People v. Kilgore CA3 ( 2022 )

Filed 11/22/22 P. v. Kilgore CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C091113
v. (Super. Ct. No. 17FE001073)
LONNIE CHARLES KILGORE,
ORDER MODIFYING
Defendant and Appellant. OPINION AND DENYING
REHEARING
[NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered that the opinion filed in this case on October 31, 2022, be modified
as follows:
On page 18, footnote 3, replace the language in footnote 3 with the following:
On April 14, 2022, defendant moved to join in an argument regarding
section 1109 in codefendant Ackerson’s second supplemental opening brief in case
No. C090994. And on June 16, 2022, defendant moved to join in an argument regarding
section 1109 in codefendant Gi’s supplemental reply brief in case No. C090994.
Assembly Bill No. 333 added section 1109, which mandates a separate trial of a
section 186.22, subdivision (b) gang enhancement allegation if requested by the defense.
(Stats. 2021, ch. 699, § 5 [§ 1190, subd. (a]).) We interpret defendant’s April 14 and
June 16 motions as having sought to assert arguments pertaining to the gang
1
enhancement findings, and we deny the motions as moot because we have determined the
gang enhancement findings must be vacated.
In his petition for a rehearing, defendant claimed the section 1109 argument he
had wished to make in this appeal would have asked this court to reverse his conviction
on the substantive charges. He said he asked for rehearing to be allowed to file a
supplemental brief to flesh out that issue. Defendant asserted that his motions to join in
codefendants’ arguments reflected his wish to raise that claim. Also in support of his
petition for rehearing, defendant referenced his March 4, 2022 motion in this court
seeking permission to file a second supplemental brief, a motion that this court denied.
But none of those filings clearly articulated the claim defendant seeks to assert on
rehearing. In his March 4, 2022 motion, defendant observed that in his first supplemental
opening brief he argued that his gang enhancements should be reversed because of
amendments to section 186.22 enacted by Assembly Bill No. 333, and he stated that he
wished to raise additional Assembly Bill No. 333-related issues, including an argument
regarding section 1109. His motion did not clearly indicate defendant sought to raise a
new argument for reversal of his substantive convictions. Later, defendant moved to join
in and adopt by reference the argument raised in his codefendants’ briefs that the trial
court prejudicially erred in refusing to bifurcate the gang enhancements as requested by
the defense. Nowhere in either of those two motions did defendant clearly articulate that,
by seeking to join in his codefendants’ arguments regarding Penal Code section 1109, he
thereby sought to change the claim he raised in his supplemental opening brief.
This modification does not change the judgment.
The petition for rehearing is denied.
FOR THE COURT:
/S/
ROBIE, Acting P. J.
/S/
MAURO, J.
/S/
HOCH, J.
2
Filed 10/31/22 P. v. Kilgore CA3 (unmodified opinion)
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent, C091113
v. (Super. Ct. No. 17FE001073)
LONNIE CHARLES KILGORE,
Defendant and Appellant.
A jury convicted defendant Lonnie Charles Kilgore and codefendants Elton
Ackerson, Dereck Gi, Jr., and Malik Green-Geiger of willful, deliberate, and
premeditated attempted murder, and found true gang enhancement allegations. The trial
court sentenced defendant to a determinate term of 17 years four months and an
indeterminate term of 39 years to life in prison.
1
Defendant now contends (1) his conviction is based on an invalid theory of
criminal liability, (2) willful, deliberate, and premeditated attempted murder was not
alleged in the accusatory pleading, (3) two rap videos should not have been admitted into
evidence, (4) the trial court improperly denied a defense request to instruct the jury on a
lesser-included offense, and (5) we must reverse the gang-related enhancement in light of
recent statutory changes made by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 699.)
Finding merit in the fifth contention, we will affirm the convictions, vacate the
gang-related enhancement findings, and remand for further proceedings.
BACKGROUND
On October 20, 2016, M.G. parked his car in front of a relative’s house on High
Street in Sacramento. When he got out of the car, a bullet struck him in the groin.
Another 10 shots or more, from at least two guns, were fired at M.G.
Witness No. 1 was repairing a fence at a nearby house that day, and he saw the
shooting as he crossed the street to borrow a ladder. He remembered a dark-colored
sedan sped away after the shooting and had been parked in a crooked manner on the
street. Witness No. 2 was on her front porch when she heard multiple shots and ran
inside with her son. When she looked out her front window, she saw a black Lexus
backing out of the street. A lighter-colored car left the area headed in the same direction
just before the black Lexus.
Police found 9-millimeter casings and .45-caliber casings at the scene. That day
there had been calls between the codefendants, but the calls stopped for a period of time.
There was evidence that the cell phones of defendant and some of the codefendants had
been at Strawberry Manor Park and near the apartment of one of the codefendants. Gi’s
phone had also been near the location of the shooting. A global positioning system
tracker that had been placed on Ackerson’s silver Lexus before the shooting indicated
that the Lexus had been at Strawberry Manor Park.
2
Around 14 minutes before the shooting, a police camera captured video footage of
Green-Geiger’s dark-colored Lexus at an intersection about three blocks away from the
shooting. In front of the dark-colored Lexus and traveling in the same direction was
Ackerson’s silver Lexus and Gi’s silver Chrysler 200. A private video camera close to
the shooting captured a silver Chrysler 200 about 20 seconds after the shooting, and a
dark-colored Lexus about 26 seconds after the shooting.
An expert on criminal street gangs in Sacramento testified that in his opinion,
defendant and the codefendants were members of subsets of the Oak Park Bloods
criminal street gang, one of two “primary gangs that are against each other in
Sacramento” under which “the other smaller gangs line up.” The expert explained to the
jury how, in numerous social media posts (some of which the jury saw), defendant and
the three codefendants displayed guns and gang signs, wore gang clothing, and made
gang-related comments. Some of the posts showed them together. For example, People’s
exhibit No. 92 was a photograph of all four men (and several others), and People’s
exhibit No. 97 was a photograph posted to Green-Geiger’s social media account that
showed defendant with Green-Geiger and Gi.
Over defense objections, the jury also saw two rap music videos in which
defendant and some of his codefendants appeared.
The expert said he believed the shooting victim was affiliated with a criminal
street gang that was with the main rival of the Oak Park Bloods. A detective had testified
earlier that the neighborhood where the shooting occurred was claimed by the rival gang.
After the prosecutor presented a hypothetical scenario that mirrored many of the
facts surrounding the shooting in this case (including the different subset gang
memberships of defendant and the codefendants, and that the hypothetical gang members
were all previously acquainted and traveling in a straight line in three separate cars), the
expert explained that a shooting of the rival gang member by the representatives of the
3
entire gang benefitted the gang that committed the shooting because they are taken
seriously.
Using CALCRIM No. 416, the trial court instructed the jury on uncharged
conspiracy as a theory of liability, identifying attempted murder as the substantive
offense that was the object of the conspiracy. The trial court explained: “The People
have presented evidence of a conspiracy. A member of a conspiracy is criminally
responsible for the acts or statements of any other member of the conspiracy done to help
accomplish the goal of the conspiracy. To prove the defendant is a member of a
conspiracy, the People must prove that [1] the defendant intended to agree and did agree
with one or more of the other defendants to commit the attempted murder. [2] [A]t the
time of the agreement, the defendant and one or more of the other alleged members of the
conspiracy intended that one or more of them would commit attempted murder. [3]
[O]ne of the defendants committed at least one of the following overt acts to accomplish
attempted murder: [a], drove from Strawberry Manor into Del Paso Heights, or, [b],
brought a loaded handgun into Del Paso Heights from Strawberry Manor, or, [3], shot
[M.G.], and, [4], at least one of these overt acts was committed in California.
“To decide whether a defendant or another member of the conspiracy committed
these overt acts, consider all of the evidence presented about the acts. [¶] To decide
whether a defendant and one or more of the other alleged members of the conspiracy
intended to commit attempted murder, please refer to the separate instructions that I will
give you on that crime. [¶] The People must prove that the members of the alleged
conspiracy had an agreement and specific intent to commit attempted murder. The
People do not have to prove that any of the members of the alleged conspiracy actually
met or came to a detailed or formal agreement to commit that crime. An agreement may
be inferred from conduct if you conclude that members of the alleged conspiracy acted
with a common purpose to commit the crime.”
4
The trial court instructed the jury on attempted murder using CALCRIM No. 600,
explaining: “The [d]efendants are charged in Count 1 with attempted murder. To prove
the defendant is guilty of attempted murder, the People must prove that [1] the defendant
took at least one direct but ineffective step toward killing [M.G.], and [2] the defendant
had the specific intent to kill [M.G.].”
The trial court and the parties had discussed potential jury instructions, including
CALCRIM No. 601 [willful, deliberate and premeditated attempted murder], before the
People rested. There was no objection to the trial court’s proposal to instruct the jury
with CALCRIM No. 601. Accordingly, the trial court instructed: “If you do find a
defendant guilty of attempted murder under Count 1, you must then decide whether the
People have proved the additional allegation that the attempted murder was done
willfully, and deliberately and with premeditation. [¶] The defendants acted willfully if
they intended to kill when they acted. The defendants . . . deliberated if they carefully
weighed the considerations for and against the choice and knowing the consequences
decided to kill. The [d]efendants acted with premeditation if they decided to kill before
completing the act of attempted murder.”
In closing argument, the prosecutor argued that the uncharged conspiracy was the
legal way to hold everybody accountable for their actions in this case. “These guys had
an agreement to do what they did. They all drove into a neighborhood together, and they
did what they did. It doesn’t matter . . . who was where or who did what, as long as one
of them did it, something in furtherance of the conspiracy, which is exactly what
happened.” The prosecutor further argued: “In this case what evidence do you have of
an attempted murder? These guys were in Strawberry Manor Park for an hour. . . . They
agreed to travel into rival gang territory to kill a rival gang member. . . . [¶] They tried.
Okay? This is your direct, but ineffective step. You can pick any number of steps in this
case. Driving there, bringing a gun, those are steps as well. They tried. Fourteen times
with two shooters.” The prosecutor added: “Members of a gang don’t travel into rival
5
gang territory, three-cars deep, multiple-guns deep, fire fourteen rounds at another
person, without trying to kill them.” “The ineffective step is that they failed. They don’t
get off the hook for trying to kill [the victim] just because they stink at shooting. . . . .
They failed to kill him, but they did hit him.”
A bit later, the prosecutor said: “This was an attempted murder. Don’t let
anybody else sell you anything else. [¶] . . . [¶] This is the allegation underneath the
attempted murder, that it was done with premeditation and deliberation, okay?”
Returning to the uncharged conspiracy, the prosecutor said: “In this case what you
have is a planned, conscious decision to hunt down rival gang members in the middle of
the day on October 20th of 2016. All members who decided to do this, everybody, are
liable for the shooter’s acts. Everybody is responsible in a conspiracy. [¶] These are the
requirements: Each defendant intended to agree and did agree to commit attempted
murder. . . . The defendant and at least one other intended that at least one member
would commit attempted murder. [¶] . . . [¶] At least one defendant did at least one of
these . . . overt acts . . . .”
Addressing the alleged agreement between the defendants, the prosecutor said:
“There needs to be an agreement to do this. How do you prove an agreement? . . . [¶]
Number one, proof of a physical meeting is not required, but you have it. . . . It is not
required, but you have it, at Strawberry Manor Park.” The prosecutor argued the reason
there were no cell phone calls between the codefendants for a certain period of time that
day was because they were meeting together. “These guys were calling each other
throughout the entire morning, and then the calls stopped for this period of time.” The
prosecutor argued “an agreement between these four defendants can be inferred from the
conduct itself of the conspirators. . . . Traveling together . . . after meeting in the Manors.
An agreement can be inferred from what they are doing.”
In defense counsel’s closing argument, counsel conceded that defendant was at the
park on the day of the shooting, but argued there was no evidence of a meeting there and
6
no evidence defendant was on High Street that day. Defense counsel added that although
there was evidence that defendant’s cell phone was on the street of a codefendant’s
apartment after the shooting, there was no evidence defendant was there and not just the
phone.
The jury found defendant and the codefendants guilty of attempted murder.
(Pen. Code, §§ 664, 187, subd. (a) -- count 1).1 As relevant here, the jury further found
(i) the attempted murder was done willfully and with deliberation and premeditation;
(ii) one of the principals personally used and personally discharged a firearm during
commission of the crime, causing great bodily injury (§§ 12022.53, subds. (b), (c), (d));
and (iii) defendant committed attempted murder for the benefit of, at the direction of or in
association with a criminal street gang with the specific intent to promote, further or
assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)).
The jury also found defendant guilty of being a felon in possession of a firearm
(§ 29800, subd. (a)(1)) and unlawful possession of ammunition (§ 30305, subd. (a)(1))
and found true the gang enhancement allegations associated with those offenses.
Defendant admitted a prior serious felony conviction under section 667. The trial court
sentenced defendant to a determinate term of 17 years four months in state prison, plus an
indeterminate term of 39 years to life for the attempted murder, consisting of 14 years to
life for the substantive offense (seven years to life doubled under the three strikes law)
(§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), plus 25 years to life for the firearm
enhancement under section 12022.53, subdivision (d).
1 Undesignated statutory references are to the Penal Code.
7
DISCUSSION
I
Defendant contends his conviction is based on an invalid theory of criminal
liability. Invoking this court’s decision in People v. Iniguez (2002) 96 Cal.App.4th 75,
79 (Iniguez), defendant argues there is no such thing as conspiracy to commit attempted
murder. He claims that because no other theory was presented at trial, his attempted
murder conviction must be reversed.
The People counter that the claim is forfeited because defendant did not raise it in
the trial court. We will address the merits of the contention, however, because a
contention of conviction on an invalid legal theory need not be preserved by objection in
order to be considered on appeal. (People v. Powell (2021) 63 Cal.App.5th 689, 710
(Powell); see People v. Valdez (2012) 55 Cal.4th 82, 151.)
In addition, the People argue Iniguez is distinguishable because here defendant
was not convicted of conspiracy, and any error was harmless because the jury found
defendant had the specific intent to commit a willful, deliberate, and premeditated
murder.
California Supreme Court decisions have “ ‘long and firmly established that an
uncharged conspiracy may properly be used to prove criminal liability for acts of a
coconspirator. [Citations.] “Failure to charge conspiracy as a separate offense does not
preclude the People from proving that those substantive offenses which are charged were
committed in furtherance of a criminal conspiracy [citation]; nor, it follows, does it
preclude the giving of jury instructions based on a conspiracy theory [citations].”
[Citation.]’ ” (People v. Valdez, supra, 55 Cal.4th at p. 150.)
In Iniguez, the defendant pleaded guilty to conspiracy to commit attempted
murder. (Iniguez, supra, 96 Cal.App.4th at pp. 77, 79) This court reversed the
conspiracy conviction because the target crime of the conspiracy, attempted murder,
required the specific intent to actually commit murder, but an agreement forming the
8
basis for the conspiracy to commit attempted murder would require agreement to an
ineffectual act. (Ibid.) Concluding that “[n]o one can simultaneously intend to do and
not do the same act,” the inconsistency in the required mental states made the purported
conspiracy to commit attempted murder a legal falsehood. (Ibid.)
Here, the trial court should not have instructed the jury on conspiracy to commit
attempted murder. But “ ‘[m]isdescription of an element of a charged offense is subject
to harmless error analysis and does not require reversal if the misdescription was
harmless beyond a reasonable doubt.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 69; see
People v. Aledamat (2019) 8 Cal.5th 1, 11-12 [if the trial court instructs the jury with
only an invalid theory of liability, harmless error review, under Chapman v. California
(1967) 386 U.S. 18 [17 L.Ed.2d 705], is appropriate].)
We agree with the People that in this case, Iniguez is inapposite and the trial
court’s instructional error was harmless. Unlike in Iniguez, here defendant was not
convicted of conspiracy to commit attempted murder. Rather, he was convicted of
attempted murder, and the jury found that he acted willfully and with deliberation and
premeditation. The actual conviction and findings are not based on an inconsistency in
the required mental state. And the conviction and findings are consistent with the focus
of the prosecutor’s closing argument that defendant and his codefendants made a plan to
travel into rival gang territory to kill a rival gang member. (Powell, supra, 63
Cal.App.5th at p. 715 [prosecutor did not rely on the invalid theory].) Under the
circumstances, the challenged instruction was harmless under Chapman. (Cf. Boyde v.
California (1990) 494 U.S. 370, 380-381 [108 L.Ed.2d 316][a commonsense
understanding of the instructions in the light of all that has taken place at the trial is likely
to prevail over technical hairsplitting].)
9
II
Defendant next contends the accusatory pleading did not allege willful, deliberate,
and premeditated attempted murder, and therefore it was improper for the trial court to
impose a sentence based on that finding.
The People agree the pleading did not allege premeditation and deliberation, but
they argue, among other things, that the error is harmless because defendant points to
nothing he would have done differently. We agree that the failure to allege willful,
deliberate, and premeditated attempted murder was harmless.
Section 664, subdivision (a), provides: “[I]f the crime attempted is willful,
deliberate, and premeditated murder, as defined in Section 189, the person guilty of that
attempt shall be punished by imprisonment in the state prison for life with the possibility
of parole. . . . The additional term provided in this section for attempted willful,
deliberate, and premeditated murder shall not be imposed unless the fact that the
attempted murder was willful, deliberate, and premeditated is charged in the accusatory
pleading and admitted or found to be true by the trier of fact.” (See generally People v.
Houston (2012) 54 Cal.4th 1186, 1226-1228 [considering a claim pursuant to § 664,
subd. (a)].) However, section 960 provides: “No accusatory pleading is insufficient, nor
can the trial, judgment, or other proceeding thereon be affected by reason of any defect or
imperfection in matter of form which does not prejudice a substantial right of the
defendant upon the merits.”
Here, whether the pleading error was harmless is a question of state statutory law.
(See §§ 664, subd. (a), 960; People v. Anderson (2020) 9 Cal.5th 946, 963 (Anderson)
[citing § 960 as the relevant statute for purposes of harmless error analysis]). Thus, we
apply the “reasonably probable” standard of People v. Watson (1956) 46 Cal.2d 818, 836,
and defendant bears the burden of showing that he would have acted differently had the
error not occurred. (People v. Sivongxxay (2017) 3 Cal.5th 151, 181.)
10
In Anderson, the California Supreme Court rejected the People’s harmless error
argument, explaining that when the defendant learned of the prosecutor’s actual
intentions regarding the enhancements midway through the sentencing hearing, it was too
late to consider the prosecution’s pretrial plea deal or reshape defendant’s trial strategy.
(Anderson, supra, 9 Cal.5th at p. 964.)
In this case, however, the trial court informed the parties, before the People rested,
that it planned to instruct on premeditation and deliberation. Defendant does not show
how he would have acted differently had there been a properly pleaded allegation of
premeditation and deliberation. Rather, defendant claims the People’s harmless error
argument is speculative. But because defendant bears the burden of showing that he
would have acted differently had the error not occurred , and he has not met that burden,
his claim fails. (People v. Thomas (1987) 43 Cal.3d 818, 826, 832 [even if the accusatory
pleading was defective, defendant has not demonstrated he was misled to his prejudice
and reversal is therefore inappropriate].)
III
In addition, defendant argues the two rap videos should not have been admitted
into evidence.
Invoking Evidence Code section 352, defendant sought to prevent admission at
trial of two rap videos in which he appeared. He argued the videos were cumulative of
other evidence and introduction of the videos would have a prejudicial effect because rap
music is disliked by so many people. The prosecutor countered that the videos were
probative as to the gang enhancement and defendant’s state of mind. The trial court
concluded the potential prejudice did not substantially outweigh the probative value of
the evidence.
The jury saw the rap videos, which had been on YouTube, when the gang expert
testified. The expert said there were many things about the videos that were important to
him in forming his opinions about the case, including the lyrics, visible tattoos, gang
11
signs, gang callouts, filming locations, and clothing. The expert identified Ackerson,
Green-Geiger, and defendant in the videos. Referring to the lyrics “N-words breaking the
code and they telling on they own, Blood,” the expert said the lyrics were talking about
snitching in the gang world. The expert continued, “If you saw in the video [defendant]
was pulling on [Green-Geiger’s] sweatshirt, as he is saying Gunnas at Play leave your ass
fucking smoked. [W]e all know what the term ‘smoked’ means. It means to kill
somebody.”
The expert further referenced lyrics about gang members riding around town four
deep with firearms, shooting in the neighborhood and at rival gang members, and the
ritualized candlelight mourning of killed gang members. The expert said defendant sang
about killing opposing gang members in Sacramento and a running scoreboard of killings
between defendant’s gang and a rival gang.
In addition, the expert referenced the following lyrics: “Fuck the world, you fuck
with them, you N-words going to be ducking with them. Your bitches get hit too. Fair
game if you fucking with them.” The expert said defendant was saying, “fuck Del Paso
Heights, and if you are with a gang member from Del Paso Heights or you are anywhere
around a gang member, it doesn’t matter if you are a female, you are going to get shot at
too.” The expert said the rap videos were made to disrespect rival gangs, not for
entertainment purposes.
The trial court instructed the jurors they could consider evidence of gang activity
only to decide whether the defendant acted with the intent, purpose and knowledge
required to prove the gang-related crimes and enhancements charged, or to decide that
defendant had a motive to commit the crimes charged.
“Evidence Code section 352 provides the trial court with discretion to exclude
otherwise relevant evidence if its probative value is substantially outweighed by the
probability that admitting the evidence will unduly prolong the proceeding, prejudice the
opposing party, confuse the issues, or mislead the jury. [Citation.] ‘We apply the
12
deferential abuse of discretion standard when reviewing a trial court’s ruling under
Evidence Code section 352. [Citation.] . . . [For purposes of the statute,] “prejudicial” is
not synonymous with “damaging,” but refers instead to evidence that “ ‘uniquely tends to
evoke an emotional bias against defendant’ ” without regard to its relevance on material
issues. [Citations.]’ [Citation].” (People v. Zepeda (2008) 167 Cal.App.4th 25, 34-35
(Zepeda).)
“ ‘Gang evidence is admissible if it is logically relevant to some material issue in
the case other than character evidence, is not more prejudicial than probative, and is not
cumulative. [Citations.] . . . [¶] However, gang evidence is inadmissible if introduced
only to “show a defendant’s criminal disposition or bad character as a means of creating
an inference the defendant committed the charged offense. [Citations.]” [Citations.] . . .
Even if gang evidence is relevant, it may have a highly inflammatory impact on the jury.
Thus, “trial courts should carefully scrutinize such evidence before admitting it.” ’ ”
(People v. Coneal (2019) 41 Cal.App.5th 951, 964 (Coneal).)
In Zepeda, a jury convicted the defendant of murdering two members of a rival
gang, and found true gang enhancement allegations. The trial court allowed the
prosecution to play for the jury two tracks from a rap CD the defendant had written.
Citing People v. Olguin (1994) 31 Cal.App.4th 1355, this court concluded the lyrics were
“probative of defendant’s state of mind and criminal intent, as well as his membership in
a criminal gang and his loyalty to it. The songs showed that defendant’s gang had the
motive and intent to kill [rival gang members]. This evidence, although anticipatory, was
explicitly relevant to the charges against defendant.” (Zepeda, supra, 167 Cal.App.4th at
p. 35.) This court added: “While lyrics and poems do not often establish their author’s
true state of mind . . . , the gang expert here testified that gangs communicate through
music. Defendant’s communications here were not ambiguous or equivocal. These
lyrics, coupled with the other evidence of defendant’s gang membership and his
animosity towards [a rival gang], go beyond mere fiction to disclosing defendant’s state
13
of mind, his motives and intentions, and his fealty to furthering his criminal gang’s
activities.” (Zepeda, supra, 167 Cal.App.4th at p. 35.)
In Coneal, rap videos of the defendant and/or members of his gang were played
for the jury in a murder trial. (Coneal, supra, 41 Cal.App.5th at pp. 953, 960-963) The
appellate court ruled the trial court abused its discretion under Evidence Code section 352
by admitting the videos, although the error was harmless. (Coneal, at p. 972-973.)
Admission of the videos was improper because other evidence rendered the probative
value of the videos minimal (id. at pp. 967-968), and the videos painted a picture of
defendant that posed a significant danger of undue prejudice (id. at pp. 970-971). But the
court said song lyrics, with sufficient corroboration from other evidence, might have
probative value for purposes of proving a defendant’s motive. (Id. at p. 969.) Citing
Coneal, defendant argues admission of the two rap videos at his trial was contrary to
Evidence Code section 352 because the videos painted a picture of him eagerly seeking
violence.
We conclude the trial court did not abuse its discretion in admitting the videos. As
in Zepeda, the gang expert here testified that defendant’s gang was communicating with
its rival gang through the rap videos posted on YouTube, which were made to disrespect
rival gangs. The videos were probative of defendant’s mental state and motive. And the
trial court provided a limiting instruction to the jurors, which ameliorated undue
prejudice.
Under the abuse of discretion standard, we must not reverse a decision merely
because reasonable people might disagree with the balance the trial court struck after
conducting an Evidence Code section 352 analysis. Defendant’s Evidence Code
section 352 claim lacks merit. And because the statutory claim fails, so does defendant’s
undeveloped constitutional claim. (See People v. Falsetta (1999) 21 Cal.4th 903, 910,
917.)
14
IV
Moreover, defendant claims the trial court improperly denied a defense request to
instruct the jury on a lesser-included offense.2 Defendant asked the trial court to instruct
on assault with a deadly weapon. (§ 245, subd. (a)(1).) The prosecutor objected, and the
trial court denied the request, citing People v. Nelson (2011) 51 Cal.4th 198, 215 (Nelson)
[assault with a deadly weapon is not a lesser included offense of attempted murder, but
rather a lesser related offense]. Defendant says he is asserting this contention on appeal
to give the California Supreme Court the opportunity to reconsider its position, and to
preserve this issue for review in federal court.
“ ‘ “The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request.” [Citations.] “That obligation encompasses instructions on lesser included
offenses if there is evidence that, if accepted by the trier of fact, would absolve the
defendant of guilt of the greater offense but not of the lesser.” ’ ” (People v. Whalen
(2013) 56 Cal.4th 1, 68.) But if, as here, the prosecutor does not consent, “a court has no
obligation to instruct on lesser related offenses, which are not necessarily included in a
charged crime.” (People v. Wolfe (2018) 20 Cal.App.5th 673, 684, italics omitted.)
A lesser offense is necessarily included in a greater offense if either the statutory
elements of the greater offense, or the facts actually alleged in the accusatory pleading,
include all the elements of the lesser offense, such that the greater cannot be committed
without also committing the lesser. (People v. Smith (2013) 57 Cal.4th 232, 240.)
2 Defendant seeks to join and adopt by reference arguments made by codefendant Gi.
But to the extent defendant’s contentions are made solely by joinder to Gi’s opening
brief, we treat them as forfeited, as they do not satisfy defendant’s obligation to provide
particularized argument demonstrating error and prejudice.
15
Defendant does not argue that facts alleged in the accusatory pleading included all
the elements of assault with a deadly weapon. And the statutory elements of attempted
murder do not include all the elements of assault with a deadly weapon, as attempted
murder can be committed without using a deadly weapon. (See Nelson, supra, 51 Cal.4th
at p. 215.) We must follow the California Supreme Court’s holdings. (Auto Equity Sales,
Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, the claim lacks merit
under Nelson.
V
In supplemental briefing, defendant asserts we must reverse the gang-related
enhancement in light of recent statutory changes made by Assembly Bill No. 333 (2021-
2022 Reg. Sess.), which became effective while this appeal was pending.
The People agree that defendant is entitled to the ameliorative effects of Assembly
Bill No. 333’s amendments to section 186.22. But they argue remand is unnecessary
because, given the overwhelming evidence in the record, it is beyond a reasonable doubt
that the jury would have found true the enhancement allegations under the Assembly Bill
No. 333 amendments.
We agree with the parties that Assembly Bill No. 333’s ameliorative amendments
to section 186.22 apply retroactively to defendant because his judgment is not final. (See
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308 [discussing In re Estrada
(1965) 63 Cal.2d 740]; People v. Nasalga (1996) 12 Cal.4th 784, 792 [“The rule in
Estrada has been applied to statutes governing penalty enhancements, as well as to
statutes governing substantive offenses”].)
And following People v. Lopez (2021) 73 Cal.App.5th 327 (Lopez), we conclude
the gang enhancement allegations must be vacated and the matter remanded. (Id. at p.
343.)
In this case, the prosecution’s gang expert testified that reputation is very
important to a gang because it forces respect through fear and intimidation. The expert
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also testified to specific prior convictions of gang members from defendant’s gang for
crimes listed in Penal Code section 186.22, subdivision (e), including unlawful firearm
possession and carrying a concealed firearm.
The trial court instructed the jurors: “If you find the [d]efendants guilty of the
crimes charged . . . , you must then decide whether for each crime the People have proved
the additional allegation that the [d]efendant committed the crime for the benefit of, at the
direction of, or in association with a criminal street gang. . . . [¶] . . . [¶] A criminal
street gang is any ongoing organization, association, or group of three or more persons”
“whose members . . . engage or have engaged in a pattern of criminal gang activity.”
Effective January 1, 2022, Assembly Bill No. 333 altered the requirements for
proving the pattern of criminal gang activity necessary to establish the existence of a
criminal street gang. Among other things, the common benefit of the predicate offenses
must be more than reputational. (Assem. Bill No. 333, § 3; amended § 186.22,
subd. (e)(1), eff. Jan. 1, 2022.) (Lopez, supra, 73 Cal.App.5th at p. 345.)
Here, the trial took place before section 186.22 was amended, and the jury was not
asked to, and did not, make the factual determinations now required by the amendments.
(Lopez, supra, 73 Cal.App.5th at p. 346.) On this record, we cannot say that the jury
would have found that the common benefit of the predicate offenses was more than
reputational. (Cf. Ibid.)
The gang-related enhancement findings must be vacated and the matter remanded
to give the People the opportunity to prove the applicability of the enhancements under
the amendments to section 186.22. (Lopez, supra, 73 Cal.App.5th at p. 346; see People
v. Figueroa (1993) 20 Cal.App.4th 65, 71-72 & fn. 2 [remand is appropriate to allow the
prosecution to establish the additional element retroactively added by statutory
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amendment; there is no violation of the double jeopardy clause or constitutional
restrictions against ex post facto legislation].)3
DISPOSITION
The convictions are affirmed. The gang enhancement allegation findings under
section 186.22 are vacated, and the matter is remanded to the trial court to (1) give the
prosecution an opportunity to retry the section 186.22 enhancements under the law as
amended by Assembly Bill No. 333; and (2) resentence defendant as appropriate.
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
HOCH, J.
3 On April 14, 2022, defendant moved to join in an argument regarding section 1109 in
codefendant Ackerson’s second supplemental opening brief in case No. C090994. And
on June 16, 2022, defendant moved to join in an argument regarding section 1109 in
codefendant Gi’s supplemental reply brief in case No. C090994. Assembly Bill No. 333
added section 1109, which mandates a separate trial of a section 186.22, subdivision (b)
gang enhancement allegation if requested by the defense. (Stats. 2021, ch. 699, § 5
[§ 1190, subd. (a]).) Because we have determined the gang enhancement findings must
be vacated, we deny defendant’s motions as moot.
18