People v. Hines CA3

Filed 7/12/21 P. v. Hines CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----

THE PEOPLE, C088131

Plaintiff and Respondent, (Super. Ct. No. 18FE002528)

v.

ADRIEN SHONTERREL HINES,

Defendant and Appellant.

After getting out of a car where there was a handgun on the floorboard by his seat,
defendant Adrien Shonterrel Hines was detained, arrested, and eventually convicted of
being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1))1 with a gang
enhancement (§ 186.22, subd. (b)(1)). The trial court sustained the prior strike, serious
felony, and prior prison term allegations (§§ 1170.12, 667, subd. (a), 667.5, subd. (b))
and sentenced defendant to a 13-year state prison term.

1 Undesignated statutory references are to the Penal Code.

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 He contends on appeal that admitting expert testimony on gang members’
knowledge of whether a gun is in a car they are in was an abuse of discretion that violated
due process, that prior uncharged misconduct evidence regarding an incident where he
previously possessed a gun deprived him of a fair trial, and the matter must be remanded
to allow the trial court to determine whether to strike the serious felony allegation. In a
supplemental brief, he contends the prison prior must be stricken in light of Senate Bill
No. 136.
The expert testimony and prior misconduct evidence were properly admitted.
While the prison prior must be stricken, there is no need to remand for an exercise of
discretion regarding the serious felony allegation, as the trial court indicated it would not
strike the enhancement if the law giving it the discretion to do so had been in effect. We
shall remand with directions to strike both prison priors and for resentencing in light of
the stricken prison priors, and otherwise affirm.
BACKGROUND
The Incident
On the afternoon of February 7, 2018, Sacramento County Sheriff’s Deputy
Amanda Smith and her partner Timothy Mullin were patrolling in a north Sacramento
area near Truax Court and Edison Avenue where a gang shooting recently occurred.
Deputy Smith noticed four to six Black males standing around a silver Mercedes in a
parking lot. When the deputies made a U-turn to head back to the men, the Mercedes
pulled out ahead of them. The officers followed the Mercedes. The Mercedes drove for
about a mile before pulling over near an apartment complex and parking in a carport stall.
The deputies pulled into a second entrance at the complex and saw the occupants of the
vehicle: codefendant Raheem Isaiah Thomas was the driver, codefendant Isaiah Malik
Taylor exited from the back seat, and defendant, who had been in the front passenger
seat, was standing just outside the car. Defendant and Thomas had prior felony
convictions; Taylor was subject to a court order not to possess any firearms.

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 Taylor made eye contact with Deputy Smith and started to walk away. When
Deputy Smith ordered him to stop and walk back, Taylor complied. The deputy
handcuffed and searched Taylor, finding a loaded nine-millimeter handgun in his front
pants pocket. Deputy Mullen detained defendant, who was unarmed. After placing
Taylor and defendant in the back seat of the patrol car, Deputy Smith assisted Deputy
Mullin with Thomas. As she came to the Mercedes, Deputy Smith saw a black and red
handgun with an illegal high-capacity magazine on the passenger-side floorboard. The
gun was loaded and had a chambered round.
Deputy Smith had Thomas exit the Mercedes at gunpoint. His cell phone
contained images of him holding the black and red handgun. A photograph of a gun on
Thomas’s cell phone matched the serial number of the gun taken from the car.
Defendant told Deputy Mullin his DNA and fingerprints would be on the “red”
gun, but it did not belong to him. He also told the deputy that the gun was not on the
floorboard when he and Taylor left the Mercedes.
No fingerprints were found on either firearm or the ammunition. The guns were
not registered to any of the defendants.
A photo of Thomas holding the black and red firearm was posted on his social
media accounts.
Gang and Prior Misconduct Evidence
In October 2013, defendant was stopped for reckless driving on his way to a
funeral for a known member of the Starz gang. Three Starz members were in the car with
defendant.
In August 2015, Sacramento Sheriff’s Detective Joseph Ellis and his partner were
in the Meadowview area trying to locate defendant when they saw him in a community
center. The officers were out of uniform and in an unmarked car, so they called for
backup. A helicopter spotted defendant throwing something into a dumpster as he went
into an apartment complex. A .40-caliber Glock 22 with 14 rounds was found in that

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dumpster. Defendant initially denied knowledge of the gun, but after being informed
there was a helicopter video, he admitted throwing the gun in the dumpster and said he
carried it to deal with rival gang members. Defendant initially denied gang membership
but eventually admitted he was in the Trigga Mob and hung out with the Guttah Gass
(Guttah) gang. Both gangs are affiliated with each other and fall under the umbrella of
the G-Mobb gang; they are enemies of the Oak Park Bloods and the Strawberry Manor
Bloods.
Sacramento Sherriff’s Detective Nick Sareeram testified as an expert on African
American street gangs in the Sacramento area. The two main original African American
gangs in the Sacramento area were the G-Mobb and Garden Blocc Crips. G-Mobb
continues to be an overarching umbrella group with several affiliated subsets. Guttah and
Starz are two subsets of G-Mobb, sharing information and resources with each other.
They all work together. Firearms are one of the resources the gangs share; Detective
Sareeram personally observed this during a four-month-long wiretap investigation.
G-Mobb has about 225 members. It and its subsets Starz and Guttah each have
identifying hand signs and symbols. Eschewing specific colors, the gangs identify with
designer clothing acronyms or initials corresponding to letters in the gang’s name, such
as Gucci. Members have common tattoos such as stars or the Gucci symbol. The gangs
no longer claim specifically defined territories but instead operate from hubs or bases.
The primary activities of G-Mobb and its subsets are illegal firearm possession, assault
with a deadly weapon, attempted murder, and narcotic sales. Their primary rival is the
Oak Park Bloods and its subsets.
Firearms are important in gang culture. Gangs need them to commit assaults,
engage in violence, and to send messages to rival gangs. Firearms also create fear,
thereby discouraging people from coming forward as witnesses. Members need firearms
when going out in public in order to ward off members of rival gangs. Being unarmed in
a public place at the same time a member of a rival gang is present could be fatal to the

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unarmed gang member. As a result, gangs use social media to establish they are armed in
order to generate fear and respect.
Gang members share firearms with each other for a variety of reasons. Older
members subject to more prison time for unlawful possession of a firearm will hand them
off to younger members. A firearm also will be shared with a gang member who has lost
his gun and needs one to commit a crime. In the detective’s experience, gang members
who are in a vehicle together all know who is and who is not armed. This is important so
that a gun can be retrieved when needed, such as when a member becomes incapacitated.
There are also tactical reasons to know who is armed; the gunman needs to be on the
correct side of the vehicle during a driveby shooting. Members tell each other who is
armed, either orally or through text messages.
The area near Edison Avenue and Truax Court is a hub for G-Mobb and its
subsets, and is an area where homicides and shootings happen on a somewhat regular
basis. Detective Sareeram identified all three defendants based on his personal
encounters with them. Thomas admitted membership in the criminal street gang Starz
Up. Defendant and Taylor had appeared in Thomas’s social media posts in the weeks
prior to the incident. Thomas flashed gang signs and showed the red and black handgun
in videos posted to his account. Photographs of defendant throwing gang signs were in
his social media account. Detective Sareeram concluded that defendant was an active
member of G-Mobb, claiming the Guttah and Trigga Mob subsets.
DISCUSSION
I
Expert Testimony on Firearm Sharing was Proper
Defendant contends that allowing expert testimony by Detective Sareeram on
firearm sharing by gang members was an abuse of discretion that violated his due process
right to a fair trial. We disagree.

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 A. Background
During pretrial motions, the trial court granted the prosecution’s motion to admit
expert evidence on G-Mobb and its affiliates and their motives for carrying firearms,
without prejudice to defense objections regarding hearsay and facts not in evidence. The
court also ruled, based on defendant’s motion, to exclude expert opinion regarding
defendant’s or a hypothetical person’s intent or mental state, and ruled that no expert can
testify to what is “in somebody else’s head,” or offer an opinion on what someone
intended or knew. However, an expert could testify to general knowledge, general
understandings, things the expert learned in his or her studies or experience. The expert
could not testify to the ultimate issue, whether something was done in furtherance of the
street gang or with the motive to further the gang. The court also granted defendant’s
motion to exclude expert testimony about someone’s specific intent or motive. Asked by
the prosecutor if an expert could testify that gang members know “XYZ,” the court ruled
the expert could testify about the whole issue of arming, can state that gangs are typically
armed, and can give reasons why they are armed.
As previously recounted, the expert testified, over defendant’s objection, that gang
members in a car would know who was armed and who was not. This is in case a
member became incapacitated or for tactical reasons, like setting up advantageous
positioning for the shooter in a driveby shooting. Members communicated whether they
were armed, either orally or through text messages.
Detective Sareeram also testified that photographs showing Taylor and Thomas in
possession of the same gun was important as it was proof that these two gang members
shared guns. In his experience, gang members as a whole shared their guns. Later, he
testified that it was the practice of gang members to share guns within a car. The
following exchange between the prosecutor and Detective Sareeram then took place:
“Q: So there’s guns in the car. You have three people there and one gun. Each
person could share the gun with each other?

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 “A: Correct.
“Q: Can you give an example of where gang members will share guns with each
other?
“A: I think this case is a perfect example of that; to be honest.”
The trial court overruled defendant’s objection to the answer.
B. Analysis
A person with special knowledge, skill, experience, training, or education in a
particular field may testify as an expert witness and give an opinion if the subject matter
is sufficiently beyond common experience that the expert’s opinion would assist the trier
of fact. (Evid. Code, §§ 720, 801.) The culture and habits of criminal street gangs meet
this criterion, and the prosecution may use hypothetical questions that track the evidence,
even if only “ ‘thinly disguised,’ ” to establish the crime was gang related. (People v.
Vang (2011) 52 Cal.4th 1038, 1045 (Vang).)
“The trial court has broad discretion in deciding whether to admit or exclude
expert testimony [citation], and its decision as to whether expert testimony meets the
standard for admissibility is subject to review for abuse of discretion. [Citations.]”
(People v. McDowell (2012) 54 Cal.4th 395, 426.)
Defendant contends the testimony that if one gang member has a gun in a car,
every gang member knows it was there is improper opinion testimony. According to
defendant, the testimony was improper because the expert testified to the subjective
knowledge and intent of each occupant of the vehicle instead of the general expectations
of gang members. He finds the trial court’s decision to allow this testimony an abuse of
discretion that deprived him of due process.
Defendant relies on People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew),
which held improper a gang expert’s testimony that when one gang member in a car
possesses a gun, every other gang member in a three-car caravan knows of the gun. (Id.
at p. 652.) The expert explained his reasoning, i.e., the occupants in all three cars were

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from the same gang; perpetrators of a driveby shooting earlier that evening had identified
themselves as members of that gang; and any members out driving that night would
expect retaliation and would therefore be armed. (Id. at p. 652, fn. 7.) The problem in
the view of the Killebrew court was that the expert testified to the “subjective knowledge
and intent of each occupant in each vehicle. Such testimony is much different from the
expectations of gang members in general when confronted with a specific action.” (Id. at
p. 658.) Because the expert’s testimony was the only evidence of knowledge and intent,
it did nothing more than inform the jury how the expert believed the case should be
decided. (Ibid.)
The California Supreme Court has since said Killebrew has “limited significance”
because it did not explain how the expert, who testified through hypothetical questions,
was testifying about the specific defendant on trial in that matter. (Vang, supra, 52
Cal.4th at p. 1047 [“ ‘It would be incorrect to read Killebrew as barring the questioning of
expert witnesses through the use of hypothetical questions regarding hypothetical
persons’ ” (italics omitted)].) To the extent Killebrew was correct in prohibiting expert
testimony about whether specific defendants acted for a gang purpose, the reason is not
that such testimony might embrace the ultimate issue in the case (Evid. Code, § 805
[expert testimony is allowed even if it embraces ultimate issue to be decided]), but rather
that it is of no assistance to the jurors, who are just as competent as the expert to weigh
the evidence and draw a conclusion on the issue of guilt. (Vang, at p. 1048.) The Vang
court concluded that the gang expert in that case “could not testify directly whether [the
defendants] committed the assault for gang purposes” because he was not at the scene
and “had no personal knowledge whether any of the defendants assaulted [the victim]
and, if so, how or why.” (Ibid.) Under those circumstances, the court found that “[t]he
jury was as competent as the expert to weigh the evidence and determine what the facts
were, including whether the defendants committed the assault.” (Ibid.) The court also
determined that the expert “properly could, and did, express an opinion, based on

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hypothetical questions that tracked the evidence, whether the assault, if the jury found it
in fact occurred, would have been for a gang purpose.” (Ibid.)
Unlike the expert in Killebrew, the expert here did not testify, either directly or
through hypotheticals, that defendant or any of the codefendants constructively possessed
the black and red handgun. Whether and how gang members share firearms is not
something within common knowledge, making it an appropriate subject for expert
testimony. As Vang and Evidence Code section 805 make clear, an expert’s testimony
can embrace an ultimate issue, and the use of hypothetical questions tracking the facts of
the case can be a proper way to elicit expert testimony. The expert did testify that this
case was an example of gang members sharing firearms, but he also personally witnessed
photographs of codefendants Taylor and Thomas each possessing the black and red
handgun, which he testified was an example of gang members sharing firearms. Since
two of the three gang members in the car had shared this firearm previously, Detective
Sareeram had knowledge of that sharing and could testify that this case was an example
of gang members sharing a firearm. Knowledge that a firearm is present in the car does
not necessarily equate to possessing that firearm. Taylor had a loaded handgun in his
front pant pocket when he exited the Mercedes; while defendant may have known about
this weapon according to Detective Sareeram’s testimony, he was not charged with
possessing it and there was no reason to infer he constructively possessed the weapon.
The expert testimony here explained to the jury how a weapon possessed by two of the
gang members could wind up on the floorboard in front of the seat where the third gang
member, defendant, had been sitting. To the extent Killebrew is valid on this point after
Vang, it does not prevent the expert testimony at issue here.
The expert testimony on gun sharing was a proper subject for expert opinion, was
not prejudicial, was based on personal knowledge of the expert where needed, and did not
intrude on the jury’s function. In short, overruling the objections to this line of
questioning was not an abuse of discretion. Accordingly, we similarly reject defendant’s

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argument that the court’s ruling violated his right to due process. (See People v.
Cunningham (2001) 25 Cal.4th 926, 998 [proper application of the rules of evidence
ordinarily does not violate due process].)
II
Prior Misconduct Evidence
Defendant contends the prior misconduct evidence regarding his being found in
possession of a firearm on the way to a gang member’s funeral was inadmissible
propensity evidence that violated his due process right to a fair trial. We disagree.
As a general rule, evidence the defendant has committed crimes other than those
for which he is on trial is inadmissible to prove the criminal disposition or propensity of
the accused. (Evid. Code, § 1101, subd. (a).) “The evidence may be used to establish a
person’s knowledge as well as motive, opportunity, intent, preparation, plan, identity, and
the absence of mistake or accident.” (People v. Felix (2019) 41 Cal.App.5th 177, 184-
185; Evid. Code, § 1101, subd. (b).) “ ‘To be admissible, there must be some degree of
similarity between the charged crime and the other crime, but the degree of similarity
depends on the purpose for which the evidence was presented.’ [Citation.] This court
has held that ‘[w]hether similarity is required to prove knowledge and the degree of
similarity required depends on the specific knowledge at issue and whether the prior
experience tends to prove the knowledge defendant is said to have had in mind at the time
of the crime.’ [Citation.]” (Felix, at pp. 184-185.) “In some cases, only a general
similarity may be required, because the knowledge at issue can be derived from different
experiences.” (Id. at p. 185.)
“The least degree of similarity (between the uncharged act and the charged
offense) is required in order to prove intent. [Citation.] ‘[T]he recurrence of a similar
result . . . tends (increasingly with each instance) to negative accident or inadvertence or
self-defense or good faith or other innocent mental state, and tends to establish
(provisionally, at least, though not certainly) the presence of the normal, i.e., criminal,

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intent accompanying such an act . . . .’ [Citation.] In order to be admissible to prove
intent, the uncharged misconduct must be sufficiently similar to support the inference that
the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ ”
(People v. Ewoldt (1994) 7 Cal.4th 380, 402.)
Uncharged crimes can also be evidence of motive, such as when “ ‘the uncharged
act evidences the existence of a motive, but the act does not supply the motive. . . . [T]he
motive is the cause, and both the charged and uncharged act are effects. Both crimes are
explainable as a result of the same motive.’ [Citation.]” (People v. Spector (2011) 194
Cal.App.4th 1335, 1381.)
Even when the evidence of a defendant’s uncharged criminal conduct is relevant
to some fact at issue, to be admissible the evidence must not contravene other policies
limiting admission, such as Evidence Code section 352. (People v. Ewoldt, supra, 7
Cal.4th at p. 404.) Under Evidence Code section 352, the court must consider whether
the probative value of the evidence is substantially outweighed by the probability that its
admission would create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury. Because evidence of uncharged crimes is considered inherently
prejudicial, such evidence is admissible only when it has “substantial” probative value.
(People v. Foster (2010) 50 Cal.4th 1301, 1331.)
We review a trial court’s rulings on admission or exclusion of evidence for abuse
of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 371.) Under this standard, a trial
court’s ruling will not be disturbed unless the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice. (People v. Foster, supra, 50 Cal.4th at pp. 1328-1329.)
The uncharged misconduct evidence was relevant to prove defendant knowingly
possessed the gun found at his feet, and that his motive in possessing it was to benefit the
gang. The prior misconduct was also relevant to defendant’s willingness to try to conceal
firearm possession before being apprehended by law enforcement, which again showed

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his knowledge and motive. It thus supports an inference that he knew about the gun at
his feet and that he intended to possess it to advance a gang purpose.
We also find the evidence is not unduly prejudicial. It involves the same type of
criminal conduct as in the charged offense, unlawful weapon possession, a crime that is
not inherently inflammatory or likely to evoke an emotional reaction from the jury. As
with the expert testimony, admitting this evidence was not an abuse of discretion and
likewise did not deprive defendant of his right to a fair trial.
III
Senate Bill No. 1393
Defendant contends that Senate Bill No. 1393, which was enacted shortly after
sentencing, requires this case to be remanded so that the trial court can determine whether
to strike the five-year serious felony enhancement.
At the time of sentencing, the trial court had no discretion but to impose the
enhancement. (See former § 1385, subd. (b) [Stats. 2014, ch. 137, § 1].) While this
appeal was pending, however, the Governor signed into law Senate Bill No. 1393, which
granted trial courts the discretion not to impose the enhancement. (Stats. 2018, ch. 1013,
§§ 1, 2, amending §§ 667, subd. (a) & 1385.) The act was effective January 1, 2019.
There is no dispute Senate Bill No. 1393 applies retroactively to defendant.
(People v. Jones (2019) 32 Cal.App.5th 267, 272.) But remand is not automatic.
Remand is not required where “ ‘the record shows that the trial court clearly indicated
when it originally sentenced the defendant that it would not in any event have stricken
[the] . . . enhancement’ even if it had the discretion. [Citation.] [¶] The trial court need
not have specifically stated at sentencing it would not strike the enhancement if it had the
discretion to do so. Rather, we review the trial court’s statements and sentencing
decisions to infer what its intent would have been.” (Id. at pp. 272-273.)
At sentencing, the trial court said it was aware of pending legislation that would
allow the court to strike the prison prior, but it would decline to strike the prior if given

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the discretion as defendant committed the current offense shortly after leaving prison.
When the prosecutor asked if this reasoning applied to the five-year serious felony
enhancement, the court said it did as well.
Since the court indicated it would not strike the enhancement if given the
discretion to do so, remanding for this purpose would waste judicial resources. We
accordingly decline defendant’s request for a remand.
IV
Senate Bill No. 136
Defendant contends and the Attorney General agrees that the prison prior must be
stricken in light of Senate Bill No. 136. The Attorney General notes two priors were
sustained, with one stayed pursuant to section 654, and admits both must be stricken. We
agree with the Attorney General.
On October 8, 2019, the Governor signed Senate Bill No. 136, which amended
section 667.5, effective January 1, 2020. (Stats. 2019, ch. 590, § 1.) Senate Bill No. 136
narrowed eligibility for the one-year prior prison term enhancement to those who have
served a prior prison sentence for a sexually violent offense.
Defendant’s prior prison term at issue was not for a sexually violent offense.
Defendant is therefore entitled to the ameliorative benefit of the statute if Senate Bill
No. 136 is applied retroactively. We agree with the parties that the amendment to Senate
Bill No. 136 should be applied retroactively in this case.
Whether a particular statute is intended to apply retroactively is a matter of
statutory interpretation. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307
[noting “ ‘the role of a court is to determine the intent of the Legislature’ ”].) Generally
speaking, new criminal legislation is presumed to apply prospectively unless the statute
expressly declares a contrary intent. (§ 3.) However, where the Legislature has reduced
punishment for criminal conduct, an inference arises under In re Estrada (1965)
63 Cal.2d 740, “ ‘that, in the absence of contrary indications, a legislative body ordinarily

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intends for ameliorative changes to the criminal law to extend as broadly as possible,
distinguishing only as necessary between sentences that are final and sentences that are
not.’ [Citations.]” (Lara, at p. 308.) “A new law mitigates or lessens punishment when
it either mandates reduction of a sentence or grants a trial court the discretion to do so.
[Citation.]” (People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Senate Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b)
prior prison term enhancement. There is nothing in the bill or its associated legislative
history that indicates an intent that the court not apply this amendment to all individuals
whose sentences are not yet final. Under these circumstances, we find that In re
Estrada’s inference of retroactive application applies. (Accord, People v. Lopez (2019)
42 Cal.App.5th 337, 340-342 [Sen. Bill No. 136 applies retroactively to cases not yet
final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].)
Appellate courts in this situation typically direct the trial court to strike defendant’s prior
prison term enhancements and “remand the matter for resentencing to allow the court to
exercise its discretion in light of the changed circumstances.” (Jennings, at p. 682.) We
shall do so here.

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 DISPOSITION
The matter is remanded to the trial court with directions to strike both prior prison
term enhancements and for resentencing consistent with this opinion. In all other
respects, the judgment is affirmed.

/s/
BLEASE, Acting P. J.

We concur:

/s/
DUARTE, J.

/s/
KRAUSE, J.

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