People v. Dorsey CA4/1

Filed 6/15/21 P. v. Dorsey CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D076501

Plaintiff and Respondent,
(Super. Ct. Nos. SCD268251;
v.
SCD266202; SCD272022;
DESHAWN CHRISTOPHER DORSEY SCD276978)
et al.,

Defendants and Appellants.

APPEALS from a judgment of the Superior Court of San Diego County,
Eugenia Eyherabide, Judge. Affirmed in part, reversed in part, and
remanded with directions.
Athena Shudde, under appointment by the Court of Appeal, for
Defendant and Appellant Deshawn Christopher Dorsey.
Anthony J. Dain, under appointment by the Court of Appeal, for
Defendant and Appellant Tyree Carter, Jr.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Steve
Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
 Evidence at a joint trial showed that defendants Deshawn Christopher
Dorsey and Tyree Carter, Jr. were gang members who conspired to kill
suspected rival gang members. They performed numerous overt acts in
furtherance of the ongoing conspiracy. After Dorsey and Carter obtained
firearms and ammunition, they went on a shooting spree during a week in
March 2016. On March 9, while driving through two different locations
within rival gang territory, defendants shot at multiple victims; several
victims survived (attempted murders), and one victim died (murder). The
next day, at a vigil for defendants’ deceased fellow gang member, the same
firearm used in the shootings was discharged again, ostensibly by Dorsey or
Carter, who were photographed at the vigil. Two days after the vigil, Dorsey
discharged the firearm yet again at a hookah lounge. The jury convicted
defendants of 12 charged offenses, including conspiracy to commit murder,
murder, attempted murders, and assaults, and found true various firearm
enhancements.
On appeal, defendants claim the trial court erroneously admitted
evidence of the uncharged shooting incidents because the evidence was
irrelevant and prejudicial. They further claim the court should have stayed
their sentences for conspiracy to commit murder, or erred in imposing the

attendant firearm enhancement, under Penal Code section 654.1 Finally,
defendants assert several other sentencing errors, which the People concede
must be corrected.
We conclude the trial court did not err in admitting evidence of the
uncharged shooting incidents or in imposing enhanced sentences for the
conspiracy offense under section 654. We accept the People’s concession on

1 Further unspecified statutory references are to the Penal Code.

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other sentencing errors and remand the judgment with directions. In all
other respects, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND2
Gang background
Dorsey and Carter were active members of West Coast Crips (Crips), a
gang that primarily engaged in criminal activities like homicides, shootings,
stabbings, robberies, selling drugs, and possessing firearms. Crips were
rivals to Blood set gangs, which included 5/9 Brim and Lincoln Park. Each of
these gangs claimed distinct geographic territory, markers, and colors as its
own. For instance, Crips identified by blue, while Lincoln Park identified by
green.
Like other gangs, Crips adhered to certain principles and a hierarchy.
Members were expected to “put[] in work” for the gang, i.e., engage in crimes,
protect the gang’s territory, and retaliate against rival gang members. Crips
identified with the numbers “3” and “0,” corresponding to their territory
around 30th Street. Crips further expected members to engage in violent
crimes against rival gangs in March, culminating on March 30; the gang
referred to this period of escalated violence as “March Madness.”
Dorsey and Carter used social media to broadcast their gang affiliation
and communicate with other gang members. Dorsey was also known as Mr.
Perfect and Young Holly Fu, and Carter was also known as Ike Turner and
Tidy Bo. Records of their social media use were admitted in evidence,
showing that defendants posted pictures, videos, and/or comments on their
and their friends’ pages, and these posts could be seen by hundreds of other

2 Although defendants appealed the judgments in several cases, the
issues on appeal pertain only to case number SCD268251. We limit our
factual background accordingly. Unspecified date references are to 2016.

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friends and users. Defendants additionally used private messaging and voice
call functions.
Between January and March, defendants conspire to
murder rival gang members (count 1)
On January 19, Dorsey posted a picture on his social media page that
showed him and Carter displaying Crips’ hand signs in front of the Lincoln
Park fire station sign. The picture was captioned, “Oh we out thuggin.”
Defendants’ actions were highly disrespectful to Lincoln Park, taunting or
challenging the rival gang to respond violently.
The following day, someone fired a gun at Carter’s home. No culprit
was identified, but Carter believed a Lincoln Park gang member was
responsible.
Subsequently, on numerous days in January, February, and March,
Dorsey and Carter exchanged private messages with other individuals,
seeking to obtain firearms and ammunition. As mere examples, on January
26, Carter messaged one individual, “I need some bullets LOL” and “Who got
them, LOL. I need a thang [(handgun)] too.” The individual messaged
Carter back with a photograph of a gun, to which Carter responded, “How
much you want for it. I need it RN [(right now)].” On February 2, in an
exchange with a different person, Dorsey wrote, “I’m a by a [9] [and 2 ]380,”
(sic) referencing types of guns. On March 4, Dorsey messaged someone else,
“Cuete” (Spanish slang for gun), and “I got 250 to 300, what can I get . . .
ASAP.”
During this time period, defendants presented themselves to the
outside world as Blood killers (“BK”) and slob killers (“SLOBK”), with “slob”
being a derogatory term for Blood gang members. In March, Dorsey and
Carter were involved in several shooting incidents.

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 March 9, shooting at Ocean View liquor store (counts 6-12)
On March 9, around 6:00 p.m., Reality Robinson and her friend
(Holiday) picked up Carter and Dorsey in a maroon, four-door Honda Accord.
These four were a tightknit group. Robinson drove the car, Dorsey sat in the
backseat behind her, Holiday was in the front passenger seat, and Carter sat
in the backseat behind Holiday.
According to Robinson, Dorsey instructed her to exit the freeway at
Ocean View Boulevard. Robinson noticed a black handgun in Carter’s lap,
and she was directed to turn off her cell phone. She drove past a liquor store
on Ocean View, known to be a 5/9 Brims’ hangout spot in that gang’s
territory. Dorsey or Carter pointed out a man who looked like he could be a
“patrol” for 5/9 Brims. Robinson turned the car around, and on this cruise
past the liquor store, Carter called out, “West Side,” and fired seven or eight
shots out of his window toward the liquor store.

Sixty-year-old victim Michael,3 who was about to enter the only
entrance of the liquor store, was shot in the back of his left leg, through and
through. His thigh bone was broken, and there was a “hole” in his knee joint.
Michael immediately fell, managed to crawl inside the liquor store, and told
the cashier to call for help. He required surgery, over 40 days of
convalescence, and still could not run properly two years afterward.
A neighborhood family, comprised of a father, 15-year-old boy, and 10-
year-old girl, had finished buying a snack in the liquor store. As they were
exiting the store, the father heard multiple gunshots and saw a man shooting
a gun out a window of the maroon car. The terrified family took cover by

3 We refer to some victims by their first names for clarity and privacy
purposes. No disrespect is intended.

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squeezing themselves in a space by an outdoor ice refrigerator. The father
later provided a description of the shooter to police.
The inside of the store was hit by bullets. The cashier, who ducked
below the counter during the shooting, called 911 at approximately 6:53 p.m.,
initiating emergency and law enforcement responses. Surveillance footage
showed shots fired from the back seat of the maroon car. The surveillance
video also showed an unidentified male victim standing outside the liquor

store during the gun fire.4 Police recovered cartridge casings and bullet
fragments. The casings were subsequently found to have been fired from the
same gun as casings recovered from multiple other crime scenes.
March 9, next shooting on Manomet Street (counts 2-5)
The group in the maroon car made a quick stop at Carter’s
grandmother’s house. There, Robinson used the restroom. When the group
ventured back out, she was in the driver’s seat, Dorsey sat in the front
passenger seat, and Carter and Holiday sat in the back.
As directed by defendants, Robinson drove to a block of Manomet Street
in Lincoln Park territory, less than two miles away from the Ocean View
liquor store. Dorsey or Carter observed a group of men—victims Johnnie
Horne (Horne), Samuel, and Brandon—standing in the driveway of Brandon’s
house. Dorsey indicated to Robinson to turn off the car’s headlights and stop
at the house; she complied and stopped about 20 feet from the group of men.
Horne was wearing a green sweatshirt, commonly associated with Lincoln
Park.
The men in the driveway were childhood friends, and they had been
chatting for a little while as they commonly did. Brandon’s mother sat in the

4 Michael testified that the unidentified man might be named “Chris.”

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garage, playing a game on her phone. Brandon, who was a car hobbyist,
noticed the maroon, four-door, late 1990’s Honda Accord stop in front of his
house. He believed the driver was female. A male matching Dorsey’s

description exited the front passenger door,5 said something to the effect of
“what’s happening,” and began shooting at the group of friends. They tried to
run inside for cover.
Horne was shot in the head and died from his wound. Samuel was shot
in the leg, which “shattered.” Brandon narrowly escaped the gun fire. His
mother safely reached the inside of her home. The next door neighbor, who
heard the gunshots, called 911 at 7:20 p.m., or less than 30 minutes after the
liquor store shooting.
According to Robinson, Dorsey fired “about five or six” shots toward the
house and got back in her car. They drove off. Robinson recalled an
atmosphere of “excitement” among her friends inside the car. One of the
defendants declared, “ ‘That nigga dropped.’ ”
Detectives collected six cartridge casings at the Manomet Street
shooting, which were later analyzed and tied to casings from other crime

scenes.6

5 Both Dorsey and Carter are six feet tall men of the same race; however,
Dorsey weighs 180 pounds while Carter weighs 280 pounds. The surviving
witnesses described the shooter on Manomet Street as ranging from 175 to
210 pounds and nowhere close to 280 pounds. Robinson testified that Carter
and Dorsey, respectively, were the triggermen on Ocean View and Manomet
Street, respectively.

6 We omit the facts relating to a third shooting incident on the evening of
March 9. The victim of that shooting refused to cooperate with law
enforcement, and Dorsey, who was charged with a crime in connection with
the incident, was acquitted by the jury (count 13).

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 March 10 shooting at vigil for deceased fellow gang member Coney
(alleged as overt act #20 supporting murder conspiracy)
The day after the shootings, on March 10, a candlelight vigil was held
for Jason Coney, a deceased former Crips member. Carter and Dorsey were
photographed at the vigil along with a few other gathered Crips, and the
photograph was subsequently posted on social media. During the vigil,
gunshots were fired at the group of attendees, and one or more Crips
returned fire. Officers responded and obtained surveillance footage, which
showed the vigil attendees scattering and running away at the sound of
gunfire. Officers were able to collect cartridge casings at the scene, which
were compared to casings collected from the Ocean View, Manomet, and
other crime scenes. It was later determined that the same gun used in the
Ocean View and Manomet shootings was fired at the Coney vigil.
March 12 shooting at hookah lounge
Two days after the vigil, on March 12, Robinson, Holiday, another
female friend (Pittman), Carter, and Dorsey rode in Pittman’s vehicle to a
hookah lounge. They parked in a lot across the street, where cars and “a lot
of people” were gathered. While she was still in the vehicle, Robinson saw
two men in the car next to her pull a gun out of their trunk. She then heard
gunshots and observed Dorsey “shooting back.” Pittman also heard gunshots
and, in a subsequent text message describing what had happened, wrote that
“Fu shot back,” referring to Dorsey’s alias, Young Holly Fu. Pittman and her
group drove off. The rear window of Pittman’s vehicle was shot out during
the incident.
Police responded to a report of gun fire. There were no apparent
victims. Officers observed glass fragments in a parking spot and collected
cartridge casings, later determined to be fired from the same 9mm gun as the
one used in the Ocean View, Manomet, and Coney vigil shootings.

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 March 19 shooting on Island Avenue
(alleged as overt act #23 supporting murder conspiracy)
On March 19, victim Shaun attended a house party on Island Avenue
in Crips territory, where several Crips members, including defendants, were
in attendance. Outside the house, a “gang banging” man hit Shaun, who hit
him back in self-defense. As he ran away from the area, Shaun was shot
several times, twice in the chest and once in the leg, and went unconscious in
his friend’s car from blood loss. He required life-saving medical treatment.
Shaun claimed not to know who shot him. Five cartridge casings found
at the Island Avenue crime scene were determined to have been fired from a
different 9mm gun than the one used in the other shootings. One of the
recovered casings from Island Avenue contained Dorsey’s DNA.
Police investigations and other evidence
Police investigations ensued after each of the shooting incidents.
Officers conducted witness interviews, collected physical evidence for forensic
examination, analyzed cell and other electronic records, and executed search
warrants on relevant homes and vehicles.
In Dorsey’s bedroom, officers found three live 9mm rounds, two
magazines for a Glock handgun, SLOBK t-shirts, and paperwork containing
Dorsey’s and Carter’s names. A box of .40-caliber ammunition was found
elsewhere in Dorsey’s home. One of the 9mm rounds found in Dorsey’s
bedroom bore a PPU head stamp, while two of the rounds bore Blazer head
stamps.
Firearms experts analyzed casings recovered from the Ocean View,
Manomet, Coney vigil, and hookah lounge shooting scenes, and determined
that the casings were (1) fired from the same 9mm gun; and (2) consistent
with being fired from a Glock pistol. That gun—the crime weapon—was not
recovered. Some casings found at the Ocean View, Manomet, and Coney vigil

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shootings bore PPU head stamps, while casings found at the Island Avenue
shooting bore Blazer head stamps. The Island Avenue shooter used a
different 9mm firearm than what was used in the previous shootings.
Investigators extensively reviewed defendants’ and their associates’
social media activities and online communications, which disclosed relevant
evidence of a gang-related conspiracy.
Robinson was arrested. She ultimately agreed to plead guilty to certain
charges and testify for the prosecution in exchange for a more lenient
sentence. Robinson’s account of events was corroborated by various evidence
as we have referenced, as well as cell phone records showing her movements
and communications on the day of the March 9th shootings.
Superior court proceedings
Defendants were charged with conspiracy to commit murder, i.e., to
“kill suspected rival gang members, including those from the Lincoln Park
and 5/9 Brim criminal street gangs” (§§ 182, subd. (a)(1), 187; count 1);
murdering Horne (§ 187, subd. (a); count 2); three counts of attempted
murder as to Samuel, Brandon, and Michael (§§ 664, 187, subd. (a), 189;
counts 3, 4, & 6); shooting at an inhabited dwelling on Manomet (§ 246; count
5); shooting at an occupied building on Ocean View (§ 246; count 7);
discharging a firearm from a motor vehicle (§ 26100, subd. (c); count 8); and
four counts of assault with a semiautomatic firearm as to the father, his two
children, and the unidentified man at the liquor store (§ 245, subd. (b); counts
9, 10, 11, & 12). Dorsey was charged with one additional count of assault
with a semiautomatic firearm (§ 245, subd. (b); count 13).
The charging document expressly alleged 23 overt acts performed
between January 21 and March 20 in furtherance of the conspiracy to commit
murder; some of the overt acts were charged crimes while others were not.

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 The People alleged that all the crimes were committed for the benefit of
a criminal street gang (§ 186.22, subd. (b)(1), (4), & (5)). They further alleged
firearm enhancements as to all counts (§§ 12022, subd. (a)(1), 12022.5., subd.
(a), 12022.53, subds. (b)-(e)(1)). Dorsey was alleged to have inflicted great
bodily injury during the commission of counts 3, 5, and 13 (§ 12022.7, subd.
(a)), and Carter was alleged to have inflicted great bodily injury during the
commission of counts 8, 9, 10, 11, and 12 (§ 12022.7, subd. (a)).
A joint trial was held in October and November 2018. During motions
in limine, defendants sought to exclude evidence of the uncharged shootings
at the Coney vigil and hookah lounge. As discussed further, post, the trial
court denied defendants’ request and allowed the jury to hear evidence of
these shootings.
Evidence at trial revealed the summarized facts described herein, with
Robinson’s key testimony identifying defendants and their activities on the
day of the charged shootings and at the hookah lounge. The jury also heard
testimony from experts, including in firearms, gangs, DNA analysis, social
media, and cell phone analysis. Various witnesses, including some victims,
were recalcitrant and reluctant to testify against defendants. For example,
victim Samuel testified that he would not tell police who shot his friend even
if he knew who did it, for fear of violent retaliation. As a further example,
although Pittman was with defendants on the night of the hookah lounge
shooting, she claimed at trial to have “no idea” who they were.
Before the case was sent to the jury, the prosecutor dismissed the
section 12022.5, subdivision (a), enhancement, alleged as to Dorsey’s counts 3
and 4 and Carter’s count 6, because they were “duplicative” of the section
12022.53 enhancements. The prosecutor also moved to dismiss the section
12022, subdivision (a)(1), arming enhancement alleged as to Dorsey’s counts

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9, 10, 11, and 12. During deliberations, after a charging error was
discovered, the prosecutor further dismissed the section 12022.7 allegation
attached to Dorsey’s count 5.
The jury acquitted Dorsey of count 13 but convicted defendants of all
other counts and found all remaining allegations true.
In case number SCD272022, a jury convicted Dorsey of two counts of
burglary of an inhabited dwelling (§§ 459, 460, subd. (a)). In case number
SCD266202, Dorsey pleaded guilty to one count of felony assault and
admitted a gang enhancement (§§ 245, subd. (a)(1), 186.22, subd. (b)(1)). In
case number SCD276978, Carter pleaded guilty to one count of burglary of an
inhabited dwelling (§§ 459, 460, subd. (a)). Sentencing for all cases occurred
at the same hearing.
The court sentenced Carter to a consecutive term of 247 years to life
plus seven years calculated as follows on these counts: (Count 1) 25 years to
life plus 25 years to life for a firearm enhancement (§ 12022.53, subds. (d) &
(e)(1)); (Count 2) 25 years to life plus 25 years to life for a firearm
enhancement (§ 12022.53, subds. (d) & (e)(1)); (Count 3) seven years to life
plus 25 years to life for a firearm enhancement; (Count 4) 15 years to life;
(Count 5) seven years; (Count 6) 15 years to life plus 25 years to life for a
firearm enhancement; (Count 7) 15 years to life; (Count 9) 15 years to life;
(Count 10) 15 years to life; and (Count 11) 15 years to life. The sentence on
count 12 was ordered concurrent, and the court struck or stayed remaining
counts and enhancements. The court further imposed a two-year concurrent
term for Carter for his separate burglary conviction.
The court sentenced Dorsey to a consecutive term of 202 years to life
plus 24 years and eight months calculated as follows on these counts: (Count
1) 25 years to life plus 25 years to life for the firearm enhancement

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(§ 12022.53, subds. (d) & (e)(1)); (Count 2) 25 years to life plus 25 years to life
for the firearm enhancement (§ 12022.53, subds. (d) & (e)(1)); (Count 3) 15
years to life plus 25 years to life for the firearm enhancement; (Count 4) 15
years to life; (Count 5) 15 years to life; (Count 6) seven years to life plus
25 years to life for the firearm enhancement; (Count 7) one year and eight
months; (Count 9) nine years plus five years for the gang enhancement and
one year for the personal injury enhancement; (Count 10) two years plus one
year and eight months for the gang enhancement plus four months for the
personal injury enhancement; and (Count 11) two years plus one year and
eight months for the gang enhancement plus four months for the personal
injury enhancement. The sentence on count 12 was ordered concurrent, and
the court struck or stayed remaining counts and enhancements.
As to Dorsey, the court additionally imposed two four-year concurrent
terms for his two burglary convictions and a four-year concurrent term for his
assault conviction plus five years for a gang enhancement, stayed.
Defendants’ appeals followed.
DISCUSSION
I. The Trial Court Did Not Err in Admitting Evidence of Uncharged
Shooting Incidents
Defendants claim the trial court prejudicially erred in admitting
evidence of uncharged shooting incidents that took place on (1) March 10 at
the Coney vigil, which was alleged as an overt act in furtherance of the
murder conspiracy; and (2) March 12 at the hookah lounge.
A. Additional Background
During motions in limine, the People sought to admit evidence of the
uncharged shooting incidents, while defendants sought to exclude them. The
court and counsel engaged in a lengthy colloquy in which both events were

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discussed, and defense counsel repeatedly objected to admission of the
evidence on various grounds.
The People argued that the Coney vigil shooting was alleged as an
overt act in furtherance of, and directly evidenced, defendants’ conspiracy to
commit murder, and was thus relevant to prove a charged offense. Further,
the People posited that evidence of both uncharged shootings was admissible
and relevant under Evidence Code section 1101, subdivision (b), to prove
identity, intent, and/or motive. The prosecutor explained how the
unrecovered 9mm gun used in each shooting was fired in at least four distinct
locations in a short period of time, and defendants were present each time
when the gun was fired. Citing People v. Erving (1998) 63 Cal.App.4th 652
(Erving), the prosecutor argued that evidence of defendants’ involvement in
the uncharged shootings tended to prove that defendants were the shooters
on the night of the charged offenses.
Defense counsel asserted that evidence of the uncharged shootings was
irrelevant, prejudicial, and would merely portray defendants as violent
people. Regarding the Coney vigil shooting, counsel argued that the
prosecution should not be allowed to selectively allege overt acts in order to
present unduly prejudicial character evidence, that is, use a “backdoor
approach.” In addition, defense counsel argued that the uncharged shootings
were not similar to the charged shootings and that defendants arguably acted
in self-defense at the hookah lounge.
Both the prosecution and defense argued for and against admitting the
evidence under Evidence Code section 352. Dorsey’s counsel requested that
evidence of Coney’s manner of death be “sanitized” so that there would be no
references to him being murdered.

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 The trial court admitted the evidence but excluded the manner of
Coney’s death. The court believed that the vigil shooting was admissible as
evidence of a conspiracy and that both uncharged incidents were relevant to
issues of identity and intent. After conducting a weighing process, the court
found the evidence more probative than prejudicial under Evidence Code
section 352.
Finally, prior to deliberations, the jury was instructed with CALCRIM
No. 375 as follows in pertinent part: “If you decide that the defendant
committed the uncharged act, you may, but are not required to, consider that
evidence for the limited purpose of deciding whether: [¶] The defendant was
the person who committed the offenses alleged in this case. [¶] In evaluating
this evidence, consider the similarity or lack of similarity between the
uncharged act and the charged offenses. [¶] Do not consider this evidence for
any other purpose. [¶] Do not conclude from this evidence that the defendant
has a bad character or is disposed to commit crime. [¶] If you conclude that
the defendant committed the act, that conclusion is only one factor to
consider along with all the other evidence. It is not sufficient by itself to
prove that the defendant is guilty . . . .” (CALCRIM No. 375, italics added.)
B. Legal Principles
All relevant evidence is admissible unless excluded under the state or
federal constitutions or by statute. (People v. Heard (2003) 31 Cal.4th 946,
973.) Evidence is relevant if it has “any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210; People v. Heard, at p. 973.)
Evidence of uncharged crimes or other misconduct is inadmissible
when offered to show that a defendant has a criminal disposition or
propensity to commit the crime charged. (Evid. Code, § 1101, subd. (a).)

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However, evidence of other crimes is admissible if it tends to “ ‘logically,
naturally, and by reasonable inference . . . establish any fact material for the
people[.]’ ” (People v. Peete (1946) 28 Cal.2d 306, 315.) Evidence Code section
1101, subdivision (b), codifies this exception to the general rule of
inadmissibility by providing for the admission of such evidence “when
relevant to prove some fact . . . such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or accident[.]”
“To be relevant to prove identity, the uncharged crime must be highly
similar to the charged offenses, while a lesser degree of similarity is required
to establish relevance to prove common design or plan, and the least
similarity is required to establish relevance to prove intent.” (People v.
Lenart (2004) 32 Cal.4th 1107, 1123-1125 (Lenart) [gun-related evidence was
admissible to link defendant to other incriminating evidence and was
relevant to showing his identity as the murderer]; Erving, supra,
63 Cal.App.4th at p. 661 [defendant’s proximity to nearly 40 other arsons
provided a “signature” required for uncharged fires to be relevant to prove
her identity as the arsonist in charged fire].)
The trial court has the discretion to exclude relevant evidence if the
court finds the probative value is substantially outweighed by the probability
the evidence will “create substantial danger of undue prejudice.” (Evid. Code,
§ 352; Lenart, supra, 32 Cal.4th at p. 1123.)
“The prejudice which exclusion of evidence under Evidence Code
section 352 is designed to avoid is not the prejudice or damage to a defense
that naturally flows from relevant, highly probative evidence. ‘[A]ll evidence
which tends to prove guilt is prejudicial or damaging to the defendant’s case.
The stronger the evidence, the more it is “prejudicial.” The “prejudice”
referred to in Evidence Code section 352 applies to evidence which uniquely

16
tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues. In applying [Evidence Code] section
352, “prejudicial” is not synonymous with “damaging.” ’ ” (People v. Karis
(1988) 46 Cal.3d 612, 638.)
We review the court’s evidentiary rulings for abuse of discretion.
(Lenart, supra, 32 Cal.4th at p. 1123.)
C. Analysis
1. Relevance
Defendants primarily argue that the uncharged shooting incidents
were not sufficiently similar to the charged shootings to be relevant to prove

identity.7 We conclude that evidence of the uncharged shooting incidents
was relevant to prove various disputed material facts, including the shooters’
identities.
Because cartridge casings from the charged and uncharged shootings
were determined to have been from the same weapon, the jury could
reasonably infer that defendants possessed the unrecovered crime weapon
(9mm gun) one and three days after the charged crimes, tending to logically
show that defendants possessed the gun on the day of the charged crimes.
(People v. Cooks (1983) 141 Cal.App.3d 224, 316 (Cooks) [uncharged crimes
relevant and admissible where same gun was used in charged crimes]; People
v. Goss (1980) 105 Cal.App.3d 542, 548.) The actual 9mm gun was not
recovered. It could also be reasonably inferred that defendants were on a

7 We reject the People’s threshold argument that defendants forfeited
their evidentiary challenge by failing to renew their objections during trial.
Defendants repeatedly objected to admission of the evidence during motions
in limine, and the record supports that any further objections on the issue
would have been futile. (See People v. Hill (1998) 17 Cal.4th 800, 821.)
Defendants have joined each other’s arguments on appeal.

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shooting spree, given their repeated discharge of the 9mm gun in the days
after the charged shootings.
Moreover, the doctrine of chances “applies to evidence of identity.”
(Erving, supra, 63 Cal.App.4th at p. 662.) Under this doctrine, “ ‘highly
unusual events’ ” are highly unlikely to repeatedly happen to an innocent
person. (Ibid.) We are persuaded in this case that defendants’ presence at
the exact time when the 9mm gun was discharged, in four separate locations,
all in a relatively short timeframe, lent to the reasonable inference that
defendants were the shooters during the charged crimes. Defendants were
together at each location, and, uniquely, they were the only ones who were
present at all locations. They had gang-related motivations to engage in each
shooting. Robinson was present at three of the four locations, and she
confessed her guilt.
In addition, the prosecution relied on Robinson’s testimony to identify
defendants as the shooters, but her credibility was questionable as an
accomplice with a plea deal. Photographic and forensic firearms evidence
relating to the Coney vigil bolstered Robinson’s identification because it
independently placed the 9mm gun in defendants’ proximity on the day after
the charged crimes. Likewise, another witness (Pittman) confirmed the
occurrence of a shooting at the hookah lounge, further bolstering Robinson’s
credibility. The uncharged incidents supported Robinson’s testimony and the
prosecution’s theory that defendants were engaged in an ongoing violent feud
with rival gang members, dubbed “March Madness.” The uncharged
incidents were therefore also relevant to prove intent and motive.
Defendants argue that guns are routinely passed among gang
members, and as such, the situation could have been that someone other
than defendants committed one or both of the charged shootings on March

18
9th and then passed the 9mm gun to defendants by the time of the next
shooting or next day, and defendants then used the gun in subsequent
shooting incidents. While this conceivably could have occurred, it was “highly
unlikely” in light of other evidence. (Erving, supra, 63 Cal.App.4th at 662).
The jury would have had to reject most of Robinson’s testimony, which was
independently corroborated in many ways, including through cell phone
evidence, text messages, surveillance footage, and eyewitness observations
about her maroon car and the shooters’ attributes. The jury obviously
believed Robinson. Furthermore, as instructed, the jury was not required to
consider any uncharged act on the issue of identity; it was free to draw the
inference advocated by defendants.
Regarding the Coney vigil shooting, it was alleged as an overt act in
furtherance of the charged conspiracy to commit murder. Defendants claim
the incident was not properly alleged as an overt act and thus, not relevant to

the charged offenses.8 We conclude the court did not err.
“In California, ‘No agreement amounts to a conspiracy, unless some act,
beside such agreement, be done within this state to effect the object thereof,
by one or more of the parties to such agreement[.]’ ” (People v. Russo (2001)
25 Cal.4th 1124, 1131.) Because the prosecution is required to prove at least

8 Defendants also argue the trial court should have stricken the overt act
from the charging document pursuant to section 1385. However, this
argument has not been properly preserved for appellate review. In the
context of motions in limine, defense counsel asserted that the overt act
should be “stricken.” At that point, the court interjected that it did not
believe it had the power to “change any of the indictment” and “that’s a 995,”
i.e., a section 995 motion to dismiss. Defendants do not point us to any part
of the record where a motion to dismiss was ever filed on the issue and
accordingly, the argument is forfeited. In any event, for reasons we discuss
herein, we do not see how the trial court erred in allowing the overt act to
remain in the charging document.

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one overt act, evidence of those acts is undoubtedly relevant. (§ 182, subd. (b)
[“Upon a trial for conspiracy, . . . the defendant cannot be convicted unless
one or more overt acts are expressly alleged . . . nor unless one of the acts
alleged is proved . . . .”]; People v. Russo, at p. 1134 [“the requirement of an
overt act is an element of the crime of conspiracy in the sense that the
prosecution must prove it to a unanimous jury’s satisfaction beyond a
reasonable doubt”].)
In this case, the People alleged an ongoing conspiracy between January
21 and March 20, by defendants and other coconspirators, to kill suspected
rival gang members. During pretrial motions, the prosecutor offered to prove
that a group of Crips gathered on March 10 at the vigil for a deceased fellow
gang member and, during the vigil, defendants engaged in a shootout with
rival gang members. Defendants were therefore arguably furthering the
objective of the conspiracy. The trial court did not abuse its discretion in
allowing the People to introduce evidence of this overt act, which remained
explicitly alleged in the charging document, even if in defendants’ view the
People fell short of meeting their burden of proof. The more pertinent issue
seems to be whether the trial court should have excluded evidence of the
overt act and the hookah lounge shooting as unduly prejudicial, discussed
below.
2. Undue prejudice
In evaluating other crimes evidence, a court must consider (1) the
materiality of the fact to be proved; (2) the probative value of the other crime
evidence to prove the fact; and (3) the existence of any rule or policy requiring
exclusion. (People v. Hawkins (1995) 10 Cal.4th 920, 951.) Under Evidence
Code section 352, the court “in its discretion may exclude evidence if its

20
probative value is substantially outweighed by the probability that its
admission will . . . create substantial danger of undue prejudice[.]”
On this record, we discern no abuse of trial court discretion in
admitting evidence of the uncharged shooting incidents. The trial court
explicitly engaged in a weighing process. One of the main issues in dispute
was the shooters’ identity, and the uncharged incidents were relevant to that
issue as well defendants’ intent, motive, and Robinson’s credibility. The
probative value of the uncharged incidents was high when viewed together
with forensic evidence and as corroborative of Robinson’s testimony. The
uncharged shootings were not inflammatory in comparison to the charged
shootings, as defendants acknowledge. Given that defendants arguably acted
in self-defense at one or both of the uncharged shootings, the likelihood of
those incidents evoking an “ ‘emotional bias’ ” against defendants was quite
low. (People v. Robinson (2005) 37 Cal.4th 592, 632.)
Defendants assert the uncharged incidents allowed the jury to infer
that they were violent, dangerous people prone to using firearms. However,
the jury could draw that inference from unchallenged evidence of the charged
crimes, witnesses’ hesitancy to testify against defendants, and evidence
showing that they were acting for the benefit of a criminal street gang.
Moreover, the jury was instructed to consider the uncharged acts, if at all, for
the limited purpose of deciding whether defendants were the ones “who
committed the offenses alleged in this case” and not for “any other purpose.”
We presume the jury followed these instructions. (People v. Williams (2000)
79 Cal.App.4th 1157, 1171 [“we presume jurors are able to and do follow the
court’s limiting instructions”].)
For the foregoing reasons, we conclude defendants have not shown the
court exercised its discretion to admit the challenged evidence “ ‘ “in an

21
arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.” ’ ” (People v. Jackson (2016) 1 Cal.5th 269, 330.)
II. The Trial Court Did Not Err in Imposing Enhanced Sentences for
Conspiracy to Commit Murder
As to both defendants, the trial court imposed 25 years to life on count
2 for Horne’s murder, plus 25 years to life for the true-found firearm
enhancement. In addition, the court imposed 25 years to life on count 1 for
conspiracy to commit murder, plus 25 years to life for the true-found firearm
enhancement. The court found the object of defendants’ conspiracy was not
limited to the murder of Horne but extended to other people and potential
rival gang members. The sentences on counts 1 and 2 were ordered to run
consecutive to each other.
Defendants argue that their sentence on the conspiracy count should be
stayed pursuant to section 654. Alternatively, defendants assert the sentence
for the firearm enhancement on count 1 should be stayed. We conclude the
court did not err in imposing an enhanced sentence.
A. Multiple Punishment was Proper
Section 654 “concerns only multiple punishment, not multiple
convictions.” (People v. Correa (2012) 54 Cal.4th 331, 336.) The “purpose of
section 654 is to ensure that a defendant’s punishment will be commensurate
with his culpability.” (Id. at p. 341.)
It is violative of section 654 “ ‘to sentence a defendant for conspiracy to
commit several crimes and for each of those crimes where the conspiracy had
no objective apart from those crimes. If, however, a conspiracy had an
objective apart from an offense for which the defendant is punished, he may
properly be sentenced for the conspiracy as well as for that offense.’ ” (People
v. Flores (2005) 129 Cal.App.4th 174, 185.) When a defendant conspires to
murder someone, and murders that same person, the defendant may not be

22
punished for both conspiracy and murder. (E.g., People v. Vu (2006) 143
Cal.App.4th 1009, 1012, 1032-1033 [section 654 stay required where
defendant conspired to kill, and killed, Fernandez as a mistaken rival gang
member].) However, when a defendant conspires to murder one or more
people, but murders a different person, he may be punished for both
conspiracy and murder. (E.g., People v. Moringlane (1982) 127 Cal.App.3d
811, 819 [conspiracy to murder Silva and Rico, but McDowell was
murdered].)
In People v. Beck and Cruz (2019) 8 Cal.5th 548 (Beck and Cruz), our
Supreme Court noted that the conspiratorial murder agreement had a
broader objective than the murders for which defendants were being
punished, that is, the “conspiracy to commit murder was not limited to the
actual victims killed, but rather included anyone found at [a specified
address] and any witnesses.” (Id. at pp. 665-666 [multiple punishment
permitted under section 654]; see also Cooks, supra, 141 Cal.App.3d at p. 317
[multiple punishment permitted where “the alleged conspiracy was not
limited to the murder of Frances Rose but extended to the murder of a
number of other people”]; People v. Lewis (2008) 43 Cal.4th 415, 539 [multiple
punishment not permitted because “there was no showing that the object of
the conspiracy was any broader than commission of the underlying crimes”].)
The question of defendant’s conspiratorial intent or objective is
generally a factual one. (People v. Harrison (1989) 48 Cal.3d 321, 335.)
“Conspiracy is an inchoate crime. [Citation.] It does not require the
commission of the substantive offense that is the object of the conspiracy.”
(People v. Swain (1996) 12 Cal.4th 593, 599-600.) Evidence of a conspiracy is
“sufficient if it supports an inference that the parties positively or tacitly
came to a mutual understanding to commit a crime. Therefore, conspiracy

23
may be proved through circumstantial evidence inferred from the conduct,
relationship, interests, and activities of the alleged conspirators before and
during the alleged conspiracy.” (People v. Prevost (1998) 60 Cal.App.4th
1382, 1399, italics added.)
As alleged and established by the evidence in this case, the objective of
defendants’ conspiracy was “to kill suspected rival gang members, including
those from the Lincoln Park and 5/9 Brim criminal street gangs.” Defendants
did not conspire to kill a specified person, and killing Horne arguably fell
within the ambit of their objective. However, as in Beck and Cruz, supra, 8
Cal.5th at page 666, the conspiracy here was “not limited to the actual
victim[] killed, but rather included” a number of other people. The trial court
found that the object of the conspiracy extended beyond Horne’s murder.
Indeed, with “March Madness” as the backdrop, defendants acquired more
than one firearm and ammunition and shot at multiple people over several
days.
Likewise, the conspiracy was ongoing, i.e., the agreement to kill
suspected rival gang members existed even after Horne was murdered. For
instance, victim Shaun was shot three times—twice in the chest—after
scuffling with a Crips member at an Island Avenue house party on March 19.
Remarkably, Shaun survived. Dorsey’s DNA was found on an Island Avenue
cartridge casing, the same 9mm Blazer-brand casings used in the shooting
were found in his bedroom, and defendants were not separately punished for
their conduct in this crime. Their culpability went beyond that of conspiring
to murder one person. Commensurately, they could be punished for both
counts 1 and 2. (Beck and Cruz, supra, 8 Cal.5th at p. 666; see also People v.
Kopp (2019) 38 Cal.App.5th 47, 92 [approving multiple punishment where

24
there were time gaps between various alleged overt acts, providing defendant
time to reflect and making her actions divisible].)
B. Firearm Enhancement on Count 1 was Proper
Alternatively, defendants claim the trial court erred in imposing the
firearm enhancement on count 1 (§ 12022.53, subds. (d) & (e)(1)) because a
firearm enhancement was also imposed on count 2 in connection with Horne’s
murder. As to both defendants, the jury made a true finding that, in the
commission of the conspiracy, “at least one principal personally and
intentionally discharged a firearm . . . and proximately caused great bodily
injury and death to a person . . . .”
Section 12022.53, subdivision (d), provides in part that,
“[n]otwithstanding any other provision of law, any person who, in the
commission of a felony specified in subdivision (a) . . . intentionally
discharges a firearm and proximately causes great bodily injury . . . or death,
to any person other than an accomplice, shall be punished by an additional
and consecutive term of imprisonment in the state prison for 25 years to life.”
Conspiracy to commit murder is a qualifying felony. (§§ 12022.53, subd.
(a)(17) [qualifying felonies includes those punishable by death or
imprisonment for life], 182, subd. (a) [conspiracy is punishable in the same
manner and to same extent as the target felony], 190, subd. (a) [first degree
murder is punishable by death or imprisonment for life]; People v. Becker
(2000) 83 Cal.App.4th 294, 298 (Becker) [firearm enhancement applied to
underlying felony of conspiracy].)
Section 654 does not preclude punishment for more than one section
12022.53 firearm enhancement when each is based on a single act committed
against a single victim in the commission of separate crimes. (People v.
Palacios (2007) 41 Cal.4th 720, 726-727 (Palacios).) In Palacios, the

25
California Supreme Court approved firearm enhancements for attempted
murder, kidnapping for carjacking, and kidnapping for robbery, based on a
single gunshot to one victim. The court noted, “[w]hen defendant shot Jones,
attempting to kill him, the kidnapping offenses were still ongoing.” (Id. at
p. 726.) As construed, section 12022.53 applies “ ‘notwithstanding any other
provision of law,’ ” or irrespective of section 654. (Palacios, at pp. 728-729.)
Applying Palacios, we conclude the firearm enhancements for
conspiracy and murder could be based on a single gunshot causing Horne’s
death. Conspiracy is a “classic example of a continuing offense because by its
nature it lasts until the final overt act is complete.” (Becker, supra, 83
Cal.App.4th at pp. 297-298.) As in Palacios, when Horne was shot and killed,
the conspiracy offense was still ongoing. By finding the section 12022.53,
subdivisions (d) and (e)(1) enhancement allegations to be true, the jury
determined that a principal fired a gun and caused great bodily injury and
death during the commission of both offenses. The firearm enhancement
applies to qualifying felonies “notwithstanding any other provision of law,” or
irrespective of section 654. Accordingly, the court did not err in imposing the
firearm enhancement on count 1. (Cf. People v. Wynn (2010) 184 Cal.App.4th
1210, 1220-1221 [section 654 applied to enhancement for personally using a
deadly or dangerous weapon during a crime but the relevant enhancement
under section 12022, subdivision (b) does not contain “notwithstanding any
other provision of law” language].)
Defendants finally argue they did not have fair notice of the
punishment for a firearm enhancement on the conspiracy count. However, in
the charging document, the section 12022.53 firearm enhancement for count
1 is listed as a “special allegation” in the charge summary, which also states
the “allegation effect” of “+25 Yrs-Life.” The same is true for count 2. The

26
firearm enhancements are additionally detailed in paragraph form under
counts 1 and 2. As we have already noted, the charging document specifically
alleged 23 overt acts and the object of the conspiracy. Defendants had
adequate notice that count 1 was subject to a firearm enhancement, which
carried an additional sentence of 25 years to life. Accordingly, their due
process argument lacks merit.
III. Other Conceded Sentencing and Clerical Errors Must Be Corrected
A. Dismissed Allegations of Enhancements Must Be Stricken and
Abstract of Judgment Corrected
Before the case was sent to the jury for deliberations, the prosecutor
dismissed the alleged section 12022.5, subdivision (a) enhancement as to
Dorsey’s counts 3 and 4 and Carter’s count 6. The prosecutor also moved to
dismiss the alleged section 12022, subdivision (a)(1), arming enhancement as
to Dorsey’s counts 9, 10, 11, and 12. Later, the prosecutor further dismissed
the section 12022.7 allegation attached to Dorsey’s count 5. The jury made
no findings on these dismissed allegations.
Nevertheless, the trial court imposed but stayed a 10-year term for the
section 12022.5, subdivision (a) enhancement on Dorsey’s count 3 and
Carter’s count 6. The court also imposed sentences for the arming
enhancement (§ 12022, subd. (a)(1)) on Dorsey’s counts 9 through 12,
respectively, of one year consecutive, four months consecutive, four months
consecutive, and one year concurrent.
The People concede the trial court’s error, and we accept the concession.
The sentences were unauthorized and will be corrected. (People v. Turner
(2002) 96 Cal.App.4th 1409, 1414-1415.)
In addition, Dorsey points out that his abstract of judgment must be
corrected to accurately reflect the judgment against him. The People rightly
agree. Defendants’ abstracts currently show the allegations we have

27
referenced were stricken or stayed by the court when they were in fact
dismissed by the prosecutor. As to Dorsey’s counts 3, 4, and 9 through 12,
and Carter’s count 6, the abstracts must be corrected to accurately reflect the
prosecutor’s dismissal of the allegations (§§ 12022.5, subd. (a), 12022.7).
B. Carter’s 15-year Parole Eligibility for Count 2 Must be Stricken
The trial court imposed a 15-year minimum parole eligibility term as to
Carter’s count 2 pursuant to section 186.22, subdivision (b)(5). The court also
imposed a firearm enhancement pursuant to section 12022.53, subdivisions
(d) and (e)(1), which only required the jury to find that a “principal”
discharged a firearm. No finding was ever made that Carter personally used
a firearm in the commission of count 2. In these circumstances, section
12022.53, subdivision (e)(2) “prevents the imposition of the 15-year minimum
term specified in section 186.22, subdivision (b)(5).” (People v. Salas (2001)
89 Cal.App.4th 1275, 1282.) The People concede the 15-year minimum parole
eligibility requirement must be stricken, and we accept the concession.
DISPOSITION
The portion of Dorsey’s judgment that imposes a 10-year stayed term
on count 3 pursuant to section 12022.5, subdivision (a), and a total of two
years and eight months on counts 9 through 12 pursuant to section 12022,
subdivision (a)(1), is reversed. The portion of Carter’s judgment that imposes
a 10-year stayed term on count 6 pursuant to section 12022.5, subdivision (a)
and a 15-year minimum parole eligibility date pursuant to section 186.22,
subdivision (b)(5) is reversed. The judgments are affirmed in all other
respects. The clerk of superior court is to prepare corrected abstracts of
judgment that accurately reflect defendants’ sentences, including those
matters described in part III of this opinion. A copy of the corrected abstracts

28
of judgment shall be forwarded to the Department of Corrections and
Rehabilitation.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.

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