People v. Larry CA2/2

Filed 8/6/21 P. v. Larry CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule 8.1115(b).
This opinion has not been certified for publication or ordered published for purposes of rule
8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B297534

Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. TA143584)

VINCENT DARNELL LARRY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Modified and affirmed
with directions.
Allen G. Weinberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Michael R. Johnsen,
Supervising Deputy Attorney General, and Blythe J. Leszkay,
Deputy Attorney General, for Plaintiff and Respondent.
 Appellant Vincent Darnell Larry was sentenced to two
consecutive terms of life imprisonment without the possibility of
parole after committing a double murder for the benefit of a
criminal street gang, using a firearm. (Pen. Code, §§ 187, subd.
(a), 190.2, subd. (a)(22), 12022.53.)1 The jury also convicted him
of possession of a firearm by a felon. (§ 29800, subd. (a)(1).)
We conclude that there is no proof of jury bias and no
instructional error. Appellant’s Sixth Amendment rights were
not violated. Using records created by a court employee, the
prosecution showed two predicate gang criminal offenses, without
eliciting hearsay. (Pen. Code, § 186.22; Evid. Code, §§ 452.5,
1280.) With modifications to the abstract of judgment, we affirm.
FACTS
Herbert Torres and Luis Velasco were killed in Los Angeles
on April 29, 2017.2 Velasco sustained six bullet wounds; Torres
was shot twice. Torres was found by his neighbor, Mr. Ramos, in
an alley adjoining their apartment complex. Velasco’s body was
nearby, in the driver’s seat of a BMW. Ramos heard gunshots
outside of his apartment around 3:00 that morning.
Ramos saw the victims the evening before the shooting.
Velasco was driving erratically in a BMW belonging to a girl
named Nelly. Velasco was known to drink, use drugs, and cause
trouble in the neighborhood.
Ramos knows his apartment is in territory claimed by the
East Coast Crips (ECC) street gang and has seen ECC graffiti on
walls. He was concerned about coming to court to testify.

1 Undesignated statutory references are to the Penal Code.
2 Unlabeled dates refer to the year 2017.

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 Security camera footage shows a confrontation in the alley
at 1:00 a.m. on April 29. Appellant and a senior member of ECC,
“Big Murk,” face off with Torres. Appellant removes his jacket
and is wearing a grey shirt. Big Murk intervenes; he and
appellant walk away, looking upset. Two hours later, a vehicle
drives down the alley. Torres is seated at the bottom of a
stairwell. A person appears, fires a gun at Torres, walks to the
BMW, runs back to Torres, then flees.
Detective McCoy investigated the shooting. He collected
eight bullet casings and two live rounds near the stairwell and
BMW where the victims were found. There was no indication of
drug sales on either victim.
Witness Sanchez was friends with Torres since 2000.
Sanchez has lived in the neighborhood for years and knows it is
gang territory. Torres had gang tattoos on his arm and face.
Sanchez was friendly with Velasco as well.
On the night of April 28, Sanchez was outside his
apartment when appellant, known to Sanchez as “Newport,” rode
up on a bicycle. Appellant paused briefly and the two men said,
“What’s up?” Sanchez regularly saw appellant in the area.
Sanchez saw Torres and Velasco arrive at the apartment
building and went to greet them. Torres was near stairs to the
building and Velasco was near a BMW, acting drunk. They
listened to music, then Sanchez returned to his apartment. After
midnight, he and his wife heard gunshots.
At trial, Sanchez denied sensing hostility from appellant on
the evening of April 28. However, he told police soon after the
shootings that appellant approached aggressively and said,
“What’s up, paisa?” Sanchez thought this was “suspect.” When
police showed Sanchez security camera images, he identified

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“Newport,” who was wearing the same plaid jacket he had on
when they exchanged greetings.
In a recorded police interview, Sanchez was shown a
photograph in which he identified himself and appellant, who
was on a bike, the moment they spoke to each other on April 28.
Sanchez was forced to come to court to testify. He feared for his
safety.
Witness Perez resided in the apartment complex where the
shooting occurred. She knew the victims for five years. Torres
had the letter “M” tattooed on his face, which signifies the MS-13
gang. Velasco was not in a gang.
Perez testified that ECC considers the neighborhood its
turf. She saw the letters ECC painted on walls. She said
appellant is an ECC member with the monikers “Newborn” and
“Milk.” She has known appellant for four years and saw him
about once a month at the apartment complex. He told her he is
in ECC. Perez identified appellant in a photograph with ECC
member “Big Murk.” She has known Big Murk for two or three
years.
Perez knew Velasco had a relationship with her friend
Nelly. Velasco was driving Nelly’s BMW the night he was shot.
Perez was shown a video in which she identified Velasco and
appellant. Perez was nervous about being labeled a “snitch”
because of her testimony.
Detective McCoy interviewed witness Reyes after the
shooting. Reyes said appellant made incriminating statements at
2:20 a.m. on April 29 while standing near the corner of Avalon
and Imperial. Reyes’s friend was purchasing cocaine from
appellant, who was within five or 10 feet from Reyes. Appellant
said he intended to “ ‘kill that fool right there because they

4
selling the crack right there.’ ” Reyes explained, “he just saying
that, ‘Hey, I’m gonna kill this guys because they’re in my hood,
and they selling drugs in my hood.’ ” Appellant said the
miscreant drug sellers were Hispanic.
Reyes heard appellant say, “ ‘They always in my alley and
so I’m gonna go to the alley and do my thing,’ ” adding, “ ‘I’m
gonna shoot that fools.’ ” The alley was near Avalon. Appellant
intended to commit the shootings at 3:00 a.m. Reyes and his
friend left shortly after appellant uttered his threats.
Reyes said appellant, also known as “Leche,” was wearing a
gray T-shirt and dark jeans. Shown a photo array, Reyes said
number four looked like the man who talked about shooting rival
drug dealers but he did not believe it was the same person.3
Shown a security camera still photo of appellant, Reyes was “a
hundred percent” certain appellant was the person who
threatened to shoot rivals.
In a second interview with McCoy, Reyes reiterated that
the person who threatened to shoot Hispanic drug sellers in the
alley is “Leche,” the Spanish word for milk. Reyes opined that
appellant knew Torres was a member of rival gang MS-13
because Torres had the gang’s tattoo on his face. Reyes and
McCoy discussed relocating Reyes for his safety. Reyes said,
“[I]t’s gonna be a problem to me,” and, “I’ll get in trouble because
it’s like I’m playing with you guys.”
Reyes came to the trial against his will. He did not want to
testify. He denied recognizing appellant, or knowing who “Leche”
is, or having conversations with Detective McCoy. Reyes denied
telling McCoy that he overheard appellant threaten to kill rival

3
McCoy testified that appellant is the person in photo
number four.

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drug dealers. He denied seeing a photo array or saying that
photo number four could be the person who talked about
committing a shooting. He denied saying when shown a still
photo of the person in the alley, “100 percent that’s him.”
Reyes did not remember if he and a friend encountered
appellant the day of the shooting while buying cocaine. Reyes
said ECC is a Black gang that controls the area. Reyes denied
telling McCoy that their interviews were “going to be a problem.”
Reyes was unaware McCoy recorded their first interview.
At trial, Reyes initially denied it was his voice on the recording.
Eventually, he admitted it was his voice. He did not know why
he lied but denied having concerns about his safety. His second
interview, at the police station, was audio and video taped; Reyes
conceded that he is the person in the video.
Reyes denied knowing Nelly, though he was photographed
with her. McCoy testified that Reyes and Nelly were in a
relationship and believes they have children. Velasco’s body was
found in Nelly’s BMW. Velasco was seen on videotape trying to
light the car on fire before the shooting.
Police gang expert Williams testified about ECC, a Crip
gang with about 1,200 members. The shootings occurred in ECC
territory. He explained that gangs control territory by
committing violent crimes; they commonly engage in drug sales,
burglaries, and pimping. Gangs intimidate or shoot at the houses
of people who testify against them. By instilling fear in the
community, gangs flourish and their crimes go unanswered.
The People offered certified superior court records for two
individuals, Island (2014 offense) and Copeland (2015 offense).
Appellant did not object and the records were received into
evidence. Williams did not testify about the crimes but said he

6
has had “dozens of contacts” with Island and Copeland. He
knows they are ECC members from his contact with them, their
tattoos, their association with other members, and their
admissions that they are ECC members.
Williams identified ECC tattoos on appellant’s neck, arms,
and stomach. Appellant’s moniker is Newborn Milk; he has a
milk carton and “milk head” tattooed on his forearm. Williams
opined that appellant is in ECC given his tattoos and association
with ECC members. People can be assaulted or killed if they
sport gang tattoos but are not actual members of the gang.
Williams was familiar with victim Torres, whom he saw in
the alleyway and who had a “huge M on his face,” a gang tattoo
for MS-13. There is a long-standing feud between ECC and local
Hispanic gangs.
Given a hypothetical fitting the facts of this case, Williams
opined that this crime was committed for the benefit of, in
association with, or at the direction of a criminal street gang. A
known gang member with gang tattoos confronted a rival gang
member. He announced his intent to protect his territory and
enhanced his reputation by killing a rival drug dealer on his turf.
It is very important for the gang to control narcotics sales in its
territory. The shooting increased the gang’s control over the area
by creating fear in the community.
Gang expert Martin Flores testified for appellant. Flores
was exposed to gangs as a youth; has taken classes on gangs;
works on gang issues for government and nonprofit
organizations; has interviewed hundreds of gang members; and
reintegrates gang members on probation into the community.
Flores has worked on cases involving ECC, including
murders, attempted murders, burglaries, and kidnappings. The

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alley where the victims were shot is claimed by ECC, whose
graffiti appears in it. Appellant has ECC tattoos. Flores said
ECC “is definitely a criminal street gang.”
Flores would not expect a gang member to announce his
intent to kill people. Flores agreed there are “consequences for
people who sell dope without permission” from the local gang,
which range from a verbal warning, a fee or an assault, to “being
killed.”
PROCEDURAL HISTORY
An amended information charged appellant with murder
(counts 1 and 2) and possession of a firearm by a felon (count 3).
(§§ 187, subd. (a), 29800, subd. (a)(1).) It alleged multiple-murder
and gang special circumstances, gang enhancements, and firearm
enhancements. (§§ 186.22, subd. (b)(1)(C), 190.2, subd. (a)(3),
(22), 12022.53, subds. (b)–(d).)
The jury convicted appellant, finding the murders to be in
the first degree, the gang special circumstances true, and the
enhancements true. Appellant waived his right to a jury trial on
the penalty phase. The court sentenced him to a determinate
term of two years for possessing a firearm as a felon, consecutive
terms of life without the possibility of parole for the murders,
plus two terms of 25 years to life for the firearm enhancements.
DISCUSSION
1. Potential Juror Bias
Appellant argues that the court should have questioned all
jurors about possible bias. During closing argument, Juror No. 4
and an alternate complained to the bailiff about courtroom
spectators. After inquiry, the court discharged Juror No. 4.
Appellant contends that his convictions must be reversed because
“the jurors became scared” of courtroom spectators and the court

8
did not conduct a sufficient inquiry. Neither the record nor the
law supports appellant’s claim that his right to an impartial jury
was violated.
Questioned privately, Juror No. 4 complained about “looks
we get,” though no one made threats. A “guy that came in with
the tattoos . . . was giving us looks. The lady with the glasses
with the bangs. She just will not stop giving us looks.” Jurors
take the elevator together because “we don’t feel safe” and
“there’s no security out there” when they walk to their cars.
The court assured Juror No. 4, “Nobody knows who you are.
I don’t even know who you are,” and “if at any point in time the
jurors want to be escorted to their car[s], we’ll do that.” The court
said the jury will be sequestered in the deliberation room and
“extra precautions” taken. Defense counsel opined, “Seems like
we have to talk to all of them” because “[s]he says they’ve all been
discussing it.”
The court questioned Alternate Juror No. 1, who said
persons associated with appellant stared at jurors and talked
among themselves. The alternate was “a bit” concerned but felt
able to carry out the duties of a juror. The alternate spoke to
Juror No. 4 and did not mention it to others, yet “[e]veryone just
says the same thing. It’s kind of scary when we’re leaving down
the elevator by ourselves.”
The court believed staring was not an ongoing problem for
the jury, adding, “The hanging together as a group, going down, I
don’t think that has anything necessarily to do with this case.
I’m not going to fan the flame by inquiring of them individually.
If any of them want to bring it to my attention, I would.” Defense
counsel advocated excusing Juror No. 4. The court agreed.

9
Alternate Juror No. 3 was randomly selected as a replacement.
Counsel did not object to this solution.
The court may discharge a juror who, upon a showing of
good cause, cannot perform his or her duty. (§ 1089.) The court
makes “ ‘ “whatever inquiry is reasonably necessary” ’ ” once
notified that there may be cause to discharge a juror. (People v.
Bradford (1997) 15 Cal.4th 1229, 1348.) In Bradford, reports of
juror hostility toward the defendant did not require discharge
because “[t]he record does not in any way demonstrate an
inability on the part of the jurors to perform their functions.” (Id.
at p. 1352.)
“ ‘The decision whether to investigate the possibility of
juror bias, incompetence, or misconduct—like the ultimate
decision to retain or discharge a juror—rests within the sound
discretion of the trial court. [Citation.] The court does not abuse
its discretion simply because it fails to investigate any and all
new information obtained about a juror during trial. . . . [A]
hearing is required only where the court possesses information
which, if proven to be true, would constitute “good cause” to doubt
a juror’s ability to perform his duties and would justify his
removal from the case.’ ” (People v. Osband (1996) 13 Cal.4th
622, 675–676.) For example, the court may remove a “fragile”
juror who expresses fear of the defendants on trial for capital
murder after they looked at her. (People v. Powell (2018) 6
Cal.5th 136, 156.)
The court removed Juror No. 4 after she voiced personal
concerns. As to jurors who did not voice concern, the court
exercised its “considerable discretion . . . ‘whether to conduct a
hearing or detailed inquiry.’ ” (People v. Prieto (2003) 30 Cal.4th
226, 274.) Its decision not to question all jurors was not an abuse

10
of discretion. Comments reported to the court related to a lack of
security at the Compton courthouse. No link was drawn between
the lack of security and appellant or his trial. Only one seated
juror, who was replaced, expressed discomfort about members of
the public watching the trial.
Appellant claims the court “had a sua sponte duty to
inquire of all the jurors to determine if their impartiality had
been affected.” Contrary to his claim, court need not inquire of
all jurors if only one complains.
People v. Fuiava (2012) 53 Cal.4th 622 (Fuiava) guides our
analysis. Juror J. was fearful of spectators “ ‘aligned’ ” with
Fuiava and said jurors discussed the spectators’ conduct as they
walked to the parking lot. The court discharged Juror J. but
said, “ ‘[U]ntil the other jurors tell us something, it’s not
necessary to take any action.’ ” Fuiava argued on appeal that the
court had a duty to investigate whether the jury was improperly
influenced. (Id. at pp. 700–701.) His claim failed.
The court wrote, “The trial court did not abuse its
discretion . . . by taking a ‘wait and see’ approach concerning
whether any juror other than Juror J. might have been affected
. . . . [E]ven assuming the truth of what Juror J. had reported to
the court—that two people associated with defendant had been
talking and pointing at various jurors in a nonthreatening
manner, and this had upset Juror J.—these circumstances did
not suggest that other jurors were similarly upset to the extent
that they, too, might not have been able to perform their duties
as impartial jurors. . . . Assuming further that, as Juror J.
reported, the subject was mentioned as the jurors were leaving
the courthouse on the previous day . . . this similarly did not
suggest that anyone other than Juror J. had been upset . . . . In

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sum, it was reasonable for the trial court to proceed on the belief
that any other juror who might have been affected by asserted
spectator conduct would call that circumstance to the court’s
attention, rather than the court suspending the trial . . . to
undertake an inquiry on the subject.” (Fuiava, supra, 53 Cal.4th
at pp. 702–703.)
The court’s decision not to conduct an inquiry does not
cause uncertainty in the record. (Fuiava, supra, 53 Cal.4th at
p. 703.) “ ‘ “[I]nability to perform a juror’s functions must be
shown by the record to be a ‘demonstrable reality.’ [A reviewing
court] . . . will not presume bias.” ’ ” (People v. Martinez (2010) 47
Cal.4th 911, 943.) This resolves appellant’s claim that “prejudice
should be presumed” from a failure to inquire.
We see no abuse of discretion in the court’s decision not to
question all jurors. Nothing in our record suggests that jurors
were biased against appellant, much less that they engaged in
misconduct. At most, the record shows they discussed the lack of
courthouse security. The decision not to question all jurors, when
only Juror No. 4 was upset, did not violate appellant’s right to an
impartial jury. (Fuiava, supra, 53 Cal.4th at p. 703.)
2. Gang Findings
The prosecution introduced the certified conviction records
of ECC members Copeland and Island and asked police expert
Williams about his familiarity with the two men. The purpose
was to show ECC is a gang whose members engage in a pattern
of criminal activity. (§ 186.22.) In his opening brief, appellant
relied on the Sixth Amendment. In a supplemental brief, he
asserts that predicate offenses cannot be proved with hearsay
testimony from a police expert under People v. Valencia (2021) 11
Cal.5th 818 (Valencia).

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 Appellant did not object to using conviction records to prove
predicate offenses, nor did he object to Williams’s testimony. A
Sixth Amendment claim is forfeited “by failure to object to the
offending evidence.” (Melendez-Diaz v. Massachusetts (2009) 557
U.S. 305, 314, fn. 3; People v. D’Arcy (2010) 48 Cal.4th 257, 289–
290.) Appellant’s 2017 crime was committed after People v.
Sanchez (2016) 63 Cal.4th 665 [expert cannot rely on case-specific
hearsay unless the facts are independently proven or fall within a
hearsay exception].) Post-Sanchez, an objection to case-specific
hearsay is required to preserve the issue for review. (People v.
Perez (2020) 9 Cal.5th 1, 7–8.)
Appellant argues that counsel was ineffective for failing to
object at trial. He also contends that the issue of whether the
evidence violated his rights presents “a pure question of law on
undisputed facts.”
Section 186.22, subdivision (b)(1) imposes additional
punishment when a defendant commits a felony for the benefit of,
at the direction of, or in association with a criminal street gang.
The People must prove: (1) the group is an ongoing association of
three or more persons sharing a common name, identifying sign,
or symbol; (2) one of the group’s primary activities is the
commission of one or more statutorily enumerated criminal
offenses; and (3) the group’s members must engage in, or have
engaged in, a pattern of criminal gang activity. (§ 186.22, subd.
(f); People v. Sengpadychith (2001) 26 Cal.4th 316, 319–320.)
A “ ‘pattern of criminal gang activity’ ” is defined as gang
members’ individual or collective “commission of, attempted
commission of, conspiracy to commit, or solicitation of, sustained
juvenile petition for, or conviction of two or more” predicate
offenses during a defined time period. (§ 186.22, subd. (e).) The

13
current crime may serve as a predicate offense. (People v. Tran
(2011) 51 Cal.4th 1040, 1046.)
In his opening brief, appellant argued “the confrontation
clause barred evidence of third party convictions” to prove a
pattern of gang criminal activity. He is mistaken. The Sixth
Amendment bars “testimonial” hearsay. (Crawford v.
Washington (2004) 541 U.S. 36, 50–53.) Conviction records do
not offend the constitution because they are not “testimonial.”
And, under state laws of evidence, the records are admissible to
prove an offense was committed.
“[P]ublic records are generally admissible absent
confrontation . . . because—having been created for the
administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial—they are not
testimonial.” (Melendez-Diaz v. Massachusetts, supra, 557 U.S.
at p. 324.) The question is whether a statement was developed
for the “primary purpose of creating an out-of-court substitute for
trial testimony. . . . Where no such primary purpose exists, the
admissibility of a statement is the concern of state and federal
rules of evidence, not the Confrontation Clause.” (Michigan v.
Bryant (2011) 562 U.S. 344, 358–359; Ohio v. Clark (2015) 576
U.S. 237, 245–246.)
Conviction records are not barred by the Sixth Amendment.
(United States v. Weiland (9th Cir. 2005) 420 F.3d 1062, 1076–
1077; People v. Morris (2008) 166 Cal.App.4th 363, 370–373.)
“Conviction records in general are not testimonial in nature
because they are ‘prepared to provide a chronicle of some act or
event relating to the public employee’s duty’ and are not
‘produced to be used in a potential criminal trial or to determine
whether criminal charges should issue.’ (People v. Taulton (2005)

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129 Cal.App.4th 1218, 1225.)” (People v. Thompkins (2020) 50
Cal.App.5th 365, 412.) The court records document Copeland’s
and Island’s crimes; it was not contemplated at the time of their
creation that they would serve an evidentiary purpose, years
later, at appellant’s trial.
Under state law, conviction records fall within a hearsay
exception allowing “admission of qualifying court records to prove
not only the fact of conviction, but also that the offense reflected
in the record occurred.” (People v. Duran (2002) 97 Cal.App.4th
1448, 1460–1461; Evid. Code, §§ 452.5, subd. (b)(1) [court record
is admissible “to prove the commission . . . of a criminal offense
[or] prior conviction”], 1280 [hearsay exception for records made
by public employees as part of their duties].) Appellant concedes
that state law authorizes the admission of conviction records.
People v. Garcia (2020) 46 Cal.App.5th 123 does not assist
appellant. It holds that the People may use records “to show the
fact of the prior conviction”; however, a complaint from a prior
case cannot serve as “evidence proving the date of commission of
[the] predicate offense.” (Id. at pp. 171–172 [“the only competent
evidence proving the date of commission of [a] predicate offense
was a copy of the complaint”].) Garcia is inapposite. Here, the
prosecution introduced records created by a court employee.
(Evid. Code, §§ 452.5, 1280.) It did not rely on allegations in a
criminal complaint—created by the district attorney’s office for
use at a criminal proceeding—to prove the dates the crimes were
committed. (See Day v. Sharp (1975) 50 Cal.App.3d 904, 914
[court may not accept the truth of allegations in pleadings just
because they are part of a court file].)
Hearsay evidence admitted through an expert may be
inadmissible. (People v. Sanchez, supra, 63 Cal.4th at p. 680.)
Our Supreme Court recently held that hearsay from an expert

15
cannot be used to prove a pattern of gang crimes under section
186.22. In Valencia, supra, 11 Cal.5th at pages 838–839, a police
gang expert “related the facts of three predicate offenses” but his
“only knowledge of these offenses came from conversations with
other officers and a review of police reports.” (Id. at p. 827.) The
court wrote that an expert may give “general testimony about a
gang’s behavior, history, territory, and general operations” as
well as “the gang’s name, symbols, and colors. All this
background information can be admitted through an expert’s
testimony, even if hearsay, if there is evidence that it is
considered reliable and accurate by experts on the gang.” (Id. at
p. 838.)
By contrast, to prove commission of a predicate offense, an
expert cannot simply repeat hearsay statements such as station
house conversations with fellow officers. The expert in Valencia
“related to the jury facts he gleaned from inadmissible hearsay
sources, including police reports, about which he had no personal
knowledge.” This was prejudicial error. (Valencia, supra, 11
Cal.5th at p. 840.)
Valencia does not apply here. At appellant’s trial, Williams
did not recite hearsay about the crimes of Copeland and Island
from police reports to permit the jury “to improperly rely on that
hearsay to conclude the predicate offenses had been proven.”
(Valencia, supra, 11 Cal.5th at p. 840.) He gave background
information about ECC’s behavior, history, territory, and general
operations. He testified from personal knowledge that Island and
Copeland are ECC members based on “dozens of contacts” with
them, their gang tattoos, their association with ECC members,
and their admissions that they are ECC members.

16
 It was undisputed at trial that ECC’s primary activities
include commission of statutorily enumerated offenses. Defense
expert Flores testified that ECC “is definitely a criminal street
gang. No doubt about that. And members of [ECC] have
committed the spectrum of crimes from burglaries all the way to
homicides.”
Without objection, certified court records were admitted to
prove that ECC members Copeland and Island were convicted of
burglary and possession of a firearm by a felon. This is
independent admissible evidence. (Valencia, supra, 11 Cal.5th at
pp. 838–839; Evid. Code, § 452.5.) Valencia does not bar the use
of court records to establish predicate offenses. In his opening
brief, appellant “concedes that the conviction records of Island
and Copeland were admissible.” The court’s records show
commission of the offenses and the dates they were committed.
3. Jury Instructions
Appellant challenges two jury instructions, contending that
one is intrinsically flawed and the other lowered the prosecution’s
burden of proof. We independently review the legal correctness of
an instruction. (People v. Griffin (2004) 33 Cal.4th 536, 593,
disapproved on other grounds in People v. Riccardi (2012) 54
Cal.4th 758, 824, fn. 32.)
a. CALCRIM No. 315
Appellant asserts that CALCRIM No. 315 erroneously
instructs jurors to consider the certainty of witnesses when
evaluating their identification of appellant. The prosecutor used
witnesses to identify appellant in security videos. Appellant’s
defense was that he was misidentified.
Appellant argues that the instruction should have been
modified to “eliminat[e] the consideration of a witness’s self-

17
assessed certainty in the accuracy of his identification.” He
admittedly never requested a modification. Appellant forfeited
his claim by failing to seek modification at trial. (People v. Ward
(2005) 36 Cal.4th 186, 213–214; People v. Covarrubias (2016)
1 Cal.5th 838, 901.)
Appellant’s claim was recently addressed in People v.
Lemcke (2021) 11 Cal.5th 644, in which the court criticized the
certainty factor but held that instructing with it did not
constitute error. “[W]hen considered ‘ “in the context of the
instructions as a whole and the trial record” ’ [citation], we
conclude that listing the witness’s level of certainty as one of 15
factors the jury should consider when evaluating an eyewitness
identification did not render [defendant’s] trial fundamentally
unfair or otherwise amount to a due process violation.” (Id. at
p. 661.) In supplemental briefing, appellant concedes that
Lemcke disposes of his state claim.
Appellant maintains that witness certainty language in
CALCRIM No. 315 violates federal law. However, the Supreme
Court has stated that “the factors to be considered in evaluating
the likelihood of misidentification include . . . the level of
certainty demonstrated by the witness.” (Neil v. Biggers (1972)
409 U.S. 188, 199–200; Manson v. Brathwaite (1977) 432 U.S. 98,
114.) The witness certainty language did not diminish the
prosecutor’s burden of proving the identity of the killer in
violation of appellant’s constitutional rights.
b. CALCRIM No. 370
The court instructed the jury that the prosecution did not
have to prove appellant had a motive to commit the charged

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crimes.4 Appellant contends that the instruction, CALCRIM No.
370, “impermissibly lowered the prosecution’s burden of proof on
the gang-murder special circumstance,” which requires that the
defendant intentionally kill the victim to further the activities of
a criminal street gang. (§ 190.2, subd. (a)(22).)5 We conclude
that the instruction was properly given.
The motive instruction in CALCRIM No. 370 does not
interfere with the jury’s special circumstance finding that
appellant had intent to kill to further the activities of a gang.
Motive and intent are distinct. “[M]otive is the ‘reason a person

4 The instruction reads: “The People are not required to
prove that the defendant had a motive to commit any of the
crimes charged. In reaching your verdict you may, however,
consider whether the defendant had a motive. [¶] Having a
motive may be a factor tending to show that the defendant is
guilty or that [the] special circumstance or allegation is true. Not
having a motive may be a factor tending to show the defendant is
not guilty or that [the] special circumstance or allegation is not
true.” (CALCRIM No. 370.)
5 The jury was instructed with CALCRIM No. 736, which
reads: “The defendant is charged with the special circumstance
of committing murder while an active participant in a criminal
street gang in violation of Penal Code section 190.2(a)(22). [¶] To
prove that this special circumstance is true, the People must
prove that:
“1. The defendant intentionally killed the named victims;
“2. At the time of the killing, the defendant was an active
participant in a criminal street gang;
“3. The defendant knew that members of the gang engage in
or have engaged in a pattern of criminal gang activity;
“AND
“4. The murder was carried out to further the activities of the
criminal street gang.”

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chooses to commit a crime,’ but it is not equivalent to the ‘mental
state such as intent’ required to commit the crime.” (People v.
Cash (2002) 28 Cal.4th 703, 738.) Though intent to kill is an
element of a murder charge, motive to kill is not. (See People v.
Guerra (2006) 37 Cal.4th 1067, 1135 [motive is not an element in
a rape-murder prosecution, unlike “child annoyance,” which
requires a showing that defendant was motivated by unnatural
or abnormal sexual interest], overruled on other grounds in
People v. Rundle (2008) 43 Cal.4th 76, 151.)
Appellant’s claim was addressed in People v. Fuentes (2009)
171 Cal.App.4th 1133, where the court concluded that the motive
instruction does not contradict the intent requirement in section
190.2. When combined, the two instructions “told the jury the
prosecution must prove that Fuentes intended to further gang
activity but need not show what motivated his wish to do so.” (Id.
at pp. 1139–1140.)
The prosecutor had to show appellant intended to kill the
victims to benefit his gang. (§ 190.2.) Appellant may have been
motivated by a desire to eliminate a rival gang member, protect
ECC control over its turf, enhance his reputation in ECC, deter
interlopers from selling drugs, or frighten the community into
silence so ECC’s criminal enterprise can flourish. These are
motivating factors listed by the police and defense experts. The
prosecutor did not have to speculate, let alone prove, which one
(or all) of these factors motivated appellant to kill the victims.
Contrary to appellant’s claim, CALCRIM No. 370 did not
relieve the jury of its duty to make the special circumstances
intent finding. CALCRIM No. 736 required that “the People
must prove [¶] . . . [¶] the murder was carried out to further the
activities of the criminal street gang.” Another instruction

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required that “the People prove that [¶] . . . [¶] the defendant
intended to assist, further, or promote criminal conduct by gang
members.” (CALCRIM No. 1401.) As to both murders, the jury
expressly found that appellant had the specific intent to promote
or further gang criminal activities. There was no instructional
error.
4. Sentence and Abstract of Judgment
The jury convicted appellant of count 3, possession of a
firearm by a felon. At sentencing, the court said, “As to Count 3
you are to serve two years in state prison, time served for the
time you’ve already been in. No additional time as to Count 3.”
The abstract of judgment does not show if count 3 is consecutive
or concurrent with the murder counts. Appellant contends that
the abstract must be corrected to show a concurrent sentence in
count 3. We agree.
The court must give reasons for sentencing choices.
(§ 1170, subd. (c).) To ensure uniformity in sentencing, “it is
necessary for the court to state for the record why consecutive
sentencing is warranted.” (People v. Walker (1978) 83 Cal.App.3d
619, 622; Cal. Rules of Court, rule 4.406(b)(5).) The court gave a
reason for imposing consecutive sentences for counts 1 and 2,
saying there was a “significant break between the shooting of Mr.
Torres and the shooting of Mr. Velasco.” By contrast, it offered
no reason for imposing a consecutive sentence for count 3. A
concurrent term is imposed if the court did not specify a
consecutive sentence. (§ 669, subd. (b).)
Appellant next asserts that the abstract of judgment and
minute order should be corrected to remove references to the
gang enhancements. (§ 186.22, subd. (b)(1)(C).) The transcript
shows that the court, citing section 186.22, said that as to counts

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1 and 2 it was “going to strike the punishment” for the gang
enhancement. The minute order and abstract of judgment state
that the enhancement was stayed.
The court cited section 1385, which allows it to “strike or
dismiss an enhancement [or] the court may instead strike the
additional punishment for that enhancement in the furtherance
of justice.” (§ 1385, subd. (b)(1).) Striking an enhancement’s
punishment does not defeat the jury’s factual finding that the
allegation is true. Instead, it “ ‘would retain the fact of the
enhancement in the defendant’s criminal record, but would not
add any punishment.’ ” (People v. Fuentes (2016) 1 Cal.5th 218,
225–226.) If the court exercises discretion to strike the
punishment, it should not strike the enhancement. (Id. at
p. 226.)
Appellant is mistaken that all references to the gang
enhancement must be “removed.” The court did not strike the
gang enhancement in its entirety, only “the punishment” for it.
The abstract of judgment states that sentence on the gang
enhancement allegation is “stayed.” This should be changed:
Section 2 of the “attachment page” to the abstract allows the
court to list “enhancements charged and found to be true” and to
denote “ ‘PS’ for punishment struck.”
Finally, respondent concedes that the abstract of judgment
should be corrected because appellant is entitled to one
additional day of presentence custody credits, a total of 671 days.

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 DISPOSITION
The abstract of judgment is ordered corrected to reflect that
defendant Larry (1) is sentenced to a concurrent term of
imprisonment on count 3, possession of a firearm by a felon (Pen.
Code, § 29800, subd. (a)(1)); (2) punishment for the gang
enhancements found to be true (Pen. Code, § 186.22) is stricken;
and (3) he has 671 days of presentence custody credits. The
superior court is ordered to forward a certified copy of the
corrected abstract to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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