People v. Williams CA2/7

Filed 1/19/22 P. v. Williams CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

THE PEOPLE, B307946

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA077466)
v.

JESSE MARLON WILLIAMS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Shannon Knight, Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Nima Razfar, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________
 Jesse Marlon Williams appeals from a judgment entered
after the jury convicted him as an aider and abettor of attempted
premeditated murder, three counts of assault with a firearm, and
shooting at an inhabited dwelling. Williams contends the trial
court violated his Sixth Amendment right to confront and cross-
examine the shooter, James Jones, by admitting Jones’s prior
statements to detectives incriminating Williams. Jones’s
statements were admitted after Jones testified Williams was
innocent on direct examination, but then refused to answer
questions on cross-examination. Williams also argues the trial
court abused its discretion by admitting evidence that he was a
high-ranking gang member. Williams further asserts the trial
court abused its discretion by denying his motion for a new trial
based on Jones’s letter to defense counsel after trial in which he
denied Williams’s involvement in the shooting. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Prosecution Case
1. The day before the shooting
In August 2019 Dynnell Pugh1 lived with his fiancée,
Malkia Hunt, their son, Dynnell Jr., Hunt’s mother, Maranita
Porter, Hunt’s nieces, Ramaiya and Kamareya, and others. On
August 20 Williams, his girlfriend, and his daughter, Nevaeh,
went to Pugh and Hunt’s house to speak with Porter about a
dispute between Nevaeh and Ramaiya. Porter agreed with
Williams that the girls’ issue “need[ed] to be squashed.” Before

1 After he was granted immunity, Pugh testified about the
events leading up to the shooting and the shooting.

2
Williams left, he told Porter, “I don’t want no problems. I got
people.”

2. The shooting
At approximately 7:00 p.m. the next day, Hunt answered
the door and saw five people outside. A woman in the group told
Hunt that she wanted Ramaiya to come outside to fight. Hunt
responded that Ramaiya was not going to come outside, and Hunt
asked the group to leave. Hunt went to the kitchen and told
Porter and Pugh about the group outside their house. Pugh
looked at his security monitors and saw Jones and a group of four
females.2 He retrieved a gun from his safe and placed it in his
right pants pocket before walking outside. Jones told Pugh that
Ramaiya had gotten into a fist fight with Nevaeh and the group
wanted Ramaiya to come outside to fight. Pugh replied there
would be no fighting at his home, and he asked them to leave.
A few minutes later, Williams joined the group outside the
house.3 Williams told Pugh that he wanted Ramaiya to come
outside and fight either Nevaeh or the other females in the group.

2 Pugh and Hunt’s house had multiple security cameras and
monitors. At trial, the jury saw video footage of the August 21,
2019 incident from a security camera above the front door. Hunt
and Pugh did not know Williams, Jones, or anyone else in the
group prior to August 21. Porter met Williams and Nevaeh for
the first time on August 20, and she did not recognize the other
people in the group.
3 Security video footage played to the jury (exhibit 5) showed
Williams arrived in a black car he parked around the corner from
the house.

3
Pugh responded that no fight was going to happen, and he
repeatedly asked Williams and his group to leave.
During the course of Pugh’s conversation with the group,
Porter and then Hunt joined Pugh outside the house. When
Hunt walked outside, the group asked Pugh who Hunt was, and
whether she could fight. Pugh motioned to Hunt and Porter and
suggested they all go back inside the house. As Pugh backed
away from the group, Jones walked “around to [Pugh’s] flank”
(Pugh’s left side). At this point, Jones pulled out his gun and
pointed it at Pugh, and Pugh heard Williams say, “Blow his
mother fucking head off.”4 Pugh then pulled out his gun from his
pants pocket and pointed it at Jones. Jones shot at Pugh, and
Pugh fired back at him. Jones and Williams ran off and left
together in Williams’s vehicle.
Pugh subsequently contacted an attorney friend for advice.
The attorney advised Pugh to report the incident to law
enforcement but not to disclose that Pugh had a gun because
“they’ll find out about that later after the investigation.” Pugh
transferred the security camera recording of the incident onto his
cell phone and sent the video to the attorney. Pugh did not call
911 until approximately an hour and a half later. Los Angeles
County Sheriff’s deputies arrived at Pugh’s house four to five
hours later and spoke to Pugh on the front lawn for 15 minutes.

4 Hunt testified that right before the shooting she heard
Williams say, “I’m not scared of him. I’ll blow his fucking head
off,” referring to Pugh. Porter testified Williams said something
to Jones before Jones reached into his pants pocket, but she could
not recall what Williams said. Security video footage played for
the jury (exhibit 1) shows the confrontation outside the house and
the shooting, but it has no audio.

4
The deputies wanted to see the security camera footage, but Pugh
told them he forgot his password. Pugh did not tell the deputies
that he had a video of the incident on his cell phone.

3. The investigation
Los Angeles County Sheriff’s detectives subsequently
interviewed Pugh, Hunt, and Porter about the shooting.
Detective Andrew Chappell first interviewed Pugh on August 27,
at which time Pugh did not mention he had a gun on him during
the incident. When Hunt in her September 1 interview disclosed
this information, Detective Chappell reinterviewed Pugh, who
admitted he had returned fire.
On September 1, 2019 Hunt identified Williams from a six-
pack photographic lineup. She wrote below Williams’s
photograph, “This is the guy that told Dynnell he would blow his
head off but is not the shooter.” Hunt told the detectives that the
man who said “I’ll blow his fucking head off” wore glasses and
had tattoos.5 Porter also identified Williams from a six-pack
photographic lineup and wrote under Williams’s photograph,6
“This person asked who Malkia was to Dynnell. This person is

5 Williams contends Hunt was referring to Jones as the
declarant, who has facial and neck tattoos and wore glasses
during the shooting. But Hunt testified both Williams and Jones
wore glasses during incident. Further, Williams admitted in his
motion for new trial that he also has tattoos, although he
asserted Jones’s tattoos are more prominent because Jones has
facial tattoos (Williams has only neck tattoos) and Jones has a
lighter complexion.
6 Hunt, Porter, and Pugh were shown the same photograph
of Williams.

5
also the person that tried to walk behind Dynnell.” Pugh
identified Williams from a six-pack photographic lineup and
wrote under Williams’s photograph, “On 8-22-19 the above was at
my residence and told someone else to blow my head-off.” Pugh
told the detectives that “Williams’[s] role was telling the other
individual to blow his fucking head off.”
In an October 31, 2019 recorded interview with Los Angeles
County Sheriff’s Detective Hartman, Pugh stated “the baby’s
father” (Williams) said to “‘blow his [head] off’” when Jones
started to flank Pugh.7 When Detective Hartman asked Pugh if
he was 100 percent sure that Williams said “blow his head off,”
Pugh answered, “It—to be honest, I’m not 100 percent sure about
that.” Pugh added, “But I am 100 percent—if he didn’t say it,
then he said, ‘I’m going to blow his head off,’ or ‘blow his fucking
head off.’” Pugh testified he was “mostly sure” Williams made
the statement because of Williams’s position in relation to Pugh.

4. Jones’s police interview and trial testimony
The People called Jones as a witness, but he refused to
answer most questions, stating repeatedly, “I don’t understand.”
However, when asked whether he was afraid of Williams, he
responded, “No.” When asked whether he understood he could be
held in contempt if he refused to answer questions, Jones
responded, “I just took eight years.” When asked whether he was
a “snitch,” Jones replied, “I don’t understand.” When asked
again, he answered, “I’m not going to answer.” When the trial
court ordered Jones to answer the prosecutor’s questions, Jones
stated, “I’m just frustrated,” adding, “I got an innocent man

7 It appears the reference to the “baby[]” is to Nevaeh.

6
sitting right here, a man that didn’t do nothing.” After the trial
court reiterated that Jones did not have the right to refuse to
answer the questions, Jones repeated, “I don’t understand.”

The prosecutor then questioned Jones:
“Q: Mr. Jones, . . . So I’m asking you to give us your side of the
story.
“A: He[’s] innocent.
“Q: Okay.
“A: That’s [the] only thing I got to say. He didn’t do nothing.
“Q: So you’re saying that he didn’t tell you to do anything?
“A: No.
“Q: He never told you to shoot somebody?
“A: No.
“Q: Okay. He never gave you a gun?
“A: No.
“Q: Okay. Did he tell you to go to the person’s house?
“A: No. I’m a friend of the family.
“Q: You’re a friend of Nevaeh, right?
“A: No, the family.
“Q: The whole family?
“A: Yeah. I go over there on my own. I go over there to eat,
take a shower, change clothes.
“Q: Okay.
“A: I went over there on my own. Nobody told me to do
nothing.
[¶] . . . [¶]
“Q: What about Marvin? Do you know Marvin?
“A: I don’t know who that is.
[¶] . . . [¶]

7
“Q: Did you tell detectives that you were afraid of Williams?
“A: I don’t want to answer that question.
“Q: Why don’t you want to answer that question?
“A: Because I just don’t.”

At this point, Jones reverted to the response, “I don’t
understand” to most questions, including whether he had talked
to sheriff’s deputies about what happened to Nevaeh. At the
conclusion of direct examination, the prosecutor asked, “Tell me
why Mr. Williams is innocent.” Jones responded, “I refuse to
answer.” The trial court ordered Jones to answer and reminded
him that he could be held in contempt and serve additional time
if he did not answer. But Jones refused to answer any additional
questions.
On cross-examination, Jones refused to answer seven
questions. Defense counsel first asked Jones: (1) whether he was
charged in the same case as Williams; (2) whether he pleaded to
assault with a gun before the trial started; (3) whether he faced a
long prison sentence before he pleaded;8 and (4) whether he had

8 Prior to closing arguments, the trial court informed the jury
that the court took judicial notice that Jones pleaded no contest
to assault with a firearm and admitted to a prior strike
conviction. During defense counsel’s closing argument, the trial
court told the jury that the court took judicial notice that Jones
was charged in the same case as Williams with attempted willful,
deliberate, and premeditated murder, and as to that count, the
People alleged Jones personally used a firearm and personally
and intentionally discharged the firearm. Further, Jones was
charged with three counts of assault with a firearm and one
count of shooting at an inhabited dwelling. As to the assault

8
been previously convicted of robbery. Then defense counsel
inquired: (5) “during your interview with police, did they tell you
that if you helped them, it could be extremely beneficial?”; (6)
“did the police tell you that you cooperating could change the
outcome for you?”; and (7) “was there a point in your interview
where the police turned off the tape and you started telling them
about other crimes”? At this point defense counsel said she had
no further questions.
On redirect examination, after Jones refused to answer any
additional questions, the prosecutor played Jones’s recorded
October 31, 2019 police interview to the jury. In the interview,
Jones stated he was from the Two P’s and a B gang and went by
the nickname “Troop.” Jones was very close to Williams and his
family. Jones stated Williams is “a powerful man” from the 8-
Trey Hoover gang. Jones was “pretty sure” Williams was a high-
ranking gang member because of “the shit he did.”
On the day of the shooting, Williams picked Jones up and
drove him to a house where they smoked and played dominoes.
Williams showed Jones a video of some “girls jumping” Nevaeh.
Williams and his family wanted Ramaiya to have a one-on-one
fight with Nevaeh or another girl named Jackie. Jones, Williams,
and Marvin (a Black Watts Mafia gang member) drove to Pugh
and Hunt’s house. Before Jones got out of the car, Williams gave
him the gun. According to Jones, Williams told him “any funny
shit like, going on like, squeeze on a fool.” Jones replied,
“[A]lright bro. Alright.” Jones felt Williams “low key like

charges, the People alleged Jones personally used a firearm and
had a prior conviction of a serious or violent felony.

9
threatened” him because Williams was “a god” and Williams and
his brothers were “somebody.”
During the confrontation, Jones walked over to Pugh’s side
intending to fight him. But when Williams said, “none of that, I’ll
blow your motherfucking head off,” Pugh pulled out his gun from
his hip and shot first. Jones then pulled out his gun from his
pocket and shot back. Jones believed if he did not react the way
Williams wanted him to react, he “was fucked.” Further, Marvin,
who stayed in the car during the confrontation, also had a gun.
Jones believed if he did not shoot, Marvin would have “finished
the whole thing” and shot Jones. After the shooting, Jones gave
the gun back to Williams. Jones added as to the shooting, “I
didn’t want to do it. Like, it wasn’t supposed to go down like
that. It really wasn’t. It was supposed to be a simple fight
between the girls.”

B. The Defense Case
On August 21, 2019 Williams’s mother, Gwendolyn Brice,
picked up Nevaeh from school after Nevaeh and Raimaya were
suspended for fighting. Brice took Nevaeh back to Brice’s house,
which was down the street from Pugh and Hunt’s house. At some
point Jones, whom Brice described as “Troop,” came over to
Brice’s house. Brice described Jones as being “like a son.”
Rilesha Godfrey (Williams’s sister), and Jonese (Godfrey’s wife)
also came to Brice’s house, and Jones, Godfrey and Jonese spent
time in Brice’s garage.
Later that afternoon Nevaeh went outside and had a
second fight with Ramaiya and Ramaiya’s two friends in the
middle of the street between Brice’s house and Pugh and Hunt’s
house. According to Nevaeh, “at the end of the fight, they jumped

10
me again.” When Neaveh returned to Brice’s house, she received
text messages from the girls, and Jones, Jonese, Godfrey, and
Godfrey’s niece decided to walk over to Pugh and Hunt’s house.
Nevaeh followed.
Williams later joined the group in front of Pugh and Hunt’s
house. According to Godfrey, Williams was “pretty calm, but
that’s his daughter; so he was upset.” While Williams and Pugh
were talking, Godfrey noticed Pugh had a gun in his pocket.
Godfrey told Williams that Pugh had a gun; Williams gave a nod
and replied he “didn’t give a fuck that [Pugh] had a gun.” Nevaeh
denied hearing Williams say “blow the mother fucker’s head off,”
“blow the fucker’s head off” or “I’m going to blow the fucker’s
head off.” Nevaeh heard Pugh say “get off my property” and
“something about shoot.” When Pugh reached into his pocket and
pulled out his gun, the group ran. Godfrey and Nevaeh denied
seeing Jones or anyone else other than Pugh with a gun.
Los Angeles County Sheriff’s Deputy Gerardo Guerrero
testified that he and his partner arrived around midnight in
response to a report about a shooting. Pugh told the deputies the
group involved in the confrontation included two Black female
juveniles, the mother of one of the female juveniles, and a Black
male juvenile. Pugh did not mention that another Black male
was in the group. Pugh reported that the shooter had facial
tattoos and said to Pugh, “I am going to blow this nigga’s head
off.” Pugh stated he owned a gun but did not have one in his
possession during the incident. Pugh told the deputies that he
had a video of the incident. When Deputy Guerrero asked to see
the video, Pugh stated he could not remember his password but
he would make the video available for the deputies in the future.

11
C. The Verdicts and Sentencing
The jury found Williams guilty of the attempted willful,
deliberate, and premeditated murder of Pugh (Pen. Code,9 §§ 187,
subd. (a), 664; count 1); assault with a firearm of Hunt, Porter,
and Pugh (§ 245, subd. (a)(2); counts 2, 3 & 5); and shooting at an
inhabited dwelling (§ 246; count 4). As to count 1, the jury found
that a principal was armed with a firearm (§ 12022, subd. (a)(1)).
Williams later admitted he had suffered two prior strike
convictions (§§ 667, subds. (b)-(i), 1170.12) that were serious
felonies within the meaning of section 667, subdivision (a)(1). On
September 18, 2020 the trial court sentenced Williams to an
aggregate state prison sentence of 106 years to life.10
Williams timely appealed.

9 Further undesignated statutory references are to the Penal
Code.
10 The 106-year sentence was comprised of consecutive terms
of 36 years to life on count 1 for attempted premeditated murder
(25 years to life, plus one year for the firearm enhancement and
10 years for the two serious felony enhancements); and 35 years
to life on counts 2 and 3, respectively, for assaults with a firearm
on Hunt and Porter (including the two serious felony
enhancements). The court stayed the sentences on count 4 and 5,
respectively, of 25 years to life for shooting at an inhabited
dwelling and 35 years to life for assault with a firearm on Pugh
(including 10 years for the serious felony enhancements).

12
 DISCUSSION

A. The Admission of Jones’s Prior Statements to Detectives Did
Not Violate Williams’s Confrontation Rights
1. Governing law
“A criminal defendant has the right, guaranteed by the
confrontation clauses of both the federal and state Constitutions,
to confront the prosecution’s witnesses. (U.S. Const.,
6th Amend.; Cal. Const., art. I, § 15.) The right of confrontation
‘seeks “to ensure that the defendant is able to conduct a ‘personal
examination and cross-examination of the witness, in which [the
defendant] has an opportunity, not only of testing the recollection
and sifting the conscience of the witness, but of compelling him to
stand face to face with the jury in order that they may look at
him, and judge by his demeanor upon the stand and the manner
in which he gives his testimony whether he is worthy of belief.”’”
(People v. Herrera (2010) 49 Cal.4th 613, 620-621; accord, People
v. Wilson (2021) 11 Cal.5th 259, 289-290.)
“The Sixth Amendment’s confrontation clause does not
prohibit admitting into evidence ‘testimonial’ hearsay statements
against a defendant if the declarant appears for cross-
examination at trial.” (People v. Cowan (2010) 50 Cal.4th 401,
463; accord, People v. Rodriguez (2014) 58 Cal.4th 587, 632
[“‘when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on the use of his
prior testimonial statements’”].) Further, a witness’s refusal to
answer some questions during cross-examination does not mean
admission of the witness’s out-of-court statement violates a
defendant’s right to confrontation. As the Supreme Court
explained in People v. Homick (2012) 55 Cal.4th 816, 861

13
(Homick) in affirming the trial court’s admission of a witness’s
prior inconsistent statements to impeach his trial testimony,
“While [the witness’s] refusal to answer defendant’s counsel’s
questions ‘narrowed the practical scope of cross-examination,
[his] presence at trial as a testifying witness gave the jury the
opportunity to assess [his] demeanor and whether any credibility
should be given to [his] testimony or [his] prior statements. This
was all the constitutional right to confrontation required.’”
(Accord, Rodriguez, at pp. 632-633; People v. Perez (2000) 82
Cal.App.4th 760, 766 (Perez).)

2. There was no violation of Williams’s confrontation
rights
Williams contends, relying on People v. Rios (1985)
163 Cal.App.3d 852 (Rios), the trial court’s admission of Jones’s
testimonial statements to detectives violated Williams’s Sixth
Amendment right to confrontation because Jones refused to
answer any questions on cross-examination. Because Jones
testified on direct examination, providing testimony favorable to
Williams, there was no constitutional violation.
In Rios, the prosecutor called two witnesses to corroborate
an accomplice’s testimony that the defendant committed a
murder, but both witnesses refused to answer questions on the
stand other than to state their names and, as to one witness, his
age. (Rios, supra, 163 Cal.App.3d at pp. 860-861.) The trial court
ruled the witnesses’ prior statements to detectives implicating
the defendant were admissible as inconsistent statements under
Evidence Code section 1235. (Id. at p. 860.) The Court of Appeal
reversed, concluding the witnesses’ statements to the detectives
were not admissible as prior inconsistent statements because the

14
witnesses gave no testimony. (Id. at p. 864.) Further, “the
admission of a prior statement made by a witness who stonewalls
at trial and refuses to answer any question on direct or cross-
examination denies a defendant the right to confrontation which
contemplates a meaningful opportunity to cross-examine the
witness.” (Id. at pp. 864-865.) The court explained, “While both
[witnesses] took the stand, there was no opportunity to
contemporaneously cross-examine when the prior statements
were made or the ability to meaningfully cross-examine [the
witnesses] at trial. Observing the demeanor of a totally
recalcitrant witness when questioned about matters he refuses to
answer ‘is as meaningless as attempting to gain information as to
the truth of the unknown facts from his responses.’” (Id. at
p. 865.)
Unlike the two witnesses in Rios, Jones answered some of
the prosecutor’s questions, and his responses were favorable to
Williams. Jones testified that Williams was innocent; Jones was
not afraid of Williams; Williams “didn’t do nothing”; Williams did
not bring him to Brice’s house; Williams did not give him the gun;
Williams did not tell him to shoot; and Jones did not know
Marvin. Jones concluded, “I went over there on my own. Nobody
told me to do nothing.”
Homick is directly on point. There, the prosecutor called
the defendant’s confederate as a witness after the confederate
pleaded guilty as an accomplice to the two murders for which
defendant was on trial. (Homick, supra, 55 Cal.4th at pp. 856-
857.) The confederate unexpectedly testified he “‘was physically
forced into’” making his prior statements to police admitting his
participation in the murders, and his guilty plea was based on
“‘lies.’” (Id. at p. 857.) Over the defendant’s objection, the trial

15
court permitted the prosecutor to impeach the confederate with
his testimony at the preliminary hearings and his statement to
police. (Ibid.) During the prosecutor’s continued examination,
the confederate “claimed forgetfulness” and refused to answer
most questions other than to assert he had been coerced to make
his prior statements, he had been forced to take polygraph
examinations to get him to answer questions favorable to the
prosecution (despite the court’s admonition not to mention
polygraph tests), and he had previously simply repeated what
police, prosecutors, and his former attorney told him to say. (Id.
at pp. 857-858.) On cross-examination, the confederate
“continued his disruptive pattern of interjecting irrelevancies,
referring to polygraph tests, claiming lack of memory, sitting
mute, and once in a while providing a responsive answer.” (Id. at
p. 858.)
The Supreme Court rejected the defendant’s argument that
the confederate’s refusal to answer questions during cross-
examination violated the defendant’s confrontation rights,
observing the confederate testified at length at trial and was
subjected to a lengthy cross-examination, even though he refused
to answer defense counsel’s questions. (Homick, supra,
55 Cal.4th at p. 861.) Further, the confederate was called as a
witness by the prosecution, and “to the extent that his behavior
on the stand reflected poorly on his credibility, it benefitted
defendant.” (Ibid.) Similar to Homick, while Jones’s refusal to
answer questions on cross-examination “‘narrowed the practical
scope of cross-examination,’” the jury had the opportunity to
assess his demeanor and decide whether Jones’s earlier
statements implicating Williams were credible. (Ibid; accord,
People v. Rodriguez, supra, 58 Cal.4th at p. 632-633 [although the

16
witness’s “claim of total lack of recall limited defendant’s ability
to cross-examine her about her prior statements” to law
enforcement, “her presence at trial as a testifying witness gave
the jury the opportunity to assess her demeanor and whether any
credibility should be given to her testimony or her prior
statements”]; Perez, supra, 82 Cal.App.4th at p. 766 [“Even
though [the witness] professed total inability to recall the crime
or her statements to police, and this narrowed the practical scope
of cross-examination, her presence at trial as a testifying witness
gave the jury the opportunity to assess her demeanor and
whether any credibility should be given to her testimony or her
prior statements.”].)
Admittedly, Williams was unable to cross-examine Jones
about his possible bias, unlike Perez, supra, 82 Cal.App.4th at
page 766, in which the witness answered questions relating to
her possible bias (denying she had a romantic interest in the
officer to whom she made statements identifying the defendants
and the vehicle used in the murder). (See People v. Pearson
(2013) 56 Cal.4th 393, 455 [“‘As a general matter, a defendant is
entitled to explore whether a witness has been offered any
inducements or expects any benefits for his or her testimony, as
such evidence is suggestive of bias.’”]; People v. Brown (2003)
31 Cal.4th 518, 544 (Brown) [same].) On cross-examination,
Jones refused to answer seven questions posed by defense
counsel, including whether he was charged in the same case as
Williams, whether he had pleaded guilty to assault with a gun;
whether he faced a long prison sentence before he pleaded; and
whether the police told Jones he would benefit from cooperation.
Although Jones refused to answer these questions, the jury
learned the answers from the trial court, which advised the jury

17
that Jones was charged in the same case as Williams with
attempted willful, deliberate, and premeditated murder, shooting
at an inhabited dwelling, and three counts of assault with a
firearm but he pleaded no contest to assault with a firearm.
Further, Jones testified he “just took eight years.” In her closing
argument, defense counsel argued, “Jones got eight years on a
serious case”; during Jones’s interview, the police made “subtle
promises” that the district attorney would take “everything into
consideration”; the police made “threats,” including telling Jones
twice that “he’s looking at 25 to 30 years” and Jones will “never
be able to hug [his kids] again”; and the police threats were
“effective” because Jones told a “story which actually couldn’t
have happened.”11 Williams therefore was able to present
evidence showing possible bias and to argue that Jones’s prior
statements to detectives were not credible.12 On this record, the

11 Defense counsel argued Jones’s version of the events could
not have happened because it would mean every defense witness
was lying, Jones’s statement that he and Williams arrived
together at Pugh and Hunt’s house was inconsistent with the
video footage, and it would not make sense for Williams to try to
address Neveah’s problem at school by planning with Jones to
shoot Pugh, because Williams had never met Pugh before.
12 The principal question on which no information was
provided was whether the police turned off the tape recorder
during Jones’s interview, at which time Jones told the detectives
“about other crimes.” But Williams did not present any evidence
to suggest the tape recorder was turned off and back on during
the interview. Jones also did not respond as to whether he had a
prior conviction of robbery, but Williams’s attorney did not
attempt to impeach Jones with evidence of a prior conviction.

18
admission of Jones’s statements to the detectives did not violate
Williams’s confrontation rights.

B. The Trial Court Did Not Abuse Its Discretion in Admitting
Evidence of Williams’s Gang Membership
1. Trial court proceedings
Prior to Jones’s testimony, defense counsel sought to
exclude any reference to Williams’s gang membership, arguing
there was no gang allegation and the gang evidence was highly
inflammatory and prejudicial. Defense counsel alternatively
requested the court sanitize the evidence to admit statements
that Jones feared Williams because of his reputation but exclude
any mention of Williams’s gang affiliation. The prosecutor
argued the gang evidence was relevant to explain why Jones was
scared of Williams in light of Jones’s belief that Williams, as a
high-ranking gang member, “has the ability and means to do
things to [him].”
The trial court found evidence of Williams’s gang
membership was admissible. The court explained, “[I]t would go
to Mr. Jones’s credibility whether he testifies favorably for the
People in which case they may claim that his credibility is
bolstered by the fact that . . . he gave this only in the face of the
potential danger to himself. If he testifies favorably for the
defendant, certainly there may be the argument that he is doing
that because he is afraid of Mr. Williams. . . . It’s a very different
thing to just be fearful of someone . . . because . . . maybe they
have some sort of financial hold over you or because they are your
older sibling or . . . your neighbor and you don’t want to have a
problem with your neighbor, that kind of thing. That’s very
different from being afraid of someone who is a gang member,

19
particularly if that person is fairly high up in the hierarchy,
which it sounds like Mr. Jones is indicating Mr. Williams is.
That carries a different level of fear and a different level of
consequences. So I do believe that would be properly admitted in
terms of Mr. Jones’s credibility and that the jury may consider it
for that purpose. But also I think it goes to the issue of
Mr. Williams’[s] culpability as an aider and abettor. If the jury
believes that he did make this statement [to blow Pugh’s “head
off”], then the jury has to consider whether that and his action in
conjunction with that renders him guilty as an aider and abettor.
And I think it is certainly proper for the jury to consider whether
someone making this statement is someone who is in a position to
give an order that he would expect to have followed out as
opposed to just someone . . . talking or blowing off steam or
whatever.”

2. Governing law
“‘Relevant evidence is evidence “having any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.”’” (People v.
Hardy (2018) 5 Cal.5th 56, 87 (Hardy); accord, People v. Daveggio
and Michaud (2018) 4 Cal.5th 790, 822.) “The People are
generally entitled to introduce evidence of a defendant’s gang
affiliation and activity if it is relevant to the charged offense.”
(People v. Chhoun (2021) 11 Cal.5th 1, 31; accord, People v.
McKinnon (2011) 52 Cal.4th 610, 655 (McKinnon).) However, in
cases not involving a gang allegation, “‘evidence of gang
membership is potentially prejudicial and should not be admitted
if its probative value is minimal.’” (People v. Hernandez (2004)
33 Cal.4th 1040, 1049; accord, People v. Becerrada (2017)

20
2 Cal.5th 1099, 1022.) Further, “‘courts should carefully
scrutinize evidence of a defendant’s gang membership because
such evidence “creates a risk the jury will improperly infer the
defendant has a criminal disposition and is therefore guilty of the
offense charged.”’” (Chhoun, at p. 31; accord, People v. Melendez
(2016) 2 Cal.5th 1, 28-29.)
“‘Evidence that a witness is afraid to testify or fears
retaliation for testifying is relevant to the credibility of that
witness and is therefore admissible.’” (People v. Flinner (2020)
10 Cal.5th 686, 724; accord, People v. Mendoza (2011)
52 Cal.4th 1056, 1084; People v. Burgener (2003) 29 Cal.4th 833,
869.) “An explanation of the basis of the witness’s fear is likewise
relevant to [his or] her credibility and is well within the
discretion of the trial court.” (Burgener, at p. 869; accord, People
v. Merriman (2014) 60 Cal.4th 1, 86.)
“‘The court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.’ (Evid. Code, § 352.)”
(Hardy, supra, 5 Cal.5th at p. 87; accord, People v. Bell (2019)
7 Cal.5th 70, 105.) “‘[T]he 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 tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on

21
the issues.”’” (People v. Jones (2017) 3 Cal.5th 583, 610; accord,
Bell, at p. 105 [“‘“Evidence is not prejudicial, as that term is used
in [an Evidence Code] section 352 context, merely because it
undermines the opponent’s position or shores up that of the
proponent.”’”].)
“On appeal, we review for abuse of discretion a trial court’s
ruling on whether the evidence is relevant, not unduly
prejudicial, and thus admissible.” (McKinnon, supra,
52 Cal.4th at p. 655 [trial court did not abuse its discretion in
admitting gang evidence to show defendant’s motive for shooting
victim was to retaliate for murder committed by rival gang];
accord, Brown, supra, 31 Cal.4th at p. 547 [trial court did not
abuse its discretion in admitting evidence that defendant took an
oath on his gang when he shot the victim, which showed his
statement that he shot the victim was truthful and not “mere
bravado”].) “‘[T]he trial court is vested with wide discretion in
determining relevance and in weighing the prejudicial effect of
proffered evidence against its probative value. Its rulings will
not be overturned on appeal absent an abuse of that discretion.’”
(Hardy, supra, 5 Cal.5th at p. 87; accord, People v. Bell, supra,
7 Cal.5th at p. 105.)

3. The prejudicial effect of Williams’s gang membership
did not substantially outweigh its probative value
Williams contends evidence he was a high-ranking member
of the 8-Trey Hoover gang was not relevant to any disputed fact
and was highly prejudicial because there was no gang allegation.
The trial court did not abuse its discretion.
Evidence that Williams was a high-ranking gang member,
causing Jones to fear him, explained why Jones shot Pugh at

22
Williams’s instigation, even though Jones did not have a personal
dispute with Pugh. In addition, Williams’s status in the gang
helped explain why at trial Jones denied Williams had any
involvement in the shooting, contradicting his prior statements to
detectives. Thus, although the gang evidence was prejudicial, its
probative value was far from “‘minimal.’” (People v. Becerrada,
supra, 2 Cal.5th at p. 1022; People v. Hernandez, supra,
33 Cal.4th at p. 1049.) In light of the importance of the gang
evidence to explain the shooting and Jones’s credibility in
claiming Williams was innocent, the trial court did not abuse its
discretion in determining the gang evidence’s probative value
substantially outweighed its prejudicial effect even in the absence
of a gang allegation. (See McKinnon, supra, 52 Cal.4th at p. 655;
Brown, supra, 31 Cal.4th at p. 547.)

C. The Trial Court Did Not Abuse Its Discretion in Denying
Williams’s Motion for New Trial
1. Proceedings below
Following the verdicts, Williams moved for a new trial
under section 1181, subdivision (8), based on newly discovered
exculpatory evidence. In support of his motion, Williams
submitted a handwritten letter Jones wrote to defense counsel a
week after the trial ended and a report from a defense
investigator based on an interview with Jones three months
later.
In his March 13, 2020 letter to defense counsel, Jones
stated he had lied to detectives about Williams’s involvement in
the shooting. Jones wrote he had acquired the gun a week before
the incident for protection, and neither Williams nor anyone else
knew Jones carried a gun. Jones “lied out of fear” of facing a life

23
sentence when he told detectives that Williams gave him a gun
and wanted him “to shoot if anyone moved wrong.” After
Williams told Pugh, “‘I don’t give a fuck about your gun,’” it was
Jones who warned Pugh that Jones would “‘blow his fucking head
off.” Jones wrote, “[Williams] never said that (I swear). I lied
because the detectives kept leading me to say that he said it.”
According to the report prepared by a defense investigator, Jones
reiterated in an interview that Williams was innocent. Williams
did not know about Jones’s gun or instruct him to shoot Pugh,
and Jones was the person who said, “I’ll blow your fucking head
off.” The detectives wrote on a white board the responses they
wanted to hear from Jones, and they told Jones to say he was
afraid of Williams.
The trial court denied Williams’s motion for new trial. The
court stated, “I don’t believe that there is anything that is terribly
new in [the material], and the material that is included does not
appear to the court that there would likely be a different result
based on the new—well, based upon the information that’s in the
defense moving papers.”

2. The trial court did not abuse its discretion in denying
Williams’s new trial motion
Section 1181, subdivision (8), authorizes the trial court to
grant a new trial “[w]hen new evidence is discovered material to
the defendant, and which he could not, with reasonable diligence,
have discovered and produced at the trial.” On a motion for new
trial based on newly discovered evidence, the trial court properly
considers the following factors: (1) the evidence (not just its
materiality) is newly discovered; (2) the evidence is not
cumulative; (3) the evidence would have rendered a different

24
result probable on retrial; (4) the moving party could not with
reasonable diligence have discovered and produced the evidence
at trial; and (5) the new facts are shown by the best admissible
evidence. (People v. O’Malley (2016) 62 Cal.4th 944, 1016-1017;
People v. Howard (2010) 51 Cal.4th 15, 43.)
“‘“[T]he trial court has broad discretion in ruling on a new
trial motion . . . ,’ and its ‘ruling will be disturbed only for clear
abuse of that discretion.’ [Citation.] In addition, ‘[w]e accept the
trial court’s credibility determinations and findings on questions
of historical fact if supported by substantial evidence.’” (People v.
O’Malley, supra, 62 Cal.4th at p. 1016; People v. Howard, supra,
51 Cal.4th at pp. 42-43 [“‘“‘The determination of a motion for a
new trial rests so completely within the court’s discretion that its
action will not be disturbed unless a manifest and unmistakable
abuse of discretion clearly appears.’”’”].)
As a threshold matter, Williams did not comply with the
statutory requirement for a new trial motion by producing an
affidavit from Jones. Section 1181, subdivision (8), provides,
“When a motion for a new trial is made upon the ground of newly
discovered evidence, the defendant must produce at the hearing,
in support thereof, the affidavits of the witnesses by whom such
evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the
hearing of the motion for such length of time as, under all
circumstances of the case, may seem reasonable.” Williams did
not present an affidavit or request additional time to obtain one.
Moreover, substantial evidence supports the trial court’s
finding there was nothing “terribly new” in the evidence and it
was not probable the evidence could be used to achieve a more
favorable result at a new trial. Jones testified at trial that

25
Williams was innocent, Williams did not give Jones the gun,
Williams did not instruct Jones to shoot, and “[n]obody told
[Jones] to do nothing.” The only new statement from Jones was
that the detectives told Jones what they wanted him to say,
including that he was afraid of Williams. But in the absence of
an affidavit from Jones or any other indicia of the truthfulness of
this new statement, the trial court did not abuse its discretion in
concluding this information would not have made a different
result probable on retrial. (See People v. Beeler (1995) 9 Cal.4th
953, 1005 [denial of motion for new trial was not abuse of
discretion where “[d]efendant did not produce a single affidavit
by any witness who could have presented credible evidence of his
alleged organic brain damage”]; see also People v. Ethridge (1962)
204 Cal.App.2d 279, 283 [affidavit from defendant’s attorney did
not provide “sufficient legal basis for a new trial on the ground of
newly discovered evidence, and the court would have been
justified in denying the motion”].)

DISPOSITION

The judgment is affirmed.

FEUER, J.

We concur:

PERLUSS, P. J. SEGAL, J.

26