People v. James CA4/2 ( 2023 )

Filed 3/21/23 P. v. James CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E077486
v. (Super.Ct.No. RIF1606009)
ANTOINE DESHAWN JAMES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed in part, vacated in part, and remanded with directions.
Richard A. Levy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, and Lynne G.
McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
1
Antoine Deshawn James and two others, Anthony Eddington and Abiance Turner,
were involved in a shooting that left two men dead and a third seriously wounded. At
James’s first trial, the jury convicted him of attempted premeditated murder, active
participation in a criminal street gang, and possession of a firearm by a felon. (Pen.
Code, §§ 186.22, subd. (a), 187, subd. (a), 664, 29800, subd. (a)(1); unlabeled statutory
citations refer to the Penal Code.) The jury deadlocked on two murder counts, and the
trial court declared a mistrial on those counts. After a retrial on the murder counts, a
second jury convicted James of two counts of first degree premeditated murder. (§§ 187,
subd. (a), 189, subd. (a).) Both juries also returned true findings on several gang, firearm,
and great bodily injury enhancements. (§§ 186.22, subd. (b)(1)(C), 12022.7, subd. (a),
12022.53, subd. (d), (e)(1).)
On appeal, James argues: (1) The record does not contain substantial evidence
that he aided and abetted the two murders; (2) the record does not contain substantial
evidence that he acted with premeditation and deliberation; (3) the trial court erred in the
first trial by refusing to discharge a sitting juror who knew the attempted murder victim;
(4) the courts erred in both trials by admitting speculative testimony from James’s former
partner; (5) the courts erred in both trials by admitting evidence of uncharged prior
shootings; (6) Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Assembly Bill 333)
requires us to reverse his conviction on the gang offense and the true findings on the
gang-related enhancements; (7) the evidence of the gang’s primary activities was
insufficient; (8) the court erred by failing to stay his sentence on the great bodily injury
2
enhancements; and (9) we should remand for the court to exercise its discretion under
recently amended section 654.
For the most part, we reject those challenges. We agree that Assembly Bill 333
requires us to vacate James’s conviction on the gang offense and the true findings on the
gang-related enhancements, and we remand for further proceedings. We also direct the
court to stay James’s sentence on the great bodily injury enhancement. On remand,
James may ask the trial court to exercise its newly granted discretion under section 654.
We otherwise affirm the judgment.
BACKGROUND 1
I. The Shooting
The shooting at issue occurred in October 2015 outside a liquor store on the corner
of Kansas Avenue and Seventh Street in Riverside. Surveillance video from multiple
angles depicted the following events: At approximately 9:33 p.m., Francisco Ramirez
was standing on the corner outside the store, talking on a cell phone. Two northbound
cars on Kansas Avenue stopped at that intersection and turned left onto westbound
Seventh Street. Eddington was driving the lead car, and James was a passenger in that
car. Turner was driving the second car.2
1 As the parties acknowledge in their briefing, James’s two trials involved
substantially the same evidence. To the extent that there were material differences in the
evidence, we note them.
2 The identities of the drivers and shooters is not evident from the surveillance video
alone. But on appeal neither party disputes that Eddington was driving the lead car and
was a shooter, and James concedes for purposes of his substantial evidence challenges
3
Eddington pulled over to the right on Seventh Street, and James exited the car.
Turner passed Eddington, made a u-turn, and pulled over on the opposite side of Seventh
Street from Eddington’s car. James walked east toward the corner where Ramirez was
standing. Turner turned off her headlights and drove forward slowly, following James
from across the street.
In the meantime, Esteban Domingo and Juan Bartolo were on Kansas Avenue
walking south toward Ramirez.3 They turned right at the corner onto Seventh Street. As
they walked west away from Ramirez, James walked in between them heading toward
Ramirez. James walked a few steps past Ramirez, turned around, and came up behind
Ramirez. He appeared to say something to Ramirez, who tried to walk away. James took
his right hand out of his sweatshirt pocket, put it to Ramirez’s head, and shot Ramirez.
Bartolo and Domingo turned around to look behind them. James jogged toward
them and Eddington’s car, which was still parked on the north side of Seventh Street. As
Bartolo and Domingo moved apart to let James through, Eddington exited his car. James
jogged between Bartolo and Domingo, and Eddington then fired at the two men. They
that he was the passenger in the lead car and was also a shooter. In addition, neither party
disputes on appeal that Turner was driving the second car. After describing the shooting,
we summarize the evidence establishing James’s identity.
In James’s first trial, James and Turner were tried jointly but before separate
juries. We decided Turner’s appeal from the judgment in June 2022. (People v. Turner
(June 20, 2022, E075454) [nonpub. opn.].) Our opinion in Turner’s appeal discussed the
evidence at the first trial establishing Turner’s identity and role as the second driver.
3 In the record, Domingo is also referred to by other names, such as Antonio Jose
Domingo and Domingo Esteban.
4
both fell to the ground. James and Eddington quickly got into the car, made a u-turn, and
drove off. Turner was at the corner of Kansas Avenue and Seventh Street, made a u-turn,
and then made another u-turn to follow Eddington’s car away from the scene.
Bartolo and Domingo died from their gunshot wounds. Ramirez survived the
shooting but was unconscious for over a week. He testified at the first trial but not at the
second trial. He said that when he awoke in the hospital, he gave a written statement
about the shooting to the police. In the written statement, Ramirez said that a Black man
threatened to kill him if he did not give the man money. When testifying, Ramirez could
not remember any other details about the shooting, and he did not identify James as the
shooter.
II. The Investigation
A forensic specialist found .40-caliber cartridge casings in the area where
Eddington fired on Bartolo and Domingo. The specialist also found a nine-millimeter
casing near the corner where James shot Ramirez.
Law enforcement analyzed the call detail records for James’s and Eddington’s cell
phones on the night of the shooting. About 30 minutes before the shooting, at 9:05 p.m.,
James’s cell phone connected to a cell tower roughly 11 blocks from the crime scene.
The next activity on his phone occurred at 9:46 p.m., shortly after the shooting. His
phone connected to another tower near the crime scene. That tower provided coverage at
the crime scene and the surrounding area. At 8:44 p.m., Eddington’s phone connected to
a tower that was approximately six and one-half blocks from the crime scene. The next
activity on his phone that night occurred at 10:22 p.m., well after the shooting.
5
In 2016, law enforcement had wiretaps on James’s and Eddington’s cell phones
and conducted a number of interviews to stimulate wire conversations. To start, officers
interviewed Kayliegh Gallegos in late August 2016. Gallegos is James’s former
girlfriend and the mother of his child. The officers showed her surveillance video of the
shooting.
Right after the interview, Gallegos called James. She told James: “[T]hey have
surveillance of you, Antoine.” James asked what she meant, and she replied: “They
show—he even showed me surveillance tapes of you—of—of someone who—with—
who looks just like you.” Gallegos further explained: “[F]rom a glimpse, it looks just
like you, but I can—I know it wasn’t you.” She said that she told the officers the man in
the surveillance video was not James. He asked what the officers said and if he had to
turn himself in. Gallegos replied that they were “not saying nothing” and that they were
still investigating. During the call, Gallegos did not mention the location of the shooting
or Kansas Avenue.
James called T.W. Smith after talking to Gallegos. James and Smith belonged to
the same gang, the 1200 Blocc Crips. (We discuss the gang evidence in the following
subpart.) James said that the officers showed Gallegos “the video of that shit on the
corner of Kansas.” James asked Smith if he knew anyone who could get a false ID and
indicated that he was thinking about fleeing.
Shortly after the call with Smith, James called Gallegos. They discussed the video
again. Gallegos said that “at first glance,” the man looked “just like” James, but she
knew that it was not him. He asked how she knew it was not him and if there was
6
something she could “recognize off top” to show that it was not him. Gallegos said that
the man looked like “the one with the twin,” who looked just like James. James asked if
she saw “the tattoos on the eyes.” (James has “12” tattooed under one eye and “00”
tattooed under the other.) Gallegos responded that she could not see the man’s eyes. She
also said that the man did not walk like James, and James did not have a jacket like the
man’s.
According to Gallegos’s trial testimony, she did not recognize anyone in the
surveillance video, and she told the officers that the man in the video did not resemble
James. She was not “in the right state of mind” when she called James after the law
enforcement interview, because she was addicted to methamphetamine at the time. She
told him that the officers had surveillance video of him because that is what they told her,
but she did not believe that it was him in the video. She did not know that her phone
calls with James were being recorded.
Gallegos further testified that she was shocked and concerned when the officers
came to her home. She was worried about James because they had a child together, she
cared about him, and she did not want something bad to happen to him. Even if she had
recognized James in the video, she probably would not have said that it looked like him,
because she did not want anything to happen to him.
After James’s second call with Gallegos, James and Smith spoke on the phone
again. James told Smith what Gallegos had said about the video. Smith said that
somebody had “loose lips” and “they [were] building,” but nothing “concrete” was
7
“going on.” Smith added that “the snitches have said what they had to say already.”
James again indicated that he was thinking about fleeing.
In early September 2016, the Riverside Police Department updated its social
media pages with photographs and surveillance video from the shooting, and the
department asked for the public’s help in solving the crime. The social media posts also
described one of the involved cars as dark-colored and similar to a Dodge Charger.
James called Eddington on the day of the social media postings. James said that
someone was “bumping their gums” and referred to “the three-banger.” He also said: “I
know they’re coming. Sooner or later, they’re coming, bro.” Eddington advised James
to “have that alibi ready.” James asked Eddington to “look on that—that get-down” to
see if “the marks on . . . the eyes” were visible. Eddington assured him: “No, you don’t
see, bro. I looked at it ev—it’s too blurry.” Eddington said that James only had to worry
about someone “bumping his gums and saying, ‘It was Antoine.’” James replied that
nobody could say that “but those people.”
Two days later, officers interviewed Turner and her mother. Turner’s mother
called James afterward. Soon after that call, James called Eddington twice. In the first
call, James urged Eddington to get rid of his car and said that “[t]hey went and hollered
at” Turner and her mother. Eddington replied that law enforcement was looking for a
Dodge Charger, and his car was not a Charger. (Eddington owned a Chevy Malibu.)
James persisted and suggested that Eddington paint the car. In the second call, Eddington
suggested that he get into a car accident to dispose of his car. They also discussed the
video that had been posted online, and Eddington was “laughing to [him]self” because
8
there was “no way” anyone could be identified in the video. Eddington stated that there
was “only one person there that could have said . . . anything.” James agreed and said
that the person “don’t talk.” James also told Eddington that it was good Turner’s mother
had talked to the officers, because she relayed a conversation to him that “opened up a lot
of shit.” James said that he was worried.
In September 2016, officers also interviewed Antoine Cross, another of James’s
fellow gang members. Cross went by the moniker Baby Gunz or BG. After that
interview, Eddington called James. Eddington said that officers had talked to BG.
According to BG, the officers knew Eddington’s name, and somebody was “singing.”
Eddington said that no one could “point a finger” other than “our circle.” James advised
him to be prepared. Eddington responded that he was “trying to figure something” out
and that he had already talked to his mother. That same day, law enforcement installed a
tracker on Eddington’s car.
Several days later, law enforcement interviewed Turner’s mother again. James
and Eddington talked yet again that day. James indicated that the officer and Turner’s
mother “spoke on a black vehicle.” Eddington replied: “[I]t’s already about to be gone.
Don’t trip.” The next day, the tracker on Eddington’s car showed that the car moved to a
hospital parking lot, where it remained for several days. The car then moved to a location
2.5 hours away. The tracker’s battery died at some point after that, so law enforcement
lost track of the car.
In December 2016, Eddington died in a shootout with law enforcement officers
who were attempting to serve a warrant for his arrest.
9
III. Gang Evidence
Detective David Riedeman of the Riverside Police Department testified as the
People’s gang expert. Riedeman started working for the department in 2000 as a patrol
officer. He began talking to gang members while working patrol, and he first became
familiar with the 1200 Blocc Crips when he patrolled the gang’s territory. He was
eventually promoted to a detective in the gang unit, where he worked in 2015. The gang
unit covered all of the gangs in Riverside.
Patrol officers frequently informed the gang unit about what was happening on the
streets. The patrol officers also sent the gang unit reports of crimes that the officers
believed were gang related. Each of the six detectives in the gang unit, including
Riedeman, reviewed all of those reports. As a group, the gang unit determined whether
to seek gang charges or gang enhancements in connection with the crime reports. Also,
the detectives in the robbery/homicide unit frequently called on the gang unit for
assistance.
Riedeman developed reliable confidential informants while in the gang unit. The
informants were active associates or gang members who provided the unit with
information, typically in exchange for money. He also listened to phone calls of
suspected gang members, recorded by wiretap or while the suspects were in jail. The
detectives in the gang unit “were a very tight team.” They shared the intelligence that
they gathered from informants and recorded calls.
Riedeman opined that James and Eddington were members of the 1200 Blocc
Crips gang and that Turner was an associate of the gang. The 1200 Blocc Crips are a
10
predominantly Black gang whose territory is on the east side of Riverside. In 2015, there
were 150 documented members of the gang. The gang’s primary criminal activities were
sales of narcotics, violent assaults, and possession of firearms. Riedeman identified four
“predicate offenses” for which 1200 Blocc Crips members were convicted—a multiple
murder in 2008, an attempted murder in 2009, and two cases of felon in possession of a
firearm in 2012.
The Bogarts were a “squad” of the 1200 Blocc Crips. A squad is a group of
people within the gang who work together and “do[] their own thing.” James was the
leader of the Bogart squad. In an April 2015 video found on James’s phone, James
identified himself as the “General” of the squad. Members of the squad referred to each
other as “Bogart.” Eddington’s moniker was Neff Bogart, and Turner’s moniker was
Princess Bogart.
Law enforcement downloaded a copy of James’s cell phone in July 2015. In May
2015, Eddington sent James a text message stating: “Bogart please keep my engine wit
you when you leave out here leave it wit twin no one else please.” 4 Riedeman opined
that “engine” meant a firearm. He explained that gang members rarely referred to
weapons by their true names and instead used “different terms” to refer to them.
Eddington also texted James in June 2015 and asked James to get his “clip” from another
1200 Blocc Crips member. A few days later, Eddington texted again, asking if James had
4 We quote James’s text messages as they appear in the record, including any
typographical errors.
11
talked to their fellow gang member, because Eddington “need[ed] that oil pan foe the
engine.” Riedeman opined that “clip” and “oil pan” referred to a magazine for a firearm.
East Side Riva, a Hispanic gang, is a rival of the 1200 Blocc Crips. The two gangs
claim the same general territory, but each gang has its own strongholds in the area. The
shooting in this case occurred at an East Side Riva stronghold.
The rivalry between the 1200 Blocc Crips and East Side Riva dated back to a
conflict in the early 1990’s. The violence between the gangs escalated over the years
from assaults or fights to shootings and killings. By 2015, East Side Riva was assaulting
random Black men in 1200 Blocc Crips’ territory, even if those men were not gang
members. The 1200 Blocc Crips were also assaulting and killing random Hispanic men.
Riedeman opined that a 1200 Blocc Crips member would earn respect within the gang for
killing a Hispanic male, even if the victim were not a gang member. (There was no
evidence that the three victims in this case were gang members.) The killing would also
benefit the gang by strengthening its violent reputation and inspiring fear in the
community. In response to a hypothetical question mirroring the facts of this case,
Riedeman opined that the shooting was committed for the benefit of a criminal street
gang.
Riedeman testified that gang members are always watching each other’s backs and
that they are expected to back each other up when violence erupts. If a person failed to
back up a fellow gang member, that person would lose respect within the gang, and the
gang could discipline that person by administering a “beatdown.”
12
IV. Evidence of Prior Shootings
At the first trial, the People introduced evidence of three prior shootings. The
People introduced evidence of only two of those shootings at the second trial.
A. Santa Ana Shooting (First and Second Trial)
On April 27, 2015, a 1200 Blocc Crips member performed at a concert venue in
Santa Ana. Several hundred people were at the venue, including numerous 1200 Blocc
Crips members. Officers responded to a call about multiple fights at the location. A few
minutes after the officers arrived at 10:34 p.m., they heard approximately 15 gunshots
coming from an overflow parking lot. Four nine-millimeter shell casings found at that
parking lot were fired from the same gun that shot Ramirez.
James’s text messages showed him making plans to attend the concert in Santa
Ana. His cell phone contained a video file recorded on April 27, 2015, at 10:43 p.m.
The video depicted only a black screen, as though the camera lens were covered, but the
phone also recorded audio. In the 12-second recording, a man could be heard referring to
people “coming our way,” and then another man referred to the people being “right
there.” The men used racial and homophobic slurs to refer to the people who were
approaching. One second after that, six gunshots rang out.
James received a text message at 11:11 p.m. that night, stating: “Just left. Okay
for you you to leave. Cops posted out front. People leavingouttheback.” James replied:
“I’m outta there bloec.”
13
B. Vermont Street Shooting (First and Second Trial)
Approximately three hours after the Santa Ana shooting, at roughly 1:44 a.m. on
April 28, 2015, a shooting occurred at Vermont Street and Eucalyptus Avenue in
Riverside. That intersection is a stronghold of the 1200 Blocc Crips. Officers found 12
nine-millimeter shell casings at the scene and 11 other casings. Three of the nine-
millimeter casings were fired from the same gun that shot Ramirez.
At 1:57 a.m. on April 28, 2015, James received a text message asking where he
was. James responded: “‘On the V.’” The 1200 Blocc Crips referred to Vermont Street
as “the V.”
Willie Meadows is James’s cousin and an inactive 1200 Blocc Crips member. The
People and James stipulated that Meadows was present during the April 28 shooting on
Vermont Street. They also stipulated that James admitted to being with Meadows on the
night of the shooting. James was never arrested in connection with the Vermont Street
shooting.
C. Twelfth Street Shooting (First Trial Only)
A shooting occurred on July 17, 2015, at around 12:26 a.m., near Twelfth Street
and Kansas Avenue in Riverside. The victim of the shooting died from multiple gunshot
wounds.
Law enforcement interviewed James about the shooting, but he was never arrested
for the victim’s murder. James said that on July 17, 2015, he was in Victorville with
Gallegos. However, call detail records for his cell phone showed that he was in Moreno
Valley on July 17. More specifically, seven minutes after the shooting, his phone
14
connected to a cell tower in Moreno Valley. A few minutes after that, his phone
connected to a tower near his Moreno Valley home.
Turner’s mother and James exchanged text messages between 12:38 a.m. and
12:54 a.m. on July 17. She had heard about shots at “‘12 & Kansas’” where “‘a Mexican
was hit.’” James said that he was not ‘“out that way.”’
A few hours later, at 3:07 a.m., James received a text message from another sender
stating: “‘Cuz all tools are accounted for. East Cyde Bro.’” James and Eddington
exchanged text messages later that morning, starting at 7:04 a.m. Eddington texted
James: “‘Better thank God you didn’t use your Weed Eater chyt would of blew up.’”
Eddington also mentioned the weed eater being rusted and the “‘Batteries’” on the
“‘beam’” being dead. Eddington then texted: “‘Haha so my Weed Eater cut grass good
huh.’” James replied: “‘Yessssir.’” The lead investigator was interested in those text
messages because James and Eddington appeared to be talking in code about something
other than weed eaters.
V. Relevant Procedural Background
The People charged James with five offenses: the murders of Bartolo and
Domingo, the attempted premeditated murder of Ramirez, active participation in a
criminal street gang, and possession of a firearm by a felon. (§§ 186.22, subd. (a), 187,
subd. (a), 189, subd. (a), 664, 29800, subd. (a)(1).) In connection with the murder counts,
the information also alleged that James committed multiple murders (multiple murder
special circumstance); that Bartolo and Domingo were intentionally killed because of
their race, color, religion, or national origin (hate crime special circumstance); and that
15
they were intentionally killed while James was an active participant in a criminal street
gang (gang special circumstance). (§ 190.2, subd. (a)(3), (a)(16), (a)(22).) In addition,
the information alleged gang and firearm enhancements with the murder and attempted
murder counts and an enhancement for great bodily injury with the attempted murder
count. (§§ 186.22, subd. (b)(1)(C), 12022.53, subds. (d), (e), 12022.7, subd. (a).)
Finally, the information alleged that James had served one prior prison term, had three
prior serious felony convictions, and had three prior strike convictions. (§§ 667, subds.
(a), (c), (e)(2)(A), 667.5, subd. (b), 1170.12, subd. (c)(2)(A).)
The jury at James’s first trial in 2019 convicted him of the attempted premeditated
murder of Ramirez, active participation in a criminal street gang, and possession of a
firearm by a felon, but the jury deadlocked on the murder counts. That first jury also
found true the gang, firearm, and great bodily injury enhancements attached to the
attempted murder count.
Before the second trial, the trial court granted the People’s motion to dismiss the
hate crime special circumstance allegations. The jury at the second trial in 2021
convicted James of the first degree premeditated murders of Bartolo and Domingo. It
also found true the gang and firearm enhancements attached to the murder counts. But
the jury found not true the multiple murder and gang special circumstance allegations.
The court granted the People’s motions to strike or dismiss the prior prison term
allegation, one of the prior strike allegations, and one of the prior serious felony
allegations. James admitted the remaining two prior strikes and two prior serious felony
16
convictions. The court sentenced him to a total indeterminate sentence of 250 years to
life in prison, plus a total determinate sentence of 13 years in prison.
DISCUSSION
I. Substantial Evidence Challenges to the Murder Convictions
With respect to the charged murders of Bartolo and Domingo, the trial court
instructed the jury on a single theory of accomplice liability: direct aiding and abetting.
The court also instructed the jury on a single theory of first degree murder: premeditated
murder. James argues that the record does not contain substantial evidence showing that
he aided and abetted the murders or that he acted with premeditation. We disagree on
both counts.
A. Standard of Review
In resolving a substantial evidence claim, we review “the entire record in the light
most favorable to the prosecution to determine whether it contains evidence that is
reasonable, credible, and of solid value, from which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th 1100,
1128.) We resolve all conflicts in the evidence and credibility questions in favor of the
verdict. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) We do not reweigh the
evidence or reevaluate witness credibility. (People v. Nelson (2011) 51 Cal.4th 198, 210,
fn. 5.) “The same standard governs in cases where the prosecution relies primarily on
circumstantial evidence. [Citation.] We ‘must accept logical inferences that the jury
might have drawn from the circumstantial evidence.’” (Zamudio, supra, at p. 357.)
“‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but
17
circumstantial evidence is as sufficient as direct evidence to support a conviction.’”
(People v. Nguyen (2015) 61 Cal.4th 1015, 1055 (Nguyen).)
B. Aiding and Abetting
A person directly “‘aids and abets the commission of a crime when he or she,
acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or
purpose of committing, encouraging, or facilitating the commission of the offense, (3) by
act or advice aids, promotes, encourages or instigates, the commission of the crime.’”
(People v. Marshall (1997) 15 Cal.4th 1, 40.) “‘Among the factors which may be
considered in making the determination of aiding and abetting are: presence at the scene
of the crime, companionship, and conduct before and after the offense.’” (Nguyen, supra,61 Cal.4th at p. 1054.)
The direct “aider and abettor’s mental state must be at least that required of the
direct perpetrator.” (People v. McCoy (2001) 25 Cal.4th 1111, 1118.) In the case of
murder, the accomplice must “know [of] and share the murderous intent of the actual
perpetrator.” (Ibid.) And in an express malice case like this one, the accomplice must act
with intent to kill. (§ 188, subd. (a)(1); People v. Swain (1996) 12 Cal.4th 593, 601
[“unlawful ‘intent to kill’ is the functional equivalent of express malice”].)
James argues that there is no evidence that he (1) knew Eddington intended to kill
Bartolo and Domingo, (2) shared that intent, or (3) did something to aid, promote,
encourage, or instigate the murders. But viewing the evidence in the light most favorable
to the judgment, the record contains substantial evidence of all three elements.
18
The evidence showed that James and Eddington were members of the 1200 Blocc
Crips, James was the leader of a squad within the gang, and Eddington was a member of
that squad. The 1200 Blocc Crips had a longstanding rivalry with a Hispanic gang, East
Side Riva. That rivalry had escalated over the years to the point that by 2015, the year of
the charged offenses, members of the 1200 Blocc Crips were assaulting and killing
random Hispanic men. The evidence also showed that gang members were expected to
back each other up when violence occurs.
Against that backdrop, James and Eddington armed themselves with guns and
drove to an East Side Riva stronghold, where James got out of the car. Turner, an
associate, followed them in a second car. She appeared to be acting as a lookout. She
pulled over across the street from Eddington’s car, and when James exited the car, she
turned off her headlights and followed James slowly. James walked down the street,
crossing paths with Bartolo and Domingo. In the video, James appeared to be one foot or
so away from each victim when he walked in between them. James then briefly
interacted with Ramirez before shooting him in the head. Eddington got out of the car as
James was running back to the car, waited for James to pass between Bartolo and
Domingo, and then shot the two men. James and Eddington quickly got into the car and
drove away, followed by the lookout car.
From the foregoing evidence, the jurors could reasonably conclude that James and
Eddington had a preconceived plan to enter their rivals’ stronghold and kill one or more
Hispanic victims. The jurors could also reasonably infer that James knew Eddington
would protect him by killing anyone who witnessed the events and could potentially
19
identify James. Moreover, the jury could reasonably infer that James also intended for
the witnesses who might identify him to be killed. Bartolo and Domingo were so close to
James that he had a strong motive for wanting them dead. (See People v. Smith (2005)
37 Cal.4th 733, 741 [“evidence of motive is often probative of intent to kill”].)
James focuses on the lack of direct evidence of his knowledge and intent. For
instance, he argues that there were no text messages or recorded phone calls showing that
Eddington planned to kill someone and that James knew of that plan. But there need not
be direct evidence of a defendant’s state of mind—circumstantial evidence and
reasonable inferences drawn from it are sufficient to support the convictions. (People v.
Clark (2016) 63 Cal.4th 522, 626.)
Our Supreme Court’s decision in Nguyen is instructive. The evidence that the
defendant in that case knew of the shooter’s intent to kill and shared the shooter’s intent
consisted of circumstantial evidence and reasonable inferences. The Nguyen defendant
belonged to an Asian gang, and the attempted murder victim was driving a car full of
rival gang members. (Nguyen, supra, 61 Cal.4th at pp. 1026-1027, 1053.) The gang
expert testified that Asian gangs did not claim particular turf but went around the
community hunting for their rivals. (Id. at p. 1054.) He explained that gang members
would be expected to back each other up in a shooting. (Ibid.) In addition, the
defendant’s gang and the rival gang “were in a state of war, and members of both gangs
were expected to be able to engage in gunfights with their rivals ‘at a moment’s notice.’”
(Ibid.) As for the evidence of the shooting, the defendant was riding in the back seat of
his group’s car, and the shooter was in the front passenger seat. (Id. at p. 1053.) The
20
defendant’s car followed the rival gang members’ car, and the defendant and his
associates stared at the rivals as one car passed the other. (Ibid.) When the two cars
stopped at an intersection, the defendant’s associate shot the rivals’ driver. (Ibid.)
The Nguyen court held that the incident-specific evidence plus the gang evidence
constituted substantial evidence that the defendant aided and abetted the attempted
murder. (Nguyen, supra, 61 Cal.4th at pp. 1055-1056.) The court observed that although
the gang evidence standing alone could not prove the defendant aided and abetted the
crime, the gang evidence strengthened the inferences arising from the defendant’s
conduct. (Id. at p. 1055.) Thus, the evidence of the gang war and the practices of Asian
gangs permitted the jury to infer that the defendant knew of the shooter’s intent to kill,
shared that intent, and aided the shooter by spotting potential targets. (Ibid.)
Similarly, here the gang evidence (the violent rivalry between the 1200 Blocc
Crips and East Side Riva, James’s leadership role in the squad, the expectation that gang
members would back each other up, and the location of the attack in rival gang territory)
plus the incident-specific evidence (the appearance of coordination and preplanning, the
fact that James and Eddington both armed themselves with deadly weapons, and James’s
shooting of Ramirez) permitted a reasonable inference that James knew of his
confederate’s intent to kill and shared it.
With respect to the remaining element, there is also substantial evidence that
James “by act or advice . . . instigate[d]” the killings. (People v. Marshall, supra, 15
Cal.4th at p. 40.) James walked in between Bartolo and Domingo as he approached
Ramirez, and he shot Ramirez about 11 seconds later, knowing that the two men would
21
witness Ramirez’s shooting. James could have waited until Bartolo and Domingo had
moved past the scene, or he could have abandoned his intent to shoot Ramirez altogether.
But he chose neither course. James’s intentional act therefore gave Eddington a reason to
kill Bartolo and Domingo. That evidence is sufficient to show that James instigated the
killings.
In sum, the record contains substantial evidence that James aided and abetted the
murders of Bartolo and Domingo.
C. Premeditation
“‘An intentional killing is premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or rash impulse.’ [Citation.]
The reflection may be arrived at quickly; it need not span a specific or extended period of
time.” (People v. Lopez (2018) 5 Cal.5th 339, 354-355.) Evidence of planning,
preexisting motive, and the manner of killing bears on whether a killing was
premeditated, but those three factors do not “establish an exhaustive list that would
exclude all other types and combinations of evidence.” (People v. Perez (1992) 2 Cal.4th
1117, 1125.)
The same evidence that showed James’s intent to kill Bartolo and Domingo was
sufficient to show James’s premeditation and deliberation. The history of violence with
the rival Hispanic gang, the coordinated attack on a Hispanic victim in rival gang
territory, and the use of two shooters each with their own deadly weapon evidenced a
preconceived plan to kill multiple victims. And the motive to kill Bartolo and Domingo
in particular arose when they became witnesses to the attack on Ramirez. James passed
22
between them and shot Ramirez approximately 11 seconds later. That period of time,
although short, was sufficient for James to reflect on what his actions would mean for
Bartolo and Domingo. (People v. Lenart (2004) 32 Cal.4th 1107, 1127 [“Premeditation
and deliberation do not require much time [citation], for ‘“[t]houghts may follow each
other with great rapidity and cold, calculated judgment may be arrived at quickly”’”].)
On this record, the jury could reasonably infer that the murders were the result of
preexisting thought and reflection on James’s part and not the result of unconsidered
impulse. Substantial evidence thus supports the jury’s finding of premeditation and
deliberation.
II. Denial of Motion to Discharge Juror
James argues that the court violated his federal constitutional rights and erred
under state law by denying his motion to discharge a juror during the first trial. He also
moved for a new trial on the ground that the court committed legal error by refusing to
discharge the juror, so he contends that the court erred by denying his new trial motion as
well. We conclude that the court did not err.
A. Relevant Background
After Ramirez testified, Juror No. 7 realized that she knew him in her professional
capacity. The court questioned Juror No. 7 after Ramirez was excused. The juror was an
outreach worker for a nonprofit organization that provided social services for unhoused
and low-income individuals. Ramirez was one of her clients. She saw his name on the
witness list, but because he had a common name, she did not realize that he was her client
until she saw him. She had “a lot” of clients.
23
Juror No. 7 had met with Ramirez numerous times over the last four years, most
recently two weeks ago. He came in for food assistance, so the nonprofit gave him
groceries. She could not state with precision the number of times that she had met with
him. Ramirez documented with the nonprofit as “transient.” He would come in for
assistance repeatedly—sometimes as many as three times in one week—but then
“something happens,” and he would disappear “for a couple of months.”
The court advised Juror No. 7 that she could not let bias, sympathy, prejudice, or
public opinion influence her decision, and in particular, she could not be biased in favor
of or against any of the parties, lawyers, or witnesses. The court also explained that she
could not let bias interfere with her judgment as to the believability of anybody’s
testimony. The court asked if she understood and would be able to do all of that, and she
replied “Yes” to both questions. The court then explained that she had to decide the case
on the basis of the evidence in court. It said that she could “look at any witness,
including Mr. Ramirez,” and make up her mind about their believability and credibility
but that she could not decide someone was credible and trustworthy “simply because you
know them.” Again, the court asked if she understood and would be able to follow that
instruction, and she said “Yes” to both questions. Finally, the court ordered Juror No. 7
to refrain from telling the other jurors that she had spoken with Ramirez, and it ordered
her not to share any information that she had learned about him outside the trial setting.
She said that she would follow the court’s order.
After the court’s questioning, James made an oral motion to discharge Juror No. 7
for cause. He argued: “[S]he has too much information and has too much of a direct
24
relationship with an alleged victim in this case. And that information given, who
Francisco Ramirez is, his patterns and practices, and what led up to the night of the
shooting, may be a materially disputed issue in this case.”
The court explained that it was inclined to deny the motion. It thought that Juror
No. 7 was “an honest individual,” which was reflected in the fact that she brought her
professional relationship with Ramirez to the court’s attention when she became aware of
it. The court also thought that she was intelligent and forthright, and she understood that
she could not let bias or sympathy interfere with her judgment. The court observed that
although Ramirez testified he was shot, that issue was undisputed; the issue in dispute
was the identity of the shooter, and Ramirez’s testimony did not bear on the shooter’s
identity. The court further explained: “Now there is an inherent bias, I suppose, that
would exist that we could talk about beyond the state of the evidence. That is, that she
would be biased in favor of the victim in this case because she has a professional
relationship with him. I’m satisfied her answers would suggest that she could follow the
Court’s instructions.”
James then asked to explain his argument more fully. He argued that the juror did
not just “know[]” Ramirez—she had a four-year relationship with him that sometimes
involved multiple meetings per week, and she met with him as recently as two weeks
ago. He argued that her information about Ramirez might be relevant to the hate crime
special circumstance and the gang special circumstance. (§ 190.2, subd. (a)(16), (22).)
That is, she might have information about whether he was involved with a gang or was
merely an innocent bystander.
25
The court questioned Juror No. 7 again after hearing from James. It asked whether
she interviewed clients about what was happening in their lives. She said that she
sometimes did, depending on the services they were seeking. But she had not talked to
Ramirez about the shooting and was not previously aware of it.
The court denied the motion to discharge the juror. After the jury returned its
verdict, James moved for a new trial on the ground that the court had committed legal
error by refusing to discharge the juror. (§ 1181, subd. (5).) James argued that the
circumstances showed an actual and implied bias on the part of Juror No. 7. (Code Civ.
Proc., § 225, subd. (b)(1)(B), (C).) The court denied the new trial motion. The court
observed that the juror might have had “an ordinary and normal reaction for any juror,
that is, to be sympathetic to the victim,” but she was “properly instructed” and “gave
proper answers in regard to removing sympathy from the equation.” The court concluded
that it had properly exercised its discretion not to discharge the juror and that James had
not suffered any prejudice.
B. Analysis
A defendant may move to discharge a sitting juror for “good cause.” (§ 1089.)
The court may remove the juror if it finds the juror is “unable to perform his or her duty.”
(Ibid.) Actual bias renders a juror unable to perform their duties and thus subject to
discharge. (People v. Lomax (2010) 49 Cal.4th 530, 589.) Actual bias is “the existence
of a state of mind on the part of the juror in reference to the case, or to any of the parties,
which will prevent the juror from acting with entire impartiality, and without prejudice to
26
the substantial rights of any party.” (Code Civ. Proc., § 225, subd. (b)(1)(C); People v.
Ayala (2000) 24 Cal.4th 243, 271-272.)
We review the trial court’s decision to retain a juror for abuse of discretion.
(People v. Jablonksi (2006) 37 Cal.4th 774, 807.) “‘Before an appellate court will find
error in failing to excuse a seated juror, the juror’s inability to perform a juror’s functions
must be shown by the record to be a “demonstrable reality.” The court will not presume
bias, and will uphold the trial court’s exercise of discretion . . . if supported by substantial
evidence. ’” (Ibid.) In according deference to the trial court’s ruling, we recognize that
the trial judge who observes the “juror and hears that person’s responses (noting, among
other things, the person’s tone of voice, apparent level of confidence, and demeanor),
gleans valuable information that simply does not appear on the record.” (People v.
Stewart (2004) 33 Cal.4th 425, 451.)
James fails to show that the trial court abused its discretion by declining to
discharge Juror No. 7. The record shows that the juror had a professional relationship
with the attempted murder victim, Ramirez. She was an outreach worker at a nonprofit
organization providing social services, and Ramirez had been one of her many clients for
the last four years. But the record does not show her inability to act impartially as a
demonstrable reality. The manner in which she came forward supported the court’s
determination that she could be impartial—she disclosed the professional relationship as
soon as she realized it, right after Ramirez’s testimony. The circumstances here are like
those in People v. Ray (1996) 13 Cal.4th 313, in which a sitting juror disclosed a
connection to the attempted murder victim’s daughter. (Id. at pp. 325, 342.) The juror
27
became aware of the connection only after the victim had testified. (Id. at pp. 342-343.)
Our Supreme Court observed that if the juror “had formed improper opinions about the
case and intended to act in ways prejudicial to the defense, common sense suggests that
he would have simply remained silent,” and the juror’s voluntary disclosure indicated
that the juror was “attempting to perform his duties in good faith” and could remain
impartial. (Id. at p. 344; accord People v. McPeters (1992) 2 Cal.4th 1148, 1175, 1174
(McPeters) [sitting juror’s “candid disclosure” of real estate transaction with the murder
victim’s husband, as soon as the juror realized the connection, supported the juror’s
stated “determination to be a fair and impartial juror”].) Similarly, common sense
suggests that if Juror No. 7 were biased, she would not have disclosed the connection and
would have quietly used her position to influence a verdict against James.
Besides Juror No. 7’s timely and voluntary disclosure, when the court explained
that she could not let bias, sympathy, or prejudice influence her decisions, Juror No. 7
unequivocally stated that she understood and would follow that instruction. And after
observing her during questioning, the court found her to be honest, forthright, intelligent,
and capable of following the court’s instructions. (See People v. Rangel (2016) 62
Cal.4th 1192, 1198, 1210-1211 [sitting juror had taken fitness classes taught by murder
victim’s brother, and the trial court, “which was in a position to observe [the juror’s]
demeanor, found no evidence of disqualifying bias”].) On this record, there was
substantial evidence supporting the court’s determination that Juror No. 7 could be
impartial and perform her duties, so the court did not abuse its discretion by declining to
discharge her.
28
James relies heavily on People v. Romero (2017) 14 Cal.App.5th 774 (Romero) to
argue that the court abused its discretion, but that case is distinguishable. The juror in
Romero was the victim’s high school teacher three years before the trial. (Id. at p. 779.)
When the court asked the juror whether she thought her relationship with the victim
would affect her ability to be fair and impartial, the juror replied, “‘Not really. She was a
good student. I remember positives. But I still think I can be fair.’” (Ibid.) The court
then asked if there was anything about her experiences with the victim that would cause
the juror to “‘favor’” the victim’s testimony or to prejudge the case in any way, and the
juror responded, “‘I don’t think so.’” (Ibid.)
The Romero court held that the trial court abused its discretion by refusing to
discharge the juror. (Romero, supra, 14 Cal.App.5th. at pp. 781-783.) The appellate
court relied on the “depth and degree” of the teacher-student relationship, which was
evidenced by the fact that three years later, the juror continued to have positive memories
and impressions of the victim. (Id. at pp. 781-782.) “Critically,” it did not appear that
the trial “court looked beyond [the juror’s] statement that she did not ‘think’ her
favorable teacher-student relationship” with the victim would affect how the juror viewed
the evidence. (Id. at p. 782.) The appellate court reasoned that the juror’s positive
impression of the victim “was especially critical,” given that the prosecution’s sexual
assault case relied heavily on the victim’s credibility and her ability to recall the crime;
the victim identified the defendant and recounted the details of the crime. (Id. at pp. 783,
778-779.) But there was no DNA or other forensic evidence connecting the defendant to
the crime. (Ibid.)
29
This case differs from Romero in important respects. Juror No. 7 described
Ramirez as her client, but she never expressed a positive impression of Ramirez. Even if
she had, her positive impression of Ramirez would not have been a critical factor,
because his testimony was not critical to the prosecution’s case against James. Ramirez’s
testimony was brief. He testified that he was shot and woke up in the hospital, but there
was no dispute about that. The shooting was captured on video. Ramirez could not
identify James, whose identity as the shooter was established by other evidence.
Moreover, the Romero juror appeared somewhat uncertain about whether she could be
impartial—she said, ‘“Not really,”’ and ‘“I don’t think so,”’ in response to questions
about whether her relationship with the victim would affect her ability to be fair and
impartial. (Romero, supra, 14 Cal.App.5th. at p. 779.) Juror No. 7’s responses were not
at all equivocal. Given those differences, Romero does not compel the conclusion that
the court here abused its discretion.
James also argues that the court erred because the relationship between Juror No. 7
and Ramirez was ongoing, and her fear of embarrassment, criticism, or a loss of trust
when dealing with Ramirez in the future would cause her to convict James. But the cases
on which James relies are inapposite. In one, a sitting juror worked in the same office as
the defendant’s brother and used a desk 25 feet away from the brother. (People v. Abbott
(1956) 47 Cal.2d 362, 371.) The juror did not disclose the connection, and the trial court
discovered it through other means. (Id. at p. 370.) The trial court discharged the juror
“to save [him] from embarrassment or criticism,” given his proximity to the defendant’s
brother. (Id. at p. 371.) Our Supreme Court held that the trial court did not abuse its
30
discretion by discharging the juror. (Ibid.) But it does not follow that a trial court faced
with different facts abuses its discretion by declining to discharge a juror. The law allows
for the possibility that reasonable judges may come to different conclusions on an issue
without abusing their discretion. (See People v. Mataele (2022) 13 Cal.5th 372, 412, fn.
5 [observing that it was “not incongruous to determine that the trial court . . . acted within
its discretion” by excluding evidence, when other trial courts acted within their discretion
by admitting similar evidence under similar circumstances]; People v. Gordon (1990) 50
Cal.3d 1223, 1253 [the defendant’s arguments showed only that a court might have
reasonably reached one conclusion, not that the trial court abused its discretion by
reaching the opposite conclusion].)
In the other case on which James relies, our high court held that the trial court
erroneously denied the defendant’s motions to change venue in a murder case. (People v.
Tidwell (1970) 3 Cal.3d 62, 64.) The court’s holding that the defendant could not receive
a fair trial in the county was based on a number of factors, including the small size of the
community (a population of 17,500), the brutal nature of the murders, the prominent
position of at least two of the murder victims in the community, the pervasive news
coverage of the prosecution evidence, and the countywide hostility toward the defense.
(Id. at pp. 64-65, 72-73.) Part of the court’s analysis focused on the fact that because the
crimes took place in such a small community, eight jurors knew prosecution witnesses,
two jurors knew members of the victims’ family, and four jurors knew at least one of the
victims. (Id. at pp. 67-68, 74-75.) The circumstances here—one juror who had a
professional relationship with the victim—do not remotely approach those in Tidwell,
31
either in terms of the number of jurors who knew victims and witnesses or in terms of
other factors showing that the jurors could not be fair and impartial.
Lastly, citing In re Manriquez (2018) 5 Cal.5th 785 (Manriquez), James suggests
that the trial court could not rely on Juror No. 7’s assurances that she could be unbiased.
Manriquez was a habeas corpus proceeding in which the petitioner claimed a juror had
committed misconduct by failing to disclose pertinent information about herself on a
pretrial questionnaire. (Id. at pp. 790-791.) The Supreme Court appointed a referee to
conduct an evidentiary hearing at which the juror testified. (Id. at p. 791.) In pertinent
part, the juror testified that she was not biased against the petitioner at any point during
trial, although she conceded that she did not know the legal definition of bias. (Id. at
p. 800.) The referee overruled the petitioner’s objections to the testimony and found that
the juror was not biased, relying in part on her statement that she was not biased. (Ibid.)
Our high court held that the referee could not properly base his finding solely on
the juror’s belief that she was unbiased, given that “a court ‘cannot substitute the
opinions of jurors for its own findings of fact.’” (Manriquez, supra, 5 Cal.5th at p. 800.)
The Manriquez court also observed that “jurors are sometimes unaware of their own
biases, or are reluctant to admit to having biases.” (Id. at p. 801.) “Accordingly, when
assessing [the juror’s] possible bias,” the court declined to “consider the referee’s finding
that [the juror] believed she was not biased to the extent the referee relied on [the juror’s]
assessment of her own bias.” (Ibid.)
Manriquez does not stand for a bright line rule that the trial court can never rely on
a juror’s statement that they can be unbiased. Indeed, the month before Manriquez, our
32
high court decided In re Cowan (2018) 5 Cal.5th 235 (Cowan), another habeas
proceeding involving a claim of juror bias, and the court relied on the juror’s assessment
of his own bias. (Id. at pp. 238, 243, 246.) The referee found that (1) the juror’s failure
to disclose certain information was not indicative of bias and (2) the juror was not
actually biased. (Ibid.) The Cowan court held that both findings were supported by
substantial evidence, including the juror’s testimony that “he felt no bias towards either
Cowan or the prosecution,” “came to court with an ‘open mind,’” and was “fair and
impartial.” (Id. at pp. 246, 243.) The Manriquez court did not disapprove of Cowan or
any other case in which the court relied on a juror’s assurance of their own impartiality.
(See, e.g., In re Hamilton (1999) 20 Cal.4th 273, 298, 301 [substantial evidence
supported referee’s finding that juror was not biased, including juror’s claim of
impartiality, which the referee expressly credited]; McPeters, supra, 2 Cal.4th at p. 1175
[trial court did not abuse its discretion by concluding juror was not biased, because juror
“affirmed his belief he could be fair and impartial,” among other reasons].)
To the extent that Manriquez held a finding of lack of bias cannot be based solely
on a juror’s belief that they are unbiased, this case does not violate that rule. Juror No.
7’s statement that she would not let bias interfere with her decisions was supported by the
circumstances of her disclosure and the court’s assessment of her demeanor during
questioning.
For all of these reasons, we conclude that the court did not abuse its discretion by
denying James’s motion to discharge Juror No. 7. It follows that the court did not abuse
its discretion by denying his new trial motion, which was based on the same claimed
33
error. And we reject James’s undeveloped assertion that the court’s claimed error
separately violated his federal constitutional rights. (People v. Earp (1999) 20 Cal.4th
826, 881 [rejecting claim that state law error violated federal constitutional rights,
because the claim was not supported by adequate argument].)
III. Challenge to Gallegos’s Testimony
James contends that the court erred in both trials by admitting Gallegos’s
testimony about what she would have done if she had recognized James in the
surveillance video. He argues that her testimony was speculative and should have been
excluded on that ground. He asserts that the courts violated both state law and his federal
constitutional right to due process. The argument lacks merit.
To review, Gallegos testified that she did not recognize anyone in the surveillance
video of the shooting, and she told law enforcement that the man in the video did not
resemble James. On cross-examination, she said that she probably would not have told
law enforcement even if she had recognized James in the video, because she did not want
anything to happen to him. Gallegos testified to that effect in both trials, after the court
overruled James’s objection that the questioning called for speculation.
We review the trial court’s ruling on a speculation objection for abuse of
discretion. (People v. Marlow (2004) 34 Cal.4th 131, 152.) To prevail, the defendant
must show that the court “exercised its discretion in an arbitrary, capricious, or patently
absurd manner.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
The courts did not abuse their discretion here. Gallegos and James had a child
together; she said that she was worried about him, she cared about him, and she did not
34
want anything bad to happen to him. Her state of mind was a matter within her personal
knowledge. Given her knowledge of her own state of mind, her testimony about her
probable actions in the event that she recognized James was not speculative. That
knowledge gave her a basis for determining how she would act.
James’s argument to the contrary is unpersuasive. He argues that asking a witness
what they would do in “counterfactual circumstances” calls for improper speculation.
But the argument is based on a flawed premise, namely, that Gallegos recognizing James
was a counterfactual circumstance. The evidence on that point was conflicting.
Although Gallegos told the officers that the man in the video was not James, and she
testified that she did not recognize anyone in the video, her recorded phone calls with
James showed otherwise. She told him that the officers had surveillance video of him
and that the man looked just like him. If her statements in the recorded calls were
credited, it was not counterfactual at all to say that she recognized James, and the
People’s questioning on the topic was proper.
With respect to James’s federal constitutional claim, the trial court’s “‘routine
application of state evidentiary law does not implicate [a] defendant’s constitutional
rights.’” (People v. Hovarter (2008) 44 Cal.4th 983, 1010 (Hovarter); People v. Rogers
(2013) 57 Cal.4th 296, 332 [evidence that was “material, probative, and [properly]
admitted” did not violate the defendant’s due process right to a fair trial].) Moreover, a
claimed error does not violate the defendant’s constitutional right to due process unless it
renders the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 436,
439.) James contends that the challenged testimony destroyed the exculpatory force of
35
Gallegos’s other testimony that he was not the suspect in the video, thereby rendering his
trial fundamentally unfair. But the “category of infractions that violate ‘fundamental
fairness’” has been defined “very narrowly.” (Dowling v. United States (1990) 493 U.S.
342, 352.) It is “rare and unusual” for the admission of evidence to render a trial
fundamentally unfair. (People v. Albarran (2007) 149 Cal.App.4th 214, 232.) James has
not shown that this is one of those rare cases. He cites no authority showing that relevant
and admissible evidence renders a trial fundamentally unfair merely because it tends to
establish the defendant’s guilt.
For these reasons, the courts did not abuse their discretion or violate James’s
constitutional right to due process by overruling the speculation objection to Gallegos’s
testimony.
IV. Evidence of Prior Shootings
James contends that the court prejudicially erred by admitting evidence of the
Santa Ana, Vermont Street, and Twelfth Street shootings in the first trial. Likewise, he
contends that the court in the second trial prejudicially erred by admitting evidence of the
Santa Ana and Vermont Street shootings. The arguments lack merit. Even assuming that
the court erred in both cases, the errors were not prejudicial. We also reject James’s
claim that the errors violated his federal constitutional right to due process.
A. Relevant Background
During the first trial, James moved to exclude evidence of all three prior
shootings. He argued that the prior shootings amounted to improper character evidence
under Evidence Code section 1101 and that the court should exclude the evidence under
36
Evidence Code section 352. The People moved to admit evidence of all three prior
shootings, arguing that the uncharged acts were relevant to prove James’s identity; the
means and opportunity to commit the charged offenses; and his intent to kill,
premeditation, and deliberation. The People’s offer of proof summarized the same
material evidence of each shooting that they offered at trial.
The court ruled that the Twelfth Street shooting was relevant to prove James’s
intent to kill. The court noted that it had analyzed the issue under Evidence Code section
352 and concluded that the probative value of the evidence was not outweighed by any
prejudice. The court also ruled that the Santa Ana and Vermont Street shootings were
admissible to prove identity and the firearm possession charge. Consistent with those
rulings, the court instructed the jurors that they could consider the Twelfth Street
shooting for the limited purpose of deciding whether James acted with intent to kill in
this case. (CALCRIM No. 375.) The court also instructed the jurors that they could
consider the Santa Ana and Vermont Street shootings for the limited purposes of deciding
identity (i.e., whether James was the person who committed the charged offenses) and the
intent and knowledge elements of the possession charge (i.e., whether James acted with
intent to possess and knew that he possessed a firearm). (Ibid.)
During the second trial, James moved the court to reconsider the rulings admitting
evidence of the three prior shootings in the first trial. The People again moved to admit
the evidence, arguing the same theories of relevancy. Again, the People’s offer of proof
summarized the same material evidence of the shootings that they offered at trial.
37
The court admitted the Santa Ana and Vermont Street shootings to prove identity
only. The court indicated that it had analyzed the evidence of the first two shootings
under Evidence Code section 352, and it was “not too prejudicial.” But the court
excluded the Twelfth Street shooting for all purposes. It concluded that the evidence was
insufficient for the jury to find by a preponderance of the evidence that James committed
that shooting. For that reason, the court also concluded that the evidence was more
prejudicial than probative under Evidence Code section 352. The court instructed the
jurors that they could consider the Santa Ana and Vermont Street shootings for the
limited purpose of deciding whether James was the person who committed the charged
offenses. (CALCRIM No. 375.)
B. Analysis
Subdivision (a) of Evidence Code section 1101 prohibits the admission of
character or propensity evidence. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.)
However, subdivision (b) of the same statute creates an exception for “evidence that a
person committed a crime, civil wrong, or other act when relevant to prove . . . motive,
opportunity, intent, preparation, plan, knowledge, identity,” or some fact other than
character or disposition to commit the act. (Evid. Code, § 1101, subd. (b); Ewoldt, supra,
at p. 393.)
When the relevance of the uncharged act depends on the defendant’s identity as
the perpetrator, the trial court must conclude that the evidence is sufficient for the jury to
find by a preponderance of the evidence that the defendant committed the uncharged act.
(Evid. Code, § 403, subd. (a)(1), (4); People v. Leon (2015) 61 Cal.4th 569, 599 (Leon);
38
People v. Cottone (2013) 57 Cal.4th 269, 286, fn. 10; People v. Bacon (2010) 50 Cal.4th
1082, 1102 (Bacon).) The existence of that preliminary fact is “‘not finally decided’” by
the trial court (People v. Lucas (1995) 12 Cal.4th 415, 466), and the court does not
resolve conflicts in the evidence submitted on the preliminary fact question (Bacon,
supra, at p. 1103). “The court should exclude the proffered evidence only if the ‘showing
of preliminary facts is too weak to support a favorable determination by the jury.’”
(Lucas, supra, at p. 466.)
There are other requirements for admissibility, beyond the preliminary factual
showing that the defendant committed the uncharged act. “[T]here must be some degree
of similarity between the charged crime and the other crime, but the degree of similarity
depends on the purpose for which the evidence was presented.” (People v. Jones (2011)
51 Cal.4th 346, 371 (Jones).) Moreover, even if the uncharged and charged acts are
sufficiently similar, the court must consider whether evidence of the uncharged act
should be excluded under Evidence Code section 352. (Leon, supra, 61 Cal.4th at
pp. 597-598.) “Specifically, the uncharged act . . . must not be unduly prejudicial,
confusing, or time consuming.” (Id. at pp. 597-598; id. at p. 599.)
We review the trial court’s ruling admitting evidence of uncharged acts for abuse
of discretion. (Leon, supra, 61 Cal.4th at p. 597.) That includes the court’s decision on
whether the evidence is sufficient to sustain a finding that the defendant committed the
uncharged act. (Bacon, supra, 50 Cal.4th at p. 1103.)
James argues that the courts abused their discretion in both trials because (1) the
evidence that he committed the uncharged shootings was insufficient, (2) the Santa Ana
39
and Vermont Street shootings were not similar enough to the charged acts to be relevant
on identity, and (3) any probative value of the uncharged acts was outweighed by the risk
of undue prejudice under Evidence Code section 352.
Assuming for the sake of argument that the trial courts erred by admitting
evidence of all three prior shootings, any error was not prejudicial. That is, it is not
reasonably probable that James would have obtained a more favorable result if the courts
had excluded the evidence. (Jones, supra, 51 Cal.4th at p. 372.) First, to the extent that
both trial courts admitted the Santa Ana and Vermont Street shootings on identity, the
record contains plenty of other evidence establishing James’s identity as the person who
shot Ramirez. Law enforcement showed Gallegos the surveillance video of the shooting.
After seeing it, she told James that officers had video of him and that the video looked
just like him. Although she told the officers that it was not him and testified similarly,
the credibility of those statements was undermined by the evidence of her relationship
with James and her feelings for him, as well as her testimony that she would not have
identified him even if she had recognized him. In addition, the shooting occurred at
around 9:33 p.m., and at 9:46 p.m., James’s cell phone connected to a tower that provided
coverage at the crime scene and the surrounding area. And James’s recorded
conversations with Gallegos and others showed consciousness of guilt. For instance,
James asked Smith, a fellow gang member, about getting a false ID after learning about
Gallegos’s interview with law enforcement, and James indicated that he was thinking
about fleeing. Smith reassured James that while someone was “snitch[ing]” or had “loose
lips,” law enforcement had nothing “concrete.” James indicated that he was still thinking
40
about fleeing. Eddington and James also discussed that someone was “singing” or
“bumping their gums,” and they discussed how only someone in their circle could “point
a finger.” Eddington advised James to have his alibi ready, and James urged Eddington
several times to get rid of his car. James asked Gallegos whether she could see “tattoos
on the eyes” in the video of the shooter, knowing that he has tattoos under his eyes.
When the video became available on social media, James and Eddington also discussed
whether “marks” on the shooter’s eyes were visible, and Eddington assured him the video
was too blurry to see anything.
The recorded calls as a whole show that James was concerned that he could be
identified in the video, he was worried that someone with knowledge of his involvement
in the shooting was talking to law enforcement, and he was considering fleeing and
wanted Eddington to destroy evidence by getting rid of Eddington’s car. Those calls,
including Gallegos’s statements identifying James, and the cell phone evidence constitute
ample evidence establishing James’s identity independent of the uncharged acts.
Consequently, it is not reasonably probable that James would have obtained a more
favorable result if the evidence of the uncharged acts had been excluded. (People v.
Lindberg (2008) 45 Cal.4th 1, 26 (Lindberg) [assumed error in admitting evidence of
uncharged offenses on intent was harmless because of other compelling evidence
establishing the defendant’s intent]; People v. Carter (2005) 36 Cal.4th 1114, 1152 [“[i]n
view of the strong evidence implicating defendant in the charged murders . . . , it is not
reasonably probable that an outcome more favorable to defendant would have been
reached in the absence” of the uncharged acts evidence].)
41
Second, to the extent that the court in the first trial admitted the Twelfth Street
shooting on intent to kill, the record otherwise contains powerful evidence establishing
James’s intent to kill Ramirez. The surveillance video shows a man shooting Ramirez
point blank in the head with no evident legal excuse. (People v. Smith (2005) 37 Cal.4th
733, 742 [“the act of purposefully firing a lethal weapon at another human being at close
range, without legal excuse, generally gives rise to an inference that the shooter acted
with express malice”].) Nor was there any other evidence of a legal excuse to shoot
Ramirez. Thus, once the jury concluded that James was the shooter in the video, there
was little doubt that he intended to kill Ramirez, even without evidence of the Twelfth
Street shooting.
Third, for similar reasons, any error in admitting the Santa Ana and Vermont
Street shootings on the general intent and knowledge elements of the firearm offense was
harmless: Once the jury concluded that James was the shooter in the video, there was
little doubt that he acted with intent to possess the gun used in the shooting and knew that
he possessed it, even without evidence of the uncharged shootings.
Fourth, the jury instructions minimized any improper effect the evidence would
have had on the jury. The courts properly instructed the jurors that (1) they could
consider evidence of the uncharged acts only if the People had proved by a
preponderance of the evidence that James “in fact committed” the uncharged acts, and (2)
if the People had not carried that burden, the jurors had to disregard the evidence entirely.
(CALCRIM No. 375.) The courts also instructed the jurors on the limited purpose of the
evidence and told them that they could not consider the evidence for any other purpose.
42
(Ibid.) Finally, the courts instructed the jurors that they could not conclude from the
evidence that James “has a bad character or is disposed to commit crime.” (Ibid.) We
presume the jurors followed those instructions. (Lindberg, supra, 45 Cal.4th at p. 26.)
Accordingly, if the evidence was insufficient to show that James committed the
uncharged acts, the jurors would not have considered the evidence. (See People v. Simon
(1986) 184 Cal.App.3d 125, 130, fn. 3 [“clearly if the defendant cannot be connected to
the prior act, admission of evidence concerning it will not normally prejudice him”].)
Similarly, notwithstanding James’s contrary argument, the jurors would not have
concluded from the evidence that he was predisposed to commit shootings or that he
acted with intent to kill and premeditation in the second trial. The courts instructed the
jurors not to use the evidence for those purposes. (See Jones, supra, 51 Cal.4th at p. 372
[evidence of uncharged robbery “was not particularly prejudicial, especially given the
limiting instruction the court gave the jury”].)
Fifth, we are not persuaded by James’s contention that the prosecutor’s closing
argument in the second trial contributed to any prejudice. The prosecutor discussed the
Santa Ana and Vermont Street shootings for only two pages of his 20-page closing
argument. He briefly mentioned the shootings in two sentences of his seven-page
rebuttal argument. The uncharged shootings were far from a centerpiece of his argument.
Indeed, the bulk of his argument on identity focused on the recorded calls and other
evidence establishing James’s identity. And again, that evidence was strong.
Lastly, the evidence of the uncharged shootings was not especially inflammatory
when compared to the evidence of the charged offenses. (Jones, supra, 51 Cal.4th at
43
pp. 371-372 [uncharged act was not particularly inflammatory compared to the facts of
the charged crimes, supporting the conclusion that the evidence was not unduly
prejudicial under Evid. Code, § 352 and that any erroneous admission was harmless].)
There was no evidence before the jury that anyone died or was even injured in connection
with the Santa Ana and Vermont Street shootings. And even though the jury knew that
the victim of the Twelfth Street shooting died, the brief testimony regarding the victim’s
death was nowhere near as shocking as the surveillance video depicting the shootings of
Ramirez, Bartolo, and Domingo.
As for James’s federal due process claim, he argues that because admission of the
evidence prejudiced him, his trials necessarily were fundamentally unfair. But for the
reasons just given, there was no prejudice from any assumed error. Because James offers
no further “elaboration or separate argument,” his constitutional claim fails. (Hovarter,
supra, 44 Cal.4th at p. 1010.)
For all of these reasons, we conclude that the trial courts did not prejudicially err
or violate James’s right to due process by admitting evidence of uncharged acts.
V. Assembly Bill 333
The parties agree that Assembly Bill 333 requires us to reverse or vacate James’s
conviction for active participation in a criminal street gang, the true findings on the gang
enhancements, and the true findings on the firearm enhancements that incorporate
provisions of section 186.22. (§§ 186.22, subds. (a), (b)(1)(C), 12022.53, subd. (e)(1).)
We concur with the parties.
44
Assembly Bill 333 made numerous changes to section 186.22 that took effect after
James’s trials. (People v. E.H. (2022) 75 Cal.App.5th 467, 477 (E.H.).) The judgment in
this case is not final, so the amendments apply here. (People v. Tran (2022) 13 Cal.5th
1169, 1206 (Tran).)
Assembly Bill 333 made the following changes to section 186.22: “First, it
narrowed the definition of a ‘criminal street gang’ to require that any gang be an
‘ongoing, organized association or group of three or more persons.’ (§ 186.22, subd. (f),
italics added.) Second, whereas section 186.22, former subdivision (f) required only that
a gang’s members ‘individually or collectively engage in’ a pattern of criminal activity in
order to constitute a ‘criminal street gang,’ Assembly Bill 333 requires that any such
pattern have been ‘collectively engage[d] in’ by members of the gang. (§ 186.22, subd.
(f), italics added.) Third, Assembly Bill 333 also narrowed the definition of a ‘pattern of
criminal [gang] activity’ by requiring that (1) the last offense used to show a pattern of
criminal gang activity occurred within three years of the date that the currently charged
offense is alleged to have been committed; (2) the offenses were committed by two or
more gang ‘members,’ as opposed to just ‘persons’; (3) the offenses commonly benefitted
a criminal street gang; and (4) the offenses establishing a pattern of gang activity must be
ones other than the currently charged offense. (§ 186.22, subd. (e)(1), (2).) Fourth,
Assembly Bill 333 narrowed what it means for an offense to have commonly benefitted a
street gang, requiring that any ‘common benefit’ be ‘more than reputational.’ (§ 186.22,
subd. (g).)” (Tran, supra, 13 Cal.5th at p. 1206.)
45
Those new definitions of “criminal street gang,” “pattern of criminal gang
activity,” and “common benefit” added elements to the substantive gang offense and the
gang enhancement that did not exist at the time of James’s trials. (§ 186.22, subds. (a),
(b)(1), (e)(1), (2), (f), (g); E.H., supra, 75 Cal.App.5th at p. 479.) The People thus were
not required to prove those additional elements, and the court did not instruct the jury on
them. We must reverse “unless ‘it appears beyond a reasonable doubt’ that the jury
verdict would have been the same in the absence of the error.” (Tran, supra, 13 Cal.5th
at p. 1207.)
We cannot conclude that the failure to require proof of the new elements was
harmless beyond a reasonable doubt. For instance, Riedeman testified at both trials about
predicate offenses committed by 1200 Blocc Crips members, the latest one occurring on
October 21, 2012. The charged offenses occurred on October 23, 2015. The last
predicate offense therefore fell just outside the three-year period for offenses used to
establish a ‘“pattern of criminal gang activity.”’ (§ 186.22, subd. (e)(1).) Moreover,
although the evidence showed that in the predicate cases a gang enhancement had also
been found true, there was no evidence that the benefit from the predicate offenses was
“more than reputational.” (§ 186.22, subd. (e)(1).) Because of those deficiencies in the
evidence, the failure to require proof of the new elements was not harmless.
“The proper remedy for this type of failure of proof—where newly required
elements were ‘never tried’ to the jury—is to remand and give the People an opportunity
to retry the affected charges” and enhancement allegations. (E.H., supra, 75 Cal.App.5th
at p. 480.) James argues that remand for retrial would be an idle act because Riedeman
46
conceded that he was unable to locate any other predicate offenses, but the argument
lacks merit. At the first trial, before Riedeman testified about each of the predicate
offenses, the People showed him the conviction packets for the offenses and asked: “And
are these predicate offenses that you were able to find for the 1200 Blocc Crips?” He
replied: “Yes.” James’s concludes from that testimony that there were no other
qualifying predicate offenses. That inference is not reasonable. The People were not
required to present evidence of every possible predicate offense, and they had no notice
that they needed to offer evidence of a more recent one to establish a pattern of criminal
activity. On remand, if the People cannot find evidence of a more recent predicate
offense, then they may elect not to retry James on the affected offense and enhancements.
But they are entitled to the opportunity. (E.H., at p. 480.) We therefore vacate James’s
conviction under section 186.22, subdivision (a), and the true findings under section
186.22, subdivision (b)(1)(C), and remand for further proceedings.
The firearm enhancements associated with the two murder counts are also
affected, because the enhancement statute expressly incorporates section 186.22. (People
v. Lopez (2021) 73 Cal.App.5th 327, 346, 348 (Lopez).) “Section 12022.53 provides for
sentence enhancements for the use of firearms in the commission of an enumerated
felony.” (Id. at p. 347.) As relevant here, subdivision (d) of the statute adds a
25-year-to-life enhancement for a person who “personally and intentionally discharges a
firearm and proximately causes great bodily injury . . . or death” during the commission
of an enumerated offense. (§ 12022.53, subd. (a).) Subdivision (e)(1) of the statute
“imposes vicarious liability” on someone who aids and abets the enumerated offense
47
under gang-related circumstances. (People v. Garcia (2002) 28 Cal.4th 1166, 1171.)
Specifically, the court may impose the 25-year-to-life enhancement on any principal who
“violated subdivision (b) of section 186.22,” so long as some principal in the offense
personally used a firearm as defined in subdivision (d). (§ 12022.53, subd. (e)(1)(A),
(B).) Accordingly, imposition of the vicarious firearm enhancement requires proof of the
new elements of the gang enhancement (§ 186.22, subd. (b)(1)). (Lopez, supra, at
pp. 347-348.)
The jurors found that James was “a principal” in the murders of Bartolo and
Domingo and that “someone who was a principal” in the murders “personally and
intentionally discharged a firearm and proximately caused great bodily injury or death.”
They separately found true the gang enhancement allegations associated with each
murder count. The court thus imposed the vicarious firearm enhancement under section
12022.53, subdivision (e)(1), in connection with each murder count. Assembly Bill 333’s
changes to section 186.22 require us to vacate those firearm enhancements as well.
(Lopez, supra, 73 Cal.App.5th at pp. 347-348.)
James argues that we should also vacate the firearm enhancement associated with
the attempted murder count, but we disagree. The jurors did not find James vicariously
liable for that firearm enhancement. The court properly instructed them on the personal
use enhancement in section 12022.53, subdivision (d). (CALCRIM No. 3149.) The
jurors found that in the commission of the attempted murder, James “personally and
intentionally discharge[d] a firearm and proximately caused great bodily injury or death
to another person, not an accomplice, within the meaning of [section] 12022.53,
48
subdivision (d).” That subdivision does not incorporate section 186.22, so Assembly Bill
333 provides no reason to vacate the jury’s finding.5 (Lopez, supra, 73 Cal.App.5th at
p. 348.) The verdict form also cited subdivision (e) of section 12022.53, but the jurors
made no vicarious liability findings, in contrast to their findings on the verdict form for
the other firearm enhancements. We may disregard any technical or clerical error in
citing subdivision (e), given that the jury clearly intended to find James liable for
personally using a firearm under subdivision (d). (People v. Camacho (2009) 171
Cal.App.4th 1269, 1272-1273.)
In sum, Assembly Bill 333 requires us to vacate James’s conviction under section
186.22, subdivision (a), the gang enhancements under section 186.22, subdivision
(b)(1)(C), and the vicarious firearm enhancements under section 12022.53, subdivision
(e)(1). On remand, the People shall have the opportunity to retry that offense and those
enhancements.
5 James also argues that we should vacate the personal use firearm enhancement for
reasons unrelated to Assembly Bill 333. He claims that the People pled only the
vicarious firearm enhancement in the attempted murder count, so he did not have fair
notice that he faced the personal use firearm enhancement. James has forfeited the
argument. Assuming for the sake of argument that the information did not plead the
personal use enhancement, James had fair notice that he was facing that enhancement
when the hearings on jury instructions and verdict forms occurred . The People explained
that in connection with the attempted murder count, they were alleging that James had
personally used a firearm under subdivision (d) of section 12022.53. When the court
asked about giving the pattern jury instruction on that enhancement (CALCRIM No.
3149), defense counsel answered: “No objection.” Similarly, when discussing the
verdict form for that enhancement, the People explained that they had drafted the form to
reflect liability under section 12022.53, subdivision (d), as opposed to subdivision (e).
James did not object. His failure to raise an objection at that point forfeited the claim.
(People v. Houston (2012) 54 Cal.4th 1186, 1227-1228.)
49
VI. Substantial Evidence of the Gang’s Primary Activities
James argues that there was not substantial evidence in the second trial to establish
the primary activities element of the gang enhancement. Consequently, he argues that we
must vacate the gang and vicarious firearm enhancements attached to his murder
convictions. If James is correct that the evidence is insufficient even under the former
version of section 186.22, then double jeopardy principles would prohibit retrial of the
enhancements. (People v. Vasquez (2022) 74 Cal.App.5th 1021, 1033; People v. Sek
(2022) 74 Cal.App.5th 657, 669 (Sek).) We conclude, however, that James’s argument
lacks merit.
Section 186.22 provides for enhanced punishment when the defendant commits an
enumerated felony “for the benefit of, at the direction of, or in association with a criminal
street gang.” (§ 186.22, subd. (b)(1).) To qualify as a criminal street gang, an
organization’s “primary activities” must include committing one or more of the crimes
specified in section 186.22, subdivision (e). (§ 186.22, subd. (f).) Although numerous
offenses qualify as primary activities, the court here instructed the jury on only four
qualifying offenses—burglary (§ 459), assault with a firearm (§ 245, subd. (a)(2)), sales
of narcotics (Health & Saf. Code, § 11378), and robbery (§ 211). (§ 186.22, subd.
(e)(1)(A), (B), (D), (K).) The People may prove a gang’s primary activities through
expert testimony. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324; People v. Duran
(2002) 97 Cal.App.4th 1448, 1465 (Duran).)
On this record, there was substantial evidence establishing the primary activities
element of the gang enhancement. Sales of narcotics qualify as a primary activity of a
50
criminal street gang, and the jury was so instructed. Riedeman testified that the primary
activities of the 1200 Blocc Crips included sales of narcotics. And his testimony about
his experience provided an adequate foundation for his opinion: The gang unit
investigated all of the gangs in Riverside, which included the 1200 Blocc Crips.
Riedeman first became familiar with the 1200 Blocc Crips when he worked their territory
as a patrol officer. He started talking with gang members while in the patrol unit. Once
he became a detective in the gang unit, he learned information from his own sources and
investigations but also by sharing intelligence with every other gang detective. The
patrol officers sent the gang unit reports of every crime that the patrol officers believed
was gang related. Riedeman reviewed those reports and helped determined whether to
pursue gang charges or enhancements in those cases. All of that was the type of
information on which gang experts may reasonably rely in forming their opinions.
(People v. Gardeley (1996) 14 Cal.4th 605, 620, disapproved on other grounds by People
v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13; Duran, supra, 97 Cal.App.4th at p. 1465.)
James acknowledges that the People may rely on expert testimony to prove a
gang’s primary activities. But he argues that Riedeman was testifying as a lay witness—
not an expert—because when the prosecutor asked Riedeman what the gang’s primary
activities were, Riedeman responded: “Just based on what I saw[,] was drugs, possession
of firearms, violent assaults.” James asserts that what a witness “personally saw” is lay
testimony.
That prefatory phrase did not transform Riedeman’s testimony into lay opinion.
Lay opinion must be “based on the perception of the witness” (Evid. Code, § 800), but an
51
expert witness’s opinion may also be “[b]ased on matter . . . perceived by or personally
known to the witness” (Evid. Code, § 801, subd. (b)). Consequently, the fact that
Riedeman personally perceived some or all of the information on which he based his
opinion did not automatically render his testimony lay opinion.
For these reasons, substantial evidence established that the gang’s primary
activities consisted of one or more qualifying offenses.
VII. Great Bodily Injury Enhancement
The parties agree that the court erred by failing to stay James’s sentence on the
great bodily injury enhancement. We concur. In connection with the attempted murder
count, the court imposed a consecutive three-year term under section 12022.7 for
personally inflicting great bodily injury. The court also imposed punishment under
section 12022.53, subdivision (d), for personally using a firearm. But “[a]n enhancement
for great bodily injury as defined in Section 12022.7 . . . shall not be imposed on a person
in addition to an enhancement imposed pursuant to subdivision (d)” of section 12022.53.
(§ 12022.53, subd. (f).) Accordingly, we direct the trial court to stay the three-year
prison term imposed under section 12022.7. (People v. Garcia (2017) 7 Cal.App.5th
941, 948-949.)
VIII. Amendment to Section 654
Under section 654, the court stayed James’s sentence on his convictions for active
participation in a criminal street gang and possession of a firearm by a felon. James
argues that we should remand for the trial court to exercise its discretion under amended
section 654. Former section 654 provided that an act punishable by more than one
52
provision of the law “shall be punished under the provision that provides for the longest
potential term of imprisonment” but could not be punished under more than one
provision. (Former § 654, subd. (a).) Assembly Bill No. 518 (2021-2022 Reg. Sess.)
(Assembly Bill 518) removed the requirement that the court impose the longest term.
(Sek, supra, 74 Cal.App.5th at p. 673.) Thus, effective January 1, 2022, section 654
permits a defendant whose single act is punishable by multiple provisions to “be
punished under either of such provisions.” (§ 654, subd. (a).)
The People concede that Assembly Bill 518 applies retroactively to the nonfinal
judgment in this case, and we agree. (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
But they argue that a remand for the court to exercise its discretion would be an idle act.
In light of our remand for further proceedings on the gang conviction and the gang
enhancements, we need not resolve the parties’ dispute over whether remand is
independently necessary on the section 654 issue. On remand, James may ask the court
to exercise its discretion under amended section 654.
DISPOSITION
We vacate James’s conviction for active participation in a criminal street gang
(§ 186.22, subd. (a)), the true findings on the gang enhancements (§ 186.22, subd.
(b)(1)(C)) attached to the murder and attempted murder counts, and the true findings on
the firearm enhancements (§ 12022.53, subd. (e)(1)) attached to the murder counts. We
remand to the trial court to (1) give the People the opportunity to retry the offense and
enhancements under the new law as amended by Assembly Bill 333, or (2) impose
appropriate dispositions should the People choose not to proceed with retrial. In addition,
53
on remand, the trial court is directed to stay execution of the three-year enhancement
imposed under section 12022.7, subdivision (a). The court may also exercise its
discretion under section 654 as amended by Assembly Bill 518. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
54