeto Dupree Jackson by Joseph Dixon on or between August 24th, 2007,.and August 29th, 2007, as testified to by Dupree Jackson.” (Italics added.) | b. Analysis Section h {27a states, in pertinent part: “(a) As usediin this section, an ‘“in-custody informant’ means a person, other than a codefendant, percipient witness, accomplice, or coconspirator whose testimony is based upon statements madebythe. 284. defendant while both the defendant and the informantare held within a correctional institution. “(b) In any criminaltrial or proceeding in which an in-custody informanttestifies as a witness, upon the requestof a party, the court shall instruct the jury as follows: “1 As the evidence of gang membership and activity was clearly relevant with respect to the charged offenses (see People v. Funes (1994) 23 Cal.App.4th 1506, 1516, 1518-1519), the trial court appropriately instructed the jury on the purposes for which that evidence could be considered. In light of the abundanceof evidence that was admitted for limited purposes and/or as to fewer than all defendants, the trial court reasonably chose to remind jurors of limiting instructions given at the time the evidence was admitted, rather than attempting to includeall that information in an instruction such as CALCRIM No. 1403. We recognize the complexity involved; as we previously observed, however, “[w]e assume that the jurors are ‘“‘intelligent persons and capable of understanding and correlating all jury instructions ... given.’”’ [Citation.]” (People v. Franco, supra, 180 Cal.App.4th at p. 720.) Moreover, “[w]e credit jurors with intelligence and commonsense[citation] and do not assumethat these virtues will abandon them when presented with a court’s instructions. [Citations.]” (People v. Coddington, supra, 23 Cal.4th at p. 594.) Here, jurors had the attorneys’ arguments and instructions to guide them, and they expressed no 150 The instruction reads, in part: “You may consider evidence ofgang activity only for the limited purpose of deciding whether: [§] [][The defendant acted withthe intent, purpose, and knowledgethat are required to prove the gang-related (crime[s]/ [and] enhancement([s]/ [and] special circumstance allegations) charged(;/ .)]” 151 The instruction given in People v. Samaniego, supra, 172 Cal.App.4th 1148 did not permit consideration of the evidence of gang activity with respect to gang-related crimes, but, unlike here, there was no active participation charge under section 186.22, subdivision (a). (Samaniego, at pp. 1153, 1166.) 293. confusion with respect to the purpose(s) for which various evidence permissibly could be used. Defendants complain, however,that the trial court failed to instruct jurors that they could not consider other crimes or gang activities that were not proven byat least a preponderanceof the evidence. To the contrary, jurors were so instructed with respect, specifically, to Dixon’s prior crimes. Beyondthat, jurors were instructed that if the People had the burden of proving something, this meantthey hadto prove it beyond a reasonable doubt unless the court specifically instructed otherwise. Jurors were also instructed that before they could rely on circumstantial evidence to conclude a fact necessary to find a defendant guilty had been proved, they had to be convincedthe People had proved each fact essential to that conclusion beyond a reasonable doubt.. “<