People v. Rosas CA6 ( 2021 )


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  • Filed 5/11/21 P. v. Rosas CA6
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
    or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SIXTH APPELLATE DISTRICT
    THE PEOPLE,                                                        H046320
    (Santa Cruz County
    Plaintiff and Respondent,                                 Super. Ct. No. WF00933)
    v.
    MANUEL DEJESUS ROSAS,
    Defendant and Appellant.
    Defendant Manuel DeJesus Rosas was convicted by a jury of second degree
    murder (Pen. Code, § 187, subd. (a))1 and attempted murder (§§ 664, 187, subd. (a)). As
    to both counts, the jury found true a firearm enhancement (§ 12022.53, subds. (d) & (e))
    and a gang enhancement (§ 186.22, subd. (b)). The trial court sentenced defendant to
    prison for a term of 19 years consecutive to a term of 65 years to life.
    On appeal, defendant argues: (1) section 186.22 is unconstitutionally vague and
    overbroad because it does not define the term “members”; (2) the prosecution’s use of
    certified conviction records to prove predicate offenses under section 186.22 violated his
    constitutional right to confront witnesses; (3) the use of one of his prior offenses as a
    predicate offense was an ex post facto violation; (4) the trial court erred when it denied
    his discovery motion seeking all prior activities of the informant witnesses used by the
    prosecution; (5) the trial court erroneously excluded defense expert testimony on the
    1
    Unspecified statutory references are to the Penal Code.
    psychological impact and effect of accomplice and informant testimony; and (6) there
    was insufficient evidence to support his convictions because the evidence against him
    consisted of uncorroborated accomplice testimony. As we explain, we find no merit in
    his contentions and affirm the judgment.
    BACKGROUND
    1. The Information and Defendant’s First Trial
    On March 16, 2011, defendant was charged by information with murder (§ 187,
    subd. (a); count 1), attempted murder (§§ 664, 187, subd. (a); count 2), and active
    participation in a criminal street gang (§ 186.22, subd. (a); count 3). The information
    alleged that as to counts 1 and 2, the offenses were committed for the benefit of a
    criminal street gang (§ 186.22, subd. (b)(1)) and that a principal used and personally and
    intentionally discharged a firearm that caused great bodily injury or death (§ 12022.53,
    subds. (b)-(d), (e)(1).) A jury convicted defendant of all three counts, and the trial court
    sentenced him to a total term in prison of 94 years and eight months to life. Defendant
    appealed, and on November 16, 2016, this court reversed the judgment after we
    concluded that the trial court erred by permitting gang experts to testify about statements
    made by a nontestifying gang member under People v. Sanchez (2016) 
    63 Cal.4th 665
    ,
    and the error was not harmless beyond a reasonable doubt. (People v. Rosas (Nov. 16,
    2016, H038879) [nonpub. opn].) The matter was retried in 2018.
    2. The Second Trial
    A. Overview of the Crimes
    On May 13, 2005, W.M. was shot and killed in a drive-by shooting on Palm
    Avenue in Watsonville. W.M.’s friend, D.A., was also shot, but he survived. The
    prosecution theorized that W.M.’s murder was the result of an ongoing gang war between
    two Norteño gangs, City Hall and Northside Watsonville, and that defendant, a City Hall
    gang member, shot D.A. and W.M. as retaliation. The prosecution alternatively argued
    2
    that if defendant was not the actual shooter, he was the driver of the car and was guilty as
    an aider and abettor.
    B. Defendant’s Prior Contacts with the Police
    In February 2005, Watsonville Police Department Sergeant Eric Montalbo was
    driving when he saw defendant parked in a burgundy Yukon sports utility vehicle (SUV).
    Sergeant Montalbo saw that there were three other known City Hall gang members inside
    the SUV. Additional officers arrived, the individuals were taken out of the car, and the
    officers found a loaded handgun on the SUV’s passenger seat. Defendant was arrested
    and charged with possession of a loaded firearm in a vehicle.
    In March 2005, Sergeant Montalbo stopped defendant again while he was driving
    in a burgundy Yukon. The stop was recorded on a video from Sergeant Montalbo’s
    patrol car.
    On May 7, 2005, Sergeant Montalbo went to defendant’s house to perform a
    probation search. Inside the house, officers found several City Hall gang members,
    including Emanuel Rodriguez and Dennis Moreno. Defendant was arrested on a warrant,
    and the other individuals, with the exception of Moreno, were arrested for either parole or
    probation violations.
    C. The Murder
    In 2005, 17-year-old D.A. was best friends with 18-year old W.M.2 D.A. noticed
    that W.M. associated with people who wore red, which D.A. linked to gang activity, but
    D.A. did not think that W.M. was involved with gangs. W.M. sold drugs, including
    marijuana and methamphetamine.
    D.A. was 29 years old at the time of defendant’s trial in 2018, and he testified
    2
    that W.M. was about a year older than him.
    3
    On May 13, 2005, D.A. was at W.M.’s house on Palm Avenue. D.A. and W.M.
    walked to E.A. Hall Middle School, which was around two blocks away from W.M.’s
    house. W.M. used a bicycle as a wheelchair because he was recovering from a broken
    leg. D.A. and W.M. met with friends at the school. The group smoked marijuana and
    tobacco and talked about going to a party. D.A. and W.M. decided not to go to the party
    and walked back toward W.M.’s house around dusk.
    D.A. and W.M. went down Palm Avenue. At a certain point, W.M. started riding
    his bicycle on the street while D.A. walked on the sidewalk. As D.A. and W.M. passed
    Minty White School, D.A. saw a burgundy or red SUV come down Palm Avenue. D.A.
    saw that the SUV driver was a “[b]ig Hispanic guy with a red shirt and facial tattoos.”
    D.A. recalled that the driver had tattoos above his eyebrows that “made his eyebrows
    look big.” The driver looked to be in his mid-20s or early 30s.
    The burgundy SUV pulled up next to W.M., who was about eight or 10 feet in
    front of D.A. The SUV’s front passenger window was open, and the window was
    parallel to where W.M. was on his bicycle. W.M. looked like he was going to smile, and
    he had a frown on his face and lifted his chin up. D.A. saw the SUV driver reach down
    toward the car’s center console area, and he briefly saw the barrel of a silver-colored gun.
    The barrel went away, and D.A. heard gunshots. D.A. did not see a gun come outside the
    passenger window, and it looked like the gun was fired from inside the car.
    D.A. ran forward and was shot. D.A. stopped when he saw W.M. W.M. gave
    D.A. a “head nod,” indicating that D.A. should “get down.” D.A. turned around, dove,
    and tried to crawl over to W.M. D.A. could see the car’s front passenger, and he
    remembered that the passenger had an arm tattoo. He also remembered that the
    4
    passenger had a gun that was black and “square.”3 The passenger did not shoot his gun.
    D.A. heard W.M. calling for his mother. D.A. was shot through his lower left side, and
    the gunshot went through his testicles and into his leg down to his knee. After the
    shooting, the SUV sped away.
    D.A. testified that earlier that night, W.M. had said that he had some concerns
    because he had “shorted” somebody on a drug deal. After W.M. was shot, D.A.
    remembered seeing one of their friends, Luis, touch W.M.’s body. D.A. thought that
    Luis was checking to see where W.M. was shot.4
    D.A. remembered that he spoke to an officer while he was injured at the scene.
    D.A. testified that he told the officer that he could not give any details about who was in
    the car, but the car was a red or burgundy SUV.
    San Benito Sheriff’s Office Captain Eric Taylor testified that he spoke to D.A. at
    the scene. Captain Taylor recalled asking D.A., “ ‘Who did this?’ ” D.A. replied, “ ‘I
    don’t know.’ ” W.M. died at the scene before he could make any statements.
    Watsonville Police Department Officer Juan Rocha was also dispatched to the
    scene. When Officer Rocha arrived, he saw D.A. lying on the ground. Officer Rocha
    asked D.A. what happened. D.A. said that a red or burgundy Suburban-type SUV had
    driven past him and W.M. The car turned back and pulled up next to them, and D.A.
    heard someone say, “ ‘What’s up, fools?’ ” D.A. then heard gunshots. D.A. said that he
    never saw a gun, and he did not see anyone inside the car.
    3
    D.A. told officers about the passenger’s gun in 2009, four years after the murder.
    He did not mention the passenger’s gun during his interview on the night of the murder.
    4
    In an earlier interview with officers, D.A. said that he saw Luis take something
    from W.M.’s body, but he could not see what was taken.
    5
    D. Witnesses Seeing a Burgundy SUV on May 13, 2005
    Around dusk on May 13, 2005, N.M. was in a car with his father and a friend
    when a burgundy SUV cut them off. N.M.’s father thought it would be a good idea to
    “call in [the] reckless driving” because the car “skid[ded] out a little bit” when it cut them
    off, and they were in a residential neighborhood. After they arrived at N.M.’s house,
    N.M. heard some “popping noises,” and a few seconds later, the same burgundy SUV
    accelerated by.
    J.C. saw a burgundy “Suburban or a GMC” drive recklessly by her house near
    Palm Avenue on the day of the shooting. One of the car’s tires on the driver’s side hit the
    curb near J.C.’s house and the car continued driving. J.C. could tell that there were
    multiple people inside the car.
    J.R. lived on Palm Avenue and heard gunshots sometime around 8:00 or 8:30 p.m.
    that evening. Once she heard the gunshots, J.R. went to her front door window and
    looked outside. She saw a car quickly coming down the street on Palm Avenue. The car
    looked like it was a dark-colored “SUV-type vehicle.”
    E. Identification of Defendant as a Suspect
    D.A. was taken to a hospital after he was shot. At the hospital, D.A. told an
    officer that a red or burgundy SUV had been involved with the shooting, and the driver
    wore a red shirt and a black baseball cap. Several days after W.M.’s murder, officers
    came to D.A.’s house and showed him several photo lineups. D.A. was unable to identify
    anyone in the lineups. D.A. was later able to give W.M.’s mother a description of the
    driver. D.A. told W.M.’s mother that the driver was an “[o]verweight male, pretty heavy,
    red shirt” with “tattoos above his eyebrows.”
    On May 13, 2005, Sergeant Montalbo was on duty when he heard the report of the
    shooting on Palm Avenue that involved a burgundy SUV. Back in 2005, Sergeant
    Montalbo did not know any other gang member in Watsonville that drove a burgundy
    6
    SUV aside from defendant. Sergeant Montalbo was directed to search for the suspect
    vehicle, so he drove over to defendant’s house. Sergeant Montalbo suspected defendant
    was involved because of the description of the suspect’s car and the fact that defendant
    was a gang member with a history of firearms. Sergeant Montalbo also knew that there
    was an ongoing feud between the Northside Watsonville and City Hall gangs at the time
    of W.M.’s murder. Sergeant Montalbo did not find the burgundy SUV when he went to
    defendant’s house.
    F. The Impounding of the Yukon SUV and Defendant’s Flight
    In 2005, San Mateo County Sheriff’s Department Sergeant Vincent Bedolla was
    employed as a detective with the Watsonville Police Department and was assigned to
    investigate the homicide. On May 15, 2005, Sergeant Bedolla learned that another
    officer was making a traffic stop on a burgundy Yukon SUV, which was possibly a
    suspect vehicle in the homicide investigation. Sergeant Bedolla went to the other
    officer’s location. The other officer was issuing a citation to the SUV’s driver, C.R., who
    had two children with her. C.R. was defendant’s sister. Sergeant Bedolla told C.R. that
    they suspected that the car had been involved in a shooting. C.R. told Sergeant Bedolla
    that she was the primary driver of the SUV, and on the day of the murder, she had driven
    the car to the farmers’ market and then to Target at around 8:00 p.m. C.R. also said that
    defendant had not driven the SUV the preceding Friday or that Saturday. C.R. seemed
    evasive, but she voluntarily accompanied the officers back to the police station. The
    SUV was seized as evidence.
    Sergeant Bedolla interviewed C.R. at the police station and drove her home
    afterwards. Sergeant Bedolla saw defendant standing inside the garage when he neared
    C.R.’s house. Sergeant Bedolla parked his car, and C.R. started to walk toward the
    house. Sergeant Bedolla heard C.R. say something to defendant. Sergeant Bedolla could
    not make out what C.R. said, but defendant immediately walked away into the house.
    7
    Sergeant Bedolla called the other detectives assigned to the case and asked if he should
    make contact with defendant, and the other detectives told him to “stand down.”
    Approximately five hours later, Sergeant Bedolla returned to the house with five
    other officers and attempted to make contact with defendant. The officers searched the
    house, but they were unable to locate defendant. No other evidence was found at the
    house.
    Later, Sergeant Bedolla conducted a search of the SUV. Inside the car, Sergeant
    Bedolla found paperwork with defendant’s name, defendant’s driver’s license, and a
    receipt that was dated the same day as the murder. Sergeant Bedolla also discovered that
    the left rear tire was a spare tire, and a flat tire was located inside the back of the car.
    At some point, D.A. was also taken to the police station to identify a vehicle that
    officers had seized. The car was a burgundy Yukon with tinted back windows. D.A.
    thought that the car looked similar to the car that he saw on the day of the murder. D.A.,
    however, told officers that the car involved with the murder had “chrome striping” on it,
    and the car at the police station did not.
    G. Forensic Analysis
    Officers found bullets and bullet fragments at the scene of W.M.’s murder. A
    forensic analysis of the bullets revealed that the bullets were all .38-caliber and appeared
    to be fired from the same weapon. A bullet recovered from D.A.’s leg was
    indistinguishable from the bullets recovered at the scene.
    A criminalist analyzed samples taken from the burgundy SUV seized from C.R.
    and found gunshot residue. The criminalist opined that “the most likely explanation for
    the distribution of particles” was that a gun was fired by someone sitting in the driver’s
    side of the car, but it was “not necessarily the only explanation.” The criminalist also
    believed that the evidence in the case was consistent with the gun being fired from within
    the car.
    8
    The forensic pathologist who conducted W.M.’s autopsy determined that W.M.
    had a gunshot wound that entered his left upper arm and went through his chest. The
    gunshot, which was lethal, went through the left lung, the heart, the right lung, and exited
    the right chest. W.M. had another gunshot wound that went through the left side of his
    chest. The forensic pathologist did not visually see gunshot residue on W.M.’s clothing
    or skin. In his report, the pathologist wrote that W.M. had a “distant gunshot wound of
    entrance,” which meant that the gun was “fired at a distance probably greater than two
    feet from the surface of the victim’s body.”
    H. The Reopening of the Case
    In 2009, W.M.’s murder remained a cold case and was assigned to Watsonville
    Police Department Sergeant Jarrod Pisturino. In early September 2009, Sergeant
    Pisturino was told that defendant had been arrested in South Carolina. Sergeant Pisturino
    asked his partner, Inspector Morgan Chappell, to assist with the investigation.5
    Sergeant Pisturino arranged to interview D.A., who was difficult to locate. D.A.’s
    mother said that he was scared of retaliation. When Sergeant Pisturino first spoke with
    D.A., D.A. was suspicious and paranoid. D.A. was worried that some of W.M.’s friends
    may have been involved in his murder. In one interview, D.A. said that the SUV’s
    passenger pointed a gun but did not fire it. D.A. described the driver of the SUV as
    chubby with tattoos over his eyes. D.A. said that after he was shot, he saw the SUV’s
    passenger hang out of the window with a gun in his hand. D.A. also said that the
    passenger could have been a person named “Gabe,” which was one of W.M.’s friends.
    5
    Inspector Chappell later testified as the prosecution’s gang expert. Sergeant
    Pisturino identified Inspector Chappell as a detective with the Watsonville Police
    Department, but during his testimony, Inspector Chappell stated that he was now an
    inspector with the district attorney’s office.
    9
    At one point, D.A. told officers that he thought that it was the passenger who fired the
    gunshots.
    Sergeant Pisturino and Inspector Chappell traveled to South Carolina and
    interviewed defendant. Defendant said that after he left Watsonville, he traveled to
    Wisconsin, then to Mexico, and eventually settled in South Carolina. Defendant said that
    he did not know who W.M. was.
    I. Testimony of Gonzalez, Moreno, and Rodriguez
    i.     Gonzalez’s Testimony
    Olegario Gonzalez had been a City Hall gang member since he was 18 years old.
    When Gonzalez met defendant, he understood that defendant was involved with gangs
    and was a City Hall gang member. Gonzalez and defendant “hung out in the same
    crowd” of City Hall gang members, including Dennis Moreno. Gonzalez’s nickname in
    the gang was “Bandit.” Moreno’s nickname was “Menace.” Defendant had tattoos that
    said “Bandit” on his right wrist and “Menace” on his left wrist.
    On May 13, 2005, defendant picked Gonzalez up in a “burgundy Yukon,
    Suburban.” Moreno was in the car with defendant. The men drove to Santa Cruz,
    drinking beer and tequila and smoking marijuana on the way. When they arrived in Santa
    Cruz, they bought even more beer and went to a fellow City Hall gang member’s house.
    Gonzalez, who was drunk, stole a neighbor’s car stereo.
    Afterwards, the men left and headed toward Watsonville. Defendant drove the
    car, Moreno sat in the front passenger seat, and Gonzalez sat in the middle back seat.
    Gonzalez was still drunk. He remembered that there was another person in the car, but he
    could not remember who that person was. Gonzalez vaguely remembered that they
    dropped someone off when they arrived in Watsonville. At some point, Gonzalez got out
    of the car and threw up.
    10
    Defendant continued to drive, and Gonzalez remembered that defendant stopped
    the car on a street with palm trees. Gonzalez saw two people walking on the street,
    including a person who was on a bike. Gonzalez remembered that he saw “a white and a
    black dude,” and the Caucasian man was limping. Gonzalez remembered that after
    defendant stopped the car, the Caucasian man said, “ ‘What’s up, Manuel?’ ” At that
    time, the driver’s side was the closest side to the Caucasian man. Defendant responded,
    “ ‘You guys trippin’ or what?’ ” Defendant pulled out a silver semi-automatic handgun
    and shot at the two men out of the driver’s side window. Defendant fired the gun “three
    or four times, five times” and hit both the “white kid” and the “black kid.” Gonzalez did
    not know that defendant had a gun with him, and he was shocked at what had happened
    and did not say anything to defendant. Moreno also did not say anything to defendant.6
    Defendant quickly drove away after the shooting. As defendant drove, Moreno
    said, “ ‘He hangs out with Northsiders.’ ” Defendant hit a bump, but he kept driving until
    he reached a house in Las Lomas. Gonzalez did not know the name of the man who lived
    in Las Lomas, but he knew that the man was a “Paisano,” someone who came from
    Mexico who was not a gang member. The Paisano wiped down defendant’s car with
    bleach wipes. Gonzalez noticed that one of the car’s tires had separated from the rims,
    but he did not remember anyone changing the tire out that day.
    Defendant told the Paisano to call Emanuel Rodriguez to find out what
    had happened because Rodriguez listened to the police scanner. The Paisano
    called Rodriguez and told defendant that one person had been killed and another
    person had been shot in the testicles. Defendant asked Gonzalez and Moreno to clean the
    car. Gonzalez found “maybe three” shell casings and Moreno found “other ones.”
    6
    Gonzalez testified that he never saw Moreno with a gun, and he would have
    remembered if Moreno leaned out of the car with a gun and said something to W.M.
    11
    Gonzalez found the casings in the back of the car across from the center console.
    Gonzalez used bleach wipes to wipe his fingerprints from the backseat of the car.
    Gonzalez and Moreno put the shell casings in a bag.
    Afterwards, defendant, Gonzalez, and Moreno went back inside defendant’s SUV.
    Defendant drove the car and followed the Paisano, who drove a truck, to a house across
    the street near a field. The men cleaned the car a second time and looked for more bullet
    casings. They wiped the windows with bleach wipes. Afterwards, the Paisano drove the
    men in his truck to Rodriguez’s house. When they arrived, the men told Rodriguez about
    the shooting, which he already knew about. Gonzalez smoked some marijuana and did a
    line of “crystal meth.” Afterwards, the Paisano dropped Gonzalez off at his house.
    Gonzalez never saw Moreno or defendant again.
    Gonzalez kept the gun used during the shooting, which belonged to Rodriguez.
    Gonzalez hid the gun in his bathroom for about two weeks. Rodriguez later told him to
    cut the gun in half. Gonzalez tried to cut the gun in half, but he only managed to scratch
    it. Gonzalez gave the gun back to Rodriguez, and someone later threw the gun out of a
    car while the men drove to Moss Landing.
    Gonzalez testified that at the time of W.M.’s murder, City Hall was involved in a
    gang war with another Norteño gang, Northside Watsonville. Gonzalez was upset when
    his friend and fellow City Hall gang member Isaac Guzman was killed, and he believed
    that Guzman had been killed by “Northsiders.” Gonzalez recalled that City Hall had a
    meeting following Guzman’s murder. At the meeting, City Hall gang members “ ‘got
    [the] green light on Northsiders,’ ” meaning that they could “try to take [Northsiders]
    out” if they saw them.
    12
    At some point, Gonzalez learned that a Northside gang member who went by the
    nickname “Sneaky” got shot.7 After the shooting, Rodriguez came over to Gonzalez’s
    house. Rodriguez asked Gonzalez if he could leave his truck at Gonzalez’s house
    because the truck was “hot.” Gonzalez told Rodriguez no. Gonzalez pieced together that
    the shooting that he had learned about had something to do with why Rodriguez wanted
    to leave his truck at Gonzalez’s house.
    In 2006, Gonzalez was convicted of receiving stolen property and robbery with the
    use of a weapon. At the time, he was still a member of City Hall. Gonzalez was paroled
    in December 2008, but he violated his parole by associating with gang members and went
    back to prison. He was released from prison in 2009.
    At some point in 2009, defendant called Gonzalez and told him that he wanted to
    go back to California and that he missed his family. Defendant said that he had traveled
    to “Mexico, Nebraska, like a couple [sic] places.” Defendant also said that he had been
    back in Watsonville several times.
    Gonzalez did not speak to defendant again until defendant was in jail sometime in
    2009 or 2010. At that time, defendant told Gonzalez, “ ‘A black dude is gonna come and
    testify. Can you find him and take care of him?’ ” Gonzalez understood defendant to
    mean that he did not want the witness to come to court. Gonzalez responded, “ ‘Let me
    see what I can do.’ ” Gonzalez, however, did not intend to do anything.
    In 2012 or 2013, Gonzalez overheard a conversation where Moreno spoke about a
    murder in Redwood City. Moreno said that someone named Pablo Hernandez had
    7
    Inspector Chappell later testified that “Sneaky” was the gang moniker for a
    Northside member named Brian Smith.
    13
    testified at a trial, and Hernandez did not say anything about a murder that took place in
    Redwood City.8
    In 2014, Gonzalez was arrested for an attempted murder following a drive-by
    shooting. Gonzalez later provided surveillance videos that showed that he was not in the
    car that was involved in the drive-by shooting. He subsequently reached an agreement
    with the district attorney that he would provide information about certain cases, including
    W.M.’s murder. Gonzalez received a sentence of four years as part of his agreement. He
    and his family were relocated and were receiving money for rent and food. Gonzalez was
    also granted immunity in exchange for his testimony.
    Gonzalez said that he agreed to cooperate with the district attorney’s office
    because he had changed after he went to jail. Gonzalez said that City Hall had gone
    “after [his] family.” At one point, Gonzalez attempted to become active again with the
    gang so he could protect his family, but he eventually dropped out of the gang.
    ii.    Moreno’s Testimony
    Moreno grew up in Watsonville and started associating with City Hall gang
    members when he was around 17 years old. Moreno became a City Hall gang member
    when he was 19 years old. Moreno was good friends with Isaac Guzman. When
    Guzman was murdered, City Hall gang members believed that a “Northsider” was
    responsible for his death. As a result, there was a “war” between the City Hall and
    Northside gangs. Moreno was also good friends with defendant and Gonzalez.
    On May 13, 2005, defendant, Moreno, and Gonzalez went to Guzman’s grave
    site together. After visiting the cemetery, they drove around in defendant’s SUV.
    Based on Gonzalez’s statements, Inspector Chappell tried to see if he could find
    8
    a murder similar to the one Moreno described, but he was unsuccessful.
    14
    Moreno sat in the front passenger seat, and Guzman sat in the back seat behind the
    passenger. There was nobody else in the car.
    At some point, defendant started to drive down Palm Avenue. Moreno saw W.M.
    with “some black guy.” Moreno had seen W.M. before, and he thought that W.M. was a
    Watson Varrio Norte gang member. Watson Varrio Norte was a “farm team” for the
    Northside gang. W.M. was on a bicycle, and he was “hanging out” on the street.
    W.M. and his friend were on the other side of the street, and defendant made a
    U-turn and stopped near W.M. W.M. came up to the SUV’s passenger window right next
    to Moreno. Defendant said, “ ‘What’s up, fucker?’ ” Before W.M. could respond,
    defendant shot him with a silver gun. Defendant held the gun in front of Moreno’s face
    near his left eye. Moreno felt gunpowder in his face and heard ringing in his ears. W.M.
    fell down, and defendant shot W.M.’s friend. Moreno and Gonzalez did not have guns
    that day.
    Gonzalez said, “ ‘You fucked up, Manuel.’ ” Defendant responded, “ ‘Fuck him,
    he hangs around with Northside.’ ” Defendant then accelerated away. Defendant drove
    to a house in Las Lomas, and the three men cleaned the car. Defendant talked to
    someone inside the house and brought out cleaning spray and a rag to clean the car for
    gunpowder residue. Defendant swallowed one of the bullets, and he used a water hose to
    scrub his face and body.
    After W.M.’s murder, Moreno started to distance himself from the City Hall gang.
    Moreno did not know what happened to defendant’s gun, and he did not see defendant
    again. Moreno remembered that defendant had tattoos above his eyebrows at the time
    that W.M. was murdered.
    In 2007, Moreno went to prison for receiving stolen property. He also had a prior
    conviction for assault. Moreno was in prison for about a year, and it changed the way
    15
    that he looked at being in a gang. Some of the “lifers” in prison told Moreno that he
    should be out providing for his family instead of being in prison.
    Later, Moreno had a meeting with the district attorney’s office about his
    knowledge of W.M.’s murder.9 Moreno was subsequently granted immunity for his
    testimony at trial. Moreno and his family were relocated for their safety, and they were
    being given money for food and rent.
    iii.   Rodriguez’s Testimony
    In 2005, Rodriguez was a member of the City Hall gang.10 Rodriguez was 18
    years old when he joined City Hall, and he was given the nickname “Little Stomper.”
    Rodriguez was not currently an active member of his gang, but he would be considered a
    “rat” after he testified at trial and would no longer be able to go back to Watsonville.
    Rodriguez thought of defendant as his brother and had known him for 15 years.
    Back in 2004, defendant was a member of the City Hall gang and went by the
    nickname “Little Vago.” Isaac Guzman, a City Hall gang member, was killed in
    December 2004, and Rodriguez believed that Northside was behind Guzman’s murder.
    On May 13, 2005, Rodriguez heard over the police scanner that a shooting
    involving a burgundy SUV had occurred on Palm Avenue. When Rodriguez heard the
    description of the car over the scanner, he hoped that the shooting did not involve
    9
    Moreno was interviewed by police officers shortly after W.M.’s murder on
    May 17, 2005. At that time, Moreno told officers that on the day that W.M. was killed,
    he had gone with his sister and his sister’s boyfriend or husband to a mall in San Jose at
    around 5:00 p.m. and had returned to Watsonville at 10:00 p.m., which is when he
    learned about the murder. Moreno said that he did not find out the identity of who had
    been killed until his brother purchased a newspaper the following Monday.
    10
    Rodriguez testified that he did not want to come to court to testify against
    defendant, and he only did so because he was ordered to by the court.
    16
    defendant. Rodriguez, however, could not remember anybody coming over to his house
    after he heard about the shooting on the scanner.
    At the time of W.M.’s murder, Rodriguez owned four guns, and one of them may
    have been a silver .380 semi-automatic gun. The .380 semi-automatic gun was available
    to be used by any City Hall gang member. Rodriguez could not remember if he ever
    gave the gun to defendant. At some point, Rodriguez heard that Gonzalez was trying to
    sell a gun that was involved in a shooting, and he eventually got a gun back from
    Gonzalez, but he was not sure which gun it was.11 Later, Rodriguez went on a fishing
    trip and tossed the gun that he got from Gonzalez into the ocean.12
    Rodriguez previously told investigators that defendant had once told him that he
    had shot two people, but he testified at trial that he could not recall making that
    statement. Rodriguez, however, recalled that he had previously told investigators,
    “Manuel told me that they didn’t mean for anybody to get killed.”
    Rodriguez had a prior conviction for drunk driving. He testified for the
    prosecution under a grant of immunity.
    J. Jose Contreras’s Testimony
    In May 2005, Jose Contreras was friends with Rodriguez and was living in
    Las Lomas.13 One evening, defendant drove over to his house in an SUV. Defendant
    was by himself, and he was acting a little nervous. Defendant asked Contreras if
    he had a water hose. Contreras answered yes and told defendant to park at the back of
    the house. Contreras used the water hose and helped defendant wash himself.
    11
    At trial, Rodriguez testified that he received the gun from Bandit, which is
    Gonzalez’s gang moniker.
    12
    At one point, Rodriguez told investigators that his brother said that he knew
    where the gun was.
    13
    The prosecution’s gang expert later testified that Contreras was a drug dealer.
    17
    Afterwards, defendant looked through his car as if he was trying to find something.
    Defendant was at Contreras’s house for approximately 15 minutes. Contreras did not
    remember giving defendant a ride back to Rodriguez’s house, and he did not recall giving
    defendant any sort of cleaning supplies. Defendant mentioned someone that went by the
    name “D,” who lived in an area with lots of fields.
    K. Gang Evidence
    i.     The Norteño and the City Hall Gangs
    District Attorney’s Office Inspector Chappell had previously worked for the
    Watsonville Police Department as a gang detective and as a correctional officer at San
    Quentin State Prison. Inspector Chappell testified for the prosecution as a gang expert.
    According to Inspector Chappell, there used to be one prison gang called the
    Mexican Mafia that protected Hispanic inmates. However, another group did not like the
    way the Mexican Mafia treated some Hispanic inmates, so the Nuestra Familia prison
    gang was created. The Nuestra Familia has a document called “The Constitution,” which
    describes the rules that gang members must follow. The Nuestra Raza prison gang is one
    tier below the Nuestra Familia. The Nuestra Familia is the “supreme” Norteño gang and
    sets rules and policies for all Norteños. If a gang member does not follow the rules and is
    deemed a coward or traitor, the member will be “greenlit” and marked to be assaulted or
    possibly killed. Gang members are not supposed to testify in court or cooperate with the
    police.
    The Mexican Mafia also has rules and regulations that its members are supposed
    to follow. For example, Sureños are not permitted to commit drive-by shootings; they
    have to get out of the car before they shoot someone.
    Norteños associate with the color red and the number 14. The gang also uses a
    “huelga” bird as a symbol. There are many Norteño subsets in Watsonville, including
    18
    City Hall and Northside Watsonville. The primary activities for a gang like City Hall
    include “robberies, shootings, stabbings, [and] group assaults.”
    ii.    Predicate Offenses
    Inspector Chappell testified about prior convictions of other City Hall gang
    members. The certified conviction record for Richard Betancourt (“Devil”), was
    introduced into evidence. Betancourt was convicted of robbery and attempted robbery
    with a gang enhancement in November 2003. Moreno and Gonzalez’s certified
    conviction records were also admitted into evidence. Moreno was convicted of burglary
    in February 2004. Gonzalez was convicted of grand theft in November 2003. Inspector
    Chappell also testified that on February 23, 2005, Officer Montalbo came across several
    City Hall gang members inside the Yukon driven by defendant and found a loaded gun
    inside the car. Sergeant Montalbo had previously testified about the same incident.
    Inspector Chappell further testified about the shooting of Brian Smith (“Sneaky”), a
    Northside member, who was shot using the same gun used to kill W.M. as part of a gang
    war between the two Norteño gangs. Investigators suspected that City Hall was behind
    Smith’s shooting.
    iii.   Additional Evidence About the Gang War
    Watsonville Police Department Sergeant Eric Montalbo was a patrol officer in
    2005. Sergeant Montalbo had extensive experience dealing with gangs in Watsonville,
    and he knew that there were Norteño and Sureño gangs within the city. Generally,
    Norteños and Sureños were enemies, and there was an understanding that Norteños
    should not fight or inflict violence on other Norteño gangs. The gangs, however, did not
    always abide by those rules. In 2004 and 2005, there was a “war” between two Norteño
    gangs in Watsonville, City Hall Watson and Northside Watsonville.
    According to Sergeant Montalbo, around 2004 and 2005, Isaac Guzman, a City
    Hall gang member, was stabbed multiple times and killed. Sergeant Montalbo responded
    19
    to the scene of Guzman’s murder. Eventually, investigators developed a suspect for
    Guzman’s murder, Mario Lozano, a Northside Watsonville gang member.
    Inspector Chappell also testified about the gang war. According to Inspector
    Chappell, the gang war started after Lozano, a member of Northside Watsonville, was
    allegedly shot by Guzman. Lozano then murdered Guzman by stabbing him to death
    with a knife in December 2004. Guzman’s murder took place in broad daylight, and
    someone even took pictures of what happened. Investigators believed that City Hall gang
    members were responsible for shooting Smith. Inspector Chappell testified that
    Gonzalez’s testimony that Rodriguez came to his house to try to hide a truck shortly after
    Smith’s shooting was consistent with City Hall being involved with the shooting. There
    was also evidence that the City Hall gun used to kill W.M. was involved with Smith’s
    shooting.
    iv.    W.M.’s Gang Association
    Sergeant Bedolla had known W.M. since he was a small child. As W.M. got
    older, he started associating with people who Sergeant Bedolla knew to be Norteños.
    Inspector Chappell testified that he believed that W.M. was an associate of “Watsonville
    Norte” based on his review of police reports concerning W.M.
    v.     Defendant’s Gang Association
    Inspector Chappell opined that defendant was an active City Hall member at the
    time that W.M. was murdered. Chappell’s opinion was based on defendant’s conduct,
    the tattoos that he had, the admissions he had made to law enforcement, and the fact that
    he was in contact with other City Hall members. Defendant had a tattoo over his
    eyebrows that said, “Watson Locos,” and a tattoo on his neck that said, “City Hall
    Soldier.” Defendant also had a filled-in teardrop tattoo in the corner of his left eye,
    which could mean that he committed a murder or a hit for the gang. Before W.M.’s
    murder, defendant did not have a filled-in teardrop tattoo. Defendant also had tattoos that
    20
    said “Bandit,” “Menace,” and “Little Stomper.” Inspector Chappell believed that
    defendant knew that the City Hall members engaged in criminal activity based on the fact
    that defendant had been arrested with and had committed crimes with other Norteños and
    City Hall gang members. Inspector Chappell also testified that committing murder of a
    perceived rival would garner respect within the gang.
    L. Defendant’s Sister’s Testimony
    In 2005, C.R., defendant’s sister, was 17 years old. She lived in Watsonville with
    her infant son, her siblings (including defendant), her mother, her stepfather, and the
    family’s nanny. C.R. believed that defendant was a City Hall gang member. C.R. was
    close with her brother, but defendant kept C.R. away from “anything that had to do with
    gangs.”
    The family had several cars, including a burgundy or red Yukon SUV. C.R.’s
    mother often used the SUV to run errands or purchase produce. The family sold items at
    a farmers’ market that was held every Friday.
    On May 13, 2005, C.R. arrived home after work at around 3:00 p.m. Defendant
    was the only adult at home, and he was watching his minor siblings. C.R. drove to the
    farmers’ market using a white Nissan, and she saw that the SUV was parked in the garage
    when she left. Sometime around 3:00 or 5:00 p.m., C.R.’s mother called defendant and
    asked him to bring ice to the farmers’ market. Defendant drove over in the SUV,
    dropped off the ice, and left.
    C.R. arrived home at around 8:00 p.m. that evening. Defendant was already
    home, and the burgundy SUV was in the garage. Defendant took a shower and got ready
    to go out to meet a woman, N.P. N.P. was married to someone else at the time. C.R.
    drove defendant to the cemetery using the burgundy SUV and dropped him off at around
    8:20 or 8:30 p.m. The only person C.R. saw at the cemetery was N.P. When C.R.
    arrived back home, she parked the SUV in the garage. C.R.’s bedroom was located over
    21
    the garage, and she would have heard the garage door open if someone had taken the
    SUV out. The next morning, C.R. got up at around 9:00 a.m. and saw that the SUV was
    still in the garage.
    On May 14, 2005, C.R. drove the SUV to a shopping center to get her hair ready
    for prom. After she came home, she parked the SUV. The SUV was parked in the same
    spot when her prom date came to get her, and it was still in the same spot when she came
    home that evening.
    On May 15, 2005, C.R. was stopped by the police while driving the SUV. She
    had her one-year-old son and her two three-year-old twin brothers with her at the time.
    C.R. went with the officers to the police station, where she stayed for several hours. She
    never saw the SUV again. After the car was taken, C.R. was transported home. As she
    walked toward her house, she saw defendant in the garage. Defendant came out to help
    C.R. with the children, and he asked where she had been and what had happened to the
    car. C.R. told defendant that the police had taken the car. Defendant left later that week
    to see their father in Mexico, who was battling cancer.
    On May 20, 2005, C.R. spoke to the police and told them that she had driven the
    SUV to Target at the time of W.M.’s murder. C.R. later admitted that she had lied to the
    police. After officers told her that they thought she was lying about going to Target and
    that they were going to pull surveillance tapes from the Target store to confirm her story,
    C.R. told officers that she had driven her brother to the cemetery that night. C.R. said she
    did not tell officers about defendant’s meeting with N.P. because N.P. was married at the
    time.
    C.R. previously told the police that her friend, J.H., had called her the evening of
    the murder and had told her that she had seen defendant driving the burgundy SUV.
    C.R., however, had initially told the police that J.H. had called her and accused her of
    being involved with J.H.’s boyfriend.
    22
    M. J.H.’s Testimony
    J.H. lived in Watsonville in 2005 and was friends with C.R. In May 2005, she saw
    a reckless car driving in front of her house. She called C.R. after the car drove by and
    told C.R. that she thought she had seen C.R.’s mother’s car. C.R. told J.H. that her
    mother’s car was at home and defendant was at the cemetery. J.H. knew W.M.; W.M.
    used to be best friends with the father of J.H.’s children. In 2012, J.H. identified
    defendant as the driver of the SUV that she saw that evening. At trial, however, J.H.
    could not remember saying that she thought the driver of the SUV looked like defendant.
    N. N.P.’s Testimony
    In 2005, N.P. was married and lived in Watsonville. N.P. was Isaac Guzman’s
    aunt. She met defendant at Guzman’s funeral and became romantically involved with
    him sometime in 2005. When they had their affair, N.P. and defendant would meet up
    two or three times a week during the evenings. N.P. did not remember if she and
    defendant ever planned out their dates, and she remembered that they usually just ran into
    each other at the cemetery. N.P. knew defendant’s sister C.R., and she remembered that
    C.R. sometimes dropped defendant off at the cemetery. N.P. and defendant’s dates
    would usually end around 9:00 p.m. because N.P. had to go back to her husband. N.P.
    owned a burgundy Yukon.
    O. Defense Testimony on Gang Tattoos
    Glenn Rouse, a private investigator, had previously been employed as a police
    officer with the Salinas Police Department and had been a gang intelligence officer for
    three years. Rouse had also received training about gangs, and he had previously testified
    as a gang expert in other cases. Rouse testified for the defense. In part, he testified that
    the teardrop tattoo had “lost its significance” and “in and of itself, [was] not a gang
    tattoo.” Rouse opined that there was no significance behind whether a teardrop tattoo is
    23
    filled in or not filled in. Thus, a filled-in teardrop tattoo does not necessarily mean that a
    gang member has killed someone.
    P. Stipulations
    The parties stipulated that on May 16, 2005, officers showed D.A. a series of
    photographic lineups that included pictures of defendant and Moreno. D.A. did not
    identify anyone in the lineups. The parties also stipulated that an analysis of the bullets
    fired at W.M. and D.A. confirmed that they were fired using the same gun involved in the
    shooting of Brian Smith, and Smith’s shooting took place on December 4, 2004.
    3. The Verdict and Sentencing
    The count of active participation in a criminal street gang (§ 186.22, subd. (a);
    count 3) was not submitted to the jury and was later dismissed on the prosecutor’s
    motion.
    On March 13, 2018, the jury found defendant guilty of second degree murder
    (§ 187, subd. (a); count 1) and attempted murder (§§ 664, 187, subd. (a); count 2). As to
    both counts, the jury found true the allegation that defendant and a principal personally
    and intentionally discharged a firearm (§ 12022.53, subds. (d) & (e)), and that the offense
    was committed for the benefit of, at the direction of, or in association with a criminal
    street gang (§ 186.22, subd. (b)).
    On October 25, 2018, the trial court sentenced defendant to a determinate term of
    19 years and a consecutive term of 65 years to life. The sentence was composed of a
    term of nine years for the attempted murder, 10 years for the gang enhancement for the
    count of attempted murder, 25 years to life for the firearm enhancement for the count of
    24
    attempted murder, 15 years to life for second degree murder, and 25 years to life for the
    firearms enhancement for the count of murder.14
    DISCUSSION
    1. Constitutionality of Section 186.22, subdivision (b)
    Defendant argues that section 186.22, subdivision (b) is unconstitutionally vague
    and overbroad because it fails to define the term “members” as used in the statute. As we
    explain, we find no merit in defendant’s arguments.
    A. General Legal Principles and Standard of Review
    Section 186.22, subdivision (b)(1) provides for a sentencing enhancement for
    persons who are “convicted of a felony committed for the benefit of, at the direction of,
    or in association with any criminal street gang, with the specific intent to promote,
    further, or assist in any criminal conduct by gang members . . . .” (Italics added.)
    In turn, section 186.22, subdivision (f) defines a “criminal street gang” 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 of the
    criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of
    subdivision (e), 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.” (Italics added.)
    “ ‘The constitutional interest implicated in questions of statutory vagueness is that
    no person be deprived of “life, liberty, or property without due process of law,” as
    assured by both the federal Constitution (U.S. Const., Amends. V, XIV) and the
    California Constitution (Cal. Const., art. I, § 7). Under both Constitutions, due process of
    14
    The trial court stated that it did not impose a sentence on the gang
    enhancement for the count of second degree murder “because of the limitation of
    Penal Code section 1170.1.”
    25
    law in this context requires two elements: a criminal statute must “ ‘be definite enough to
    provide (1) a standard of conduct for those whose activities are proscribed and (2) a
    standard for police enforcement and for ascertainment of guilt.’ ” ’ ” (People v. Morgan
    (2007) 
    42 Cal.4th 593
    , 605 (Morgan).) “A statute is only overbroad if it ‘prohibits a
    “ ‘substantial amount of constitutionally protected conduct.’ ” ’ ” (People v. Rubalcava
    (2000) 
    23 Cal.4th 322
    , 333.)
    “A defendant’s constitutional challenge to a penal statute may be based on the
    contention that the law is unconstitutional as applied to him, or he may seek to have it
    found facially invalid.” (People v. Navarro (2013) 
    212 Cal.App.4th 1336
    , 1348.) “As a
    general rule, a statute is ‘facially unconstitutional’ if it conflicts so directly with a
    constitutional provision that the statute is completely invalid and unenforceable in all
    circumstances.” (People v. Rodriguez (1998) 
    66 Cal.App.4th 157
    , 166.) “We review
    questions regarding the constitutionality of a statute de novo.” (People v. Solis (2020) 
    46 Cal.App.5th 762
    , 771.)
    B. Analysis
    Defendant does not specifically argue that section 186.22, subdivision (b) is
    unconstitutional as applied to him; he argues generally that the statute’s failure to
    adequately define “members” renders it constitutionally infirm. Thus, we interpret his
    arguments as a facial attack on section 186.22. With this framework in mind, we proceed
    to analyze his claims.
    First, we reject defendant’s contention that the statute is unconstitutionally
    overbroad. Even if we assume that a overbreadth claim is available outside the First
    Amendment context (but see Schall v. Martin (1984) 
    467 U.S. 253
    , 268, fn. 18 [“outside
    the limited First Amendment context, a criminal statute may not be attacked as
    overbroad”], defendant has not shown that section 186.22 “ ‘prohibits a “ ‘substantial
    amount of constitutionally protected conduct.’ ” ’ ” (People v. Rubalcava, 
    supra,
     23
    26
    Cal.4th at p. 333.) Aside from providing a general definition of what constitutes
    overbreadth, defendant does not provide argument or analysis on how section 186.22 is
    constitutionally overbroad, or what constitutionally-protected conduct the statute
    prohibits. “ ‘[E]very brief should contain a legal argument with citation of authorities on
    the points made. If none is furnished on a particular point, the court may treat it as
    waived, and pass it without consideration.’ ” (People v. Stanley (1995) 
    10 Cal.4th 764
    ,
    793.)
    Second, we find no merit in defendant’s contention that section 186.22 is
    unconstitutionally vague because it fails to define the term “members.” Although the
    term is not defined within the statute, it is commonly used and no further definition or
    clarification is required. “ ‘The law is replete with instances in which a person must, at
    his peril, govern his conduct by such nonmathematical standards as “reasonable,”
    “prudent,” “necessary and proper,” “substantial,” and the like. Indeed, a wide spectrum
    of human activities is regulated by such terms: thus one man may be given a speeding
    ticket if he overestimates the “reasonable or prudent” speed to drive his car in the
    circumstances [citation], while another may be incarcerated in state prison on a
    conviction of wilful homicide if he misjudges the “reasonable” amount of force he may
    use in repelling an assault [citation] . . . . “There is no formula for the determination of
    reasonableness.” Yet standards of this kind are not impermissively vague, provided their
    meaning can be objectively ascertained by reference to common experiences of
    mankind.’ ” (Morgan, supra, 42 Cal.4th at p. 606.)
    In People v. Green (1991) 
    227 Cal.App.3d 692
     (Green), overruled on a different
    point as stated in People v. Castenada (2000) 
    23 Cal.4th 743
    , 752 (Castenada), the First
    Appellate District held that section 186.22, subdivision (a), the substantive offense of
    participation in a criminal street gang, was not unconstitutionally vague. (Green, supra,
    at p. 699.) The Court of Appeal rejected the argument that the terms “ ‘actively
    27
    participates’ ” and “ ‘members’ ” were uncertain. (Ibid.) Green determined that
    “ ‘[m]ember’ and ‘membership’ are terms of ordinary meaning, and require no further
    definition. [Citations.] Further, ‘member’ has been judicially defined as meaning that a
    person bears a relationship to an organization that is not accidental, artificial or
    unconsciously in appearance only.” (Ibid.)
    Green acknowledged that “criminal liability may not be predicated on nothing
    more than membership.” (Green, supra, 227 Cal.App.3d at p. 699.) Section 186.22,
    however, does not make membership in a criminal gang criminal, it makes, under certain
    circumstances “active participation” in a criminal street gang criminal. (Green, supra, at
    p. 700.) Green concluded that “[t]he phrase, in context, has the same meaning as ‘active
    membership’ as defined by the case law. To be convicted of being an active participant
    in a street gang, a defendant must have a relationship with a criminal street gang which is
    (1) more than nominal, passive, inactive or purely technical, and (2) the person must
    devote all, or a substantial part of his time and efforts to the criminal street gang.” (Ibid.)
    In fact, in Castenada, the California Supreme Court disapproved Green and found that it
    construed section 186.22 too narrowly—and that a person who actively participates in a
    criminal street gang need not devote “ ‘all, or a substantial part of his time and efforts’ ”
    to the gang; rather, a person actively participates in a criminal street gang if his or her
    “ ‘involvement with a criminal street gang . . . is more than nominal or passive.’ ”
    (Castenada, supra, 23 Cal.4th at p. 752.)
    Green also distinguished Lanzetta v. New Jersey (1939) 
    306 U.S. 451
    , a case that
    defendant relies upon. (Green, supra, 227 Cal.App.3d at pp. 701-702.) In Lanzetta, the
    Supreme Court concluded that the phrase “ ‘known to be a member’ ” of a gang was
    ambiguous because it immediately “arises the doubt whether actual or putative
    association is meant.” (Lanzetta, 
    supra, at p. 458
    .) “If actual membership is required,
    that status must be established as a fact, and the word ‘known’ would be without
    28
    significance. If reputed membership is enough, there is uncertainty whether that
    reputation must be general or extend only to some persons. And the statute fails to
    indicate what constitutes membership or how one may join a ‘gang.’ ” (Ibid.) Analyzing
    Lanzetta, Green concluded that “section 186.22 does not employ the term ‘known’; the
    statute unambiguously refers to actual membership. Moreover, the complaint of the court
    in Lanzetta, that the statute fails to indicate what constitutes membership, was resolved
    by the cases such as [Scales v. United States (1961) 
    367 U.S. 203
    ] which were decided
    after Lanzetta, and which also involved statutes failing to specify those acts by which a
    person might be deemed a member.” (Green, supra, at p. 701.) Relying on Scales v.
    United States, 
    supra,
     
    367 U.S. 203
    , 223, Green concluded that “it has been held that a
    ‘member’ may not be subjected to criminal liability for the acts of the association to
    which he is a member unless his membership is ‘active,’ a term which has been held to be
    well understood in common parlance.” (Green, supra, at pp. 699-700.)
    We find Green persuasive and conclude that the use of the term “member,” which
    has an ordinary meaning, requires no further definition; thus, the use of the term
    “member” in section 186.22 does not render the statute unconstitutionally vague. (Green,
    supra, 227 Cal.App.3d at pp. 699-701.)
    2. Predicate Offenses
    Defendant argues that the certified conviction records used to prove predicate
    offenses under section 186.22 were inadmissible hearsay and deprived him of his right to
    confront witnesses. He also argues that because section 186.22 was amended to include
    carrying a loaded firearm as a predicate offense after the charged offenses were
    committed, his prior offense of carrying a loaded firearm cannot serve as a predicate
    offense without violating the prohibition against ex post facto laws. We conclude that
    any error in the admission and use of predicate offenses was harmless.
    29
    A. Background
    On January 24, 2018, the prosecutor filed a motion in limine seeking to admit
    prior conduct to establish a pattern of criminal gang activity under section 186.22,
    subdivision (e). The motion in limine did not specify which predicate offenses the
    prosecution intended to introduce. Defense counsel filed a motion in limine objecting to
    the certified conviction records on the grounds that their use would violate the
    confrontation clause. On January 31, 2018, the trial court denied defense counsel’s
    motion in limine and permitted the prosecution to use certified conviction records to
    prove predicate offenses under section 186.22.
    Moreno and Gonzalez testified at defendant’s trial, and the prosecutor questioned
    both of them about some of their prior theft offenses. Gonzalez testified that he could not
    remember having a theft conviction in 2003. The prosecutor and defense counsel did not
    ask Moreno if he had a theft conviction in 2004. After Gonzalez and Moreno finished
    testifying, the trial court excused both witnesses subject to recall during the defense case.
    Inspector Chappell subsequently testified as a gang expert. During his testimony,
    Inspector Chappell was asked about prior convictions of City Hall gang members. The
    certified conviction record for Richard Betancourt (“Devil”), was introduced into
    evidence. Betancourt was convicted of robbery and attempted robbery with a gang
    enhancement in November 2003. Moreno’s and Gonzalez’s certified conviction records
    were also admitted into evidence. Moreno was convicted of burglary in February 2004.
    Gonzalez was convicted of grand theft in November 2003. None of the certified
    convictions contain information about when the underlying offenses were committed; the
    certified conviction records only disclose the dates of the criminal convictions. During
    trial, when the certified conviction records were admitted into evidence, defense counsel
    objected by saying that his “[p]rior objections [were] reserved.” The trial court overruled
    defense counsel’s objections to the certified conviction records.
    30
    Inspector Chappell also testified that on February 23, 2005, Sergeant Montalbo
    came across several City Hall gang members inside the Yukon driven by defendant and
    found a loaded gun inside the car. Sergeant Montalbo had previously testified about the
    same incident earlier in defendant’s trial.
    Inspector Chappell further testified that investigators believed that City Hall was
    responsible for shooting Smith, a Northside member. Inspector Chappell opined that
    Gonzalez’s testimony that Rodriguez came to his house to try to hide a truck shortly after
    Smith’s shooting was consistent with City Hall being involved with the shooting. The
    parties later stipulated that Smith’s shooting took place on December 4, 2004, and the
    bullets used in Smith’s shooting matched the bullets fired at W.M. and D.A.
    After the close of evidence, the jury was instructed with the definition of a
    criminal street gang as follows: “A criminal street gang is any ongoing organization,
    association, or group of three or more persons, whether formal or informal: [¶] 1. That
    has a common name or common identifying sign or symbol; [¶] 2. That has, as one or
    more of its primary activities, the commission of Penal Code section 487, Grand Theft
    from a Person, Penal Code section 459, Burglary; Penal Code section 211, Robbery;
    Penal Code section 245, Assault with a Deadly Weapon; Penal Code section 12031,
    Carrying a Loaded Firearm in a Vehicle. [¶] AND [¶] 3. Whose members, whether acting
    alone or together, engage in or have engaged in a pattern of criminal gang activity.”
    The jury was also instructed with the following definition of a pattern of criminal
    gang activity: “1. The commission of, attempted commission of, conspiracy to commit,
    or conviction of any combination of two or more of the following crimes: Penal Code
    section 487, Grand Theft from a Person; Penal Code section 459, Burglary; Penal Code
    section 211, Robbery; Penal Code section 245, Assault with a Deadly Weapon; Penal
    Code section 12031, Carrying a Loaded Firearm in a Vehicle; [¶] 2. At least one of those
    crimes was committed after September 26, 1988; [¶] 3. The most recent crime occurred
    31
    within three years of one of the earlier crimes; [¶] AND [¶] 4. The crimes were
    committed on separate occasions, or were personally committed by two or more
    persons.”
    Finally, the jury was instructed as follows: “If you find the defendant guilty of a
    crime in this case, you may consider that crime in deciding whether one of the group’s
    primary activities was commission of that crime, and whether a pattern of criminal gang
    activity has been proved.”
    B. Prejudice
    As we have described, multiple predicate offenses were introduced to establish the
    pattern of gang activity required under section 186.22.15 Thus, we conclude that even if
    we do not consider the certified conviction records and the charge for carrying a loaded
    firearm, any error with respect to the predicate offenses was harmless under any standard.
    Defendant disagrees and argues that any error cannot be harmless, relying on
    People v. Chun (2009) 
    45 Cal.4th 1172
    . In Chun, the California Supreme Court held that
    assaultive-type crimes merge with the charged homicide and cannot form the basis for a
    second degree felony-murder instruction. (Id. at p. 1178.) The instructions given to the
    jury in Chun permitted the jury to find the defendant guilty of second degree murder
    either based on malice or the felony-murder rule. (Id. at pp. 1202-1203.) Chun observed
    15
    We note that the certified conviction records of Betancourt, Moreno,
    and Gonzalez did not contain information about when the offenses were committed.
    Moreover, there was no additional testimony at trial that established the date of the
    offenses. Thus, the jury could not have relied solely on certified conviction records
    to determine a pattern of criminal gang activity because there is no way to ascertain
    from the records whether the predicate offenses fit the timing requirements under
    section 186.22, subdivision (e). Under section 186.22, subdivision (e), a pattern of
    criminal gang activity means the commission of two or more enumerated offenses
    provided that “at least one of [the] offenses occurred after the effective date of this
    chapter and the last of [the] offenses occurred within three years after a prior offense.”
    32
    that “[i]nstructional error regarding the elements of the offense requires reversal of the
    judgment unless the reviewing court concludes beyond a reasonable doubt that the error
    did not contribute to the verdict.” (Id. at p. 1201.) Thus, in the situation before the Chun
    court, “a reviewing court must conclude, beyond a reasonable doubt, that the jury based
    its verdict on a legally valid theory, i.e., either express or conscious-disregard-for-life
    malice.” (Id. at p. 1203.) Relying on Chun, defendant argues that in this case, no court
    can conclude that there is no reasonable doubt that the jury relied on a legally adequate
    theory when it found the gang enhancement true.
    We disagree and find People v. Fiu (2008) 
    165 Cal.App.4th 360
     (Fiu) and People
    v. Bragg (2008) 
    161 Cal.App.4th 1385
     (Bragg) to be instructive. In Fiu, the trial court
    took judicial notice of and the jury was instructed on three predicate offenses, one of
    which was not an offense that was listed in section 186.22, subdivision (e). (Fiu, supra,
    at pp. 387-388.) Fiu concluded that the instructions were erroneous, but the error was
    harmless because the gang enhancement allegation “requires proof of only two
    enumerated offenses in order to prove a pattern of criminal gang activity” and “the
    remaining two offenses that the trial court took judicial notice of, and instructed the jury
    regarding, provided the two necessary predicate offenses.” (Id. at p. 388.)
    Likewise, in Bragg, the jury was erroneously instructed that a pattern of criminal
    gang activity could be based on the commission of a predicate offense that was not
    statutorily enumerated under section 186.22. (Bragg, supra, 161 Cal.App.4th at p. 1400.)
    At the defendant’s trial, a gang expert testified about an additional valid predicate offense
    committed by a validated gang member. (Id. at pp. 1392-1393.) Bragg concluded that
    the predicate offense described by the gang expert “was uncontested and there is no
    question the jury found the commission of that offense true beyond a reasonable doubt.”
    (Id. at p. 1401.) Moreover, the “jury necessarily found a second predicate offense, the
    commission [of the charged offenses], true beyond a reasonable doubt by virtue of the
    33
    jury’s conviction of defendant for those underlying crimes.” (Ibid.) The charged
    offenses could be used to determine a pattern of criminal street gang activity. (Ibid.)
    Thus, Bragg concluded that any error in instructing the jury on an invalid predicate
    offense was harmless beyond a reasonable doubt. (Ibid.)
    In this case, the charged offenses, murder and attempted murder, are enumerated
    predicate offenses under section 186.22, subdivision (e), and the jury found defendant
    guilty of both crimes beyond a reasonable doubt.16 (See People v. Loeun (1997) 
    17 Cal.4th 1
    , 10; Bragg, supra, 161 Cal.App.4th at p. 1401.) We determine that the charged
    crimes constitute only one predicate offense, not two. Section 186.22, subdivision (e)
    defines a pattern of criminal gang activity as “the commission of, attempted commission
    of, . . . or solicitation of . . . two or more” statutorily enumerated offenses “committed on
    separate occasions, or by two or more persons.” (Ibid., italics added.) The murder and
    attempted murder were not committed on separate occasions, and there was minimal
    evidence that the offenses were committed by “two or more persons.” (§ 186.22,
    subd. (e); see People v. Zermeno (1999) 
    21 Cal.4th 927
    , 931-932 [when one gang
    member is the actual perpetrator and another is liable as an aider and abettor, the
    combined activity of the two constitutes one predicate offense].)
    16
    We acknowledge that the prosecutor did not expressly argue that a predicate
    crime could be established by a conviction of the crimes alleged in the current case. The
    jury instruction that defined a pattern of criminal street gang activity did not list murder
    or attempted murder as one of the predicate offenses. Nonetheless, the jury was
    expressly instructed that “[i]f you find the defendant guilty of a crime in this case, you
    may consider that crime in deciding whether one of the group’s primary activities was
    commission of that crime, and whether a pattern of criminal gang activity has been
    proved.” Thus, “[h]owever the prosecutor chose to argue the matter, the jury knew that it
    could consider the current offenses as a predicate offense under the statute.” (Bragg,
    supra, 161 Cal.App.4th at p. 1402.)
    34
    In addition, there was undisputed evidence of a second predicate offense, and
    two predicate offenses are sufficient to find a pattern of criminal gang activity under
    section 186.22, subdivision (e). Inspector Chappell described that investigators believed
    that the City Hall gang was behind Smith’s shooting, which could qualify as an assault
    with a deadly weapon. The parties stipulated that the bullets from Smith’s shooting
    matched the bullets fired in W.M.’s murder. The parties also stipulated that Smith’s
    shooting took place on December 4, 2004, which is within three years of the of the date
    of W.M.’s murder as required under section 186.22, subdivision (e).
    For these reasons, we conclude that any error in admitting the certified conviction
    records and any error in permitting the jury to consider that carrying a loaded firearm was
    a predicate offense was harmless.17 (See Fiu, supra, 165 Cal.App.4th at p. 388; Bragg,
    supra, 161 Cal.App.4th at p. 1402.)
    3. Defense Motion for Discovery of All Prior Informant Activities
    Defendant argues that the trial court erred when it denied his pretrial motion for
    discovery of all information relating to the prior informant activities of the prosecution’s
    witnesses. We conclude that the trial court did not abuse its discretion by denying the
    motion because there was no evidence that the prosecutor did not comply or did not
    intend to comply with his obligations under Brady v. Maryland (1963) 
    373 U.S. 83
    (Brady) and section 1054.1.
    17
    The Attorney General argues that there was undisputed evidence of
    another predicate offense based on Investigator Delfin’s testimony that he was
    threatened by a City Hall gang member named Arnolfo Ayala, which could qualify as a
    criminal threat (§ 422). A violation of section 422 qualifies as a predicate offense under
    section 186.22, subdivision (e)(24). The jury, however, was not instructed that a criminal
    threat could constitute a predicate offense. Thus, we do not consider the criminal threat
    in analysis of prejudice.
    35
    A. Background
    On October 12, 2017, defense counsel filed a pretrial discovery motion seeking
    “discovery of all reports, documents, writings, recordings and statements (whether
    written or oral) of ‘all prior informant activities’ of all individuals whom the prosecution
    intend[ed] to call at trial to testify about matters going to the issue of” defendant’s guilt.
    The motion defined all prior informant activities as “any and all prior informant activities
    that occurred at any time before the informant testifies at the trial in this matter, and not
    merely prior informant activities that occurred before the alleged crime in this case was
    committed, or prior informant activities that occurred before defendant was arrested in
    connection with the case, or prior informant activities that occurred before the filing of
    any accusatory pleading in this case.” Defense counsel also sought “discovery of all the
    police reports, transcripts and recordings generated in any and all of the investigations
    and cases in which the person who engaged in the ‘prior informant activities’ gave the
    police that prior information whether or not those investigations or cases (1) have been
    completed or closed, (2) remain open, (3) are the subject of continuing investigation, or
    (4) are pending trial at this time.”
    On November 20, 2017, the trial court held a hearing on the matter. Defense
    counsel argued: “The best way to know whether these people have a history of lying is to
    look at the statements they gave in relation to the overall case investigation [in prior
    cases] to see whether these people, these informants on these other cases are now being
    used in this case have statements that are just totally inconsistent with what the reports
    show in those cases. Whether they are completed cases, ongoing cases, cold cases. And
    that would be very critical information to confront them with at trial in this case.”
    In response, the trial court stated: “[Y]our motion and what you’re asking me to
    do assumes that the District Attorney’s going to ignore its Brady obligations,” and that if
    the prosecutor came across a statement made by an informant that “has been proven to be
    36
    demonstratively false[, the prosecutor is] not going to turn that over to you.” Defense
    counsel stated that he wanted to review the materials because “[s]ometimes defense
    attorney’s analysis of what is or isn’t inconsistent is different from a prosecution’s point
    of view.” The prosecutor agreed with the trial court’s analysis and stated that “if [he] did
    see something like that [evidence that would exonerate the defendant or impeach a
    witness], absolutely the information should be turned over.”
    Thereafter, the trial court denied defense counsel’s motion, reasoning as follows:
    “The People are required to comply with their Brady obligations and produce all
    exonerating or impeaching information that they have knowledge of. They’re required to
    review their records and files to determine whether or not the informants have provided
    false information in other cases. And if they do, I’m confident they’ll comply with those
    obligations. But I’m not going to issue an order compelling them to produce records and
    reports in all cases in which these informants have provided information.”
    B. General Legal Principles and Standard of Review
    Brady held that “the suppression by the prosecution of evidence favorable to an
    accused upon request violates due process where the evidence is material either to guilt or
    to punishment, irrespective of the good faith or bad faith of the prosecution.” (Brady,
    
    supra,
     373 U.S. at p. 87.) “The [United States Supreme Court] has since held that the
    duty to disclose such evidence exists even though there has been no request by the
    accused [citation], that the duty encompasses impeachment evidence as well as
    exculpatory evidence [citation], and that the duty extends even to evidence known only to
    police investigators and not to the prosecutor [citation]. Such evidence is material ‘ “if
    there is a reasonable probability that, had the evidence been disclosed to the defense, the
    result of the proceeding would have been different.” ’ [Citation.] In order to comply
    with Brady, therefore, ‘the individual prosecutor has a duty to learn of any favorable
    37
    evidence known to the others acting on the government’s behalf in this case, including
    the police.’ ” (People v. Salazar (2005) 
    35 Cal.4th 1031
    , 1042 (Salazar).)
    “Section 1054.1 (the reciprocal-discovery statute) ‘independently requires the
    prosecution to disclose to the defense . . . certain categories of evidence “in the
    possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in
    the possession of the investigating agencies.” ’ [Citation.] Evidence subject to disclosure
    includes ‘[s]tatements of all defendants’ (§ 1054.1, subd. (b)), ‘[a]ll relevant real
    evidence seized or obtained as a part of the investigation of the offenses charged’ (id.,
    subd. (c)), any ‘[r]elevant written or recorded statements of witnesses or reports of the
    statements of witnesses whom the prosecutor intends to call at the trial, including any
    reports or statements of experts’ (id., subd. (f)), and ‘[a]ny exculpatory evidence’ (id.,
    subd. (e)).” (People v. Verdugo (2010) 
    50 Cal.4th 263
    , 279-280.)
    “[A]buse of discretion is generally the proper standard of appellate review on
    matters regarding discovery in criminal cases.” (People v. Ashraf (2007) 
    151 Cal.App.4th 1205
    , 1212.) Brady claims are subject to the independent standard of
    review. (Salazar, 
    supra,
     35 Cal.4th at p. 1042.)
    C. Analysis
    Defendant argues that the trial court erred in denying his discovery motion
    because an informant can be impeached by evidence that he or she provided inconsistent
    or false facts in prior cases. Defendant, however, does not argue that the prosecutor
    violated his Brady obligations, or that there was exculpatory or impeaching evidence that
    was not disclosed to the prosecution in this case. Defendant’s motion essentially asked
    the trial court to mandate that the prosecutor disclose all information about informants—
    not just relevant information—and have defense counsel, not the prosecutor, review the
    materials to determine whether the evidence was exculpatory or impeaching.
    38
    The prosecutor, however, acknowledged that he was aware of his Brady
    obligations, and he agreed that evidence that an informant made a false statement in a
    prior investigation would be turned over to the defense. Here, there is nothing to indicate
    that the prosecutor intended to ignore his duty under Brady and would suppress material
    evidence favorable to the defense. (Brady, supra, 373 U.S. at p. 87.) Furthermore, the
    evidence requested by defense counsel exceeded the scope of section 1054.1, which
    requires disclosure of “exculpatory evidence” (id., subd. (e)) and “[r]elevant written or
    recorded statements of witnesses” (id., subd. (f)). Prior informant activities where the
    informant provided relevant, consistent information to the police would not have been
    relevant or exculpatory because it would not have impeached the informant’s credibility.
    Defendant relies on Maxwell v. Roe (9th Cir. 2010) 
    628 F.3d 486
     (Maxwell). In
    Maxwell, a jailhouse informant denied that he previously worked as an informant and
    stated that he had never testified for the district attorney, representing himself as
    “someone new to the informant world.” (Id. at p. 511.) The defendant filed a petition
    for a writ of habeas corpus after he was convicted, and the trial court held an evidentiary
    hearing on whether the jailhouse informant had given false testimony. (Id. at
    pp. 493-494.) At the evidentiary hearing, it was revealed that the prosecution had not
    disclosed that the jailhouse informant had aided in several investigations and had acted as
    an informant on numerous previous occasions. (Id. at p. 511.) The Ninth Circuit
    concluded that evidence of the informant’s prior dealings could have been used to
    discredit the informant at trial. (Id. at pp. 511-512.) Thus, the failure to disclose
    information about the informant amounted to a Brady violation. (Maxwell, supra, at
    pp. 511-512.)
    Maxwell does not aid defendant. The decision in Maxwell took place after an
    evidentiary hearing where evidence was presented that the prosecutor failed to disclose
    relevant, exculpatory information, which could have impeached the informant’s
    39
    credibility. (Maxwell, 
    supra,
     628 F.3d at pp. 493-494.) Here, there is no evidence that
    the prosecutor withheld exculpatory information. Furthermore, defendant cites to no
    authority for the proposition that the prosecution is required to disclose evidence that is
    not relevant to the case, or that it is the duty of defense counsel, not the prosecutor, to
    examine the materials available to the prosecutor to determine whether exculpatory
    evidence exists.18
    Accordingly, the trial court did not abuse its discretion when it denied defendant’s
    discovery motion.19 (People v. Ashraf, supra, 
    151 Cal.App.4th 1205
    .)
    4. Defense Expert
    Defendant argues that the trial court erred when it excluded the expert testimony
    of a psychologist, Dr. Jeffrey Neuschatz, on the “psychological impact and effect upon
    18
    We acknowledge that “the courts have recognized that the Brady requirements
    can also be satisfied when a trial court conducts an in camera review of documents
    containing possible exculpatory or impeachment evidence.” (J.E. v. Superior Court
    (2014) 
    223 Cal.App.4th 1329
    , 1336.) Generally, courts have recognized that in camera
    inspection is appropriate when there is a “ ‘special interest in secrecy’ afforded to the
    files.” (Ibid.) For example, in Pennsylvania v. Ritchie (1987) 
    480 U.S. 39
    , the Supreme
    Court required that the defendant make a threshold showing of materiality to trigger the
    trial court’s duty to search the records of a state child protection agency after the
    defendant was charged with sexual offenses against the child. (Id. at pp. 43, 59-61.)
    Similarly, in J.E. v. Superior Court, the Fourth Appellate District concluded that in
    camera review under Welfare and Institutions Code section 827 was the proper
    mechanism to resolve a defense Brady disclosure request involving a juvenile file. (J.E.
    v. Superior Court, supra, at p. 1338.) Welfare and Institutions Code section 827, which
    governs access to juvenile records, requires a petitioner to make a good cause showing
    warranting the in camera review. (J.E. v. Superior Court, supra, at p. 1337.)
    19
    As we have stated, Brady claims are subject to the independent standard of
    review. (Salazar, 
    supra,
     35 Cal.4th at p. 1042.) However, as explained above, there is
    no evidence that a Brady violation occurred. Thus, there is no Brady claim for us to
    review, and we apply the abuse of discretion standard to the trial court’s denial of
    defendant’s discovery motion. (People v. Ashraf, supra, 151 Cal.App.4th at p. 1212.)
    40
    ordinary citizens of testimony from an accomplice and/or testimony from an informant.”
    We find that the trial court did not abuse its discretion by excluding the testimony.
    A. Background
    During defendant’s trial, defense counsel sought to admit Dr. Neuschatz’s expert
    testimony on the psychological impact of informant testimony, cooperating witness
    testimony, and secondary confessions. Dr. Neuschatz defined a secondary confession as
    “a report by one person that he or she heard another person (the suspect) confess to a
    crime.” Defense counsel included a report prepared by Dr. Neuschatz summarizing his
    proposed testimony. In the report, Dr. Neuschatz opined that people place “undue weight
    on confessions” and research showed that individuals rely on involuntary confessions to
    the same extent that they rely on voluntary confessions. Dr. Neuschatz asserted that the
    research showed that confessions “have a significant impact on people’s verdict
    decisions.”
    Dr. Neuschatz also summarized a study of jury behavior that involved the use of
    mock jurors. The study found that “there were significantly more guilty verdicts when an
    informant testified than when one did not.” Dr. Neuschatz attributed this to
    “[f]undamental attribution error,” which occurs “when a juror underestimates the
    importance of situational factors (such as the informant receiving an incentive or having
    been an informant multiple times in the past) and overvalues dispositional factors (such
    as the informant’s honesty or guilty conscience).” Likewise, Dr. Neuschatz claimed that
    “confession evidence has a greater impact on people than other forms of evidence” based
    on a recent study that he conducted using mock jurors.
    According to Dr. Neuschatz, research also showed incentives such as reduced
    prison sentences or dropped charges can lead an informant to fabricate information and,
    based on a study that used students and the incentive of academic credit, “people will lie
    for even a minimal incentive.” Furthermore, Dr. Neuschatz claimed that “[f]alse
    41
    informant testimony is a leading cause of wrongful convictions in the United States.” Dr.
    Neuschatz concluded that it is difficult for individuals who are unfamiliar with the
    research “to appreciate the factors that can affect the reliability of informant testimony or
    cooperating witnesses.”
    The prosecutor moved to exclude Dr. Neuschatz’s testimony. The prosecutor
    argued that Dr. Neuschatz’s testimony was not “[r]elated to a subject that is sufficiently
    beyond common experience” of the jurors and was not the proper subject of expert
    testimony. (Evid. Code, § 801.) The prosecutor also argued that the evidence should be
    excluded under Evidence Code section 352 because it was irrelevant and prejudicial.
    After considering the parties’ arguments, the trial court excluded Dr. Neuschatz’s
    testimony, concluding that his testimony was “nothing other than a comment on the
    credibility or believability of witnesses.”
    B. General Legal Principles and Standard of Review
    Expert testimony must be “[r]elated to a subject that is sufficiently beyond
    common experience that the opinion of an expert would assist the trier of fact.” (Evid.
    Code, § 801, subd. (a).)
    “The general rule is that an expert may not give an opinion whether a witness is
    telling the truth, for the determination of credibility is not a subject sufficiently beyond
    common experience that the expert’s opinion would assist the trier of fact; in other
    words, the jury generally is as well equipped as the expert to discern whether a witness is
    being truthful.” (People v. Coffman and Marlow (2004) 
    34 Cal.4th 1
    , 82.)
    “In assessing defendant’s claim that the trial court erroneously excluded [an
    expert’s] testimony, we apply the deferential abuse of discretion standard.” (People v.
    Curl (2009) 
    46 Cal.4th 339
    , 359 (Curl).)
    42
    C. Analysis
    We conclude that the trial court did not abuse its discretion in excluding Dr.
    Neuschatz’s testimony. As the trial court determined, Dr. Neuschatz’s testimony was
    essentially a comment on the credibility of witnesses. Moreover, his proposed testimony
    was not a subject that went beyond the common experience of jurors. For example, it is a
    matter of common knowledge that an informant who receives a benefit in exchange for
    information has a motive to fabricate information. It is also a matter of common
    knowledge that individuals may lie if given an incentive to do so.20
    In Curl, supra, 
    46 Cal.4th 339
    , a witness who was incarcerated at the same
    time as the defendant testified about conversations that he had with the defendant. (Id. at
    pp. 346-347.) At trial, the defendant sought to call an expert to testify about “ ‘how an
    inmate informant can obtain information used to concoct a confession that was never
    made.’ ” (Id. at p. 357.) The defendant argued that his proposed expert “ ‘qualified as an
    expert to render testimony about inmate informants, the process, the methods of
    selecting, evaluating and determining the truthfulness of their representations’ and would
    render ‘his opinion regarding the validity of [the witness] in his role of an inmate
    informant.’ ” (Id. at p. 358.) The California Supreme Court determined that the trial
    court did not abuse its discretion by excluding the testimony because “to the extent the
    purpose or effect of [the expert’s] testimony was to render an opinion about [the
    witness’s] credibility, the testimony was inadmissible.” (Id. at p. 359.)
    20
    For these reasons, the trial court gave standard jury instructions that advised the
    jury on how to consider such issues. CALCRIM No. 226 advised the jury that to evaluate
    the credibility of a witness, the factors to be considered included: “Was the witness’s
    testimony influenced by a factor such as bias or prejudice, a personal relationship with
    someone involved in the case, or a personal interest in how the case is decided?”; and
    “Was the witness promised immunity or leniency in exchange for his or her testimony?”
    43
    Likewise, in People v. Johnson (1993) 
    19 Cal.App.4th 778
     (Johnson), the
    defendant sought to introduce expert testimony from two witnesses, a sociology professor
    who had studied the prison environment and an “ ‘expert’ liar.” (Id. at p. 786.) The trial
    court described the sociologist’s proposed testimony as “ ‘a sociological study . . . about
    what happens in prisons.’ ” (Ibid.) Defense counsel proffered that his expert liar, an
    inmate informant, would testify about “ ‘having snitched or engaged in dealing with the
    district attorney many times with the Los Angeles Police Department.’ ” (Ibid.) The trial
    court excluded both witnesses’ testimonies, and the Court of Appeal found no abuse of
    discretion. (Id. at p. 791.) As for the sociologist, the Court of Appeal noted: “[t]here
    was no showing the proposed sociologist witness had researched the particular inmate[]
    [witnesses] in question, or had made any scientific study of their credibility; and the
    inherent problems with such expert testimony as to the credibility of other witnesses, and
    the prospective abandonment of common sense by lay jurors for reliance on paid ‘expert’
    testimony covering a subject well within a jury’s ken, amply justified the trial court’s
    decision to exclude it.” (Ibid.) As for the expert liar, the Court of Appeal concluded that
    the proposed testimony “was irrelevant to the specific issues before the jury, and of very
    dubious (if any) scientific value.” (Ibid.)
    Here, Dr. Neuschatz’s proposed testimony is akin to the testimonies excluded in
    Curl and Johnson on the veracity and credibility of witnesses. (Curl, 
    supra,
     46 Cal.4th at
    pp. 358-359; Johnson, supra, 19 Cal.App.4th at pp. 786-791.) Essentially, Dr. Neuschatz
    would have rendered an opinion about the credibility of witnesses, and his proposed
    testimony was not the proper subject of an expert opinion because “whether a witness is
    telling the truth . . . is not a subject sufficiently beyond common experience that the
    expert’s opinion would assist the trier of fact.” (People v. Coffman and Marlow, supra,
    34 Cal.4th at p. 82; Evid. Code, § 801, subd. (a).) Thus, we find that the trial court did
    not abuse its discretion when it excluded the testimony.
    44
    5. Uncorroborated Accomplice Testimony
    Defendant argues that his convictions must be reversed because the testimony of
    some of his fellow gang members, including Gonzalez, Moreno, Rodriguez, and
    Contreras, were not corroborated by independent evidence. We disagree and conclude
    there was sufficient independent corroborating evidence.
    A. Background
    The jury was instructed with a modified version of CALCRIM No. 334, which
    stated that before the jury could consider the testimony of Gonzalez, Moreno, Rodriguez,
    and Contreras as evidence against defendant, the jury must first determine if the
    witnesses were accomplices to the crime.21
    CALCRIM No. 334 then stated that if the jury determines that a witness was not
    an accomplice, “then supporting evidence is not required and you should evaluate his or
    her statement or testimony as you would that of any other witness.” On the other hand, if
    the jury determines that a witness was an accomplice, the jury was instructed that “you
    may not convict the defendant of the crimes charged based on [the accomplice’s]
    statement or testimony alone. You may use the statement or testimony of an accomplice
    to convict the defendant only if: [¶] 1. The accomplice’s statement or testimony is
    supported by other evidence that you believe; [¶] 2. That supporting evidence is
    independent of the accomplice’s statement or testimony; [¶] AND [¶] 3. That supporting
    evidence tends to connect the defendant to the commission of the crime. [¶] Supporting
    21
    The jury was instructed that a person is an accomplice if: “1. He or she
    personally committed the crime; [¶] OR [¶] 2. He or she knew of the criminal purpose of
    the person who committed the crime; [¶] AND [¶] 3. He or she intended to, and did in
    fact, aid, facilitate, promote, encourage, or instigate the commission of the crime or
    participate in a criminal conspiracy to commit the crime.” The instruction stated that
    “[t]he burden is on the defendant to prove that it is more likely than not that [Gonzalez,
    Moreno, Rodriguez, and Contreras] were accomplices.”
    45
    evidence, however, may be slight. It does not need to be enough, by itself, to prove that
    the defendant is guilty of the charged crime, and it does not need to support every fact
    mentioned by the accomplice in the statement or about which the accomplice testified.
    On the other hand, it is not enough if the supporting evidence merely shows that a crime
    was committed or the circumstances of its commission. The supporting evidence must
    tend to connect the defendant to the commission of the crime.”
    B. General Legal Principles and Standard of Review
    Section 1111 mandates that “[a] conviction can not be had upon the testimony of
    an accomplice unless it be corroborated by such other evidence as shall tend to connect
    the defendant with the commission of the offense; and the corroboration is not sufficient
    if it merely shows the commission of the offense or the circumstances thereof.”
    “This statute reflects the Legislature’s determination that ‘ “because of the
    reliability questions posed by” ’ accomplice testimony, such testimony ‘ “by itself is
    insufficient as a matter of law to support a conviction.” ’ [Citation.] ‘Thus, for the jury
    to rely on an accomplice’s testimony about the circumstances of an offense, it must find
    evidence that, “ ‘without aid from the accomplice’s testimony, tend[s] to connect the
    defendant with the crime.’ ” ’ [Citation.] ‘ “The entire conduct of the parties, their
    relationship, acts, and conduct may be taken into consideration by the trier of fact in
    determining the sufficiency of the corroboration.” ’ ” (People v. Rodriguez (2018) 
    4 Cal.5th 1123
    , 1128 (Rodriguez).) This includes the defendant’s statements and conduct.
    (People v. Gurule (2002) 
    28 Cal.4th 557
    , 628.)
    “ ‘The corroborating evidence may be circumstantial or slight and entitled to little
    consideration when standing alone, and it must tend to implicate the defendant by relating
    to an act that is an element of the crime.’ ” (People v. Abilez (2007) 
    41 Cal.4th 472
    , 505
    (Abilez).) The independent evidence need not corroborate the accomplice as to every fact
    on which the accomplice testifies. (People v. Davis (2005) 
    36 Cal.4th 510
    , 543.)
    46
    “ ‘ “Although the corroborating evidence must do more than raise a conjecture or
    suspicion of guilt, it is sufficient if it tends in some degree to implicate the defendant.” ’ ”
    (People v. Szeto (1981) 
    29 Cal.3d 20
    , 27 (Szeto).)
    “ ‘The trier of fact’s determination on the issue of corroboration is binding on the
    reviewing court unless the corroborating evidence should not have been admitted or does
    not reasonably tend to connect the defendant with the commission of the crime.’ ”
    (Abilez, 
    supra,
     41 Cal.4th at p. 505.)
    C. Analysis
    Assuming that the jury found Gonzalez, Moreno, Rodriguez, and Contreras to be
    accomplices to the charged crimes, we conclude that their testimonies were sufficiently
    corroborated by independent evidence that showed that defendant was the driver of the
    burgundy SUV and was the shooter, which “ ‘reasonably tend[ed] to connect . . .
    defendant with the commission of the crime[s].’ ” (Abilez, supra, 41 Cal.4th at p. 505.)
    D.A. testified that when he and W.M. walked down Palm Avenue, they saw a
    burgundy or red SUV, and the driver was a “[b]ig Hispanic guy with a red shirt and facial
    tattoos.” D.A. recalled that the driver had tattoos above his eyebrows that “made his
    eyebrows look big.” Inspector Chappell testified that defendant had the type of facial
    tattoos described by D.A.; he had the words “Watson Locos” tattooed over his eyebrows.
    Multiple witnesses, including N.M. and J.C., testified that on the day of W.M.’s
    murder, they saw a burgundy or red SUV drive recklessly around the area of Palm
    Avenue. J.H., C.R.’s friend, testified that she saw a reckless car driving in front her
    house, and in previous statements, she identified defendant as the driver.
    Sergeant Montalbo testified that he did not know of any other gang member in
    Watsonville that drove a red SUV aside from defendant. Sergeant Montalbo had stopped
    defendant in a burgundy SUV twice before W.M. was killed, once in February 2005 and
    another time in March 2005. C.R. testified that their family had three cars, including a
    47
    burgundy or red Yukon. When the burgundy Yukon was searched after it was
    impounded, Sergeant Bedolla found paperwork with defendant’s name, defendant’s
    driver’s license, and a receipt that was dated the same day as the murder. Gunshot
    residue was also found in the SUV.
    In sum, there was ample evidence that D.A. and W.M. were shot at from a
    burgundy or red SUV, evidence that the SUV was the same as the one seized from C.R.,
    and evidence that defendant was the driver of the SUV. Based on our careful review of
    the record, we believe that the independent evidence sufficiently corroborated the
    testimonies of Gonzalez, Moreno, Rodriguez, and Contreras because it “ ‘reasonably
    tend[ed] to connect’ ” defendant with the charged crimes. (People v. Szeto, supra, 29
    Cal.3d at p. 27, italics omitted.)
    DISPOSITION
    The judgment is affirmed.
    48
    BAMATTRE-MANOUKIAN, J.
    WE CONCUR:
    ELIA, ACTING P.J.
    DANNER, J.
    People v. Rosas
    H046320