People v. Daniels CA2/4 ( 2023 )

Filed 6/5/23 P. v. Daniels CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B311093
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. GA101244)
v.
ISAIAH DANIELS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Charlaine F. Olmedo, Judge. Affirmed and remanded with directions.
Elizabeth K. Horowitz, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven
D. Matthews, Supervising Deputy Attorney General, and Rama R. Maline,
Deputy Attorney General, for Plaintiff and Respondent.
This is the third and final appeal from the underlying trial in which
appellant Isaiah Daniels and his codefendants, Derion Devon Lee, Charod
Robinson, and Pernell Barnes, members of the Duarte Duroc Crips gang
(DDC), were convicted of various charges arising from two shootings that
occurred as part of a war between DDC and a rival gang, the Pasadena
Denver Lane Bloods (PDL).1 The first shooting (the Douglas shooting)
occurred on December 22, 2016, at the Kings Villages apartment complex in
Pasadena, a known PDL hangout, and resulted in the killing of Brandon
Douglas, a PDL associate. The second shooting (the Vigil shooting) occurred
on January 6, 2017, during a candlelight vigil held for Douglas at Kings
Villages. Ormoni Duncan and Antoine Sutphen were killed, and Janell
Lipkin and Shamark Wright were wounded. Just hours before the Vigil
shooting, someone had opened fire on a residence in DDC’s territory in
Duarte (the Duarte shooting). Lee was the only person charged in connection
with both the Douglas and Vigil shootings. Daniels and the other
codefendants were charged only with crimes arising out of the Vigil shooting.
As to the Vigil shooting, the jury convicted Daniels of one count of
conspiracy to commit murder (Pen. Code, § 182, subd. (a)(1); count 1);2 two
counts of first degree murder (§ 187, subd. (a); counts 2-3) for the killings of
Sutphen and Duncan; two counts of attempted willful, deliberate, and
premeditated murder (§§ 664/187, subd. (a); counts 4, 9) for the wounding of
Lipkin and Wright; and shooting at an inhabited dwelling (§ 246; count 5).
1 Daniels and his codefendants were also tried along with Andrew
Vasquez, another DDC member. The jury acquitted Vasquez of all charges.
When we refer to Daniels and his “codefendants,” we refer only to Lee,
Barnes, and Robinson.
2 Unspecified references to statutes are to the Penal Code.
2
As to the Douglas shooting, the jury convicted Lee of an additional count of
first degree murder (§ 187, subd. (a); count 6) for the killing of Douglas.
Further, on all counts as to Daniels and his codefendants, the jury found true
special circumstance allegations (§ 190.2, subds. (a)(3) [multiple murder],
(a)(21) [drive-by murder], (a)(22) [gang murder]) on counts 2, 3, and 6, as well
as gang allegations (§ 186.22, subd. (b)(1)(C)) and gang-related firearm
allegations (§ 12022.53, subds. (b)-(d)/(e)(1)).3
Daniels was sentenced separately from his codefendants. At the
sentencing hearing, Daniels was sentenced to three consecutive terms of life
imprisonment without the possibility of parole (LWOP) plus 25 years to life
on counts 2 and 3, and life imprisonment plus 25 years to life on counts 4 and
9. On count 5, Daniels was sentenced to a consecutive middle-term of five
years imprisonment. On count 1, the court imposed and stayed (§ 654)
various terms of imprisonment based on the underlying offense and firearm
allegations that were found to be true. The court imposed victim restitution,
and imposed and stayed various fines, fees, and assessments subject to an
ability to pay hearing.
Lee, Barnes, and Robinson each filed separate notices of appeal from
the judgment of conviction. After consolidating their three appeals, we issued
a partially published opinion in People v. Lee (2022) 81 Cal.App.5th 232 (Lee),
addressing many of the evidentiary and sentencing issues raised in this
appeal. As we discuss below, in Lee we rejected the codefendants’ contentions
regarding the admission of various pieces of evidence, as well as the court’s
use of the kill zone instruction as a theory to prove attempted murder. We
3 The verdict forms on count 5 (shooting at an inhabited dwelling) listed
one firearm enhancement under subdivision (d)/(e)(1) of section 12022.53,
which the jury found true.
3
also found several sentencing errors that are present in Daniels’ sentence.
On October 19, 2022, the Supreme Court granted petitions for review filed by
the Attorney General, Barnes, and Robinson. (See People v. Lee, S275449.)4
In his opening brief, Daniels joins two arguments raised by his
codefendants in Lee that: (1) the trial court erred by excluding evidence of
third-party culpability with respect to both shootings; and (2) social media
messages of Daniels, Barnes, and Robinson were inadmissible based on a lack
of foundation. Daniels also raises issues related to claims made in Lee
regarding (3) the sufficiency of evidence supporting the kill zone instruction
on both counts of attempted murder; (4) the admission of improper propensity
evidence; and (5) reliance on this propensity evidence by the prosecutor
during closing argument.
We conclude that the trial court erred by instructing the jury on the kill
zone theory of attempted murder, but find the error harmless. We reject the
remaining contentions.
While Daniels’ appeal was pending, Assembly Bill No. 333 (Stats.
2021, ch. 669, §§ 1-5) (A.B. 333) became effective. A.B. 333 amended
the gang enhancement statute (§ 186.22) to impose additional elements
beyond those that were required at the time of trial. A.B. 333 also
enacted section 1109, which provides for the bifurcation of trial, upon
the defendant’s request, of the gang enhancement allegations charged
under section 186.22, subdivision (b). In his opening and supplemental
4 The order states that “[f]urther action in this matter is deferred
pending consideration and disposition of related issues in People v. Rojas
(2022) S275835, and People v. Burgos (2022) __ Cal.5th __ (see Cal. Rules of
Court, rule 8.152(d)(2)), or pending further order of the court.” (People v. Lee
(2022), S275449.) The order also states that “Lee’s petition for review is
denied.” (Ibid.)
4
briefs, Daniels contends that both aspects of A.B. 333 apply here, requiring
reversal of his convictions for the failure to bifurcate trial (§ 1109), and
reversal of the true findings under the gang enhancement statute (§ 186.22,
subd. (b)), the related firearm enhancement statute (§ 12022.53, subds.
(b)-(d)/(e)(1)), and the gang-murder special circumstance statute (§ 190.2,
subd. (a)(22)). Daniels further contends that the sentencing minute order
improperly reflects imposition of multiple LWOP sentences on counts 2 and 3
for first degree murder, and that the sentencing court failed to strike one
multiple-murder special circumstance true finding and improperly calculated
custody credits.
We agree with all but one of these sentencing issues; we reject the
argument that section 1109 retroactively applies to this case, requiring
reversal of Daniels’ convictions. We vacate the true findings and strike the
sentences imposed under sections 186.22, subdivision (b), 190.2, subdivision
(a)(22), and 12022.53, subdivisions (b)-(d)/(e)(1), and remand the matter to
afford the People the opportunity to retry these allegations in conformance
with the current law. We direct the trial court to recalculate days of actual
custody credit, and to correct the sentencing minute orders. In all other
respects, we affirm the judgment of conviction.
5
BACKGROUND5
A. Prosecution Evidence
I. Overview
According to Los Angeles Sheriff’s Detective Matthew Thomas,
identified as an expert on DDC at trial, Daniels and his codefendants
were members of DDC, whose primary territory is in the City of
Duarte. Detective Thomas had personal knowledge of and was familiar
with Daniels through prior contacts in the field. Daniels was known as
“Fat Daddy” or “Fat Boy.” Among other names, Lee was known by the
moniker “TS.” Barnes was known as “Killa P,” and Robinson as “Pac
Man.” Between 2016 and 2017, DDC was at war with PDL, whose
primary territory is located west of Duarte in the City of Pasadena.
PDL gang members were known to congregate around two
apartment complexes in Pasadena, one of which was the Kings
Villages, the site of both the Douglas and Vigil shootings. Detective
Thomas considered the shootings in this case to be acts of retaliation by
DDC against PDL.
As part of the investigation of the two shootings, officers
extracted cellular phone data and obtained geographic locations
(pursuant to search warrants) from cellular phones belonging to
Daniels and his codefendants;6 records from Facebook and Instagram
5 The factual background is taken near verbatim from the unpublished
portion of Lee, supra, 81 Cal.App.5th 232. We have altered the factual
background to reflect the litigation designations of Daniels and his
codefendants.
6 Officers from the Pasadena Police Department were able to extract
data from only 4 of the 23 different phones processed in this case. The
geographic locations obtained from historical cell site analyses were provided
6
for the social media accounts of Daniels, Robinson, and Barnes; and records
pertaining to Lee’s Google subscriber account. We discuss this evidence as
relevant in the chronology of events regarding the two shootings.
II. The Douglas Shooting (December 22, 2016)
Around 9:47 p.m. on December 22, 2016, Pasadena Police Department
Officers Lerry Esparza and Aaron Villicana responded to a report of a
shooting at Kings Villages in the 1200 block of Fair Oaks Avenue. The
officers found Brandon Douglas lying on the sidewalk in a pool of blood. He
was wearing a red hat and red shoes, the signature color of Bloods gangs like
PDL.7 Douglas’s friend, Leonard Howard, testified that Douglas associated
with Bloods gang members, including Howard himself. Douglas died from
multiple gunshot wounds.
Forensic specialist Katie Sullivan collected five .40 caliber cartridge
cases from the scene. After analyzing the casings, senior criminalist Amanda
Davis concluded they had been fired from the same firearm. Davis also
analyzed six projectiles (five fired bullets and one bullet fragment) collected
from Douglas’s body, and concluded that two firearms had been used during
the shooting. She identified the first firearm as a .38 special or .357 magnum
revolver, and the second as a .40 caliber Smith & Wesson or .10 millimeter
automatic handgun.
through exhibits and testimony from FBI Special Agent Edwin Nam. We
have independently reviewed the trial exhibits of the cell site analysis and
cell phone data, and summarize the facts as relevant to those exhibits.
7 Detective Thomas testified that an individual wearing a red hat and
red shoes would be perceived as a Bloods gang member.
7
Lee’s Google account showed that on December 6, 2016 (16 days before
the Douglas shooting), he searched the internet for “man shot in Duarte”
(Duarte being DDC territory). Three days later, on December 9, 2016, Lee
twice searched for directions to the “King Manor Apartments” in Pasadena.
“Kings Manor” was another name by which Kings Villages, the site of the
Douglas shooting on December 22, 2016, was known. Lee then visited the
Facebook page for the apartment complex.
The week following these searches, on December 13 and 15, 2016,
Barnes received two Facebook messages indicating that a named PDL
gang member (not Douglas) was “homework,” and that DDC needed a
“k.” According to Detective Thomas, a “k” refers to a kill.
A historical cell site analysis of Lee’s cell phone activity on December
22, 2016 (the date of the Douglas shooting), showed the following. Before the
shooting, between 7:15 and 8:03 p.m., Lee’s phone used a cellular tower in
Duarte (the Meridian Street tower) covering a southwest sector of the city.
By 8:48 p.m., still before the shooting, Lee’s phone had moved from Duarte to
Pasadena, using a cellular tower just south and east of 1277 Fair Oaks
Avenue in Pasadena. This position placed the phone approximately 1,000
meters away from the scene of the Douglas shooting at Kings Villages. At
9:52 p.m., minutes after the shooting was reported to the police around 9:47
p.m., Lee’s phone was still in Pasadena, using another tower covering an area
south and east of Kings Villages. Later, at 10:17 p.m., his phone used the
Meridian Street tower covering a northwest portion of Duarte.
According to Lee’s Google account, at 11:28 p.m., less than two hours
after the shooting, he visited the Pasadena Star News website. At the time,
the police had yet to inform the public about the Douglas shooting.
8
III. The Duarte Shooting (January 6, 2017, 9:00 p.m.)
Around 9:00 p.m. on January 6, 2017, Los Angeles Sheriff’s Deputy
Roman Krajewski responded to the scene of a residential shooting in DDC
territory at 2080 Goodall Avenue in Duarte. Krajewski observed several
bullet holes in the home’s front window and in a vehicle sitting in the
driveway. No one was injured in the shooting.
IV. Cell Phone Evidence After the Duarte Shooting (January 6,
2017, 9:05 p.m. to 11:54 p.m.)
Cell phone data showed that at 9:05 p.m., minutes after the Duarte
shooting was reported, Daniels’ cell phone used the Meridian Street tower in
Duarte, and then used towers consistent with travel north of Meridian Street
toward interstate 210, and westward travel along the highway between 9:07
and 9:14 p.m. toward Pasadena. During that period of time, Daniels made or
received calls or standard text messages from Barnes and Lee (whose phone
at the time was located in La Verne).8 At 9:09 p.m., Lee sent a standard text
message to Barnes.
As Daniels moved around Pasadena between 9:15 p.m. and 10:26 p.m.,
he made or received phone calls or standard text messages from Barnes
(whose phone used the Meridian Street tower in Duarte) and Robinson
(whose phone also used the Meridian Street tower). At 9:28 p.m., Barnes
made an outgoing call to Lee (whose phone at the time was still located in La
Verne).
8 The cellphone data lists outgoing and incoming calls and standard text
messages in Coordinated Universal Time (UTC). Special Agent Nam testified
that UTC time is converted to Pacific Standard Time by subtracting eight
hours.
9
Around 11:00 p.m., the phones of Daniels (11:15 p.m.), Robinson (11:08
p.m.), and Lee (11:05 p.m.) used the Meridian Street tower. Barnes’ phone
used the Meridian Street tower around 11:24 p.m.
Then, between 11:26 and 11:27 p.m. (the last time his phone used a
cellular tower on January 6, 2017), Lee’s phone used towers located along
interstate 210 consistent with westward movement from Duarte toward
Pasadena. At 11:34 p.m., Robinson’s phone used a cellular tower along
interstate 210 in Pasadena serving an area north of the highway (a
coverage area near the site of the Vigil shooting). Between 11:43 and
11:51 p.m., Barnes’ phone used a cellular tower in Pasadena covering
87 West Claremont Street. Between 11:53 and 11:54 p.m., Daniels’
phone used cellular towers along interstate 210 in Pasadena serving an
area north of the highway (a coverage area near the site of the Vigil
shooting).
The Vigil shooting occurred at 87 West Claremont Street at or shortly
before 11:51 p.m. The address 87 West Claremont is part of the Kings
Villages complex that is positioned between Fair Oaks Avenue and Sunset
Avenue.
V. The Vigil Shooting (January 6, 2017, 11:51 p.m.)
On the evening of January 6, 2017, a candlelight vigil was held for
Brandon Douglas at the Kings Villages complex. It began at a location on
Fair Oaks in Pasadena, and later some participants moved to 87 West
Claremont, the location to which police responded after receiving the 11:51
p.m. report of a shooting.
Janell Lipkin (one of the two attempted murder victims in the shooting)
arrived at the vigil on Fair Oaks sometime after 9:30 p.m. There, she saw the
10
people who would later become the remaining victims in the Vigil shooting:
the other attempted murder victim, Shamark Wright, and the two murder
victims, Antoine Sutphen (also known as “Mudder”) and Ormoni Duncan.
Also present was a man Janell knew only as Khy, as well as Lawana Lipkin
(Janell’s sister), Leonard Howard (Douglas’ friend who provided information
in the Douglas murder investigation), and Larinisha Fernandez.
The witnesses at trial provided different perspectives of the events of
the shooting.
a. Kennard Crawford
Shortly before the shooting, Kennard Crawford, who had not attended
the vigil, was walking his blue bicycle northbound on Fair Oaks Avenue after
passing Claremont Street, when a car resembling a Honda Accord pulled up
next to him. An African-American man inside the car “banged on him,”
stating, “What’s up cuz?” (a question used by Crips gang members to
acknowledge one another). The person in the front passenger’s seat was
wearing a blue bandana on his face. The car drove away westbound on
Claremont Avenue in the direction of Kings Villages. Scared, Crawford called
911 to report the presence of gang members. Within minutes, Crawford
heard gunshots, after which a police dispatcher called to make sure Crawford
was safely at home.
b. Larinisha Fernandez
As shown by the evidence at trial, a sidewalk and metal fence are
located on the north side of West Claremont Avenue at the section of Kings
Villages that includes 87 West Claremont. Between the north sidewalk and
apartment buildings is a grassy area with trees. A concrete walkway
11
connecting the sidewalk to the apartment buildings bisects the metal gate
and grassy area, and continues north from the buildings to a parking lot.
Larinisha Fernandez testified that she hung out at Kings Manor, had
gone to school with Douglas and Duncan, and associated with PDL and other
Bloods gangs. Fernandez attended the candlelight vigil for Douglas, which
was initially held on Fair Oaks and later moved to the complex at 87 West
Claremont. While sitting in her parked car with a friend on Claremont
Avenue, Fernandez saw two cars approaching from Fair Oaks Avenue. The
first car resembled a black truck or van; the second car resembled a four-door
Honda. The cars approached with their front lights turned off. Fernandez
stayed inside the car and covered herself as “a lot” of shots were fired.
c. Janell Lipkin
Janell Lipkin testified that she was standing in the grassy area of the
apartment complex near a tall, slanted tree when she saw four-to-five Black
men inside a sport utility vehicle in the middle of Claremont Avenue. The
men started shooting as a second car pulled up behind them. Janell dove to
the grass and saw bullets strike the ground. During the shooting, a man in
the second car yelled out “[f]uck slobs” (the term “slobs” being, according to
Detective Thomas, a derogatory term that DDC gang members use to refer to
PDL members). Both vehicles drove away toward Sunset Avenue. Janell
sustained gunshot wounds to her legs, lung, kidney, and back.
d. Leonard Howard
Leonard Howard testified that he, Antoine Sutphen, and Ormoni
Duncan were, like Janell, standing next to a tall, slanted tree when the
shooting commenced. Howard saw a few cars driving slowly on
12
Claremont Avenue before one person in the last car began shooting. In
response, Howard ran around the corner of one of the apartment
buildings. When the shooting stopped, Howard looked back and saw that
Duncan had been shot in the neck. Howard also saw Sutphen and Janell
lying on the ground. Howard went over and held Sutphen in his arms until
paramedics arrived.9 Sutphen died from a single bullet that penetrated his
back, lung, and heart, and exited through his chest.
e. Shamark Wright
Shamark Wright testified that he had seen Sutphen, Duncan, Lawana
Lipkin, the man named Khy, and another man named Dijon at the relocated
vigil on 87 Claremont Avenue. While standing near the concrete walkway
behind a slanted tree, Wright heard someone say, “get down.” When he hit
the ground, Wright heard different tempos of gunshots. Sutphen was on the
ground two feet away from him. As soon as the shooting stopped, Wright ran
toward the back of the apartment complex and parking lot, at which time he
realized he had been shot in the leg. He then saw Lawana’s car approaching.
f. Lawana Lipkin
While walking to her parked car north of the apartment complex,
Lawana Lipkin heard gunshots. She began driving away, but stopped after
seeing Wright and Duncan (both of whom had been wounded) running toward
her. Duncan got into the front passenger seat. Wright got into the rear seat
9 While waiting for the paramedics, Howard discarded a .25-caliber
firearm he had been carrying. Officers collected the firearm and a .9
millimeter Ruger from the scene. Both firearms were non-operable and were
later excluded as candidates responsible for firing cartridge cases collected at
the scene.
13
along with Khy and Dijon. Duncan had been shot in the neck and was
thrashing about inside the car. As Lawana was driving toward a local
hospital, Duncan jumped into the backseat. As he did so, he kicked the car
out of drive, and Lawana lost control. The car crashed into a tree.
Investigators later found Duncan’s body on the right front passenger
floorboard. He died from a single gunshot wound to the neck.
VI. Video Evidence After the Vigil Shooting (January 6, 2017,
11:52 p.m.)
Investigating officers obtained video surveillance from businesses
located along the Lincoln Avenue corridor, which is approximately one mile
northwest of 87 West Claremont Avenue. In close proximity to the
intersection of Lincoln Avenue and Howard Street is an onramp to eastbound
interstate 210 from Howard Street. If driving north on Lincoln Avenue, a car
must turn left onto Howard Street before turning right onto the highway
onramp.
In footage shown to the jury, around 11:52 p.m. on January 6,
2017 (one minute after police received a shots-fired call), three cars
were recorded traveling northbound on Lincoln Avenue in the direction
of Howard Street. One of the vehicles—a tan four-door sedan—turned
left against a red light at the intersection of Lincoln Avenue and
Howard Street.
VII. Cell Phone Evidence After the Vigil Shooting (January 6-7, 2017,
11:52 p.m.–12:06 a.m.)
Between 11:52 p.m. and 11:53 p.m. (the same time the tan four-door
vehicle was captured on video), the cell phones of Daniels and Barnes used a
14
cellular tower covering the intersection of Lincoln Avenue and Howard
Street. The cell phones of Daniels, Barnes, and Robinson used cellular
towers consistent with eastward movement along interstate 210 from
Pasadena toward Duarte between 11:54 p.m. and 11:56 p.m. At 11:54 p.m.,
and while both phones used cell towers located in Pasadena, Daniels’ phone
made an outgoing call or sent a standard text message to Robinson’s phone.
Beginning around 12:00 a.m. January 7, 2017, the phones of Daniels,
Robinson, and Barnes used cellular towers in Duarte. Then, between 2:00
a.m. and 2:28 a.m., the phones of Daniels, Lee and Robinson used the same
two cellular towers covering areas in Fullerton.
VIII. Google Evidence After the Vigil Shooting (January 7-30, 2017)
On January 7, 2017, Lee entered Google searches for “Pasadena
shooting this morning,” and “Duarte shooting Goodall Avenue” (the Duarte
shooting). On January 9, 2017, he searched Google for, inter alia, “Glock 19
cleaning and lubrication”; and on January 30, 2017, he entered various
searches for maintaining and replacing parts on Glock firearms (which we
discuss in more detail below).
IX. Crime Scene Investigation of the Vigil Shooting
Forensic specialists Katie Sullivan (who had investigated the Douglas
shooting) and Alex Padilla responded to the scene and collected over 20 fired
cartridge cases, the majority of which were found underneath a parked car on
the north side of 87 West Claremont Avenue.10 Several of the cases collected
from the street and underneath the car were .40 caliber and .9 millimeter.
10 Sullivan observed strike marks and damage to the car.
15
The specialists also collected several .9 millimeter cartridge cases from the
interior and exterior of the apartment complex.
Multiple projectiles (spent bullets and fragments) were collected from
the scene. Bullet strike marks were found on the exterior wall of an
apartment building, a tree located in the grassy area, and the south-facing
side of the metal fence.
Based on groupings of collected cartridge cases, senior criminalist April
Whitehead concluded that five different firearms had been used during the
shooting, including one .40 caliber Smith & Wesson firearm, one .45 caliber
firearm, and three .9 millimeter firearms. One grouping of .9 millimeter
cases was consistent with being fired from a Glock handgun.
X. Ballistic Evidence Connecting Both Shootings
Senior criminalist Davis compared a .40 caliber cartridge case collected
at the Douglas shooting to the same caliber case collected from the Vigil
shooting. She determined that the same .40 caliber firearm had been used
during both shootings, a finding later confirmed after senior criminalist
Davis compared projectile evidence from both scenes.
XI. Subsequent Conduct by Daniels and His Codefendants
On January 14, 2017, Robinson sent another Facebook subscriber a
direct message wherein he stated, “We are goin at it wit [sic] the Lanes [a
reference to PDL] though. . . . We made history.” Detective Thomas testified
that the statement “we made history” was made in reference to DDC’s
enhanced status in the community.
In March 2017, investigating officers obtained court approval to
wiretap the phones of Daniels and his codefendants. Recordings of various
16
monitored phone conversations were played for the jury. During a March 18,
2017 conversation, Daniels asked Lee if he was “trynna rock,” who replied,
“Yep, if you put in some work before then.” Daniels stated, “Man, you got me
fucked up,” to which Lee replied, “[y]ou got yourself fucked up nigga.” He
continued, stating, “You got the set fucked up.” Daniels responded, “no, the
set got me fucked up, my nigga. [¶] . . . [¶] The set must don’t kn-, I’m the
last nigga that ever hit some cheesies nigga.”11 Lee stated, “So, we ain’t
talkin’ about them right now,” and “niggas been layin’ down.” He continued,
“niggas ain’t doin’ nothin’ no more. [¶] . . . [¶] Yeah, well, it’s up to us to
finish doin’ shit then.” Lee stated, “if we ain’t applyin’ no pressure they ain’t
gonna do shit. So that’s—that’s what we gotta do.” He told Daniels that they
“need to have a little powwow with ourselves, and then we go—and we go do
exactly that, cuz, press everybody to go do somethin’ cuz, from the top to the
bottom, like, we gotta . . . press all the niggas that’s young and active or these
niggas with burners and all we—we gotta push ‘em, cuz, we gotta push
them . . . in the fields.[12] You know? I mean we done did it already.” Lee
repeated, “We done did it,” before stating that he would remember who would
be “willin’ and ready to slide, cuz.” The term “slide” refers going into someone
else’s territory for a confrontation.
To “stimulate” chatter among Daniels and his codefendants, the police
released certain information on the shootings to the press. On March 20,
2017, the first release summarized the Vigil shooting and gave descriptions of
four suspects involved. During a phone conversation with an unidentified
11 According to Detective Thomas, DDC uses the term “cheesies” to refer
to Hispanic gang members.
12 According to Detective Edgar Sanchez, another investigating officer in
this case, a “burner” refers to a gun.
17
man the following day, Daniels asked if the police had provided a description
of any cars.
In the late morning of March 23, 2017, the police released a composite
sketch of Robinson as a potential suspect in the Vigil shooting. During a
phone call around 7:00 p.m. the same day, Robinson asked Barnes, “How that
shit look just like me?” Barnes replied, “But I say I think . . . you know,
Mudder, is—it’s got something to do with Mudder.” Robinson continued, “but
for sure they don’t got nothin’ cuz because a nigga ain’t did nothin’. They
gotta—they gotta prove that I did that shit man. How the fuck that sketch
look just like me?” Barnes responded, “That’s what I’m sayin’. I take it, you
already know the deal, I went through it. You know the deal fool.”
During a call three days later, Robinson told Barnes that the
composite sketch had been posted to Facebook “to see if anybody that
was there gonna say yeah I know that face.” He then said “PDL
(unintelligible) they not sayin’ nothing.” Barnes replied, “there ain’t
nobody talking about that game you hear me?” Robinson then stated
that he had talked to another person (“Young Ace”) and “told him not to
get on the phone,” and that Young Ace knew “not to say nothing, you
feel me?” Robinson stated that “people shouldn’t say, nobody should
[say] nothing to nobody.” In reply, Barnes stated, “Like nigga don’t
even like figure it out, I’ll be, like, man so I don’t know. I just say nigga
I don’t know; you know?” Robinson agreed, but stated, “They got my
name, they got all that shit. They just need the Pasadena to confirm
that it’s me.” Barnes stated, “They don’t know if you hopped out or
walked up so it’s, like, how do they know what your face look[s] like?”
On March 30, 2017, the police released a flier depicting a photograph of
one of the vehicles appearing on video surveillance. Next to the photograph
18
of the vehicle was a stock photograph of a Buick sedan. That afternoon,
Daniels spoke with a man known only as “Bo” over the phone about the flier.
Daniels told Bo that the flier depicted the “same kind of make and model of
my car.” When Bo inquired whether the car was in his name, Daniels stated,
“Yeah it is, it’s in my name though.” Daniels then asked Bo if he should
“paint my car tomorrow.” Bo stated he needed to “think real quick,” at which
point Daniels stated, “all they got like is a picture of the back of it,” and “I
didn’t have no license plates on it Bo.” Later that evening, Daniels spoke to
Corey Fluker and John W. Robinson over the phone. During the call, Daniels
told both men that the picture was “blurry.” John W. Robinson interjected,
stating: “Hey. Fool, listen. . . . You need to just go to Wawa (Phonetic) and
just get rid of that.” Daniels agreed, stating that he would sell or trade his
“game” the following day.13
Also that day, Pasadena Police Officer Dustin Gomez (one of the lead
investigators in this case) was working at his desk at the police station when
he received a phone call from a man who would not provide his name. Officer
Gomez, who had listened to many of the conversations recorded on the
wiretap, recognized the voice as that of Daniels. During the call, Daniels
reported that he had heard about the shooting and recognized the car.
Daniels told Officer Gomez that the car was not a brown Buick as was listed
in the press release, but a different car: a rusted Chevrolet LeSabre with
Arizona license plates.
13 John W. Robinson was charged in this case with one count of accessory
after the fact (§ 32; count 7), and possession for sale of cocaine base (Health
& Saf. Code, § 11351.5; count 8). He was not tried alongside Daniels and his
codefendants. The jury in this case was instructed not to speculate about or
consider counts 7 or 8.
19
Police released another flier on April 10, 2017, this time describing a
fifth suspect. Around 5:30 p.m. the same day, Lee told Daniels over the
phone that they “need to sit down and talk and put they heads together.”
Defendant Daniels replied, “Yeah. TS. If it say I got . . . my game before the
shit happened [¶] . . . [¶] I’m good right? On my—like on the registration
paper?” Also that day, Daniels told a man named Reginald Ellison over the
phone that the police “put another sketch out, cu[z]. They put another
description out and one of the descriptions is my size.” Daniels asked Ellison
to “[c]hange the [color or] something. They . . . lookin’ for a brown Buick,
Reggie.”
Barnes and Lee spoke on April 11, 2017. When Barnes began speaking
about various unidentified text messages, Lee cut him off and stated, “I don’t
got nothing to talk about.” He then stated, “I ain’t gonna talk about none of
it, cuz. Like, if niggas ain’t—you know, if niggas ain’t talkin’ about gettin’ at
these snitches cuz, it’s nothin’. I don’t wanna talk about nothin’ else.” Then,
Lee stated, “it’s fucked with the police talkin’ about—it’s too late for all of
that. They already got what they got. They already doin’ what the fuck they
doin’, so fuck worrying about them. The only thing . . . [¶] . . . to worry
about now is . . . that—circle get-together.” Barnes asked, “when can we link
up and talk about that?” Lee replied, “whenever it’s convenient, we around
each other somewhere—we’re around the same area or something you know.”
On April 11, 2017, Officer Gomez received another call from a person
he later identified as Daniels. The caller, who identified himself as “William
Shamburger,” stated that he had witnessed the Vigil shooting. Daniels
stated that the shooting “was an inside job” by another gang, the Squiggly
Lanes. He identified two cars that were involved in the shooting: a brown
Mercury and a black Suburban. He continued, “I don’t think the second
20
vehicle was the one that did the shooting sir, it wasn’t the—the Buick sir, I
mean the Mercury, or what do you guys say. . . . Yeah that’s a Mercury sir, to
me. I seen the front of it.” He also said that one of the victims named
“Antoine” (in reference to Antoine Sutphen) had recently killed a member of
the Squiggly Lanes in Las Vegas. Daniels stated that the Squiggly Lanes
had placed a hit on Antoine.
Barnes and Robinson spoke again on April 14, 2017. During the call,
Robinson asked if Barnes had spoken with “fat nigga” (Daniels’ gang
monikers were “Fat Daddy” and “Fat Boy”) to “figure out where his head [is]
at.”
On April 26, 2017, Officer Gomez went to an apartment complex
parking lot in the City of Los Angeles where he met with Reginald Ellison,
the person whom Daniels had asked to change his car’s paint color. A Buick
Century was located at the parking lot. Suspecting the car could be
Daniels’,14 Officer Gomez impounded the car and executed a search warrant.
Ellison provided Officer Gomez with the certificate of title to the car. The
certificate matched the vehicle identification number, and listed a transfer of
ownership from Daniels to Ellison on January 5, 2017—one day before the
Vigil shooting. After the Buick Century was impounded, two forensic
specialists assisted Officer Gomez in processing and photographing the car.
At the request of Officer Gomez, one of the forensic specialists scratched off
the topcoat of the car’s exterior paint, revealing a tan or brown colored coat of
paint underneath, which was consistent with the description of the vehicle
14 Pasadena Police Department Detective Jason Cordova testified that he
personally observed Daniels driving a brown Buick sedan on March 5, 2017.
The license plate number that Detective Cordova had recorded matched the
number on the car Officer Gomez saw in the apartment complex parking lot.
21
used during the Vigil shooting. During a search of the car, Officer Gomez
retrieved Daniels’ credit card from underneath the car’s driver’s seat.
In phone conversations on April 28, 2017, Lee coordinated with
Vasquez and Barnes about meeting at a fast-food parking lot in Azusa.
Several officers responded to the parking lot and conducted surveillance. The
officers observed Vasquez, Lee, Barnes, and Robinson inside a blue sedan.
The officers then watched as Barnes and Vasquez got out of the vehicle and
drove away in separate cars. Lee and Robinson drove away in the same blue
sedan.
Following Lee’s arrest on June 1, 2017, officers seized from his home
four hats (one Washington Nationals hat, one blue hat with a lowercase “d,”
and two blue Detroit Tigers hats) and a gold chain with a lower case “d”
emblem. Detective Thomas testified that DDC adopted logos from the Detroit
Tigers and Washington Nationals. He also testified that DDC used the City
of Duarte’s logo—a lowercase “d” with an arrow on the end.
Barnes was also arrested at his home on June 1, 2017. Pursuant to a
search warrant, officers seized and downloaded data from five cellular phones
found inside his home. Officer Gomez testified that one photo saved on the
phones showed Robinson, Barnes, and Lee standing next to each other.
Another photo depicted Barnes’ haircut, which included references to “2100”
(the 2100 block of Felberg Avenue is in Duarte) and a lower case “d.” A series
of five photographs in a collage depicted the burning of a red “doo-rag” while
someone held a blue hat with a “d” emblem.
Daniels was arrested by United States Marshals in rural Mississippi in
September 2017. Officer Gomez was present for the arrest.
On August 10, 2017, Los Angeles Sheriff’s Deputy Jose Garcia was
working his shift inside a Los Angeles County jail when he came into contact
22
with Lee. Deputy Garcia asked Lee where he was going. Lee reached into
his pocket and produced a pass. As he did so, another piece of paper fell out
of his pocket. Garcia recognized the piece of paper as a “kite,” a term used to
describe written messages that inmates pass to each other in the jail. The
kite stated in part, “From your home put Brandon’s death spot into your
Goggle [sic] map and see the distance.”
B. Defense Evidence
Daniels, Vasquez, Lee, and Barnes presented no affirmative evidence in
their defense. Robinson’s only witness was Officer Gomez, whom he recalled
to the stand for reasons not relevant to the issues in this appeal.15
DISCUSSION
A. Kill Zone Instruction for Attempted Murder Counts
Daniels contends the court erred in instructing the jury on the “kill
zone” theory of attempted murder under People v. Canizales (2019) 7 Cal.5th
591 (Canizales). Consistent with our prior decision in Lee, we agree the
evidence was insufficient to warrant such an instruction but find the error
harmless.
I. Relevant Theories of Attempted Murder
Attempted murder requires the specific intent to kill the victim(s) and
the commission of a direct but ineffectual act toward completing the killing.
(People v. Sanchez (2016) 63 Cal.4th 411, 457.) As relevant here, there are
15 Counsel for Daniels cross-examined Officer Gomez as to his interview
with Kennard Crawford, who reported that the car that had approached him
had tinted windows, which was consistent with Officer Gomez’s interview of
Larinisha Fernandez.
23
two scenarios in which a defendant concurrently intends to kill
multiple victims. (See People v. Stone (2009) 46 Cal.4th 131, 141
(Stone); People v. Bland (2002) 28 Cal.4th 313, 329 (Bland).) “The two
theories are mutually exclusive.” (People v. Foster (2021) 61
Cal.App.5th 430, 441, fn. 16 (Foster).)
Under one scenario, a defendant intends primarily to kill a specific
victim while concurrently intending to kill others within a zone of fatal harm
or “kill zone.” (Canizales, supra, 7 Cal.5th at p. 603; Bland, supra, 28 Cal.4th
at p. 329.) The Supreme Court in Canizales narrowed the circumstances in
which courts may instruct on this kill zone theory. The Court held that the
kill zone theory applies only when “(1) the circumstances of the defendant’s
attack on a primary target, including the type and extent of force the
defendant used, are such that the only reasonable inference is that the
defendant intended to create a zone of fatal harm—that is, an area in which
the defendant intended to kill everyone present to ensure the primary
target’s death . . . and (2) the alleged attempted murder victim who was not
the primary target was located within that zone of harm.” (Canizales, at
p. 607.) Under the kill zone theory, the defendant must have a primary
target. (Ibid.)
Another scenario of concurrent intent exists when a defendant
indiscriminately fires into a group of people with the intent to kill “a random
person rather than a specific one”; a primary target is “not required” under
such scenario. (Stone, supra, 46 Cal.4th at pp. 140, 141; accord, Canizales,
supra, 7 Cal.5th at p. 604 [“a defendant who fires into a group of people
intending to kill one of them, but not knowing or caring which one he or she
kills, can be convicted of attempted murder because there is no requirement
that a defendant intend to kill a specific target, so long as he or she intended
24
to kill someone”].) Under this theory, the defendant need only intend to kill
“anyone who got in the way of his bullets.” (People v. Thompkins (2020) 50
Cal.App.5th 365, 396 (Thompkins), disapproved on another ground in In re
Lopez (2023) 14 Cal.5th 562, __ [526 P.3d 88, 104] (Lopez); see Foster, supra,
61 Cal.App.5th at p. 440 [“[m]ultiple attempted murder convictions can be
supported” by the reasoning that a defendant who acts with intent to kill in
firing at group of people is guilty of attempted murder even if he or she
intended to kill a random rather than a specific person].) As our Supreme
Court has explained, “[a]n indiscriminate would-be killer is just as culpable
as one who targets a specific person.” (Stone, at p. 140.)
II. Jury Instructions and Prosecutor’s Arguments on the Alternative
Attempted Murder Theories (Kill Zone and Indiscriminate Attack
on Random Group Members)
The jury in this case was instructed as to both of the above theories of
liability for attempted murder.
To convict Daniels and his codefendants of the attempted murders of
Janell Lipkin and Shamark Wright in the Vigil shooting (counts 4 and 9), the
jury was instructed that it must find beyond a reasonable doubt that Daniels
and his codefendants intended to kill a person, and that they took at least one
direct but ineffective act toward killing that person. (Former CALCRIM No.
600 (2013 re-rev.).) The theory of an indiscriminate attack on random
persons at the vigil with the intent to kill any or all of them falls within this
general instruction.
The jury was further instructed pursuant to former CALCRIM No. 600
as follows: “A person may intend to kill a specific victim or victims and at the
same time intend to kill everyone in a particular zone of harm or ‘kill zone.’
In order to convict the defendant of the attempted murder of Janell Lipkin
25
and Shamark Wright, the People must prove that the defendant not
only intended to kill Antione [sic] Sutphen and Ormoni Duncan but
also intended to kill everyone within the kill zone. If you have a
reasonable doubt whether the defendant intended to kill Antione [sic]
Sutphen and Ormoni Duncan by killing everyone in the kill zone, then
you must find the defendant not guilty of the attempted murder of
Janell Lipkin and Shamark Wright.”
The prosecutor argued to the jury the following: “You don’t have to find
that [the defendants] intended to kill anyone specific but that they actually
saw a person, and they intended to kill a person.” The prosecutor continued:
“You will see that there’s some instruction about the kill zone
theory. So another theory where you can find them guilty of the
attempted murders of Shamark Wright and Janell Lipkin is if,
for example, you thought they didn’t see who they were shooting
at, but they were intending to kill Antoine Sutphen and Ormoni
Duncan, and while they were shooting at Antoine Sutphen and
Ormoni Duncan, they sprayed the entire area with shots to kill
everyone in that zone. And if Janell Lipkin and Shamark Wright
were in that zone, then the defendants would be guilty of
attempted murder under a kill zone theory; that they, essentially,
created a kill zone where they intended that everyone in that
zone die. . . .
“So either way, if you believe that [the defendants] saw Janell,
saw Shamark and targeted them and tried to kill them and just
didn’t succeed, they would be guilty of attempted murder, or if
you just thought that they sprayed the entire area, trying to kill
everyone in that area and Janell and Shamark were there, then
they would also be guilty of attempted murder.”
Thus, the prosecutor provided the jury with alternative theories
of liability for attempted murder: (1) Daniels’ intent to kill random
people at the vigil, with no particular primary target; and (2) the “kill
zone” theory in which Daniels and his codefendants primarily targeted
26
Sutphen and Duncan but concurrently intended to kill everyone in Sutphen’s
and Duncan’s immediate vicinity to ensure the deaths of their primary
targets.
III. The Kill Zone Instruction was Not Supported by Substantial
Evidence
We agree with Daniels that the “kill zone” theory was factually
unsupported in this case. Nothing about the circumstances surrounding the
Vigil shooting suggests that the defendants knew Duncan or Sutphen before
the Vigil shooting or that the defendants intended to kill Duncan and
Sutphen by creating a fatal zone of harm. No evidence was introduced to
suggest Daniels and his codefendants had any particular primary target in
mind. On the contrary, the decedents Duncan and Sutphen sustained fewer
gunshot wounds than the surviving victims, Janell Lipkin, the victim closest
to the shooters, and Shamark Wright. No evidence established a motive to
kill a particular individual as opposed to any person gathered in the grassy
area of the Kings Villages, an area where PDL gang members congregated.
“It is error to give an instruction which, while correctly stating a
principle of law, has no application to the facts of the case.” (People v. Guiton
(1993) 4 Cal.4th 1116, 1129 (Guiton).) Our Supreme Court has distinguished
between two categories of incorrect theories of guilt in jury instructions:
factually inadequate versus legally inadequate theories. (People v. Aledamat
(2019) 8 Cal.5th 1, 7 (Aledamat), citing Guiton, at p. 1128.) “‘If the
inadequacy of proof is purely factual, of a kind the jury is fully equipped to
detect, reversal is not required whenever a valid ground for the verdict
remains, absent an affirmative indication in the record that the verdict
actually did rest on the inadequate ground.’” (Aledamat, at p. 7, quoting
27
Guiton, at p. 1129; see Guiton, at p. 1127 [“if there are two possible
grounds for the jury’s verdict, one unreasonable and the other
reasonable, we will assume, absent a contrary indication in the record,
that the jury based its verdict on the reasonable ground”].) When an
instruction is legally invalid as opposed to factually unsupported, the
jury is not equipped to detect the inadequacy, and thus, as discussed
further below, a more stringent standard applies in order for the error
to be found harmless. (Aledamat, supra, 8 Cal.5th at p. 8.)
Here, the jury was “fully equipped to detect” the fact that no
evidence had been presented to them that Duncan or Sutphen, or
anyone else in particular for that matter, were the defendants’ primary
targets in the Vigil shooting. Because the record contains no indication
that the jury relied on the factually unsupported kill zone theory in
finding Daniels guilty of attempted murder, we may properly assume
that the jury based its verdict on the factually-supported and legally
valid alternative theory that Daniels and his codefendants fired
indiscriminately into the vigil crowd in order to kill as many people as
possible.
IV. The Kill Zone Instructions Were Not Legally Incorrect
Daniels contends, however, that the kill zone instructions were
not only factually unsupported but also legally unsound. In the event
the jury was instructed with both a legally inadequate theory and a
valid theory, we apply the standard of prejudice established by
Chapman v. California (1967) 386 U.S. 18 (Chapman). (Aledamat,
supra, 8 Cal.5th at p. 13.) Under this standard, the giving of one valid
and one legally invalid instruction may be found harmless where “any
28
rational juror who made the findings reflected in the actual verdict and heard
the evidence at trial would also have made the findings necessary to support
[the] valid theory.” (Lopez, supra, 14 Cal.5th at p. __ [526 P.3d at p. 108].)
We first consider whether the jury was given legally invalid kill zone
instructions. To determine whether “a legally inadequate theory was
conveyed to the jury here, we must ask whether there is a ‘“reasonable
likelihood”’ that the jury understood the kill zone theory in a legally
impermissible manner. [Citations.] In doing so, we consider the instructions
provided to the jury and counsels’ argument to the jury.” (Canizales, supra, 7
Cal.5th at p. 613.)
The jury received an instruction requiring an intent to kill two primary
targets (Sutphen and Duncan), the creation of a “‘kill zone,’” an intent to kill
everyone within that fatal zone of harm, and an intent to kill two primary
targets by killing everyone within that fatal zone of harm. This instruction,
although given prior to Canizales, properly instructed the jury on both prongs
of the test formulated in Canizales.
Daniels argues that the same instruction given in the instant case
pursuant to former CALCRIM No. 600 (2013 re-rev.) was given to the jury in
Canizales, and that the instruction was found legally inadequate in that case.
Although we agree the kill zone instruction given in this case was similar to
the one given in Canizales, we do not agree that the similarity in the
instruction compels the conclusion reached in Canizales that the jury
understood the kill zone instruction in a legally impermissible manner.
Canizales centered around a gang-related shooting at a neighborhood
block party. (Canizales, supra, 7 Cal.5th at p. 598.) Unlike in the instant
case, the evidence demonstrated that the defendants verbally identified a
specific primary target, a man named Denzell Pride, when they approached
29
the scene and began shooting at the group of 10 to 30 people dancing and
partying on the sidewalk. (Id. at pp. 598–599.)
Besides the attempted murder count as to Pride, the prosecution
charged the defendants with the attempted murder of Pride’s
companion, Travion Bolden. (Canizales, supra, 7 Cal.5th at pp. 598,
601.) The prosecutor offered two alternative theories of the defendants’
liability for the attempted murder of Bolden: (1) that one of the
defendants was specifically shooting at, and attempting to kill, Bolden
in addition to Pride, or (2) a “kill zone” theory as to Bolden. The
prosecutor “told the jury that ‘[i]f they’re shooting at someone and
people are within the zone that they can get killed, then you’re
responsible for attempted murder as to the people who are within the
zone of fire. Okay. So there were times when [Bolden] told you that he
was with [Pride], near [Pride], close proximity to [Pride]. So they’re
both within the zone of fire, the range [of] the bullets that are coming
at them.’” (Id. at p. 601, italics added.) The jury found the defendants
guilty of the attempted murders of both Bolden and Pride.
The Supreme Court found the kill zone instructions should not have
been given because there was not substantial evidence from which the jury
could conclude the defendants intended to kill everyone (including Bolden)
within the “kill zone.” (Canizales, supra, 7 Cal.5th at pp. 609–610.) The
Court concluded the evidence concerning the circumstances of the attack did
not support a reasonable inference that the defendants intended to create a
zone of fatal harm around the primary target Pride. (Id. at p. 610.) In
particular, the evidence showed only a limited number of shots fired (five)
from a substantial distance away (160 feet), and the attack occurred on a
wide city street as opposed to a more confined area. (Id. at p. 611.) The
30
Court’s primary concern was that the jury could find the defendants guilty of
attempted murder as to Bolden even if they did not find the defendants acted
with an intent to kill everyone (including Bolden) in the kill zone, but rather
found the defendants acted only with conscious disregard of the risk that
Bolden would be seriously injured or killed in the course of targeting Pride.
(Id. at pp. 596, 609.)
Canizales did not find that former CALCRIM No. 600 itself misstated
the law or was constitutionally infirm. (See Canizales, supra, 7 Cal.5th at
p. 598 [“In light of our conclusion that the judgment must be reversed
because the evidence was insufficient to support an instruction on the kill
zone theory, we need not address defendants’ constitutional challenge to
[former] CALCRIM No. 600”].) Rather, consistent with the proper standard
of review, the Court addressed both “the instructions provided to the jury and
counsel’s argument to the jury” to determine whether the jury received a
legally inadequate theory. (Id. at p. 613.)
Turning first to former CALCRIM No. 600, the Court cautioned that
the standard instruction “should be revised to better describe the contours
and limits of the kill zone theory,” reasoning that “[b]eyond its reference to a
‘particular zone of harm,’ the instruction provided no further definition of the
term ‘kill zone.’ Nor did the instruction direct the jury to consider evidence
regarding the circumstances of defendants’ attack when determining whether
[they] ‘intended to kill [their primary target] by killing everyone in the kill
zone.’” (Canizales, supra, 7 Cal.5th at pp. 609, 613.)16
16 In particular, the court held the jury should be directed to “consider the
circumstances of the attack, including the type and extent of force used
during the attack, to determine the scope of that zone and whether the
alleged victim was within the zone.” (Canizales, supra, 7 Cal.5th at p. 612.)
31
Turning next to the prosecutor’s discussion of the theory in
closing arguments, the Court found it had “substantially aggravated
the potential for confusion” on the jury’s part. (Canizales, supra, 7
Cal.5th at p. 613.) The prosecutor’s statement that the kill zone is “an
area in which people ‘can get killed’ or are in a ‘zone of fire’ was
significantly broader than a proper understanding of the theory
permits,” and “it essentially equated attempted murder with implied
malice murder.” (Id. at p. 614, italics added.) The court determined
“the prosecutor’s argument had the potential to mislead the jury to
believe that the mere presence of a purported victim in an area in
which he or she could be fatally shot is sufficient for attempted murder
liability under the kill zone theory. So misled, the jury might well have
found factual support for what was effectively an ‘implied malice’
theory of attempted murder without detecting the legal error.” (Ibid.)
The combination of the trial court’s error in instructing on the
factually unsupported kill zone theory, “the lack of any clear definition
of the theory in the jury instruction,” and the prosecutor’s misleading
argument led the Court to determine there was a reasonable likelihood
the jury understood the kill zone instruction in a legally impermissible
manner. (Canizales, supra, 7 Cal.5th at p. 614.)
Unlike in Canizales, nothing in the relevant jury instruction or closing
argument by counsel in this case suggested that the jury could convict the
defendants if the shooters simply created a zone in which the victims could be
killed. Rather, the relevant jury instruction confirmed the necessity that the
shooters created a zone in which they intended that every person in the zone
would be killed, and required an acquittal if the jury harbored reasonable
32
doubt “whether the defendant intended to kill Antione [sic] Sutphen and
Ormoni Duncan by killing everyone in the kill zone.” (Italics added.)
In addition, counsel’s remarks to the jury in this case did not
impermissibly broaden the kill zone theory in violation of Canizales, but
actually reinforced the proper scope of the kill zone theory. The prosecutor
informed the jury that it must find that in order to kill Sutphen and Duncan,
the defendants fired gunshots “to kill everyone in that zone”; that the jury
was required to find “Janell Lipkin and Shamark Wright were in that zone”;
that the defendants “essentially, created a kill zone where they intended that
everyone in that zone die”; and that the defendants “sprayed the entire area,
trying to kill everyone in that area and Janell and Shamark were there.”
These statements dovetail with Canizales’ definition of a “kill zone” as “an
area in which the defendant intended to kill everyone present to ensure the
primary target’s death” based on “the type and extent of force the defendant
used” (Canizales, supra, 7 Cal.5th at p. 607), and the requirement that “the
alleged attempted murder victim[s] who [were] not the primary target [were]
located within that zone of harm.” (Ibid.)
Taking the jury instructions and the prosecutor’s closing arguments
together, we conclude that the jury received legally adequate instructions on
the kill zone that required “a finding that the defendant harbored the
requisite specific intent to kill both the primary target and everyone within
the zone of fatal harm.” (Canizales, supra, 7 Cal.5th at p. 607.)17
17 Following our decision in Lee, several appellate courts found under
different factual contexts that cases involving former CALCRIM No. 600
instructed the juries in a legally impermissible manner. (See, e.g., In re
Sambrano (2022) 79 Cal.App.5th 724, 734 [accepting Attorney General’s
concession under Canizales]; In re Lisea (2022) 73 Cal.App.5th 1041, 1055–
1056 [modified CALCRIM No. 600 instructed the jury that if it had a
reasonable doubt whether the defendant intended to kill primary targets “by
33
VI. Assuming Arguendo the Kill Zone Instructions Were Legally
Unsound, the Error Was Harmless Beyond a Reasonable Doubt
As discussed above, because the jury received a factually insufficient
but legally adequate theory under the kill zone instruction, the applicable
standard of prejudice is whether the record affirmatively demonstrates a
reasonable probability the jury found Daniels guilty under the kill zone
theory. (Guiton, supra, 4 Cal.4th at p. 1130.) The record does not so
demonstrate, and thus the error was harmless.
Even were we to find a reasonable likelihood that the jury
understood the kill zone instruction in a legally impermissible manner,
we conclude the error was harmless under the more stringent
Chapman standard applicable in cases where a legally invalid theory
was presented to the jury along with a valid theory. We reach this
conclusion under the principles recently set forth in Lopez, supra, 14
Cal.5th 562.
As discussed above, under that standard, “‘[t]he reviewing court
must reverse the conviction unless, after examining the entire cause,
including the evidence, and considering all relevant circumstances, it
determines the error was harmless beyond a reasonable doubt.’”
(Lopez, supra, 14 Cal.5th at p. __ [562 P.3d at p. 109], quoting
Aledamat, supra, 8 Cal.5th at p. 13.) This “analysis requires a court to
rigorously review the evidence to determine whether any rational juror
harming everyone in the kill zone, then you must find the defendant not
guilty of the attempted murder”]; People v. Morales (2021) 67 Cal.App.5th
326, 339 (Morales) [prosecutor inaccurately explained theory]; People v.
Cardenas (2020) 53 Cal.App.5th 102, 111, 116, fn. 8 (Cardenas) [same].)
Because none of these cases addressed the same jury instruction or argument
of counsel, we decline to extend their analyses here.
34
who found the defendant guilty based on an invalid theory, and made the
factual findings reflected in the jury’s verdict, would necessarily have found
the defendant guilty based on a valid theory as well.” (Lopez, supra, 14
Cal.5th at p. __ [526 P.3d at p. 93].) “In other words, if ‘“[n]o reasonable jury
that made all of these findings could have failed to find”’ the facts necessary
to support a valid theory, the alternative-theory error was harmless.” (Lopez,
supra, at p. __ [526 P.3d at p. 109]; accord, Aledamat, at p. 13.)
Thus, the question we must answer is whether a reasonable jury that
made all of the findings in this case could have failed to find the facts
necessary to support the valid alternative theory of attempted murder of
Janell and Wright. (See Lopez, supra, 14 Cal.5th at p. __, [526 P.3d at p. 109]
[“a reviewing court essentially asks whether any rational juror who made the
findings reflected in the verdict and heard the evidence at trial could have
had a reasonable doubt regarding the findings necessary to convict the
defendant on a valid theory”].) That valid theory required the jury to find
that the defendants committed an indiscriminate drive-by shooting in which
they intended to kill anyone and everyone towards whom they directed
bullets during the Vigil shooting. (See Stone, supra, 46 Cal.4th at p. 141 [a
defendant “will be guilty of attempted murder even if he or she intended to
kill a random person rather than a specific one”]; accord, Thompkins, supra,
50 Cal.App.5th at p. 396, fn. 8 [“an indiscriminate shooting into a crowded
room . . . could make [defendant] guilty of multiple attempted murders if it
were shown that he harbored an intent to kill indiscriminately. [Citation.]
He could at least be found guilty of attempting to murder the five victims he
wounded when 10 shots were fired”].)
We conclude the evidence of the valid theory was overwhelming, and
thus no reasonable jury could have failed to find Daniels culpable under that
35
theory. (People v. Glukhoy (2022) 77 Cal.App.5th 576, 593–596, 606
(Glukhoy), review dism. May 31, 2023, S274792 [finding error in instructing
on legally unsound theory of liability was harmless beyond a
reasonable doubt where “evidence of the valid theory was
overwhelming”].) Using two separate cars, defendants ambushed a
closely congregated group of people (some separated by one or two feet)
under the cover of night and fired over 20 shots from five different
firearms in one direction toward the group. (Compare Cardenas, supra,
53 Cal.App.5th at p. 116 [shooter fired directly at one victim from close
range and continued firing toward that specific victim, leading to
reasonable inference shooter did not intend to kill those who were not
in the line of gunfire].) This evidence virtually compelled a finding that
Daniels and his codefendants fired repeatedly at a group of individuals
with the intent to kill any and every person in the line of fire, a theory
the prosecutor correctly argued to the jury.
The prosecutor’s closing argument is also “a pertinent
circumstance that should be considered in determining whether an
error is harmless.” (Glukhoy, supra, 77 Cal.App.5th at p. 605.) The
prosecutor focused on the same evidence in arguing both the random
intent to kill vigil attendees and the kill zone theory. Thus, the jury’s
verdict on the attempted murder charges demonstrates that it
necessarily credited the evidence that established Daniels’ culpability
for the indiscriminate attack on the vigil-goers, including Janell and
Wright, with the intent to kill them. (See id. at p. 606.)
36
B. Exclusion of Evidence of Derrell Davis’s Potential Involvement in the
Douglas and Vigil Shootings
Daniels has incorporated the argument raised in Lee’s appeal
concerning the exclusion of third-party culpability evidence regarding Derrell
Davis’s potential involvement in the Vigil shooting. (Cal. Rules of Court, rule
8.200(a)(5).)18 He provides no additional argument on the issue. As we did in
Lee, we reject this argument.
I. Relevant Background
The issue of third-party culpability was handled piecemeal throughout
the trial. We therefore summarize the import of the proceedings as a whole
rather than discuss each procedural event as it unfolded during the trial.
To raise a reasonable doubt as to his own guilt, Lee sought to introduce
evidence at trial that Derrell Davis, a documented member of the Altadena
Blocc Crips (another rival gang of PDL), was somehow involved in both the
Douglas shooting and Vigil shooting. Regarding the Vigil shooting, Daniels
and his codefendants sought to introduce statements that Leonard Howard
(one of the witnesses to the Vigil shooting) had made to the police during an
interview after the shooting.19 In one part of the interview, Howard told the
police he had received threatening text messages from Davis at unspecified
18 Rule 8.200(a)(5) of the California Rules of Court provides: “Instead of
filing a brief, or as part of its brief, a party may join in or adopt by reference
all or part of a brief in the same or a related appeal.” Subsequent unspecified
references to rules are to the California Rules of Court.
19 Howard’s interview was not introduced into evidence at trial, and is not
part of the record on appeal. Statements that the defendants sought to
introduce were discussed at sidebar conferences during trial.
37
dates. In one message, Davis sent Howard a photograph of himself holding a
grenade and stating, “I could have got you, but I didn’t want to. I’m going to
get you the next time.”20 In another part of his interview, Howard told the
police he had seen a white Dodge Charger on Fair Oaks Avenue the night of
the shooting that may have been associated with Davis. Howard then told
the police, “I don’t know if it was really them” in reference to Davis.
The court held a first hearing to determine whether to admit the
proffered evidence, and later revisited the issue throughout the trial. In
substance, the prosecutor argued that while Davis’s motive and opportunity
to commit the Vigil shooting could be established by the proffered evidence,
under People v. Hall (1986) 41 Cal.3d 826 (Hall), neither motive nor
opportunity are bases on which to admit third party culpability evidence.
Because the evidence did not establish Davis’s role in the Vigil shooting, the
prosecutor requested that the court exclude the evidence as irrelevant under
Evidence Code section 352. Defense counsel argued that the evidence
established not only motive, but direct evidence that Davis was present at the
scene of the Vigil shooting. The court disagreed, finding the evidence did not
directly or circumstantially link Davis to the perpetration of the shooting.
The court excluded the evidence.
Nonetheless, at trial the court allowed defense counsel to impeach
Leonard Howard through statements he had purportedly made to the police.
Howard was asked whether he had told the police he had seen Derrell Davis
drive a white Dodge Charger on Fair Oaks Avenue or Claremont Street the
night of the Vigil shooting. Counsel also asked whether Howard had told the
police that the vigil had moved after Howard saw Davis’s car nearby.
20 As to the written caption appearing in the photograph, the court
sustained an objection based on relevance and hearsay.
38
Howard testified that he could not recall making these statements to the
police.
II. Analysis
Daniels contends his convictions on counts 1 (conspiracy to commit
murder), 2 and 3 (first degree murder of Sutphen and Duncan), and 4 and 9
(attempted murder of Janell and Wright), must be reversed because the trial
court erred in excluding evidence that Davis was involved in the Vigil
shooting. He also contends that the court erred by not expressly referring in
its ruling to the factors set forth in Evidence Code section 352. We reject
both contentions.
To be admissible, evidence of a third person’s culpability “need not
show ‘substantial proof of a probability’ that the third person committed the
act; it need only be capable of raising a reasonable doubt of defendant’s guilt.
At the same time, we do not require that any evidence, however remote, must
be admitted to show a third party’s possible culpability.” (Hall, supra, 41
Cal.3d at p. 833.) Evidence of “motive or opportunity to commit the crime in
another person, without more, will not suffice . . . : there must be direct or
circumstantial evidence linking the third person to the actual perpetration of
the crime.” (Ibid.)
“‘[C]ourts should simply treat third-party culpability evidence like any
other evidence: if relevant it is admissible ([Evid. Code,] § 350) unless its
probative value is substantially outweighed by the risk of undue delay,
prejudice, or confusion ([Evid. Code,] § 352).’” (People v. Lewis (2001) 26
Cal.4th 334, 372 (Lewis).) We review the trial court’s exclusion of third party
culpability evidence for abuse of discretion and must affirm if the court’s
39
ruling is correct on any ground. (People v. Turner (2020) 10 Cal.5th 786, 817
(Turner); People v. Ghobrial (2018) 5 Cal.5th 250, 283.)
We find no abuse of discretion in the court’s ruling in this case.
Notably absent from the defendants’ proffer is any evidence creating a
reasonable inference that Davis was somehow involved in the murders
committed in the Vigil shooting. The proffered evidence merely suggested
that Davis might have been in the area, was an Altadena Blocc Crips
member, and had a motive to target PDL members. Nothing suggested he
was actually involved in any of the relevant events. (See Lewis, supra, 26
Cal.4th at p. 373; Turner, supra, 10 Cal.5th at p. 817 [“[w]e have repeatedly
upheld the exclusion of third party culpability evidence when the third
party’s link to a crime is tenuous or speculative”]; accord, People v. Panah
(2005) 35 Cal.4th 395, 481; People v. Gutierrez (2002) 28 Cal.4th 1083, 1135–
1137.) Further, even had the evidence somehow connected Davis to the
shooting, there was nothing to show how his supposed involvement had a
tendency in reason on the entire record—including the exceptionally strong
evidence linking Daniels and his codefendants to the Vigil shooting—to
exonerate all or one of them.
Finally, we find no error in the court’s failure to expressly weigh the
factors set forth in Evidence Code section 352. The evidence was not relevant
in the first place, as it had no tendency in reason to demonstrate Davis’s guilt
or Daniels’ innocence. In any event, invocation of the Evidence Code section
352 factors is not required if the court “clearly had the concerns of that
statute in mind when excluding the evidence.” (Turner, supra, 10 Cal.5th at
pp. 817–818.) Viewing the court’s ruling in context (particularly the
prosecutor’s request that the court exclude the evidence under Evid. Code,
§ 352), the court clearly had that statute in mind when making its ruling.
40
C. Errors in the Admission of Evidence
Like his codefendants, Daniels challenges the admission of various
pieces of evidence at trial. We first address his joinder to arguments raised
in Lee concerning various social media messages.21
In addition, Daniels contends the trial court erred by admitting various
pieces of evidence he believes are gang-related and used only to prove his and
his codefendants’ propensity for violence. Daniels acknowledges that defense
counsel did not object to the admission of any evidence on grounds that it was
improper propensity or character evidence. We therefore deem these
contentions forfeited, but address the merits in the context of Daniels’
ineffective assistance claim for the failure to object.
I. Social Media Messages
Daniels incorporates the argument raised in Lee “that ‘social media
messages of Daniels, Robinson and Barnes were inadmissible because there
was no foundation for the evidence.’” In the prior appeal, Lee argued that the
certificates of authenticity for each social media account introduced at trial
were insufficient to authenticate the messages appearing on each account, as
“[a]nyone with the right password” could gain access to author the messages.
In Lee, we noted that the appellants had failed to identify any
particular social media messages they believed should not have been
introduced at trial. (Lee, supra, at p. 50.)22 Daniels has likewise failed to
21 Trial counsel for each defendant stipulated that any objection made by
one defendant would be deemed to have been made by all defendants. When
discussing the relevant background, we refer to “defense counsel” for ease of
reading.
22 We noted: “Outside of referencing ‘social media messages of Daniels,
Robinson and Barnes’ and ‘Facebook messages’ in his briefs, [Lee did not
41
identify any social messages in this appeal. He concludes rather that the
“hearsay messages at issue [in Lee] implicate” him individually.
Daniels’ incorporated argument suffers from the very same deficiencies
present in Lee: Absent any discussion of particular messages, and absent any
objection during trial on the grounds that Daniels or his codefendants were
not the authors of the social media messages, we deem the contention
forfeited. (See People v. Wong (2010) 186 Cal.App.4th 1433, 1446–1447, fn. 9;
Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; People v.
Abel (2012) 53 Cal.4th 891, 924; see also Evid. Code, § 353, subd. (a).) In any
event, we restate our analysis in Lee on the merits and reject the
incorporated argument.
a. Governing Law
The means of authenticating a writing are not limited to those
appearing in the Evidence Code. (People v. Skiles (2011) 51 Cal.4th 1178,
1187.) As relevant here, section 1524.2 provides one means of authenticating
electronic communications seized pursuant to a search warrant. The
procedures set forth in that statute permit use of an affidavit to authenticate
such records in lieu of live testimony normally required under the business
record exception (see Evid. Code, § 1271). (§ 1524.2; Evid. Code, §§ 1561,
1562.)23
provide any] record citation with respect to any evidence introduced at trial.”
(Lee, supra, at p. 50, fn. 24.)
23 Section 1524.2 sets forth the procedures by which law enforcement may
obtain records that are in the actual or constructive possession of a foreign
corporation that provides electronic communication services or remote
computing services to the general public. (§ 1524.2, subd. (b).) In response to
a valid warrant, the corporation must provide an affidavit verifying the
42
b. Relevant Background
Seeking to admit evidence of photographs and messages appearing on
Facebook and Instagram accounts held by Daniels, Robinson, and Barnes, the
prosecution argued the evidence was relevant to each codefendant’s gang
membership. Defense counsel objected to the evidence, and argued it was
lacking in foundation and did not meet the requirements of the business
record exception. Defense counsel also argued that a Facebook employee
would have to testify to the records’ authenticity. In response, the
prosecution argued that certificates of authenticity, which had been obtained
by an investigating officer, would provide an adequate foundation for the
evidence, and the photographs and messages could be authenticated
circumstantially. Subject to the prosecutor’s ability to authenticate each
piece of evidence, the court admitted the photographs and messages.
Detective Sanchez testified that he had authored search warrants for
five different Facebook and Instagram accounts for Daniels, Robinson, and
Barnes. For each account, Detective Sanchez obtained a certificate of
authenticity from the law enforcement relations group for Facebook and
Instagram. The certificate of authenticity for the Facebook account
associated with Daniels, signed by the records custodian and dated November
2, 2017, stated:
“1. I am employed by Facebook, Inc. (‘Facebook’), headquartered in
Menlo Park, California. I am a duly authorized custodian of records for
authenticity of the records it provides, and “[t]hose records shall be
admissible in evidence as set forth in Section 1562 of the Evidence Code.”
(§ 1524.2, subd. (b)(4).) Section 1562 of the Evidence Code provides: “If the
original records would be admissible in evidence if the custodian or other
qualified witness had been present and testified to the matters stated in the
affidavit, and if the requirements of Section 1271 have been met, the copy of
the records is admissible in evidence.”
43
Facebook and am qualified to certify Facebook’s domestic records of regularly
conducted activity.
“2. I have reviewed the records produced by Facebook in this matter in
response to the Search Warrant received November 18, 2016. The records
include search results for basic subscriber information, IP logs, messages,
photos, videos, other content and records for [Daniels].
“3. The records provided are an exact copy of [those] that were made
and kept by the automated systems of Facebook in the course of regularly
conducted activity as a regular practice of Facebook. The records were saved
in electronic format after searching Facebook’s automated systems in
accordance with the above-specified legal process. The records were made at
or near the time the information was transmitted by the Facebook user.
“4. I declare under penalty of perjury that the foregoing certification is
true and correct to the best of my knowledge.” Nearly identical certificates of
authenticity were issued by the Facebook and Instagram custodians of
records in response to search warrants for the other accounts.
Before discussing the records obtained from Facebook and Instagram,
Detective Sanchez testified that each account had been password protected
and registered with an email address(es), name, and phone number(s).
Detective Sanchez then identified various photographs and video footage
obtained from the accounts associated with Daniels, Robinson, and Barnes.
Detective Sanchez also discussed several messages in which each codefendant
gave out phone numbers that had been independently associated with them
at trial.24 In one direct message on January 14, 2017, Robinson told a
24 In one message, Daniels told another user, “Call me,” before listing a
specified phone number. In another message, Barnes listed a phone number
after stating, “Hey you alright? I just got back out here. . . . Hit me if you
need anything.” In another message, Robinson stated, “My messenger don’t
44
recipient, “we are goin at it wit[h] the lanes t[h]ough. They lost three and
they just took out an innocent nigga.” He continued, “it’s good. They down
right now. We made history.”
c. Analysis
The certificates of authenticity for the social media accounts in this
case met the requirements of section 1524.2 and Evidence Code sections 1561
and 1562. The certificates were issued by the custodians of record who
certified Facebook and Instagram’s “domestic records of regularly conducted
activity.” The custodians also identified the records as true copies of those
sought in the search warrants, and attested that the records were kept in the
regular course of business at or near the time the information was
transmitted by each account user. The records and contents therein being
properly authenticated, the prosecution was not required to further
authenticate them through live testimony. (§ 1524.2; Evid. Code, § 1562.)
To the extent Daniels contends there was insufficient evidence to
support a finding that he, Barnes, and Robinson authored the messages
appearing in social media records, we disagree. Detective Sanchez testified
that each social media account was password-protected and associated with
each codefendant’s name, email address, and phone number. Many of the
messages appearing in the records informed other users that the author could
be reached at phone numbers independently corroborated as being associated
with Daniels, Robinson, or Barnes.
[sic] work unless I’m under wifi.” He then listed a phone number described
as “my number.”
The phone numbers provided in these messages match the numbers
that had been associated with each codefendant at trial.
45
All of this evidence tended to show that the codefendants created and
maintained their own social media accounts. (See People v. Valdez (2011) 201
Cal.App.4th 1429, 1435 (Valdez); People v. Cruz (2020) 46 Cal.App.5th 715,
731.) The possibility that other people could access the accounts does not
render the messages originating from them inadmissible. (See Valdez, supra,
201 Cal.App.4th at p. 1437 [“the proponent’s threshold authentication burden
for admissibility is not to establish validity or negate falsity in a categorical
fashion”].) Any doubts concerning the accounts’ ultimate authenticity went to
the weight of the evidence, not its admissibility. (People v. Goldsmith (2014)
59 Cal.4th 258, 267.)
II. Failure to Object to Gang-Related and Firearm-Related Evidence
Did Not Constitute Ineffective Assistance of Counsel
Daniels contends that various pieces of gang- and firearm-related
evidence was improperly admitted because the evidence was “in essence
probative only of propensity” and used to prove “guilt by association.”
“Evidence Code section 1101, subdivision (a) sets forth the ‘“strongly
entrenched”’ rule that propensity evidence is not admissible to prove a
defendant’s conduct on a specific occasion.” (People v. Jackson (2016) 1
Cal.5th 269, 299.) Daniels acknowledges that he has forfeited his propensity
arguments by failing to object in the trial court below. (People v. Pineda
(2022) 13 Cal.5th 186, 236 (Pineda); People v. Partida (2005) 37 Cal.4th 428,
431; People v. Williams (1997) 16 Cal.4th 153, 250 (Williams); Evid. Code,
§ 353, subd. (a).) However, he contends the convictions should nevertheless
46
be reversed because his trial counsel rendered ineffective assistance by
failing to object.25
To demonstrate ineffective assistance of counsel, Daniels must show
that his trial counsel’s performance fell below an objective standard of
reasonableness, and that he was prejudiced by trial counsel’s performance.
(Strickland v. Washington (1984) 466 U.S. 668, 687.) “As [our Supreme Court
has] noted repeatedly, the mere failure to object rarely rises to a level
implicating one’s constitutional right to effective legal counsel.” (People v.
Boyette (2002) 29 Cal.4th 381, 433.) “Moreover, ‘[i]f the record on appeal fails
to show why counsel acted or failed to act in the instance asserted to be
ineffective, unless counsel was asked for an explanation and failed to provide
one, or unless there simply could be no satisfactory explanation, the claim
must be rejected on appeal.’ (People v. Kraft (2000) 23 Cal.4th 978, 1068–
1069.)” (People v. Huggins (2006) 38 Cal.4th 175, 206.)
To begin with, Daniels has failed to develop any argument on the
merits of his claim for ineffective assistance. He has not demonstrated how
his trial counsel’s failure to object to the various pieces of evidence, which we
set forth below, fell below an objective standard of reasonableness,26 nor has
25 To the extent Daniels asserts he preserved objections under Evidence
Code section 1101 by objecting on other grounds at trial, we reject his
contention. (See Pineda, supra, 13 Cal.5th at p. 236 [objections under
hearsay and Evid. Code, § 352 did not preserve claim of evidentiary error
under Evid. Code, § 1101]; People v. Valdez (2012) 55 Cal.4th 82, 130 (Valdez)
[objections to gang-related evidence as to relevance, cumulativeness,
foundation, and Evid. Code, § 352 did not preserve claim of error under Evid.
Code, § 1101].) Nor has Daniels adequately asserted that any such objections
would have been futile.
26 Daniels concludes, without any legal argument, that defense counsel
“overlooked” an objection on propensity evidence grounds, as opposed to
making “a strategic decision.”
47
he demonstrated how this failure to object resulted in prejudice. (See People
v. Mitchell (2008) 164 Cal.App.4th 442, 467 [deeming insufficient an
argument that “merely presumes counsel’s failure to object” was
unreasonable and prejudicial].) We should not address a claim which Daniels
has not adequately developed. (People v. Tafoya (2007) 42 Cal.4th 147, 196,
fn. 12.)
Even addressing the merits of his claim, we conclude that Daniels has
failed to establish ineffective assistance because “the present record does not
preclude the possibility that defense counsel’s actions were based upon
reasonable strategic decisions.” (People v. Ledesma (2006) 39 Cal.4th 641,
746.) As we shall discuss, all of the evidence about which Daniels complains
was either properly admitted or non-prejudicial.
a. Relevant Background
The prosecution sought to introduce video and photographic evidence of
gang graffiti appearing at the Community Arms and Kings Villages
apartment complexes in June 2016. The prosecution argued the evidence,
including a video of Daniels, Barnes, and La’Shaun Morgan (a fellow member
of DDC) tagging in PDL territory and showing Daniels armed with a gun,
was relevant to the defendants’ motive to commit the shootings in a rival
stronghold. Defense counsel objected to the evidence, and argued that the
timing of the graffiti (appearing seven months before the Vigil shooting)
rendered the evidence irrelevant and lacking in probative value. The court
overruled the objections, finding the evidence to be relevant and probative as
to the existing animus between the gangs, and as to Daniels’ and Barnes’
gang membership and familiarity with Kings Villages.
48
The prosecution introduced into evidence several photographs taken of
graffiti appearing in June 2016. Pasadena Police Department Officer Trevon
Sailor testified that he had taken the pictures appearing in the Community
Arms apartment complex. In one picture taken of graffiti appearing between
two apartment units, he identified the terms “LK [and] BK” as abbreviations
for “Lanes Killer” and “Blood Killer.” In other pictures, Officer Sailor
identified several other terms referencing DDC and disparaging PDL,
including: “Roc Crip Danga Lanes K,” and “2100 Goodall Three Times
Moving, WS, Duroc, Fuc Baby Ed, Mr. Danga Lanes K.” 27 When shown
pictures of the June 2016 graffiti at trial, the gang expert, Detective Thomas,
testified that whoever wrote the graffiti were well-versed in the meanings
behind the tagging. In reference to “BK,” Detective Thomas testified that “it
indicates that this gang that tagged this, [DDC], are killers of the Blood
gangs,” and use of “LK” “indicates Lanes Killers.” 28 Three stripes appearing
on the “L” indicated that “some act has been done to gain credibility or earn
stripes.”29 Around the time Officer Sailor took pictures of this gang graffiti,
Detective Thomas was on special assignment and had personally seen a lot of
the graffiti in PDL territory. The graffiti depicted in the photographs at trial
27 According to Officer Sailor, Baby Ed was a well-known PDL member.
28 During a sidebar conference, defense counsel objected to the term
“Blood Killer” because it was unclear if the graffiti had been tagged by a
member of DDC. During a colloquy with the judge, defense counsel agreed
that “Blood Killer” was a general term used by Crip sets. The court found the
term “BK” in the graffiti could be “consistent” with DDC.
29 When asked whether the act of earning stripes would have occurred
before tagging the graffiti, Detective Thomas testified that it could be a
possibility, “[o]r that this act [of tagging] is an act of earning credibility.”
49
coincided with attacks and violence between DDC and PDL, and was
consistent with graffiti used to disrespect PDL.
During his testimony, Pasadena Police Department Detective Edgar
Sanchez (another investigating officer in this case) was shown a series of
videos obtained from Facebook records of Daniels’ account. Per the records
obtained from Facebook, the videos were uploaded at the end of June 2016.
One video was taken of the same gang graffiti Detective Sailor identified in
June 2016 located on the north end of the Community Arms complex.
Detective Sanchez identified Daniels’ voice in several videos of gang graffiti
appearing at the Community Arms and Kings Villages complexes. Detective
Sanchez also identified three individuals in the video standing near a wall to
the Community Arms apartment complex. Based on his own experience
handling the investigation, Detective Sanchez identified the individuals as
Daniels; Barnes, who was spray painting the wall; and La’Shaun Morgan.
Detective Thomas reviewed the video at trial and testified that it “re-
affirmed” his belief that Daniels and Barnes were active members of DDC.
The prosecution also requested permission to introduce photographs
that had been taken in February 2017 of graffiti appearing in a CVS
bathroom stall in an area claimed by DDC. The prosecution argued the
evidence would be used to respond to defense counsel’s questioning whether
the Douglas and Vigil shootings enhanced DDC’s reputation. Over defense
counsel’s relevance and Evidence Code section 352 objections, the court
granted the request.
During redirect examination, Detective Thomas testified that he had
seen photographs of graffiti in DDC territory around February 2017, which
coincided with lesser attacks on the gang following the Douglas and Vigil
shootings. In photographs shown the jury, Detective Thomas identified
50
portions of the graffiti in which DDC had taken credit for the shootings,
including: “We up one,” “187 All,” and “Fucc Slobs.”
The prosecution also sought to introduce evidence of the defendants’
gang monikers and tattoos. Over defense counsel’s relevance and Evidence
Code section 352 objections, the court admitted the evidence, finding it
relevant to gang membership and to the degree to which each defendant
participated in DDC.
Detective Thomas testified that he had personally contacted the
defendants in the past and knew them by their respective gang monikers.
From various photographs shown to the jury, Detective Thomas identified
gang tattoos on each defendant. As to Daniels specifically, Detective Thomas
identified two tattoos: (1) a Bentley symbol with the letter “c” for Crip
inserted and a blue background appearing on Daniels’ chest; and (2) a letter
“d” with blue coloring appearing on his left shoulder. Detective Thomas
opined that both tattoos referenced the DDC gang. Based on the tattoos on
each defendant, Detective Thomas opined that each was a member of DDC.
Detective Thomas was also shown various photographs of the
defendants. In several photographs, Lee and Robinson were depicted
wearing clothing and jewelry associated with DDC, including a Detroit Tigers
hat, a necklace with a lowercase “d” design, and blue shoes. In one
photograph, Vasquez and an unidentified man were shown standing next to
Daniels, who was flashing a gang sign by extending three fingers from his
right hand. This hand sign, Detective Thomas testified, was “consistent with
[DDC] membership.”
Detective Thomas discussed his experience with DDC, the gang’s
common symbols and colors, and terms used by gang members. He discussed
DDC’s territory or “turf,” which included the 2100 block of Goodall Avenue,
51
“the heart of [DDC] territory.” “Going on route” means “going somewhere to
carry out some act of violence or criminal activity where you would travel
from one place to another to go with something with specific intent to carry
out an act.” He also discussed the importance of gang retaliation and “status”
within gangs. A gang member increases their status by committing acts of
violence, i.e., “putting in work” or “earning stripes.”
Based on his experience investigating DDC, Detective Thomas was
aware of the term “going on a mission.” He testified, “A mission, in my
experience—I have personally investigated a crime where several members of
a gang left a location in order to go to a rival’s known location and commit a
shooting against another rival gang.” To go on a “mission,” gang members
“would usually congregate and communicate, if they are not together, by
cellphone, by text messages, determine a place to meet, which is commonly
one of the gang hangouts like [I] mentioned before, several locations on
Goodall Avenue, and in my experience, I know they have been used as
locations to congregate, formulate plans, and then from there, go on what is
called a ‘mission.’”30 Detective Thomas continued: “So the mission itself
requires planning, congregation of the members that are going to carry it out.
They would gather weapons to be used on whatever type of crime they are
going to perpetrate. They would have to collect weapons and then formulate
a plan and then go to wherever the mission was going to take place.”
Based on past investigations, Detective Thomas opined that gang
members who go on these missions have different roles: there may be
designated drivers, shooters, and lookouts either inside the same car as the
shooter(s) or in a “follow vehicle.” Once the crime has occurred, “there’s
30 Defense counsel objected to Detective Thomas’ latter description of
“going on a mission” as speculative, but the court overruled the objection.
52
definitely cohesiveness within the gang that people are not to talk about it.
People are to keep—the gang members are made sure to keep quiet about
what happened and go to great lengths to conceal the crimes that they have
[committed] to avoid prosecution and retribution.”
Detective Thomas testified that he had personally arrested DDC gang
members who illegally possessed firearms. Detective Thomas opined that
gang members obtain firearms illegally through sales or trades with other
members of the gang, and he had personally seen or heard of gang members
selling guns to one another. Guns that have been used in shootings
frequently change hands.
Over a defense objection for relevance and Evidence Code section 352,
the court admitted evidence obtained from Lee’s Google subscriber
information, including internet searches he had made regarding Glock
firearms. Based on the subscriber information, Detective Russo testified that
on January 30, 2017, Lee had entered the following internet searches: “Glock
19 cleaning and lubrication”; “how to clean a Glock at home”; “how to sand a
gun barrel down”; the “best sandpaper for a Glock slide”; “looking for gun
shops in Duarte”; and “price of a Glock 19 gen 3 firing pin.” A Glock 19 is a .9
millimeter handgun. Based on her analysis in this case, senior criminalist
Whitehead testified that a Glock handgun “could be a candidate” responsible
for firing .9 millimeter cartridge cases collected at the Vigil shooting scene.
She also testified that “sanding down a barrel” could refer to refinishing the
barrel or changing its rifling to affect a projectile analysis.
The prosecution also sought to introduce a text message sent from Lee’s
cell phone to Robinson. The court overruled Lee’s objections based on
foundation, relevance, and Evidence Code section 352 objection, but informed
the prosecution that it would have to lay a foundation for the text message.
53
Detective Sanchez testified that the wiretap of Lee’s phone
intercepted an April 3, 2017 text message on a line sheet used to
annotate calls or messages. The line sheet identified an outgoing phone
number (Lee’s), incoming phone number (Robinson’s), date (April 3,
2017), and time (7:49 p.m.). The line sheet listed verbatim the
language appearing in the text message and included a photograph
that had been attached to the message. The text message showed a
photograph of four firearms with the following message (inferably
referring to caliber and sales price for each of the four depicted guns):
“40/450, 9/350, 380/100, 38/250.”
b. Governing Law
Except as otherwise provided by statute, “all relevant evidence is
admissible (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d)), and
relevant evidence is defined as evidence ‘having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.’ (Evid. Code, § 210.) Evidence is relevant if it
tends ‘“logically, naturally, and by reasonable inference” to establish material
facts such as identity, intent, or motive. [Citations.]’ [Citation.]” (People v.
Williams (2008) 43 Cal.4th 584, 633–634.) Evidence that is relevant may still
be excluded “if its probative value is substantially outweighed by the
probability that its admission will . . . create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code,
§ 352.)
Evidence of “a person’s character or trait of his or her character
(whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove
54
his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a);
accord, Williams, supra, 16 Cal.4th at p. 193 [“evidence of a defendant’s
criminal disposition is inadmissible to prove he committed a specific criminal
act”].) This prohibition of evidence does not apply to evidence that a person
committed a crime or other act “when relevant to prove some fact (such as
motive, opportunity, intent, preparation, plan, knowledge, identity . . . ) other
than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd.
(b).)
Consistent with these evidentiary principles, evidence of a defendant’s
gang affiliation—including evidence of gang territory, membership, signs and
symbols, beliefs and practices, criminal enterprises, rivalries, and the like—is
often relevant and admissible to prove identity, motive, intent, modus
operandi, or other issues pertinent to guilt of the charged crime. (People v.
Chhoun (2021) 11 Cal.5th 1, 31 (Chhoun); People v. Franklin (2016) 248
Cal.App.4th 938, 953; see People v. McKinnon (2011) 52 Cal.4th 610, 655;
People v. Hernandez (2004) 33 Cal.4th 1040, 1049; Williams, supra, 16
Cal.4th at p. 193.) Gang evidence is also relevant to prove an underlying
crime was committed for the benefit of, at the direction of, or in association
with a criminal street gang for purposes of imposing a gang-related
enhancement or special circumstance allegation.31 (§§ 186.22, subds. (b)(1),
(f), 190.2, subd. (a)(22); see People v. Rivera (2019) 7 Cal.5th 306, 331–332.)
“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.]” (People v. Avitia (2005) 127 Cal.App.4th 185, 192.)
31 Recent legislative changes applicable to gang-related sentencing
enhancements under section 186.22 are discussed in section F, infra.
55
“Even when it is relevant, however, ‘courts should carefully scrutinize
evidence of a defendant’s gang membership because such evidence “creates a
risk the jury will improperly infer the defendant has a criminal disposition
and is therefore guilty of the offense charged.”’ [Citations.]” (Chhoun, supra,
11 Cal.5th at p. 31.) “On the other hand, ‘“[b]ecause a motive is ordinarily
the incentive for criminal behavior, its probative value generally exceeds its
prejudicial effect, and wide latitude is permitted in admitting evidence of its
existence.” [Citations.]’ [Citation.]” (People v. Duong (2020) 10 Cal.5th 36,
64.) “‘On appeal, the trial court’s determination of this issue, being
essentially a determination of relevance, is reviewed for abuse of discretion.’
[Citation.]” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
c. Gang Graffiti
The trial court in this case carefully considered the probative value of
the various types of gang graffiti against its potential for prejudice, and ruled
that the evidence was admissible for various purposes. Such purposes
included establishing an ongoing war between DDC and PDL, defendants’
membership in DDC, and defendants’ motive to commit the Vigil shooting in
PDL territory. (See People v. Champion (1995) 9 Cal.4th 879, 921, overruled
on another ground in People v. Combs (2004) 34 Cal.4th 821, 860 [“proof that
defendants were members of the same gang formed a significant evidentiary
link in the chain of proof tying them to the crimes in this case”].) The
evidence also demonstrated Daniels’ and Barnes’ presence and knowledge of
the scene of both shootings, and rebutted the suggestion by defense counsel
that the Vigil shooting did not increase DDC’s reputation. The court did not
abuse its discretion by weighing this evidence and finding that each example
of graffiti was admissible for purposes other than proving each defendant’s
56
propensity for crime. (Chhoun, supra, 11 Cal.5th at p. 31; People v. McCurdy
(2014) 59 Cal.4th 1063, 1095, 1108.)
Photographs of graffiti observed in June 2016 were relevant to
establish the motive for the shootings by providing context on the ongoing
gang war between DDC and PDL. In addition to the photographic evidence,
the jury could readily infer from the June 2016 video depicting Daniels and
Barnes tagging a Community Arms complex wall that both defendants were
active DDC members who participated with one another in disrespecting
PDL. (See People v. Killebrew (2002) 103 Cal.App.4th 644, 656–657
(Killebrew) [listing cases that have considered gang-related gang graffiti],
overruled on another ground in People v. Vang (2011) 52 Cal.4th 1038.)
As to the post-shootings graffiti found in the CVS bathroom stall in
February 2017, that evidence was relevant as the graffiti claimed DDC
responsibility for the murder of its rival gang members (“We up one,” “187
All”), and used the same derogatory statement (“Fucc Slobs”) one of the
shooters had shouted during the Vigil shooting. The graffiti was also
relevant to rebut defense counsel’s line of questioning on cross-examination of
Detective Thomas that the Vigil shooting did not enhance DDC’s reputation
for purposes of proving the gang enhancement (former § 186.22).32
32 Daniels and his codefendants were tried and convicted under former
section 186.22, which provided a sentence enhancement for any person
convicted of a felony committed 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. However, former section 186.22,
subdivision (b) did not define the term “to benefit, promote, further, or
assist,” and cases applying former section 186.22 found that the enhancement
of a gang’s reputation and that of its members served to “benefit, promote,
further, or assist” the gang. (See People v. Albillar (2010) 51 Cal.4th 47, 63.)
As we discuss below, the Legislature has amended section 186.22 to
clarify the meaning of benefiting, promoting, furthering, or assisting criminal
57
The timing in which these pieces of graffiti were observed (six
months before, and one month after the Vigil shooting) did not deprive
the evidence of its probative value. (See People v. Gionis (1995) 9
Cal.4th 1196, 1213–1214 [statements are not necessarily so “remote as
to be lacking in probative value” if they are made “almost a year and a
half” after the crimes].) “[W]hether the statements reflected merely a
transitory state of mind, as opposed to something more [enduring], was
a question for the jury to decide.” (Id. at p. 1214.)
Detective Thomas’ testimony defining the term “BK” as “Blood Killers,”
which “indicates that this gang that tagged this, [DDC], are killers of the
Blood gangs,” was relevant to educate the jury on the meaning of the graffiti
and thus its significance to the ongoing war between DDC and PDL. (See
People v. Valencia (2021) 11 Cal.5th 818, 838; People v. Lindberg (2008) 45
Cal.4th 1, 46–47 [“Numerous decisions in federal and other state courts also
have upheld the admission of expert testimony to explain the culture and
beliefs of . . . gangs and to interpret tattoos, symbols, and graffiti associated
with these groups when such evidence was relevant to the issues at trial”],
citing U.S. v. Sparks (8th Cir. 1991) 949 F.2d 1023, 1025–1026 [expert
testimony explaining the meaning of gang graffiti and hand sign depicted in
photographs properly admitted].)
We reject Daniels’ argument that the graffiti-related evidence “was not
really about proving a rivalry or motive, but instead was about the propensity
[of Daniels and his codefendants] to commit dangerous crimes, and to enter
conspiracies, which is improper.” Daniels’ argument too narrowly construes
street gang to include conduct that provides a “common benefit to members of
a gang where the common benefit is more than reputational.” (§ 186.22,
subd. (g).) One example of a common benefit includes retaliation or targeting
a perceived or actual gang rival. (Ibid.)
58
the purposes for which the evidence was both proffered and admitted. Even
if the evidence could be improperly used as character evidence, as we have
discussed, the evidence was nevertheless offered and admitted for other valid
purposes.
If Daniels was concerned with the limited admissibility of this
evidence, he was required to request a limiting instruction on the evidence.
(Evid. Code, § 355 [“When evidence is admissible . . . for one purpose and is
inadmissible . . . for another purpose, the court upon request shall restrict the
evidence to its proper scope and instruct the jury accordingly”].) He did not
do so, and he offers no reason why this general rule does not apply here.
(People v. Maciel (2013) 57 Cal.4th 482, 529.)
Notwithstanding Daniels’ failure to request a limiting instruction, we
note that the court, on its own motion, provided an instruction on the limited
purpose of “evidence of gang activity” and expressly prohibited the jury from
using this evidence to find “the defendant is a person of bad character or that
he or she has a disposition to commit crime.” (Former CALCRIM No. 1403
(2006 rev.).) Instead, the jury was directed to consider evidence of gang
activity “for the limited purpose of deciding whether: [¶] The defendant
acted with the intent, purpose, and knowledge that are required to prove the
gang-related enhancements and special circumstance allegations charged;
[¶] OR [¶] The defendant had a motive to commit the crimes charged.”
(Ibid.) Thus, this limiting instruction, which we presume the jury followed,
obviates any suggestion the jury used this gang-related evidence for
propensity purposes. (Chhoun, supra, 11 Cal.5th at p. 30.)
59
d. Gang Tattoos and Hand Signs
Daniels next argues that pictures of his gang tattoos, including one of a
large “d” on his left shoulder, and a picture of him standing next to Robinson
making gang signs, were “largely irrelevant” and were used to exaggerate his
gang involvement. Daniels is mistaken.
Prior to admitting these pieces of evidence, the court found they were
relevant to Daniels’ gang membership and his motive for committing the
crimes charged, and that the probative value of the evidence exceeded any
potential for prejudice. The court did not abuse its discretion in so ruling.
In a gang-related shooting, “evidence of defendant’s and [his
codefendants’] membership in and level of commitment to [the gang],
including their [gang] tattoos and pictures showing them with other . . . gang
members, . . . and evidence showing the workings and activities of [the gang]
and the close connections among its members [is] relevant to both motive and
identity.” (Valdez, supra, 55 Cal.4th at p. 131; accord, People v. Ochoa (2001)
26 Cal.4th 398, 438 (Ochoa) [approving admission of gang expert testimony to
explain significance of defendant’s gang-related tattoos], abrogated on
another point as stated in People v. Harris (2008) 43 Cal.4th 1269, 1306; see
also People v. Loeun (1997) 17 Cal.4th 1, 6 [making gang sign relevant in that
it could “signify membership in a ‘Crip’ gang”].)
To establish Daniels’ membership in DDC and thus his motive to
commit the charged crimes, the prosecution introduced photographs of two
tattoos and a photograph of him making a gang sign consistent with DDC.
Daniels argues that because the meaning behind his tattoos and hand sign
are subject to reasonable dispute,33 they lack any relevance to gang
33 Daniels contends that his tattoo of the letter “d” appearing on his left
shoulder matched another tattoo on his right shoulder of the letter “i,” which
60
membership and motive. As the trial court correctly found, this argument
goes to the weight of the evidence and not its admissibility. (Ochoa, supra, 26
Cal.4th at p. 438.) Daniels was “free to highlight any overgeneralizations on
cross-examination, and [he] did so at length.” (Chhoun, supra, 11 Cal.5th at
p. 32.)
e. Gang Expert Testimony
Daniels also contends that the court erred by admitting testimony from
the gang expert, Detective Thomas, regarding his discussion about gang
“missions,” “going on route,” and the illegal possession and use of firearms.
We find none of Daniels’ arguments persuasive.
Daniels first argues that Detective Thomas’ testimony on these subjects
was used to tarnish Daniels’ character through “prior conduct evidence”
under Evidence Code section 1101, subdivision (a). But “[s]ubdivision (a) of
section 1101 prohibits admission of evidence of a person’s character . . . to
prove the conduct of that person on a specified occasion.” (People v. Ewoldt
(1994) 7 Cal.4th 380, 393, italics added.) As Daniels himself concedes, the
testimony of Detective Thomas on these concepts did not connect Daniels or
“reflected [his] initials” rather than gang affiliation. This same argument
was raised by his trial counsel at an Evidence Code section 402 hearing. The
court found the argument went to the weight of the evidence and not its
admissibility.
Citing the trial exhibit that depicted him making a gang sign, Daniels
asserts that the picture showed him extending two fingers “versus the three
finger hand sign that Crips use.” During cross-examination, Daniels’ trial
counsel asked the gang expert, Detective Thomas, to review the photograph
to see if Daniels extended two fingers. In response, Detective Thomas stated:
“It appears that the thumb is also extended, but it’s blurry, so it’s three. . . .
You can see the thumb is blurred, so there is, obviously, movement. And so
the person is holding three fingers up, and the hand is just turned.”
61
his codefendants to any particular crime or prior bad act. As such, the
testimony was never offered or admitted as prior acts evidence. (Cf. People v.
Cottone (2013) 57 Cal.4th 269, 286, fn. 10 [admission of evidence under
Evidence Code section 1101 “may entail preliminary fact determinations . . .
such as the fact that the conduct occurred and the defendant’s connection to
it”].)34
Detective Thomas’ testimony was admissible expert testimony on
matters beyond the common knowledge and experience of the jury.
“California law authorizes qualified experts to offer opinion testimony if the
subject matter is ‘sufficiently beyond common experience’ such that the
expert’s opinion ‘would assist the trier of fact.’ (Evid. Code, § 801, subd. (a).)
In general, ‘“[t]he subject matter of the culture and habits of criminal street
gangs . . . meets this criterion.”’ (People v. Vang (2011) 52 Cal.4th 1038, 1044
(Vang).)” (People v. Flores (2020) 9 Cal.5th 371, 398.) The substance of
Detective Thomas’ testimony gave meaning to the facts shown by the
evidence, namely the coordinated communications and movement before,
during, and after the Vigil shooting. This type of conduct was consistent with
Detective Thomas’ testimony on planning, congregation, and the execution of
a plan by gang members.
The type of coordinated attack discussed by Detective Thomas was
amply supported by the evidence in this case. (See Vang, supra, 52 Cal.4th at
p. 1046 [expert opinion evidence must be “rooted in the evidence of the case
34 The absence of any connection between Daniels and any prior bad act
makes Detective Thomas’ testimony significantly distinct from the testimony
at issue in People v. Guerrero (1976) 16 Cal.3d 719, on which Daniels
primarily relies. (See id. at pp. 722, 727 [testimony of Irene Lopez, “who
claimed that defendant had raped her six weeks before the alleged murder,”
could not be used “to show that defendant killed Miss Santana in the course
of an attempted rape”].
62
being tried, not some other case”].) Within minutes of the Duarte shooting,
Daniels drove from Duarte to Pasadena, where he stayed for several hours in
and around the Kings Villages complex. During that time, he communicated
with Barnes and Robinson—each in the same area of Duarte—and Lee, who
at the time was located in La Verne. Then, around 11:00 p.m., all of the
defendants appeared in the same area of Duarte near the scene of the Duarte
shooting before moving westward toward Pasadena at or near the scene of
the Vigil shooting.35 Minutes after the shooting, Daniels and Barnes were
located at the intersection of Lincoln Avenue and Howard Street at the same
time Daniels’ car and additional vehicles were captured on video surveillance.
Daniels and his codefendants moved back to Duarte before each traveled into
Fullerton.
Discussion of gang missions by Detective Thomas gave meaning to
these actions to prove that each defendant coordinated the Vigil shooting,
intended that it occur, and actively facilitated the shooting in furtherance of
the DDC. (See Killebrew, supra, 103 Cal.App.4th at p. 658 [admitting
testimony “that gangs would travel in large groups if expecting trouble, that
in a confrontation more than one gang member may share a gun in some
identified circumstances, and that oftentimes gang members traveling
together may know if one of their group is armed”]; People v. Holmes,
McClain and Newborn (2022) 12 Cal.5th 719, 773; People v. Sandoval (2015)
62 Cal.4th 394, 414–415; People v. Monterroso (2004) 34 Cal.4th 743, 772; see
also People v. Davis (2009) 46 Cal.4th 539, 605 [upholding expert’s “general
35 Police received the shots-heard call at 11:51 p.m. Cellular phones that
used towers covering the shooting scene and surrounding areas in Pasadena
included Daniels’ phone (11:34-11:53 p.m.), Barnes’ phone (11:43-11:51 p.m.),
and Robinson’s phone (11:34 p.m.).
63
description of paraphilia and the behavior typical of persons who have this
disorder” as evidence that correlated defendant’s own behavior].)
Also supported by the evidence was Detective Thomas’ discussion of
gang members illegally obtaining firearms. As we discuss in more detail
below, several months after the Vigil shooting, Lee sent Robinson a text
message depicting four firearms with the following message: “40/450, 9/350,
380/100, 38/250.” Expert testimony on the illegal sale or trade of firearms
assisted jury in understanding the meaning behind this particular text
message. (See People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550 [“gang
sociology and psychology is beyond common experience and thus a proper
subject for expert testimony”].)
Finally, Daniels argues that the definition of “going on route” as
testified by Detective Thomas amounted to improper speculation as to the
defendants’ intent. Though we agree that experts may not offer an opinion
on the mental state of a specific individual (Killebrew, supra, 103 Cal.App.4th
at p. 658), the definition provided by Detective Thomas—that “going on
route” referred to traveling to a place “with specific intent to carry out an
act”—rendered no such opinion on Daniels’ own intent during any particular
time. (See Vang, supra, 52 Cal.4th at p. 1049 [“The expert did not give an
opinion on whether the defendants did commit an assault in that way, and
thus did not give an opinion on how the jury should decide the case”]; People
v. Olguin (1994) 31 Cal.App.4th 1355, 1371 [expert “focused on what gangs
and gang members typically expect and not on [one of the defendant’s]
subjective expectation in this instance”].)
64
f. Codefendant Robinson’s Facebook Comment
Daniels contends the trial court improperly admitted a photograph and
attached Facebook comment obtained from Robinson’s Facebook account.
The picture depicts Robinson with a woman named Norneccia Givan-
Simpson, and the attached comment written by Robinson on January 18,
2017, stated: “We look like we bout to ride on sumbody [sic].” According to
the gang expert, Detective Thomas, the term “ride” refers to “travel[ing] from
one place to another with another gang member just to—it’s used in
context . . . to mean going somewhere with some other gang members for a
certain purpose.” The term “ride” relates to gang “missions,” as “it would be
common for a ‘mission’ to be used as a term for when you are going . . . to
‘ride’ . . . to do it with other gang members.”
We agree with Daniels that the Facebook picture and attached
comment, occurring more than one week after the Vigil shooting, constituted
improper evidence of an uncharged subsequent act. (Evid. Code, § 1101,
subd. (a).) Robinson’s comment did not tend to establish motive or intent to
commit the charged offenses, and it did not touch upon the activities of
Robinson specifically, or DDC more generally, in relation to an opposing
gang.
Nevertheless, we need not determine whether Daniels’ trial counsel
was ineffective for failing to object to admission of the Facebook photograph
and attached comment, as we find admission of this evidence harmless. (See
People v. Banks (2014) 59 Cal.4th 1113, 1170 [“Where no prejudice showing
has been made, there is no need to inquire whether counsel’s efforts were in
fact ineffective”], disapproved on another ground People v. Scott (2015) 61
Cal.4th 363.) “When evidence is erroneously admitted, we do not reverse a
conviction unless it is reasonably probable that a result more favorable to the
65
defendant would have occurred absent the error. (People v. Watson (1956) 46
Cal.2d 818, 836 (Watson); see People v. Covarrubias [(2016)] 1 Cal.5th [838],
887–888 [Watson standard applies in evaluating prejudice from state law
error in admitting evidence].)” (People v. Powell (2018) 5 Cal.5th 921, 951;
People v. Benavides (2005) 35 Cal.4th 69, 93.)
The comment was authored not by Daniels, but by Robinson. Nothing
in the comment or the context in which the comment was admitted at trial
tended to implicate Daniels in any manner. The prosecution admitted the
photograph and attached comment during Detective Sanchez’s testimony on
Robinson’s Facebook account. Daniels does not suggest that the prosecution
used this piece of evidence to establish Daniels’ own culpability.
Moreover, the evidence of Daniels’ own involvement in the Vigil
shooting and his consciousness of guilt was overwhelming. As discussed, it
was Daniels who initiated communication with his codefendants after the
Duarte shooting, and it was Daniels who scouted the neighborhood prior to
congregating with his codefendants before the Vigil shooting. Daniels’ car
matched the description of a vehicle recorded on surveillance near the Vigil
shooting, and after learning as much, he transferred ownership to his car—
post-dating the transfer to one day before the Vigil shooting—and had the car
repainted to divert any attention away from the vehicle. It was also Daniels
who contacted investigating officers in an attempt to redirect the
investigation under the guise of a fake name. Based on the foregoing, we
conclude the jury would have reached the same result even if Robinson’s
Facebook comment had been excluded at trial.
66
g. Firearm-Related Evidence
Finally, Daniels contends the court erred by admitting Google searches
Lee had made on January 30, 2017, several weeks after the Vigil shooting, for
how to maintain and break down Glock firearms. He also challenges the
court’s admission of the April 3, 2017 text message with an accompanying
photo of four firearms that Lee sent to Robinson. Daniels asserts these pieces
of evidence were irrelevant propensity evidence. We disagree.
As we discussed in Lee, the January 2017 Google searches and April
2017 text message were relevant and probative as to Lee’s connection to the
crimes in this case. The evidence did not show Lee’s propensity to shoot
people, but rather demonstrated his access to and familiarity with the same
caliber of firearms that had been used during the shootings—either a .40
caliber Smith & Wesson or .38 special during the Douglas shooting, and a .9
millimeter during the Vigil shooting. (See People v. Homick (2012) 55 Cal.4th
816, 876; People v. Riser (1956) 47 Cal.2d 566, 577, overruled on another
ground in People v. Morse (1964) 60 Cal.2d 631 [“When the specific type of
weapon used to commit a homicide is not known, it may be permissible to
admit into evidence weapons found in the defendant’s possession some time
after the crime that could have been the weapons employed. There need be
no conclusive demonstration that the weapon in defendant’s possession was
the murder weapon”].)
When viewed in connection with other gang memorabilia, the coded
language in Lee’s April 2017 text message was also relevant to establishing
his motive to commit shootings against a rival gang. (Compare People v.
Venegas (2020) 44 Cal.App.5th 32, 40 [evidence of disassembled assault rifle
and several magazines at codefendant’s house tended to show codefendant
kept weapons and, along with evidence of gang paraphernalia, demonstrated
67
he was an armed member of the gang]; see also Ochoa, supra, 26 Cal.4th at
p. 438 [“we [have] approved the admission of a coded list that arguably
referred” to matters relevant at trial].) The evidence was admitted for
relevant purposes, and it was not inflammatory, confusing, or prejudicial.
In sum, we conclude that Daniels has failed to establish ineffective
assistance of counsel for his trial counsel’s failure to object to the gang-
related and firearm-related evidence which, with one exception we found to
be harmless, was properly admitted.
D. Failure to Object During Closing Argument Did Not Constitute
Ineffective Assistance
For the first time on appeal, Daniels contends the prosecutor
committed misconduct during closing argument when discussing gang
evidence that Daniels contends was improper propensity evidence. The
failure of Daniels to object below and request a curative instruction forfeits
his argument on appeal. (People v. Fuiava (2012) 53 Cal.4th 622, 670–680;
People v. Lopez (2008) 42 Cal.4th 960, 966.) To avoid this conclusion, Daniels
asserts ineffective assistance of trial counsel. We reject this argument.
I. Relevant Background
As discussed above, the court instructed the jury with former
CALCRIM No. 1403, a limiting instruction on use of evidence of gang
activity, prior to closing argument. Among the prosecution’s initial and
rebuttal closing argument that comprises over 90 pages of reporter’s
transcript, Daniels challenges four remarks made in the initial closing, and
five additional remarks in rebuttal closing argument.
During the initial closing argument, the prosecution stated as follows:
68
1. “Their devotion to the Crip gang is everywhere, in everything
they do. And it’s important for you to see that and understand it to know
what happened in this case. [¶] You saw throughout the gang evidence that
what they care about, who they were beefing with was Pasadena. And the
way they show that is to cross Pasadena out. Crossing out ‘Pasadena, PDL.’
‘We up one.’ ‘Fuck slobs.’”
2. “All of this evidence tells you exactly who that circle of five is,
who is in that circle of five. . . . And what you know about this circle of five is
what’s most important to them. What’s important to them is their reputation
as Duroc members, their status, earning stripes. They need credit for what
they do. . . . They need credit for their violent acts. [¶] They commit
terrifically violent acts to get that status, to earn those stripes so that they
have a better reputation in their gang. It’s been proven to you in this case
that each one of them is a cold-blooded killer. Each one of them, to them, [the
victims of the Vigil shooting] were just numbers to them.”
3. “What we also know is that they were on a mission. You heard
Detective Thomas tell you about missions and how gang members are
relatively sophisticated in this sense. They, actually, plan out these missions.
They have roles. . . . [¶] And in this case, they went from Duarte to
Pasadena and then back to Duarte. And later some went to Fullerton. This
was a mission. And during that mission, they all had roles. They all aided
and abetted each other, and they are all equally guilty.” 36
4. “If you determine that the murders were first degree, then you
will determine whether or not the special circumstances are true. And for
this shooting, January 6, 2017, shooting, there’s three special circumstances
36 The prosecution made these remarks shortly after discussing the
evidence regarding each defendant’s movement in Duarte and Pasadena.
69
that are alleged: multiple murders, . . . drive-by shooting . . . an[d] active
participation in a criminal street gang. Since you heard the gang testimony
about what this was, this is a mission. This is a Duroc Crip mission where
five Duroc Crip gang members went there to commit multiple murders.”
In his own closing argument, Daniels argued there was no evidence
placing him or his car at the scene of the Vigil shooting, and no evidence he
was ever armed the night of the Vigil shooting. He also argued that “the
gang expert [(Detective Thomas)], didn’t know anything about [Daniels] and
couldn’t give us any information about him, and he didn’t interview him.”
“It’s not enough to say that [(Daniels)] was a gangster.” In addition, counsel
for Robinson argued to the jury that Detective Thomas could not identify
“‘tangible evidence’” in which DDC’s status had been elevated. “At first he
[(Detective Thomas)] said no, but then he [identified] . . . [a]n unknown
scribbled piece of graffiti that was hidden in the private confines of a
bathroom toilet at CVS.”
Daniels identifies five additional remarks made in the prosecution’s
rebuttal closing argument as follows:
5. “Counsel for Mr. Daniels argues there’s no evidence [he] was
armed on the night of the shooting. True, no eyewitness on January 6, 2017,
can see a firearm in Mr. Daniels’ hand. But where is he right here, right in
the heart of the Blood territory in 2016? He is armed, and La’Shaun Morgan,
he is armed. Duroc Crips are not going to go into rival territory unless they
are prepared.”
6. “What was this whole thing about on . . . January 6th of
2017? . . . Earning your stripes. Getting your kill. And notice in those [June
2016 graffiti] videos you see everything you need to know about gang tactics.
Everyone’s playing a role. Everyone’s a participant. Mr. Daniels
70
videotaping, memorializing the events, and Mr. Barnes completing the
crime.”
7. “Celebratory acts: What were they doing after the graffiti, during
the graffiti? Laughing, snickering, celebrating this great coo [sic] of going
into rival territory and desecrating people’s homes. [¶] The photographs on
Mr. Barnes’ phone: the burning of the red bandana effigy, a celebration, their
hatred for PDL; the post-graffiti celebration in the CVS restroom.”
8. “Mr. Lee likes to plan. He likes meetings. Meetings, the
hallmark of a conspiracy, conferences. [¶] What else does Mr. Lee like to do?
He likes to research. Like, on February 9, 2017, searching for how to sand
down the barrel of a gun. Counsel misses the whole point regarding those
Google searches. It’s not whether a Glock was used but whether Mr. Lee
plans and the research he does.”
9. “April 3rd, 2017, Mr. Lee texts this photograph to Mr. Robinson.
What’s been left out of this photograph? The content of the text: 40/450,
9/350, 38/100, 38/250. . . . [¶] April 3rd, 2017, Derion Lee was trying to hock
these guns. He sent this photograph. What other possible, reasonable
conclusion can we draw from this . . . text? He is trying to get rid of these
guns. And it tells you that Mr. Lee has intricate knowledge of weapons.
What did Detective Thomas say? They acquire guns illegally, and they sell
them on the black market. Complete corroboration of Detective Thomas.”
II. Governing Law
“The standards governing review of misconduct claims are settled. ‘A
prosecutor who uses deceptive or reprehensible methods to persuade the jury
commits misconduct, and such actions require reversal under the federal
Constitution when they infect the trial with such “‘unfairness as to make the
71
resulting conviction a denial of due process.’” (Darden v. Wainwright (1986)
477 U.S. 168, 181; see People v. Cash (2002) 28 Cal.4th 703, 733.)’” (People v.
Williams (2013) 56 Cal.4th 630, 671.)
A prosecutor “‘“is given wide latitude during argument. The argument
may be vigorous as long as it amounts to fair comment on the evidence, which
can include reasonable inferences, or deductions to be drawn therefrom.
[Citations.]”’” (People v. Stanley (2006) 39 Cal.4th 913, 951; see People v.
Pensinger (1991) 52 Cal.3d 1210, 1251 [a prosecutor “may even use such
epithets as are warranted by the evidence”].) “‘“Whether the inferences the
prosecutor draws are reasonable is for the jury to decide.”’ [Citation.]”
(People v. Thornton (2007) 41 Cal.4th 391, 454.) “On the other hand, urging
use of evidence for a purpose other than the limited purpose for which it was
admitted is improper argument.” (People v. Lang (1989) 49 Cal.3d 991, 1022
(Lang).)
However, “even otherwise prejudicial prosecutorial argument, when
made within proper limits in rebuttal to arguments on defense counsel, do
not constitute misconduct.” (People v. McDaniel (1976) 16 Cal.3d 156, 177;
see People v. Panah (2005) 35 Cal.4th 395, 464.)
“When attacking the prosecutor’s remarks to the jury, the defendant
must show that, ‘[i]n the context of the whole argument and the instructions,’
[citation], there was ‘a reasonable likelihood the jury understood or applied
the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements. [Citation.]’” (People v. Centeno (2014) 60 Cal.4th
659, 667.)
72
III. Analysis
To demonstrate an ineffective assistance claim, Daniels must show
(1) his trial counsel’s performance was objectively unreasonable; and (2) the
deficient performance prejudiced Daniels. (Strickland v. Washington, supra,466 U.S. at p. 687.) Because the record does not show any explanation for
Daniels’ trial counsel’s failure to object, we must reject his claim of ineffective
assistance unless there simply could be no satisfactory explanation for
counsel’s inaction. (People v. Huggins (2006) 38 Cal.4th 175, 206; People v.
Dennis (1998) 17 Cal.4th 468, 521.)
Daniels has failed to carry his burden. Nearly all the prosecutor’s
gang-related arguments were fair comments on the gang evidence. By
addressing gang devotion, reputation within a gang, earning stripes, and the
ongoing “beef” between DDC and PDL, the prosecutor properly suggested to
the jury that it could infer each defendant had a motive to commit the
charged offenses. The prosecutor’s use of the term “mission” in closing
argument did not urge improper use of the gang expert’s testimony, but
instead correlated the evidence of Daniels and his codefendants’ movement
and communications to support the inference that Daniels and his
codefendants coordinated the Vigil shooting, intended that it occur, and
actively facilitated the shooting in furtherance of their gang. These are all
valid uses of the evidence under the trial court’s limiting instruction.
Use of Lee’s Google searches to suggest that he likes to “research” was
also a fair comment on the evidence. The argument urged the inference that
Lee planned both the Douglas and Vigil shootings. Similarly, the prosecution
properly correlated Lee’s April 2017 text message about four guns with
Detective Thomas’ expert testimony on the illegal possession and sale of
73
firearms. The argument highlighted the legitimate inference that Lee had
illegally disposed of some of the weapons used in the Vigil shooting.
Argument on the February 2017 graffiti appearing in the CVS
bathroom stall was also fair comment on the evidence and responsive to
Robinson’s counsel’s closing argument. The prosecutor did not clearly
attribute the February 2017 graffiti to any one of the defendants, and instead
argued that the graffiti took credit for DDC as being “up one” on PDL.
Indeed, the graffiti corroborated the prosecution’s argument that DDC had
been “beefing with Pasadena” in 2016 and 2017, and it constituted “tangible
evidence” tending to show DDC’s elevated status.
Finally, the prosecutor suggested the jury could infer from the video
evidence that Daniels had previously been armed when he came into PDL
territory that he would be armed whenever he was in that zone. Even if we
view the prosecutor’s comment as improperly suggesting to the jury that
Daniels’ past gun possession demonstrated he was the sort of person who
carries weapons, we do not believe that brief comment could have prejudiced
Daniels, given the overall strength of the evidence of Daniels’ participation in
the conspiracy to commit a gang retaliation shooting. Because the
prosecution’s remarks were at worst harmless error, counsel’s failure to
object to them could not have affected the outcome of the proceedings. Stated
otherwise, even assuming counsel’s performance fell below the prevailing
professional standards, there was no resulting prejudice.
E. Sentencing Issues
Daniels was sentenced separately from Lee, Robinson, and Barnes. We
summarize the relevant sentencing proceedings as to Daniels before
addressing his contentions.
74
I. Relevant Proceedings
The court continued Daniels’ sentencing hearing to March 8, 2021, to
allow a bar panel attorney to review the trial record and investigate the
effectiveness of Daniels’ trial counsel at trial counsel’s own request. The bar
panel attorney investigated the matter and filed a report that identified
several areas—all unrelated to the issues in this appeal—where trial counsel
could have improved representation.37 Having identified these areas of
improvement, the bar panel attorney “considered whether [trial] counsel’s
representation fell below an objective standard of reasonableness under
prevailing professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome. The answer is no.”
Upon its review of the bar panel attorney’s report, the court adopted
the report’s findings by reference and found trial counsel’s representation of
Daniels to be both effective and non-prejudicial. The court also found that
Daniels received a fair trial, and that “overwhelming” evidence was presented
to establish his guilt on every count on which he was convicted.
Proceeding to sentencing, the court stated it had considered both the
prosecution’s sentencing memorandum and a pre-conviction probation
officer’s report prepared October 10, 2017, which the parties stipulated for
use at sentencing. In the report, the probation officer stated that “[o]n
August 25, 2017, police officers responded to Mississippi and arrested
37 Those areas included: (1) seeking appointment of a psychiatrist or
psychologist to evaluate Daniels; (2) giving an opening statement; (3) taking
“a more active and aggressive role and initiat[ing] a more expanded cross-
examination” of witnesses; and (4) filing a motion to sever Lee’s trial on the
Douglas shooting.
75
[Daniels] for the current charges.” The report estimated that Daniels had
spent 49 days in “custody—county jail” as of the hearing date listed on the
report (Oct. 12, 2017).
On both counts 2 and 3 (first degree murder of Sutphen and Duncan),
the court sentenced Daniels to three terms of life without the possibility of
parole based on the jury’s special circumstance findings (§ 190.2, subds. (a)(3)
[multiple murder], (a)(21) [drive-by murder], (a)(22) [gang murder]), plus a
consecutive term of 25 years to life for the firearm enhancement (§ 12022.53,
subds. (d)/(e)(1)).38 On counts 4 and 9 (attempted premeditated murders of
Janell and Wright), the court sentenced Daniels to a consecutive term of life
imprisonment plus a consecutive term of 25 years to life for the firearm
enhancement. On count 5 (shooting at an inhabited dwelling), the court
sentenced Daniels to a consecutive middle term of five years (the court stayed
a term of 25 years to life for the firearm enhancement). On count 1
(conspiracy to commit murder), the court imposed and stayed a term of 25
years to life for the underlying offense, plus 10 years, 20 years, and 25 years
to life for the firearm enhancements (§ 12022.53, subds. (b)-(d)/(e)(1)).
The court stated that it was imposing consecutive sentences on all
counts, as in each count the victims were particularly vulnerable, the manner
of committing the crimes indicated planning and sophistication, and Daniels
had engaged in violent behavior indicating a serious danger to society. (See
Rules 4.425(b), 4.421(a)(3), 4.421(a)(8), 4.421(b)(1).) The court also indicated
that Daniels had a prior criminal record, albeit a “minimal” one, and the
instant crimes were increasing in violence and seriousness. (See Rules
38 On counts 2, 3, 4, and 9, the court imposed and stayed terms of 20 and
10 years imprisonment for the lesser firearm enhancements (§ 12022.53,
subds. (b)-(c)/(e)(1)) that the jury found to be true.
76
4.421(a)(1), 4.421(b)(2), 4.423(b)(1).) Following imposition of sentence, the
court inquired about Daniels’ custody credits. Daniels’ trial counsel
tentatively calculated 1,298 days of credit. The court stated that it would “go
over that and see if we can confirm that. For now— [¶] . . . [¶] —we will
say tentatively the credits are 1298 days.” The court finished the sentencing
hearing without confirming the calculation of custody credit. The sentencing
minute orders and the abstract of judgment reflect custody credit of 1,292
days.
II. Assembly Bill No. 333
In his opening and supplemental briefs, Daniels contends that newly
enacted Assembly Bill No. 333 (2021-2022 Reg. Sess.) (A.B. 333) requires
(1) reversal and retrial of every count of conviction, and (2) reversal of all
attached gang and firearm enhancements and gang special circumstance
findings. (See Stats. 2021, ch. 699, §§ 1-5.) We agree with the latter
contention but disagree with the former.
A.B. 333 expressed concern that former section 186.22 sometimes
applied to “social networks of residents in neighborhoods” who were “often
mischaracterized as gangs despite their lack of basic organizational
requirements.” (Stats. 2021, ch. 699, § 2, subd. (d)(8).) To address this
concern, A.B. 333 amended section 186.22 to require proof of additional
elements to establish a gang enhancement.
A.B. 333 also added section 1109 to the Penal Code, which provides
that “[i]f requested by the defense, a case in which a gang enhancement is
charged under subdivision (b) or (d) of Section 186.22 shall be tried in
separate phases.” (§ 1109, subd. (a).)
77
a. Sections 186.22 and 12022.53
Daniels contends, and the Attorney General agrees, that the
amendments to section 186.22 should be applied retroactively to the gang
enhancement. (§ 186.22.) Daniels also contends these amendments impact
the gang-related firearm enhancements (§§ 186.22, 12022.53, subds.
(b)-(d)/(e)(1)), and that under the new law, there is insufficient evidence to
support imposition of those enhancements. He asks that we strike the true
findings on these allegations and remand the matter to afford the prosecution
the opportunity to retry the allegations.
The amendments to section 186.22 apply retroactively in this case.
Section 186.22 provides for an enhanced punishment when the defendant is
convicted of an enumerated felony committed “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).) A.B. 333’s amendments to section 186.22 apply
retroactively to cases like the one here, in which the judgments of conviction
have not become final prior to the effective date of A.B. 333. (People v. Tran
(2022) 13 Cal.5th 1169, 1207 (Tran); People v. Lopez (2021) 73 Cal.App.5th
327, 343–344 (Lopez); People v. E.H. (2022) 75 Cal.App.5th 467, 478 (E.H.).)
We also agree with Daniels that the amendments require the reversal
of the gang enhancements under section 186.22; the gang-related firearm
enhancements under section 12022.53, subdivisions (d)/(e)(1), (c)/(e)(1), and
(b)/(e)(1); and, despite the Attorney General’s argument raised by
supplemental brief,39 the gang-murder special circumstance findings under
39 Without any discussion or citation to authority, the Attorney General
contends that Daniels “is not entitled to reversal of his firearm
enhancements.”
78
section 190.2, subdivision (a)(22). Prior to the amendments made by A.B.
333, a “criminal street gang” was defined as “any ongoing organization,
association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more
[enumerated criminal acts], having a common name or common identifying
sign or symbol, and whose members individually or collectively engage in, or
have engaged in, a pattern of criminal gang activity.” (Former § 186.22,
subd. (f), italics added.) A “‘pattern of criminal gang activity’” was defined as
“the commission of . . . two or more of the [enumerated] offenses, provided at
least one of these offenses occurred after the effective date of this chapter and
the last of those offenses occurred within three years after a prior offense,
and the offenses were committed on separate occasions, or by two or more
persons.” (Former § 186.22, subd. (e).)
Consistent with former section 186.22, the court instructed the jury in
this case on the gang enhancement, and informed the jury that “[t]he crimes,
if any, that establish a pattern of criminal gang activity, need not be gang -
related.” (See CALCRIM No. 1401.)
While this appeal was pending, A.B. 333 modified the definition of a
“criminal street gang” to “an ongoing, organized association or group of three
or more persons, whether formal or informal, having as one of its primary
activities the commission of one or more [enumerated criminal acts], having a
common name or common identifying sign or symbol, and whose members
collectively engage in, or have engaged in, a pattern of criminal gang
activity.” (Current § 186.22, subd. (f), italics added.) A.B. 333 also redefined
“‘pattern of criminal gang activity’” to mean “the commission of . . . two or
more [enumerated criminal acts], provided at least one of these offenses
occurred after the effective date of this chapter, and the last of those offenses
79
occurred within three years of the prior offense and within three years of the
date the current offense is alleged to have been committed, the offenses were
committed on separate occasions or by two or more members, the offenses
commonly benefited a criminal street gang, and the common benefit of the
offense is more than reputational.” (Current § 186.22, subd. (e)(1), italics
added.) The statute also sets forth examples “of a common benefit that are
more than reputational,” which include “financial gain or motivation,
retaliation, targeting a perceived or actual gang rival, or intimidation or
silencing of a potential current or previous witness or informant.” (§ 186.22,
subd. (g).)
“Thus, pursuant to the new legislation, imposition of a gang
enhancement [now] requires proof of the following additional requirements
with respect to predicate offenses: (1) the offenses must have ‘commonly
benefited a criminal street gang’ where the ‘common benefit . . . is more than
reputational’; (2) the last predicate offense must have occurred within three
years of the date of the currently charged offense; (3) the predicate offenses
must be committed on separate occasions or by two or more gang members,
as opposed to persons; and (4) the charged offense cannot be used as a
predicate offense.” (Lopez, supra, 73 Cal.App.5th at p. 345, quoting § 186.22,
subds. (e)(1)-(2).)
We must vacate the jury’s true findings on the gang enhancement
(§ 186.22, subd. (b)(1)(C)), gang-related firearm enhancements (§ 12022.53,
subds. (d)/(e)(1), (c)/(e)(1), (b)/(e)(1)), and gang-murder special circumstance
(§ 190.2, subd. (a)(22)), as the absence of the new elements under the gang
statute is not harmless under Chapman v. California (1967) 386 U.S. 18, 24.
Under Chapman, “the absence of instruction on the amended version of
section 186.22 requires reversal unless ‘it appears beyond a reasonable doubt
80
that the error did not contribute to th[e] jury’s verdict.’ (People v. Flood
(1998) 18 Cal.4th 470, 504.)” (E.H., supra, 75 Cal.App.5th at p. 479; People v.
Sek (2022) 74 Cal.App.5th 657, 668–670 (Sek); see People v. Merritt (2017) 2
Cal.5th 819, 826–831.)
Here, to prove DDC was a criminal street gang under former section
186.22, the prosecution submitted evidence that two known DDC gang
members (La’Shaun Morgan and Shawn Lyndolph) were each convicted of
felon in possession of a firearm (§ 29800, subd. (a)(1)) in 2013 and 2016. The
prosecution did not introduce evidence that those predicate offenses
commonly benefited DDC, or that the common benefit of either crime was
more than reputational. Nor was the jury instructed to determine this
additional element under section 186.22; it was instead instructed that it
need not find either predicate offense gang-related. Thus, on this record, we
cannot conclude beyond a reasonable doubt that the omission of the new
elements in section 186.22 did not contribute to the jury’s verdict. The true
findings under section 186.22 must be vacated, and the matter remanded to
give the People the opportunity to prove the applicability of the
enhancements under the amended law.
We also conclude that the changes wrought by A.B. 333 also require
that we vacate the firearm enhancement and gang-murder special
circumstance findings in this case (§§ 12022.53, subds. (b)-(d)/(e)(1), 190.2,
subd. (a)(22)). Every true finding on the firearm enhancement allegations
that the jury made was based on subdivision (e)(1) of section 12022.53, which
provides that the court may impose additional sentences listed in
subdivisions (b) through (d) if two conditions are found to be true: (1) the
defendant was a principal in the underlying crime and violated section
186.22, subdivision (b); and (2) any principal in the offense committed any act
81
listed in subdivisions (b) through (d) in section 12022.53. Section 190.2,
subdivision (a)(22) requires proof beyond a reasonable doubt that the
defendant “intentionally killed the victim while the defendant was an active
participant in a criminal street gang, as defined in subdivision (f) of Section
186.22, and the murder was carried out to further the activities of the
criminal street gang.”
The express reliance by both the firearm enhancement statutes and
gang-murder special circumstance statutes on the definition of a criminal
street gang in section 186.22 means that Daniels is entitled to the benefit of
this change in the law as to every special circumstance and sentence
enhancement finding under sections 12022.53, subdivisions (b)/(e)(1),
(c)/(e)(1), and (d)/(e)(1), and 190.2, subdivision (a)(22). (See Lopez, supra, 73
Cal.App.5th at p. 347.)
b. Section 190.2, subdivision (a)(22)
As argued in Lee, here the Attorney General contends that while A.B.
333’s amendments apply retroactively to the gang enhancement findings
(§ 186.22), those amendments do not apply to the gang-murder special
circumstance findings (§ 190.2, subd. (a)(22)).
The Attorney General’s contention runs as follows. The gang-murder
special circumstance, section 190.2, subdivision (a)(22), was enacted by the
voters as section 11 of Proposition 21 on the March 7, 2000 ballot. (See
Robert L. v. Superior Court (2003) 30 Cal.4th 894, 897.) Under the California
Constitution, an initiative statute can be amended “only when approved by
the electors unless the initiative statute permits amendment or repeal
without [the electors’] approval.” (Cal. Const., art. II, § 10, subd. (c); accord,
People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568 (Pearson);
82
People v. Kelly (2010) 47 Cal.4th 1008, 1025.) Proposition 21 does not permit
amendment without the electors’ approval or legislative amendment passed
by two-thirds vote in each house. (Ballot Pamp., Primary Elec. (Mar. 7, 2000)
text of Prop. 21, § 39, p. 131 [“[t]he provisions of this measure shall not be
amended by the Legislature except by a statute passed in each house by . . .
two-thirds of the membership of each house concurring, or by a statute that
becomes effective only when approved by the voters”].) A.B. 333 was enacted
without voter approval, and without the requisite two-thirds votes in both
houses of the Legislature. (See Sen. Daily J. (2021-2022 Reg. Sess.) p. 2284;
Assem. Daily J. (2021-2022 Reg. Sess.) p. 2927.) Accordingly, the Attorney
General asserts that the Legislature lacked the power to unilaterally repeal
or amend provisions of the initiative through A.B. 333.
According to the Attorney General, insofar as A.B. 333 seeks to redefine
the definition of a “criminal street gang” in the voter-enacted gang-murder
special circumstance, it runs afoul of the constitutional prohibition on
legislative amendment of a statute adopted by initiative. The Attorney
General relies on a general principle of statutory construction: “‘where a
statute adopts by specific reference the provisions of another statute . . . such
provisions are incorporated in the form in which they exist at the time of the
reference and not as subsequently modified.’” (Palermo v. Stockton Theatres,
Inc. (1948) 32 Cal.2d 53, 58–59; see In re Oluwa (1989) 207 Cal.App.3d 439,
445.) As enacted by section 11 of Proposition 21, the gang-murder special
circumstance (§ 190.2, subd. (a)(22)) applies to any intentional killing
committed by the defendant, if at the time he or she “was an active
participant in a criminal street gang, as defined in subdivision (f) of Section
186.22, and the murder was carried out to further the activities of the
criminal street gang.” (Ballot Pamp., supra, text of Prop. 21, § 11, p. 122,
83
italics added.) The Attorney General contends that the italicized
reference to section 186.22, subdivision (f) reflects an intent to
incorporate that provision in the form in which it existed at the time
Proposition 21 was adopted, and not as the provision might
subsequently be modified. Thus, according to the Attorney General,
A.B. 333’s amendments to section 186.22, subdivision (f), which
changed the definition of a criminal street gang, cannot constitutionally
be applied to amend section 11 of Proposition 21.40
However, as we discussed in Lee, the rule of statutory
construction on which the Attorney General relies is not to be
mechanically applied. (In re Jovan B. (1993) 6 Cal.4th 801, 816, fn. 10
(Jovan B.); People v. Pecci (1999) 72 Cal.App.4th 1500, 1505.) Rather,
“where the words of an incorporating statute do not make clear
whether it contemplates only a time-specific incorporation, ‘the
determining factor will be . . . legislative intent . . . .’” (Jovan B., supra,
at p. 816, quoting People v. Domagalski (1989) 214 Cal.App.3d 1380,
1386.) Based on our review of the legislative materials previously
discussed at length in Lee, supra, 81 Cal.App.5th at pages 241 through
245, we do not believe the voters contemplated a time-specific
incorporation of the then-current version of section 186.22, subdivision
40 We restate the Attorney General’s specific position here: “Admittedly,
A.B. 333 did not directly alter the language contained in section 190.2,
subdivision (a)(22). However, A.B. 333 amended both subdivision (e) and (f)
of section 186.22. Because section 190.2, subdivision (a)(22), specifically
incorporates by reference, and contains as an element, section 186.22,
subdivision (f), which also necessarily includes as an element section 186.22,
subdivision (e), A.B. 333’s amendment of section 186.22, subdivisions (e) and
(f), amended section 190.2, subdivision (a)(22).” (Italics added.)
84
(f), into the gang-murder special circumstance statute in Proposition 21.
Thus, as set forth in Lee, we conclude the term “criminal street gang” as
incorporated in the gang-murder special circumstance statute was “intended
to conform at all times” and “remain permanently parallel” to section
186.22.41 (Jovan B., supra, 6 Cal.4th at pp. 816–817 & fn. 10.) We vacate the
gang enhancement allegation findings (§ 186.22, subd. (b)(1)(C)), gang-related
firearm use enhancements findings (§ 12022.53, subds. (b)-(d)/(e)(1)), and
gang-murder special circumstance findings (§ 190.2, subd. (a)(22)). We also
strike the sentences imposed under these findings and remand the matter to
afford the People the opportunity to retry these allegations under the current
law.42
c. Section 1109
As enacted by A.B. 333, section 1109 provides in relevant part that “[i]f
requested by the defense,” the trial court shall bifurcate a gang enhancement
charged under subdivision (b) of section 186.22 from the underlying charges.
(§ 1109, subd. (a).) The court shall then try the matter “in separate phases”
by first adjudicating the question of the defendant’s guilt of the underlying
offenses; and if the defendant is found guilty of any offense, the court shall
41 Several decisions have adopted Lee’s analysis on this issue. (See People
v. Oliva (2023) 89 Cal.App.5th 76, 90 (Oliva), review granted May 17, 2023,
S279485; People v. Boukes (2022) 83 Cal.App.5th 937, 943, fn. 5, review
granted Dec. 14, 2022, S277103; People v. Lopez (2022) 82 Cal.App.5th 1, 24–
25.) The Supreme Court has granted review in People v. Rojas (2022) 80
Cal.App.5th 542, which came to a contrary conclusion. (See S275835.)
42 In light of our conclusion, we do not consider the argument raised in
Daniels’ supplement brief concerning Sek, supra, 74 Cal.App.5th 657.
85
then hold “further proceedings to the trier of fact on the question of the truth
of the [gang] enhancement.” (§ 1109, subds. (a)(1)-(2).)
Daniels contend that section 1109 applies retroactively to this case
under In re Estrada (1965) 63 Cal.2d 740 (Estrada), and is a separate ground
for reversing the gang findings and his convictions. We agree with the
Attorney General that section 1109 does not apply retroactively to this
appeal.
Our Supreme Court has explained that Estrada “established an
exception to the general rule that no part of the Penal Code is retroactive.
(§ 3 [no part of the Pen. Code is retroactive ‘unless expressly so declared’];
[citation].) In Estrada, we held that ‘where [an] amendatory statute
mitigates punishment and there is no saving clause, the rule is that the
amendment will operate retroactively so that the lighter punishment is
imposed.’ [Citation.] [¶] . . . Estrada represents ‘an important, contextually
specific qualification to the ordinary presumption that statutes operate
prospectively: When the Legislature has amended a statute to reduce the
punishment for a particular criminal offense, we will assume, absent
evidence to the contrary, that the Legislature intended the amended statute
to apply to all defendants whose judgments are not yet final on the statute’s
operative date.’ [Citation.]” (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1195–1196 (Hajek), overruled on another ground in People v. Rangel (2016)
62 Cal.4th 1192.)
In other words, the Estrada presumption applies whenever an
amended statute mitigates or eliminates punishment for a criminal offense or
enhancement. (People v. Buycks (2018) 5 Cal.5th 857, 882; Estrada, supra,
63 Cal.2d at pp. 743–744; Hajek, supra, 58 Cal.4th at p. 1196; see also People
v. Wright (2006) 40 Cal.4th 81, 95–96 [Estrada applied to statute creating a
86
new affirmative defense]; People v. Babylon (1985) 39 Cal.3d 719, 721–722,
728 [statute narrowing class of prohibited acts]; In re David C. (2020) 53
Cal.App.5th 514, 519 [bill that “ameliorated the possible punishment for a
class of persons”].)
Here, section 1109 does not reduce or eliminate punishment for an
offense or enhancement, provide a new affirmative defense to a charged
crime, or otherwise ameliorate the punishment for a class of individuals. The
statute modifies trial procedures for defendants who have been charged with
a gang enhancement and choose to invoke section 1109. When used in an
appropriate case, section 1109 will only require adjudication on the question
of a defendant’s guilt of an underlying offense before further adjudicating
“the question of the truth of the [gang] enhancement.” (§ 1109, subd. (a)(2).)
We also discern nothing in A.B. 333’s legislative history that would represent
an express declaration of retroactivity, or “‘a clear and compelling
implication’” that section 1109 should apply retroactively to cases that are
not final. (People v. Alford (2007) 42 Cal.4th 749, 753.)
Acknowledging there is a split in authority on this issue, consistent
with our prior decisions, we thus conclude that the Estrada presumption does
not apply to section 1109; accordingly, section 1109 does not provide an
independent ground for reversal of the gang-related findings or Daniels’
convictions. (People v. Boukes, supra, 83 Cal.App.5th at p. 948; People v.
Ramirez (2022) 79 Cal.App.5th 48, 65, review granted Aug. 17, 2022,
S275341; People v. Perez (2022) 78 Cal.App.5th 192, 207, review granted Aug.
17, 2022, S275090; People v. Burgos (2022) 77 Cal.App.5th 550, 569–575
(Burgos) (dis. opn. of Elia, J.), review granted July 13, 2022, S274743; accord,
People v. Cervantes (2020) 55 Cal.App.5th 927, 940; People v. Hayes (1989) 49
87
Cal.3d 1260, 1274; but see People v. Montano (2022) 80 Cal.App.5th 82,
108 (Montano); Burgos, at pp. 568–569 (maj. opn. of Greenwood, P. J.).)
Recently, in Tran, supra, 13 Cal.5th 1169, our Supreme Court
acknowledged the split of authority referenced above but declined to resolve
the split (an issue currently under review in Burgos), concluding that any
asserted error in the case before it was harmless under Watson, supra, 46
Cal.2d 818. (Tran, at p. 1208; see also Oliva, supra, 89 Cal.App.5th at p. 92,
fn. 9 [“As [did] the court in Tran, we reject defendant’s contention that review
is subject to the beyond-a-reasonable-doubt standard of Chapman”].)
As in Tran, we conclude any failure to bifurcate the proceedings in this
case was harmless under Watson. As we have discussed, almost all of the
gang evidence was independently admissible on the defendants’ state of
mind. The membership of each defendant and their allegiance to DDC
during an ongoing gang war was relevant and probative on their motive
engage in a retaliation shooting, their intent to kill, the existence of
premeditation and deliberation, and also to prove the gang-related special
circumstance. (See Oliva, supra, 89 Cal.App.5th at p. 92 [“Section 1109 ‘does
not apply to the determination of special circumstance allegations under
section 190.2 (a)(22)’”], quoting Montano, supra, 80 Cal.App.5th at p. 114;
People v. Ramos (2022) 77 Cal.App.5th 1116, 1132 (Ramos) [“nothing in [A.B.]
333 limits the introduction of gang evidence in a bifurcated proceeding where
the gang evidence is relevant to the underlying charges”].)
And while the evidence of the predicate offenses committed by fellow
DDC members (La’Shaun Morgan and Shawn Lyndolph) would have been
excluded, evidence of these offenses—felon in possession of a firearm
(§ 29800, subd. (a)(1))—was not particularly inflammatory given the offenses
charged in this case. Nor did the prosecutor seek to admit additional
88
evidence of the offenses beyond the convictions themselves. Under the court’s
limiting instruction, we presume the jury did not conclude from this evidence
that Daniels was a person of bad character or had a disposition to commit
crime. (People v. Waidla (2000) 22 Cal.4th 690, 725.)
In short, because the gang evidence was cross-admissible to prove the
gang-murder special circumstance and underlying charges, bifurcation of the
gang enhancement allegations under section 1109 would not have materially
affected the scope of evidence presented during trial on the remaining
charges. (See Oliva, supra, 89 Cal.App.5th at pp. 91–93; Ramos, supra, 77
Cal.App.4th at p. 1132; People v. Hernandez (2004) 33 Cal.4th 1040, 1049–
1050.) Thus, even if section 1109 were retroactive, Daniels has failed to
demonstrate a reasonable possibility that a bifurcated trial at the guilt phase
would have affected the jury’s verdict or true findings. (Tran, supra, 13
Cal.5th at p. 1210.)
III. Multiple LWOP Sentences Imposed on Counts 2 and 3
Daniels contends, and the Attorney General concedes, that the
sentencing minute orders must be corrected to reflect the imposition of one
term of life imprisonment without the possibility for parole plus 25 years to
life on each of counts 2 and 3. We agree.
The trial court erred by imposing three consecutive terms of life
imprisonment without the possibility of parole on both counts 2 and 3 based
on the three special circumstance findings attached to each murder count.
(See § 190.2, subd. (a) [penalty for first degree murder is death or life
imprisonment without the possibility of parole “if one or more of the following
special circumstances has been found . . . to be true”], italics added; People v.
89
Montes (2014) 58 Cal.4th 809, 874 [a defendant “face[s] no additional
punishment merely as a result” of multiple special circumstance findings].)
The abstracts of judgment for Daniels correctly reflect one term of life
imprisonment without the possibility of parole plus 25 years to life for the
firearm enhancement on counts 2 and 3. We direct the trial court to correct
the minute orders as to all three appellants to properly reflect these
sentences on counts 2, 3, and 6.
IV. Multiple-Murder Special Circumstance Findings
Daniels contends, and the Attorney General agrees, that the trial court
erred by imposing a term of life imprisonment without the possibility of
parole on both counts 2 and 3 based on the multiple murder special
circumstance (§ 190.2, subd. (a)(3)). (See People v. Bonin (1988) 46 Cal.3d
659, 691, overruled on another ground by People v. Hill (1998) 17 Cal.4th 800[only one multiple-murder special circumstance may be alleged; no matter
how many murder charges are tried together, they constitute a single
multiple-murder special circumstance].)
The Supreme Court’s remedy for cases in which numerous multiple-
murder special circumstance allegations were charged and found true has
been to “stri[ke] the superfluous finding and conclude[] the defendant
suffered no prejudice.” (People v. Halvorsen (2007) 42 Cal.4th 379, 422; see
People v. Zamudio (2008) 43 Cal.4th 327, 363; People v. Nunez and Satele
(2013) 57 Cal.4th 1, 49 [vacating one of two multiple-murder special
circumstance finding for each defendant].)
Consistent with these decisions, we vacate the multiple-murder special
circumstance finding for Daniels on count 3. The section 190.2, subdivision
(a)(3) enhancement shall remain imposed on count 2.
90
V. Custody Credit
Daniels contends that his custody credits must be recalculated. We
agree.
When a criminal defendant who “has been in custody” is convicted and
sentenced, the defendant is entitled to have “all days of custody . . . credited
upon his or her term of imprisonment.” (§ 2900.5, subd. (a).) “[C]redit shall
be given only where the custody to be credited is attributable to proceedings
related to the same conduct for which the defendant has been convicted.”
(§ 2900.5, subd. (b).) “It is the duty of the court imposing the sentence to
determine the date or dates of any admission to, and release from, custody
prior to sentencing and the total number of days to be credited pursuant to
this section.” (§ 2900.5, subd. (d); see People v. Sage (1980) 26 Cal.3d 498,
508 [“section 2900.5 imposes on the sentencing court the obligation to
determine the number of days of custody”].)
“At the time of sentencing, the court must cause to be recorded on the
judgment . . . the total time in custody to be credited on the sentence . . . . On
referral of the defendant to the probation officer for an investigation and
report . . . the court must direct the sheriff, probation officer, or other
appropriate person to report to the court and notify the defendant or defense
counsel and prosecuting attorney within a reasonable time before the date set
for sentencing as to the number of days that defendant has been in custody
and for which he or she may be entitled to credit. Any challenges to the
report must be heard at the time of sentencing.” (Rule 4.310; accord, Rule
4.472.)
“It is the trial court, and not the appellate court, which has the
capability of determining the facts from which the credit may be computed.
If the court does not have enough facts at the time of sentencing, its duty is to
91
direct ‘the sheriff, probation officer or other appropriate person’ to produce
the information. At the time sentence is pronounced, the defendant and his
attorney will be present and will have seen what is in the reports submitted
to the court on this subject.” (People v. Montalvo (1982) 128 Cal.App.3d 57,
62 (Montalvo).) The defendant is generally entitled to notice and a fair
hearing at the time of sentencing to determine the amount of custody credit
to which he is entitled. (Ibid.; People v. Lara (2012) 54 Cal.4th 896, 901, 906.)
Here, both parties agree that Daniels was sentenced on March 8, 2021.
They disagree, however, on the date of Daniels’ arrest for purposes of
calculating presentence custody credit. Citing to various portions of
Detective Gomez’s trial testimony, Daniels contends that his date of arrest
“was, at the latest, June 8, 2017.”43 The Attorney General cites to the
probation officer’s pre-conviction report, filed the same day of sentencing, as
establishing August 25, 2017, as the date of Daniels’ arrest.
We agree with the Attorney General that Detective Gomez’s trial
testimony does not constitute a “report to the court” by a probation officer or
“other appropriate person” of the number of days Daniels had been in
custody. (Rule 4.310.) We also agree that the probation officer’s pre-
conviction report meets this standard and establishes 1,292 days of custody
credit to be awarded.
However, it is unclear from the sentencing hearing transcript whether
Daniels or his defense counsel were notified “a reasonable time prior to the
[hearing]” of the number of days identified in the probation officer’s pre-
conviction report, or of the court’s intention to use the date of arrest provided
43 Officer Gomez testified that he was present in Mississippi when the
United States Marshals arrested Daniels. When asked what “timeframe [he]
went to Mississippi,” Officer Gomez stated that it “was June 6th, 7th and 8th,
I believe.”
92
in the report. On the contrary, the court indicated that it “tentatively”
agreed with Daniels’ own calculation of 1,298 days. Absent any indication
the court would change its decision before terminating the sentencing
hearing, we believe Daniels was deprived of a meaningful opportunity to
challenge the trial court’s factual determination that Daniels had been
arrested on August 25, 2017. (See Montalvo, supra, 128 Cal.App.3d at p. 62.)
To ensure he has the full opportunity to raise any challenges to the proper
court, we remand the matter for the trial court to hold a hearing to determine
the date Daniels was taken into custody for purposes of calculating his
custody credit in accordance with Rules 4.310 and 4.472.
DISPOSITION
On counts 1 through 5 and 9, we vacate the true findings on the gang -
murder special circumstance allegations (§ 190.2, subd. (a)(22)), gang
enhancement allegations (§ 186.22, subd. (b)), and gang-related firearm
enhancement allegations (§ 12022.53, subds. (b)-(d)/(e)(1)), and strike the
related sentences. On count 3, we vacate the true finding on the multiple-
murder special circumstance allegation (§ 190.2, subd. (a)(3)).
The case is remanded to the superior court. On remand, the People
shall decide whether to retry Daniels on the gang-murder special
circumstance allegations (§ 190.2, subd. (a)(22)), gang enhancement
allegations (§ 186.22, subd. (b)), and gang-related firearm enhancement
allegations (§ 12022.53, subds. (b)-(d)/(e)(1)). If the People elect not to retry
these allegations, the superior court is directed to resentence Daniels
according to applicable law. If the People decide to retry Daniels on the gang-
murder special circumstance allegations (§ 190.2, subd. (a)(22)), gang
enhancement allegations (§ 186.22, subd. (b)), and gang-related firearm
93
enhancement allegations (§ 12022.53, subds. (b)-(d)/(e)(1)), and if any such
allegations are found true, the court shall resentence Daniels according to
applicable law.
Prior to holding any resentencing hearing in this matter, the trial court
shall direct the sheriff, probation officer, or other appropriate person to report
to the trial court, and to notify Daniels or defense counsel and the
prosecuting attorney within a reasonable time prior to the hearing, as to the
number of days that Daniels has been in custody and for which he may be
entitled to credit, as set forth in Rules 4.310 and 4.472. If Daniels and/or the
People choose to do so, both parties shall be permitted to present evidence to
support any challenge to the date of Daniels’ arrest and calculation of custody
credits, and to be present at the hearing. The trial court shall make
appropriate findings of fact and state on the record the reasons for its
determination of Daniels’ custody credit.
Upon determination as to the status of the gang-related allegations and
special circumstances (no retrial, or retrial and final resolution), the clerk of
the superior court shall prepare an amended abstract of judgment for Daniels
reflecting the appropriate modifications, as set forth above, and forward it to
the California Department of Corrections and Rehabilitation. In addition,
the clerk shall correct the sentencing minute orders to reflect one term of life
imprisonment without the possibility of parole on count 2 pursuant to section
190.2, subdivisions (a)(3) and (a)(21), and one term of life imprisonment
without the possibility of parole on count 3 pursuant to section 190.2,
subdivision (a)(21).
94
As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STONE, J.*
We concur:
CURREY, Acting P. J.
COLLINS, J.
*
Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
95