People v. Scott CA2/8

Filed 3/2/22 P. v. Scott CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B301478
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. BA448436-01–03)

MARQUS SCOTT et al.,
Defendants and Appellants.

APPEAL from judgments of the Superior Court of Los
Angeles County, Lisa B. Lench, Judge. Affirmed in part, vacated
in part, and remanded for further proceedings.
Allen G. Weinberg, under appointment by the Court of
Appeal, for Defendant and Appellant Marqus Scott.
Deborah L. Hawkins, under appointment by the Court of
Appeal, for Defendant and Appellant William Saulsberry.
Emry J. Allen, under appointment by the Court of Appeal,
for Defendant and Appellant Wesley Saulsberry.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
_______________________
 Marqus Scott, William Saulsberry, and Wesley Saulsberry
were convicted of various crimes arising out of incidents in 2015
and 2016.1 William and Scott were tried together; Wesley was
tried separately. All three appeal on multiple grounds. We
conclude that recent amendments to Penal Code2 section 186.22
require us to vacate the gang enhancement findings (§ 186.22,
subds. (b)(1)(A) and (b)(1)(C)); the gang-related special
circumstance findings (§ 190.2, subd. (a)(22)); and the firearms
enhancement findings under section 12022.53, subdivision (e)(1).
We remand these issues to the trial court for retrial. In all other
respects, the judgments are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
I. Charges in the Second Amended Information
Each defendant was charged with felonies committed
individually and with another defendant. The second amended
information contained 14 counts. There was no count 3.
In count 1, William and Scott were charged with the
murder of Bradford Smith (§ 187, subd. (a)) with the special
circumstance that the murder was intentional and perpetrated by
means of discharging a firearm from a motor vehicle at another
person outside the vehicle with the intent to cause death (§ 190.2,
subd. (a)(21).3 Gang and firearm allegations were also alleged.

1 Because brothers William and Wesley Saulsberry share a
surname, we will refer to them by their first names for clarity.
2 All further statutory references are to the Penal Code
unless otherwise indicated.
3 In this section, we omit reference to the gang and firearm
allegations and special circumstances which must be vacated as
they are fully discussed in Section X, below.

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 Count 2 charged William and Scott with the attempted
murder of Trannisha Bay (§§ 664/187, subd. (a)), also with
firearm and gang enhancement allegations.
In Count 4, William and Wesley were charged with the
murder of Eugene Foxworth, again with gang enhancement
allegations. As to both William and Wesley, it was alleged that
the murder was committed during a robbery. (§ 190.2, subd.
(a)(17(A))). Firearm allegations were charged as to Wesley.
As to William, additional special circumstances were
alleged, to wit, that the murder was intentional and perpetrated
by means of discharging a firearm from a motor vehicle at
another person outside the vehicle with the intent to cause death
and multiple murders (§ 190.2, subds. (a)(21), (a)(3)). Gang
special circumstances and firearm allegations were also charged.
Counts 5, 8, 13, and 14 charged William with possession of
a firearm by a felon (§ 29800, subd. (a)(1)) with gang allegations.
Counts 6 and 7 charged William with the attempted
murder and second degree robbery of Andre Prince with gang and
firearm allegations.
Counts 9 and 12 charged Scott with unlawful firearm
activity (§ 29820, subd. (b)) and gang allegations.
Counts 10 and 11 charged William with the second degree
robberies of Andre Berto and Benjamin Yang, both with gang and
firearm allegations.
In count 15, Wesley was charged with the second degree
robbery of Foxworth, again with gang and firearm enhancement
allegations.
In sum, Scott was charged with the murder of Bradford
Smith; the attempted murder of Tanisha Bay; and unlawful
firearm activity. William was charged with the murder of

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Bradford Smith; the attempted murder of Tanisha Bay; the
murder and robbery of Eugene Foxworth; the attempted murder
and robbery of Andre Prince; the robberies of Andre Berto and
Benjamin Yang; and possession of a firearm by a felon. Wesley
was charged with the murder and robbery of Eugene Foxworth.
Both William and Scott were alleged to be subject to the
enhanced sentencing provisions of the “Three Strikes” law
(§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)) because they had
prior serious and/or violent crime convictions; and, in William’s
case, also because he was alleged to have used or been armed
with a firearm, or to have intended to cause great bodily injury in
the commission of the charged offenses. William was also alleged
to have multiple prior convictions of serious felonies and prior
convictions and prison terms for the purposes of sections 667,
subdivision (a)(1) and 667.5, subdivision (b). Finally, it was
alleged as to counts 1, 2, 6, 7, 8, 10, 11, 13, and 14 that William
was released from custody on bail or on his own recognizance at
the time he committed the charged crimes (§ 12022.1).
All defendants were tried by jury. The People elected not to
seek the death penalty.

II. Wesley’s Trial
At Wesley’s request, and without opposition by the People,
Wesley was tried separately, and his trial took place first. The
two charges against Wesley arose from a single incident involving
Wesley, William, and the victim, Eugene Foxworth.

A. Evidence at Trial
On August 18, 2015, Junior Davis and his friend Foxworth
were at a casino when Davis received a text message from Miguel
Mitchell, whom he knew as “V.” Davis had previously acted as a

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middleman for Mitchell’s drug transactions. Mitchell texted
Davis that he (Mitchell) knew someone who wanted to sell
oxycodone pills. Davis told Foxworth about the pills, and
Foxworth wanted to buy them.
Davis and Mitchell agreed the deal would take place in the
casino parking lot. Foxworth left the casino and returned with
cash for the transaction. Mitchell arrived and told Davis his
friends with the pills were at a nearby shopping plaza. Foxworth
drove his Jaguar to the shopping plaza, and Davis rode with
Mitchell in Mitchell’s car. Due to a police presence in the plaza,
the location for the transaction was changed to a gas station.
Foxworth and Mitchell arrived at the gas station in their
respective vehicles, followed by a black Prius. Surveillance video
showed the three cars arriving. Mitchell told Davis the two men
in the Prius had the pills, and Davis told Mitchell to go get the
pills from them so Davis could bring them to Foxworth. Mitchell
spoke to the men in the Prius but returned empty-handed,
reporting the men did not trust him with the drugs.
As reflected on the surveillance video, Davis approached
the Prius himself. He could see Wesley in the driver’s seat and
William in the rear seat. Davis urged the men to complete the
transaction quickly, and William asked Davis if he had the
money. Davis said he did not, and William said he wanted to
speak with the man with the money.
Davis returned to Foxworth and suggested they leave
because the men were playing games. Instead, Foxworth put his
money in the large pockets of his pants, walked to the Prius with
Davis, and told Davis to watch out for police. Foxworth walked
around the car and got in the backseat with William.

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 Davis was watching for police when he heard Foxworth
yell, “Are you guys gonna rob me?” Davis looked toward the
Prius and saw Wesley struggling with Foxworth over the money.
Foxworth punched Wesley as Wesley tried to grab the cash.
Foxworth tried to exit the car but Wesley pulled him back.
Surveillance video showed Foxworth being pulled back into the
car.
Foxworth managed to extricate himself at least partially
from the car as Wesley grabbed at him. Foxworth put his hands
in the air and then William shot him. Foxworth took a few steps,
told Davis he had been shot, and collapsed. Foxworth died from a
gunshot wound to his abdomen.
Mitchell called Davis an hour later and told Davis the men
from the Prius wanted to talk with him. Fearing the men would
kill him because he had witnessed the shooting, Davis said he
was leaving town.
Three days later, on August 21, 2015, Davis heard noise
outside his apartment early in the morning. He looked through
the peephole and saw Mitchell and two other men. Davis
believed the men were Wesley and William, but he could not see
them plainly. The men left when neighbors came out of their
apartments.
That day, Davis went to the police and told Detective
Gabriel De La Torre and Detective Kevin Lane what he had
observed. He identified Mitchell from a photographic lineup.
Approximately one month later, De La Torre learned that
William and Wesley might have been involved in the Foxworth
shooting. Lane assembled three photographic lineups. One
contained Wesley’s photograph, and another contained William’s
photograph.

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 De La Torre and Lane showed the photographic lineups to
Davis on September 29, 2015. Davis quickly identified William
as the shooter but was unable to positively identify anyone from
the other two lineups. When looking at the lineup that contained
Wesley’s photograph, Davis tentatively pointed to another
photograph and said that the person in that photograph looked
similar to the driver. This interview was recorded, but the
recording was subsequently lost.
At the preliminary hearing in April 2017, Davis identified
Wesley as the driver of the Prius and William as the shooter.
Davis was afraid to identify William and Wesley because Mitchell
had told him they were gang members.
At trial, Davis testified that the photographs of Wesley and
the other person both looked like the driver. The other man
Davis was looking at had died before the Foxworth shooting.
Shortly before Davis was subpoenaed to testify at trial, he
received two threatening text messages that increased his fear.
The parties stipulated that neither William nor Wesley had any
involvement in the texts, and the jury was so advised. The jury
was also advised that the texts could only be considered insofar
as they impacted Davis’s credibility.
DNA recovered from Foxworth’s fingernails contained a
mixture of his DNA with that of another person. Laboratory
testing ruled out William as the contributor of the other DNA but
did not exclude Wesley. A criminalist testified that only one in
5.5 trillion people would have a DNA profile that could not be
excluded as the source of that contribution.

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 In October 2015, police recovered a cell phone that William
tossed away as he was being pursued by police for an unrelated
offense. Another phone was recovered from the seat in which
William had been sitting when police arrested him in March
2016. Both cell phones used the same telephone number. Cell
tower records showed a phone with that telephone number was in
the approximate area of the shooting at the time it occurred.
Wesley rested without presenting evidence.

B. Verdict and Sentence
Wesley was found guilty of the second degree robbery and
the first degree murder of Foxworth (counts 4 and 15). The jury
found true the special circumstance that the murder was
committed while Wesley was engaged in committing a robbery
(§ 190.2, subd. (a)(17)(A)).
The trial court sentenced Wesley to life imprisonment
without the possibility of parole for the murder of Foxworth. For
the robbery, Wesley was sentenced to three years in prison,
consecutive to the sentence for the murder. (We again defer
discussion of the gang and firearm allegations, findings, and
sentences to Section X.) Wesley appeals.

III. Scott and William’s Trial
Scott moved to bifurcate his trial from William’s, to seat a
second jury to try only the crimes associated with him, or to have
a single jury decide the charges involving both defendants before
the charges against William alone. The court denied the motion
without prejudice.
Prior to trial, Scott moved to exclude evidence of videos on
his phone depicting him rapping about a shooting. The court
denied the motion.

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 A. Prosecution Evidence
1. Shooting of Foxworth (William only)
The evidence presented by the People at Scott and
William’s trial tracked the evidence presented at Wesley’ trial.
As set out above, at the end of the scuffle between Wesley
and Foxworth, Davis saw Foxworth outside the Prius with his
hands up in the air. Moments later, William shot Foxworth.
Foxworth died from a gunshot wound to the abdomen.
In October 2015, William tossed away a cell phone while
being chased by police. The phone contained photographs of
William, including one showing him in possession of a Glock
handgun. Cell tower records indicated that, at the time of the
Foxworth shooting, this phone had been in the vicinity of the gas
station where Foxworth was shot. The cell tower records for the
phone corresponded with Davis’s testimony about the locations
the Prius had driven at the time.

2. Robbery of Andre Berto (William only)
At approximately 2:45 p.m. on December 9, 2015, Andre
Berto was seated in the driver’s seat of his Rolls Royce in West
Hollywood when a black Infiniti SUV pulled up behind him. A
black man wearing a mask and carrying a Glock handgun exited
the Infiniti and banged on the driver’s side window of Berto’s car.
The man took Berto’s bracelet and Rolex Sky Dweller watch. The
watch was worth between $50,000 and $60,000. The assailant
returned to the SUV and left the area.
Detective Gregg Fischer searched the apartment of
William’s girlfriend, Kristina Pringle, where they found
documents demonstrating the couple’s relationship. The
detective also found numerous cell phones, including one that

9
had selfie photographs of William and photographs of a Rolex Sky
Dweller watch that matched Berto’s watch. The data for the
photograph of the Rolex indicated the photograph had been taken
on December 9, 2015, at 2:54 p.m.
On December 8, 2015, Pringle’s grandmother had rented an
Infiniti SUV for Pringle to drive.

3. Robbery of Ben Yang (William only)
On December 22, 2015, Ben Yang was driving in West
Hollywood. At a red light, a man with a black semiautomatic
handgun approached the passenger side of Yang’s car and
instructed Yang to lower his window. The man was wearing a
hoodie and a bandana, but Yang could see that the man was
Dominican, Puerto Rican, or Black. He could not see the man’s
face.
At the man’s demand, Yang handed over his Audemars
Piguet Royal Oak Chronograph watch in rose gold. The rare
watch, one of only approximately 5,000 worldwide, was worth
approximately $50,000. The man walked away and left in a black
Infiniti SUV with dealer plates. Yang called 911 and followed the
Infiniti, but he discontinued his pursuit when the chase became
too dangerous. Yang stopped pursuing the SUV near the
intersection of Melrose and Doheny.
Anna German was near the Beverly Center at the time of
the robbery. At the intersection of Third Street and San Vicente,
her Ford Explorer was struck by a black SUV. The driver of the
SUV drove away without stopping, but German retrieved the
license plate and holder that fell off the SUV during the collision
and gave them to the police. The license plate belonged to the
Infiniti SUV rented by Pringle’s grandmother for Pringle on
December 8, 2015. Pringle had the Infiniti on December 22,

10
2015. After being reported stolen, the Infiniti was recovered the
following day, December 23, 2015.
Information from a cell phone connected to William and
recovered from Pringle’s apartment demonstrated the phone had
been used in an attempt to sell Yang’s watch the day after the
robbery. A video on the phone showed a watch that looked to
Yang like his watch, and there were probably less than 20 of
those watches in California. Texts on the phone specifically
mentioned Yang’s nickname and encouraged a potential buyer to
look on social media. The potential buyer asked the seller to send
a photograph of the watch, and the seller responded he had done
so. Negotiations fell through because the potential buyer and
seller could not agree on a price. The potential buyer’s name was
then removed from the phone’s list of contacts.

4. Possession of a Firearm (Scott only)
On February 1, 2016, police officers spotted three men in a
vehicle that had been reported stolen. Scott was in the driver’s
seat. Officers found a loaded, unregistered Glock semiautomatic
handgun inside an empty pizza box in the car. The gun was
within reach of the driver’s seat. Scott was wearing an empty
holster that would accommodate the handgun. Neither of the
other men in the vehicle possessed items connecting them to the
gun.

5. Robbery and Attempted Murder of Andre
Prince (William only)
Andre Prince was driving his Rolls Royce with bullet-
resistant windows on February 14, 2016, when a black minivan
pulled in front of him. A man with a handgun jumped out and
banged on the window of Prince’s car, demanding that Prince

11
open the door and hand over his “stuff.” When Prince did not
comply, the man fired into the glass, then used the butt end of
the revolver to smash the window. Prince opened the door and
grabbed the handgun. He struggled with the gunman and
sustained a gunshot wound to his hand, ultimately falling to the
ground. At that point, a second gunman fired multiple rounds at
Prince, striking him in the legs and stomach. Prince sustained
seven gunshot wounds. The two men took money and necklaces
from Prince before leaving the scene.
Officer Lesley Perkins was conducting a traffic stop when a
person in a car stopped to tell her there had been a shooting. A
few seconds later, Perkins observed a black minivan with the
license plate 7MWE179 traveling at high rate of speed. Perkins
locked eyes with the driver as the minivan approached 25 to 30
feet away from her. Perkins saw that William was driving the
minivan. She read out the license plate number for the minivan
so she could remember it and so it would be recorded on her
patrol car’s audio system. Perkins pursued the minivan but lost
track of it. The minivan had been rented by Pringle on February
2, 2016.
Perkins proceeded to the location of the shooting, where she
observed Prince’s Rolls Royce parked at a strange angle with the
driver’s side door open. She saw gold jewelry, a wallet, and a cell
phone on the ground near the car. Neither the wallet nor the
phone belonged to Prince. The cell phone recovered at the scene
contained selfie photographs of William.
The wallet contained identification for Naypone Gaines,
whom Perkins soon learned had arrived at a local hospital with a
gunshot wound. Scott had taken Gaines to the hospital. Perkins
notified the hospital that Gaines was a suspect, not a victim.

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 On March 10, 2016, Perkins identified William from a
photographic lineup as the minivan driver.

6. Murder of Bradford Smith (William and
Scott)
On March 6, 2016, at William’s request, Andre McCoy went
with Pringle to a rental car office and rented a four-door Dodge
Ram pickup truck. McCoy drove the rented truck to his home,
and Pringle drove McCoy’s car back for him. McCoy gave
William the keys to the truck.
On March 14, 2016, William drove the Dodge truck to
McCoy’s home with Scott as his passenger. William gave McCoy
money to extend the truck rental, which McCoy then did.
William left McCoy’s house at approximately noon.
That evening at about 6:45 p.m., Trannisha Bay sat in her
parked car on Adams Boulevard while Bradford Smith worked on
the engine. Smith was a member of the Rolling 20’s gang, Bay
was a member of a different Blood gang called the Van Ness
Gangsters, and they were in an area claimed as Rolling 20’s
territory. Smith was wearing a black “T” Texas Rangers hat, a t-
shirt, and jeans. Texas Rangers hats were commonly worn by
Rolling 20’s gang members.
Bay heard gunshots coming from the street, glanced up,
saw a truck, and dove into the backseat of her car. She heard
overlapping gunshots and rapid fire, leading her to believe there
were multiple shooters. Bay did not know if the shooters fired
from the car or left the car to fire, but she did not recall hearing
car doors open or close. At least nine rounds were fired. Smith
was shot in the head and died at the scene.

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 Monica Velasquez was walking on Adams Boulevard at
about 6:45 p.m. when she heard at least six shots fired in rapid
succession, then saw a four-door Dodge Ram driving quickly
away. It was the only car in the area when the shots were fired.
Velasquez saw three Black men in the truck. The passengers
wore masks, but the driver did not. She did not hear the truck’s
doors open or close. Velasquez called 911 and reported the
suspects drove away in a Ram truck.
Although no surveillance cameras recorded the shooting
itself, they captured images of a four-door Dodge Ram with a
paper license plate driving in the area around the time of the
shooting. Just before the shooting the Ram was headed west on
Adams; it then made a U-turn and drove toward the area where
Smith was shot. Then, immediately after the shooting, the Ram
turned onto Dalton Avenue and sped away. Velasquez identified
the Ram in the footage as the truck she had seen. McCoy also
identified the Ram in the footage as looking like the one he had
rented for William.
According to cell tower activity records, phones connected
to Scott and William were near each other and in the area of the
Smith shooting just prior to the shooting at 6:45 p.m. Both
phones used cell towers east of the shooting site prior to the
shooting, south of the location after the shooting, and then in
Inglewood before ending up using cell towers in Orange County
that night.
The internet search history on Scott’s phone included a
search from the day after the shooting for “man shot in the head
Adams.” A screenshot of an article about the Smith shooting was
saved on the phone. Notes from two days before the shooting
referred to catching Blood gang members not paying attention in

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their neighborhood. Additionally, the phone contained videos of
Scott rapping the day after the Smith shooting. Scott rapped,
“Fuck a stain on bullet gang, and T hats. [¶] I whack those every
time I see that. [¶] Bullet gang, you ain’t want know feedback. [¶]
I hop out in broad day, I did that. [¶] Hitman with the gun play,
you know that. [¶] I said Adams, double back, and deuce that. [¶]
Deuce eight, fuck a stain on bullet gang. [¶] Only thing I know, I
want his brain.” The “double back” reference was significant
because when the video was shot, it was not known to the police
or the public that the Ram had made a U-turn before the
shooting.
William’s phone contained video of Scott and Kent Gabb
together the day after the shooting; Gabb was holding a revolver
that looked like the same weapon Gabb had been holding in a
video shot the day before Smith was killed. William’s phone also
contained video showing William, Scott, and Gabb inside a Dodge
Ram one day before the Smith shooting.
More than a year after the Smith shooting, Gabb was
placed in a jail cell with an undercover informant and concealed
recording devices. Gabb told the informant the detectives wanted
to question him about a shooting. Gabb said the only people who
knew about the shooting were the “young homie” and the “big
homie,”4 and they were already in jail. He referred to the “young
homie” as Marqus, and said the big homie was on parole.
Gabb told the informant he had seen both the young homie
and the big homie when they were placed in the same holding cell
at court. There, the big homie showed Gabb the police reports

4 At the time of the Smith killing, William was 26 years old
and Scott was 19 years old.

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relating to the case.5 Gabb saw in the documents that the police
knew three men were involved but had only identified the other
two men, not himself: “They didn’t have me on nothing.” Gabb
reported the detectives knew a rented car had been used and
were in possession of cell tower information, but he knew the cell
tower information would not place him at the scene of the crime
because he did not have a phone that day. “I didn’t have no
phone and couldn’t nobody else identify me,” Gabb said. Gabb
agreed with the informant that his fingerprints could be inside
the rental car, but the two men agreed the presence of
fingerprints did not prove anything. Gabb said they had used a
revolver and the police did not have shell casings.
Gabb told the informant that according to the paperwork, a
female witness in the car at the time of the shooting did not see
him. The report said there were three Black males, one was
driving and two “hopped out.” Gabb confirmed he and the little
homie had jumped out of the car, but he was confident no one had
seen their faces because they were wearing masks. Gabb
questioned how the witness could know they were three Black
males if they were all wearing hoodies, masks, and gloves. He
said the witness would not have seen who the driver was because
the vehicle’s windows were tinted. Gabb and the informant

5 Gabb, Scott, and William were all in the same courthouse
on July 21, 2016. William was representing himself at that time,
and he had received police reports on July 20, 2016, that listed
William, Scott, and an unidentified man as suspects in the Smith
shooting. The reports referred to cell tower activity and to the
use of a rental vehicle, but they did not mention the type of guns
used or the absence of shell casings.

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agreed the only problem was that the others were “caught in that
ride.”
The informant asked if the witness, the girlfriend of the
person they “smoked,” was a member of a gang, and Gabb said
she was from “V.N.” The informant asked why they had failed to
“pop” her, and Gabb answered that he had not known she was in
the car.
Gabb told the informant that no one followed them after
the shooting. They drove to the territory of the Eight Treys and
disposed of the “blowers” and a shell casing before dropping Gabb
off at home. A few days later, Gabb phoned the big homie, who
mentioned he was going to go see his “P.O.” at the “P.O. office.”
Gabb tried to call the other two later, but their phones were
turned off. He learned from someone else that they were in jail.
They had been arrested, along with the big homie’s girlfriend,
when the big homie went to see his parole officer. They were
caught in the same car that had been used in the shooting. “They
go to jail with two guns, like, a pound of weed.” Those were not
the guns used in the shooting, though. Gabb said the revolvers
used in the shooting, an eight-shot revolver and a five-shot
revolver, were “gone”; he had given the eight-shot revolver to his
uncle.
Gabb was taken to an interview room where detectives
showed him photographs and a report indicating that his
fingerprints were found on a can of pepper spray found in
William and Scott’s possession. One of the photographs depicted
Gabb with Pringle. When Gabb was returned to the cell, the
informant asked what had happened. Gabb said they were about
to book him for murder and that someone had to be talking to the
police. The police had photographs of the car driving away and

17
photographs of him with the big homie and the big homie’s
girlfriend. Some of the photographs showed Gabb and the homie
with big guns, but not the gun used in the shooting. They also
had a photo of Gabb in the rented truck, with mace spray.

7. William’s Arrest and Firearm Possession
On March 16, 2016, William arrived for an appointment at
his parole office in a Dodge Ram pickup truck. Pringle drove the
truck, William sat in the front passenger seat, and Scott sat in
the back seat. William was arrested when he entered the parole
office.
A detective found a purse on the front passenger floorboard
containing Pringle’s identification, a Galaxy cell phone, and two
loaded stolen .45 caliber handguns. One was a Glock and the
other was an FNP.6 There was a gold iPhone 6 on the front
passenger seat and a white iPhone 5 in the back seat. The phone
found on William’s seat contained a number of selfie photographs
of William. The phone found in the back seat was registered to
Scott. This phone contained selfie videos of Scott rapping that
had been filmed inside a truck on the day after the shooting. The
police also found a radio scanner inside the truck that could be
used to listen to police radio transmissions.

8. Scott’s Arrest and Firearm Possession
Scott was arrested on July 14, 2016. His backpack was
found to contain a loaded firearm.

6 A cell phone found at the scene of the Prince shooting and
linked to William contained a search within the phone’s internet
search history for the same caliber of FNP handgun.

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 B. Defense Evidence
1. Scott
Criminalist and firearms analyst Carole Acosta testified
she had examined Bay’s car. The car had been struck by
10 bullets. With the exception of one shot, all the bullet impact
marks came from the driver’s side of the vehicle toward the
passenger side of the vehicle. Bullet trajectory analysis is not an
exact science. “Roughly speaking,” the analyst takes a rod and
puts it into a hole to see where it goes. This is what Acosta did
when analyzing the trajectories on Bay’s car. In her opinion, the
bullets used in the Smith shooting were most consistent with 9-
millimeter bullets but could have been .357 or .38-caliber bullets.
Crime scene reconstruction expert Bryan Burnett testified
the bullet pathways on Bay’s car were downward, consistent with
shots being fired from inside a vehicle that was a bit higher than
her car. Only one bullet pathway was inconsistent with being
fired from a truck, and Burnett believed it to have been from a
different incident. Burnett testified it was possible that the
firearms were fired by shooters standing outside the truck, but he
believed the shots “probably” came from inside the truck. The
weapons were at approximately the same height as they were
fired. Burnett based his opinion on the narrative report and
diagrams of another criminalist; he had not examined the car or
seen photographs of it from the tow yard. He had a photograph
from the crime scene.
Burnett acknowledged trajectory analysis had a 5 percent
error rate. That error rate can result in a significant difference in
projected trajectory if the bullet was fired from a distance. He
had assumed the vehicle holding the shooters was a Chevy 150
and that it was at a specific location. Burnett did not measure

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the window height of a Dodge Ram with its windows down. He
did not know whether the vehicle used in the shooting had fully
or partially inflated tires. He did not know if the street was
sloped. He lacked certain information about distances that could
make a difference in his assessment.
Forensic expert Ernest Koeberlein testified concerning the
cell tower evidence relevant to the Smith shooting. Koeberlein
testified that a cell phone uses the cell phone tower with the
strongest signal, not necessarily the closest one. Cell tower
mapping does not demonstrate the exact location where a phone
is located within the radius of a cell tower. The last call on
William’s phone prior to the Smith shooting, which came in at
6:38 p.m. and lasted until 6:40 p.m., hit a cell tower located on
Figueroa. Based on his estimation of coverage area, the closest
the phone could have been to the crime scene at that time was
the intersection of Flower and Adams.
A private investigator testified it took him approximately
6 minutes, 30 seconds to drive from the intersection of Flower
and Adams to the scene of the Smith shooting on the same day of
the week and at the same time of day as the shooting.
An automotive placement manager testified that 102 Dodge
Ram 1500 pickup trucks in a monotone silver color were sold by
dealerships between December 1, 2015, and March 15, 2016, in
Los Angeles area zip codes.

2. William
Gang expert Kimi Lent testified that if someone from
another gang was caught in West Boulevard Crips territory, it
would not be expected or mandatory for a West Boulevard Crip
member to take action against that person.

20
 “Bullet gang” in Scott’s rap referred to the West Boulevard
Crips. “I whack those every time I see that” means he strikes out
the other gang’s graffiti. Gang members who rap sometimes rely
on news articles for material for their raps in order to show they
know what they are talking about, as well as for entertainment.
Lent had encountered instances in which gang members took
credit for crimes they had not committed; they did so to make
themselves look more active and “bigger” in the gang than they
actually were.
Lent testified that multiple gangs used Texas Rangers hats
and from Scott’s reference to “T hats” she believed he was
referring to the Eight Treys. For Scott to say “Tramp K” was to
disrespect the Eight Treys. On cross-examination, she
acknowledged that rival gangs are usually located close to each
other, and the Eight Treys’ territory is a “pretty significant
distance” away from that of the West Boulevard Crips. If a
person who was rapping about “T” hats had just shot and killed a
person who was wearing a “T” hat and was a member of the
Rolling 20’s, then the person was probably referring to the
Rolling 20’s.
An eyewitness identification expert testified that
identifications are adversely impacted by the passage of time.
Traumatic stress, something that threatens the life or safety of a
person or people around them, can affect memory. Repeated
identifications can result in a commitment effect, meaning that
once a witness has identified a person, he or she becomes
convinced that person is the culprit even as the original memory
of the incident fades over time; the identified suspect becomes
increasingly familiar and is the fresher face in the witness’s
mind. Witnesses can make mistakes in their identification, and

21
they tend to stick with their identifications even when they are
demonstrably incorrect. Cross-racial identifications are more
difficult and more error-prone. If the witness has had contact
with the suspect before the event, that can result in familiarity,
which allows for accurate identification. The length of time of a
conversation with a suspect before the event can also impact the
accuracy of an identification. If the incident is not traumatic,
observations from a closer distance are more accurate; but if the
incident is traumatic, the closer the proximity, the more
overwhelming the trauma and threat, which is disruptive.
When a person is examining a “pristine” photographic
lineup, meaning it is not suggestive and the person administering
the lineup does not know who the suspect is, a quick, confident
choice tends to be associated with accuracy. If the identification
test is suggestive, then confidence is not related to accuracy at
all. A photographic lineup can be suggestive if the photograph of
the suspect is somehow different than the other photographs in a
way that would draw attention to that photo, or if the person
administering the lineup consciously or unconsciously influences
the person making the identification. It could be suggestive if the
person recalls the suspect having braided hair and only one of the
photographs in the lineup shows a person with braided hair, or if
one photograph differs in size from the others. If a person has
reason to believe the suspect’s photograph is in a lineup, that
“pretty much guarantees” the witness will make an identification
from the lineup.
Lane testified about the different interviews of Davis and
the photographic lineups he was shown, as well as the loss of the
recording from the interview in which Davis identified William.

22
 William testified in his own defense and denied committing
the charged offenses. He acknowledged four prior adult felony
convictions. William testified he had been a West Boulevard Crip
for 14 years and he considered himself an active member. He
testified the gang had committed murders, attempted murders,
robberies, burglaries, and thefts, with a primary focus on
committing crimes that made money.
William admitted being a drug dealer. He admitted Andre
McCoy rented the Dodge Ram truck in 2016 and that he
(William) had possession of it. William had McCoy rent a car for
him before. William liked to have different cars because he did a
lot of business from the car. William admitted having possession
of the black minivan that was described in conjunction with the
robbery and attempted murder of Prince but denied having it at
the time of the Prince incident. Additionally, William testified he
had possession of two different Infinitis. He denied having a
dark Toyota Prius.
William testified that at the time of the Foxworth shooting
he lived near the gas station where the shooting took place. He
had been to that gas station before but was not there on August
18, 2015. He denied having possession of the cell phone that had
been linked to him by the prosecution evidence on the date of the
offense; anyone could have had the phone that day. William used
“a lot of phones” for his work and often allowed others to use
them. William had never met Mitchell. William had never sold
oxycodone.
William denied possessing the phone attributed to him on
the date of the Yang robbery. He testified he did not rob Yang,
but he did have Yang’s watch, knew it was Yang’s, and tried to
sell it the day after the robbery. He and a potential buyer

23
negotiated over the price for the watch; during those negotiations
William said he would have to split the proceeds. That sale fell
through, but William ultimately sold it to a jeweler for $30,000.
William testified he did not take Berto’s Rolex watch. He
acknowledged a photograph of a watch like Berto’s was found in
one of the phones associated with him, and he said he did not
know why it was on the phone. He had never seen the Rolex
watch until coming to court. He admitted his phone contained a
photo depicting himself wearing a Rolex but testified he bought it
from a jeweler.
William testified that at the time of the Smith shooting he
visited his mother daily at her home a few minutes away from
the Smith shooting location. He was at his mother’s on the day of
the shooting in the early afternoon. Later that day William met
with McCoy twice. In the latter meeting, William told McCoy to
extend the Dodge Ram’s rental and gave him money. William
had the Ram at that time. He wanted the rental extended on the
Ram because he was going to a concert that night. According to
William, he and some friends went to a concert the night of the
shooting. William also testified he had given the truck keys to
another person, was picked up by another person, and went to
dinner and then to the concert. He denied he possessed the
phone that tied him to the shooting on the date of the shooting.
William also testified he drove the Ram to the concert.
William denied being present at the Prince robbery and
attempted murder. He denied searching on his phone for an FNP
firearm. William said illegal bear mace was in his car when he
was arrested because Gabb had left it there. He claimed not to
have known Pringle had guns the day of his arrest.

24
 William testified that while he was representing himself
before trial, he had received more than 1,000 pages of discovery
relating to the case. He shared that discovery with Gabb when
they were in jail awaiting court in July 2016. He offered an
alternative reading of Gabb’s statement to implicate a different
person and testified that numerous assertions Gabb made were
not true.

C. Verdicts and Sentences
1. Scott
The jury convicted Scott of the first degree murder of Smith
(count 1), and found true the special circumstance allegations
under section 190.2, subdivisions (a)(21) and (a)(22). The jury
found Scott not guilty of the attempted murder of Bay (count 2).
He was found guilty of both counts of unlawful firearm activity
(counts 9 and 12).
The court sentenced Scott to life imprisonment without the
possibility of parole for the special circumstances murder of
Smith. The court imposed a total of five years four months for
the two unlawful firearms activity counts. Scott appeals.

2. William
The jury found William guilty of murdering Smith (count
1), and further found that the murder was intentional and
committed by discharging a firearm from a motor vehicle.
William was found not guilty of the attempted murder of Bay
(count 2). The jury found William guilty of the first degree
murder of Foxworth (count 4), and found the murder was
committed during the commission of a robbery (§ 190.2, subd.
(a)(17)(A)). William was found guilty of each of the four charges
of possession of a firearm by a felon (counts 5, 8, 13, and 14).

25
 The jury convicted William of the premeditated attempted
murder and robbery of Prince (counts 6 and 7). The jury also
found William guilty of robbing Berto and Yang (counts 10
and 11).
William waived a court trial on the multiple murder special
circumstance allegation, which the court then found to be true.
For the special circumstances murder of Smith (count 1),
the trial court sentenced William to life imprisonment without
the possibility of parole.
For the special circumstances murder of Foxworth in count
4, William was sentenced to a consecutive term of life in prison
without the possibility of parole.
On counts 5, 8, 13, and 14, the court sentenced William to
four consecutive terms of 25 years to life in state prison. The
court stayed the sentences on counts 8 and 14 pursuant to section
654.
For the attempted murder of Prince (count 6), the court
imposed a consecutive sentence of 45 years to life in prison for the
offense. For robbing Prince (count 7), the court sentenced
William to 25 years to life in prison, with a minimum parole
eligibility of 15 years (§ 186.22, subd. (b)(5)). The court stayed the
count 7 sentence pursuant to section 654.
For each of the second degree robberies in counts 10 and
11, William was sentenced to a consecutive term of 25 years to
life in state prison. In reciting the sentences imposed by the trial
court, we have omitted reference to those imposed for gang,
firearm, prior conviction, and strike enhancements.
William appeals.

26
 DISCUSSION
Each appellant separately appeals and attempts to join at
least one other appellant’s arguments on appeal. Joinder is
broadly permitted (see Cal. Rules of Court, rule 8.200(a)(5)), “but
each appellant has the burden of demonstrating error and
prejudice.” (People v. Nero (2010) 181 Cal.App.4th 504, 510,
fn. 11 (Nero).) Scott properly joined in two of William’s
arguments, identifying them with specificity and providing
particularized argument supporting his claim for relief. William
identified specific arguments in Wesley’s brief that he believed
were equally appliable to him, and he also included a blanket
joinder in “all issues raised in the opening brief[s] filed by co-
appellants Wesley and Scott that would affect the judgment in
appellant’s case.” Wesley presented a blanket joinder stating
that he “joins in any issues raised by co-appellants to the extent
any such issues are pertinent to his case and beneficial to him on
this appeal.”7
The California Supreme Court has criticized blanket
joinders in claims raised in a multiple defendant appeal, stating,
“We strongly disapprove of this seriously improper tactic.”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364
(Bryant).) California Rules of Court, rule 8.200(a)(5) is not
satisfied by “cursory and unfocused statements” of joinder, and
each defendant continues to have the burden of demonstrating
error and prejudice. (Bryant, at pp. 363–364.) Neither the

7 Wesley did advise the court that if his co-defendants’ issues
were not “on their face applicable to him,” he would file a
separate joinder with particularized argument. No such
document was ever filed.

27
reviewing court nor respondent “is required to divine which
aspects of a claim might be adverse to a particular defendant,
rendering him unwilling to join the particular claim at issue.
Appellate counsel for the party purporting to join some or all of
the claims raised by another are obligated to thoughtfully assess
whether such joinder is proper as to the specific claims and, if
necessary, to provide particularized argument in support of his or
her client’s ability to seek relief on that ground.” (Id. at p. 363.)
Finally, the court warned it would not “assume that each
defendant has standing to raise each and every claim raised in
the briefs or that he preserved a claim for appeal by taking
appropriate and timely action below.” (Id. at p. 364.) We
therefore consider appellants’ arguments made by joinder only if
the appellant has met his duty to spell out how the claimed error
resulted in a miscarriage of justice as to him. (See Nero, supra,
181 Cal.App.4th at p. 510, fn. 11.)

I. William: Issues Relating to Admission of Juvenile
Prior
In count 1, William and Scott were charged with shooting
rival gang member Smith in the territory of Smith’s gang in
2015. William’s criminal record included a 2007 juvenile
adjudication of assault with a deadly weapon, plus a gang
enhancement, the facts of which involved William entering a
rival gang’s territory and shooting at a rival gang member. Prior
to William’s testimony, the trial court ruled the juvenile
adjudication would not be admitted for general impeachment, but
it deferred ruling on the People’s request to introduce this
evidence pursuant to Evidence Code section 1101, subdivision

28
(b).8 After William testified that although some members of his
gang demonstrate force or shoot at rivals when they encounter
them, he personally did not, the People renewed their request to
present evidence of William’s juvenile offense. The court refused
to allow the People to introduce the facts of the prior offense
under Evidence Code section 1101 because William had begun his
testimony without a ruling on the issue, but it concluded the
evidence was admissible to impeach William’s obviously false
testimony.
On appeal, William contends the court erred when it failed
to rule on the admissibility of the juvenile offense prior to the
commencement of his testimony, and this error deprived him of
the opportunity to make a knowing and voluntary waiver of his
Fifth Amendment rights and denied him the effective assistance
of counsel. He also argues the evidence was inadmissible and the
court abused its discretion under Evidence Code section 352 by
admitting the impeachment evidence because it was cumulative
and more prejudicial than probative. In the alternative, he

8 Evidence Code section 1101 provides that unless an
exception applies, evidence of a person’s character or a trait of his
or her character (whether in the form of an opinion, evidence of
reputation, or evidence of specific instances of his or her conduct)
is inadmissible when offered to prove his or her conduct on a
specified occasion. (Evid. Code, § 1101, subd. (a).) However, it
does not prohibit the admission of evidence that a person
committed a crime or other act when that act is relevant to prove
some fact (such as motive, opportunity, intent, preparation, plan,
knowledge, identity, etc.) other than his or her disposition to
commit such an act, and it does not affect the admissibility of
evidence offered to support or attack the credibility of a witness.
(Id., subds. (b) & (c).)

29
asserts his counsel provided ineffective assistance by failing to
secure a ruling before William testified and by asking the
questions William answered in such a way as to open himself up
to impeachment with his prior juvenile crime.

A. Trial Court Proceedings
1. Beginning of the Defense Case
On July 24, 2019, at the conclusion of the prosecution’s
case, William asked the court to decide which, if any, of his prior
convictions could be used against him for impeachment if he were
to testify. Among other priors, the prosecutor wanted to
introduce the facts underlying William’s 2007 juvenile
adjudication for assault with a deadly weapon (§ 245, subd. (a)(2))
with a gang enhancement because in that offense William had
driven into the territory of a rival gang, called out “Where you
from?” to a rival gang member, and then shot him; on the same
day, William accidentally shot himself while on another mission
and lied to the police about that as well. The People confirmed
they were seeking to introduce the facts of the underlying offense
pursuant to Evidence Code section 1101, subdivision (b).
The court responded, “I’m not going to allow it for
impeachment,” and asked the prosecutor to clarify the basis for
the argument that the facts of the juvenile offense were
admissible under Evidence Code section 1101, subdivision (b).
The prosecutor explained, “[S]pecifically as to the fact that it was
a gang-related crime with the gang enhancement found true, it
shows intent and knowledge, which are necessary elements in
this case both to the crimes, and to the allegations, and to the
special circumstances. [¶] One of the special circumstances is
not only active participant, but knowledge of the gang’s

30
activities. . . . [T]he gang allegation in there also has a specific
intent element that is the exact same one that is present in the
case before us.”
The court reserved its ruling on the admissibility of the
evidence pursuant to Evidence Code section 1101, subdivision (b).
William did not ask the court to rule at that time or indicate any
dissatisfaction with the court’s decision to delay its ruling.
The jury entered the courtroom, the People rested, and
William gave his opening statement. In his opening statement,
William’s counsel advised the jury that William had decided he
would testify in his own defense. Counsel told the jury, “[T]here
will be evidence that William Saulsberry has been convicted of
other crimes, as you heard previously in voir dire. He has been
convicted of crimes, and you’ll hear that. You’ll hear he’s been
convicted or 459’s, burglaries. You’ll hear about Vehicle Code
violations he’s been convicted of.”

2. William Testifies
William began his testimony on July 30, 2019.
Immediately before he took the stand, the court asked William’s
counsel if he had any matters to raise with the court. William’s
counsel responded in the negative. It does not appear, and
William does not argue, that his counsel made an effort to obtain
a ruling on the reserved evidentiary issue before he commenced
his testimony.
At the start of his testimony, William acknowledged his two
prior convictions for burglary and his prior convictions for felony
hit and run and receiving stolen property.
During his testimony, William testified his gang was a
violent criminal street gang. His counsel then elicited the
following testimony:

31
 “Q. And by a violent criminal street gang, you’re gonna
do whatever you need to do for the purposes of getting money,
right?
“A. Not necessarily.
“Q. Well, . . . some West Boulevard Crips are involved in
murders, right?
“A. Yeah, some of them are.
“`Q. Okay. Tell me who some of the West Boulevard Crips
are that committed murder according to your knowledge.
“A: I can’t say no names about who committed a murder.
“Q: You don’t know them or you’re not going to tell us?
“A: I don’t know ’em. I wasn’t there, so I can’t tell it.”

a. Morning Session
On July 31, 2019, prior to the resumption of William’s
testimony, the court twice asked counsel if they had any matters
to raise. William’s counsel said no.
William’s testimony resumed. William testified as follows:
“Q. When you see a rival in an area that is within their
gang, what does West Boulevard Crips, what do you do?
“A. Some of them drive by. Some of them may fight
them. There’s all type of things they could do.
“Q. What about shoot them?
“A. If they choose to.
“Q. What about you?
“A. No.”
William’s counsel asked if William had ever seen a Rolling
20’s member wearing a Texas Rangers hat like the one Smith
was wearing when he was shot. William said he had.
“Q. Have you ever got into a fight with a Rolling 20’s
gang member when you saw that particular hat?

32
 “A. No.
“Q. Have you ever shot at a Rolling 20’s gang member
when you saw that hat?
“A. No.
“Q. Is it your responsibility as a West Boulevard Crip to
respond to an individual that is a rival gang member? And what
I mean by ‘respond,’ I mean to show some force?
“A. No, not necessarily.
“Q. Well, what is the responsibility?
“A. Well, me, I’m gonna just keep doin’ whatever I’m
doin’. I’m trying to make money. I’m not worried about that.”
After a brief pause, William’s counsel continued:
“Q. In the West Boulevard tradition, if you will, in your
gang culture, you have to show force to other gangs, right?
“A. Not necessarily. You don’t have to.
“Q. Well, what if you don’t?
“A. You just don’t. There ain’t no repercussions for you
not to do something if you see one of them.”

b. After the Noon Recess
After the noon recess, before testimony resumed, William’s
counsel told the court the prosecutor had informed him that the
People intended to seek permission to cross-examine William on
his juvenile adjudication based on William’s testimony denying
he shot rivals.
William’s counsel denied opening the door to this area of
questioning, arguing his questions about shooting rivals
pertained to 2016, not 2007, when the juvenile offense took place.
He advised the court he was being “very cautious” in his
questioning because he was aware that “it was necessary for me
preparing for this to be very cautious in my questions about those

33
issues so that I didn’t open the door with respect to that 2007
matter.” He argued the juvenile adjudication was remote,
cumulative, and highly prejudicial.
The prosecutor argued the adjudication was relevant
because William had consistently falsely portrayed himself in his
testimony as someone whose prior offenses pertained exclusively
to obtaining money, culminating in that morning’s testimony in
which William falsely denied shooting rivals. He argued the
offense may have occurred eight years before the instant offenses,
but William had been in custody for half the intervening time.
The court pointed out that the questions could not
reasonably be interpreted as concerning William’s present-day
activities only, because as the jury knew, William was currently
in custody. The court noted that William’s testimony that he did
not shoot rivals was “not consistent with what apparently has
happened in the past.” At the same time, the court recognized
some time had passed since the offense and William had been a
juvenile at the time.
The court said, “My concern is that it’s not a door that
[William] opened. It’s a door that [William’s counsel] opened.
And while I am cognizant of the fact that [William] chose to
answer the question the way he did, which may not be
particularly truthful, I don’t want [William’s counsel] on the line
for opening that door.”
The prosecutor argued William, not his attorney, opened
the door to the prior offense by making statements that were
completely contradicted by his history. “I think that it’s
[William] trying to present himself in a certain light. And I don’t
think that the question was opened as much with any of the
statements that were made by counsel.” He argued the juvenile

34
conduct had already been “highly probative and relevant even
before this statement [William’s testimony], both going to the
intent necessary for the gang allegation, the intent and
knowledge necessary for the special circumstance gang
enhancement.” William’s testimony “is just one more piece
that—to show one of the many ways he’s been presenting himself
artificially.”
“I want to think about it,” said the trial court. “I know you
want to know ahead of time. I appreciate that you want to know
ahead of time, [William’s counsel]. But I want to—I want to hear
the rest of what he has to say. [¶] I think that it had some
independent admissibility before he made that statement, quite
frankly, given some of his denials that—or some of his
statements that he made before you asked him that question.
And I don’t think you’ve been anything other than incredibly
competent in your representation of him.” The court said it
wanted to listen to more of William’s testimony, “because I think
he cracked that door open before [William’s counsel] ever asked
that question.”
William’s counsel asked the court to rule before he finished
his direct examination of William, and the court agreed. William
resumed his testimony.
As William’s counsel neared the end of his direct
examination, the court sent the jury out and returned to the
subject of the admissibility of the juvenile offense. The court
expressed regret it had not ruled on the Evidence Code section
1101, subdivision (b) issue sooner: “So on my back is the fact that
I said I was going to reserve ruling on the [Evidence Code,
section] 1101[, subdivision] (b) issue. And I never ruled on it

35
before [William] took the stand. And that’s my fault for not
making sure that that was resolved.”
The court said it doubted an earlier ruling would have
affected William’s decision to testify, but William’s counsel said
that William had said that if the incident is coming in, he would
not continue testifying. The court did not believe William’s
representation that he would have declined to testify if he had
known this offense might be admitted.
Over the prosecutor’s objection, the court ruled it would not
allow the facts of the juvenile offense to be admitted against
William under Evidence Code section 1101, subdivision (b) on
equitable grounds: It would be unfair to William to allow the
People to introduce the offense pursuant to Evidence Code
section 1101, subdivision (b) because the court had not ruled on
the question prior to the start of William’s testimony.
But the court noted there was another question: “[T]here’s
two issues. One is whether it’s admissible under [Evidence Code,
section] 1101[, subdivision] (b). And the other is whether or not
it’s admissible because of statements that he made during his
direct examination as a proper topic of the cross-examination to
impeach his testimony. Those are different things.”
The court said whether the evidence was admissible for
impeachment depended in part on William’s testimony, and it
took a break to review the testimony. When court resumed, the
trial court read the passage from William’s testimony from the
previous day in which William admitted his gang was a violent
street gang but suggested he did not do whatever was necessary
to get money and implied that other gang members, not he,
committed murders. The court said, “I do believe he came out
and lied when he said that. I mean, I don’t think that there’s a

36
way to get around the fact that he . . . was not being truthful
when he said that.”
The court discussed with counsel whether the evidence of
William’s prior conduct was more prejudicial than probative for
the purposes of Evidence Code section 352. William’s counsel
conceded the evidence was probative, but argued it was too
prejudicial to be admitted. He contended that even if the court
gave a limiting instruction, the jury would inevitably observe
that the charged shooting of Smith, a rival gang member, was
“the exact same situation. He sees a [Rolling] 20[’s] gang
member. He’s accused of going up and shooting them. They’re
gonna take that information and use it to show, he did that crime
in 2007, so he did this one. They’re not going to separate the
two.”
The court described the evidence as both probative and
prejudicial. The court heard additional argument, then recessed
for the day so it could consider the issue further before ruling.

3. August 1, 2017: The Court Rules, William
Chooses to Continue Testifying
The following day, the court again heard argument on the
issue of whether the conduct underlying William’s juvenile
adjudication should be admitted for impeachment because of
statements William made while testifying. William’s counsel
argued William had interpreted the questions as in the present
tense rather than referring to his conduct in the remote past;
alleged the impeachment value of the evidence was “tangential”;
asserted the juvenile offense was so remote as to be of minimal
probative value but increased prejudicial impact; and argued it
was unnecessary to go into the juvenile offense because the
prosecution could already bring in four other prior offenses. He

37
contended the evidence would communicate to the jury that
William was guilty of the charged offense, and complained that
no limiting instruction would be available because the evidence
would not be admitted under Evidence Code section 1101,
subdivision (b).
The court responded that a limiting instruction was
available for impeachment evidence, but acknowledged William’s
view that an instruction would be insufficient to counter the
evidence’s prejudicial impact. William’s counsel said William
would not have testified if he had known the juvenile offense
could be used for impeachment, and he would not resume his
testimony if the evidence would be admitted. Finally, William’s
counsel argued the People already had so much other
“ammunition” with which to attack William’s credibility that
there was no reason to use the juvenile offense.
The People argued none of their other evidence would
counter the false evidence that William had put forward that he
was a person who did not shoot at his rivals, and also contended
the evidence was more probative than prejudicial.
After the parties submitted, the court said, “All right. I did
rule with respect to general impeachment with prior felony
convictions. And I ruled in that regard that this juvenile
adjudication was not going to come in. And it isn’t coming in for
general impeachment of the defendant’s testimony. [¶] Nothing
has changed with respect to the fact that I excluded it for that
purpose, and it’s not coming in for that purpose.”
“In addition to that,” the court continued, “I had reserved
ruling on the [Evidence Code, section] 1101[, subdivision] (b)
issue. And it’s my fault that that didn’t get resolved before
[William] took the stand. And as a result of that, I am not

38
allowing the People to use this under [Evidence Code, section]
1101[, subdivision] (b), which has been their request for a long
period of time.”
The court then turned to the impeachment issue that had
arisen during William’s testimony. William, the court observed,
testified under peril of being cross-examined; he took an oath to
tell the truth; and the People are permitted to cross-examine a
witness to the extent they believe there is evidence directly
impeaching the witness’s testimony. The court distinguished
specific impeachment, offered to refute particular statements
made by a witness, from general impeachment with prior
convictions. The court expressed confidence the jury could follow
instructions on the appropriate use of the impeachment evidence.
The court concluded the evidence was “direct impeachment
of [William’s] testimony, and I’m going to allow [the] People to
ask about it.” To William’s counsel, the court said, “I don’t think
that it is your fault that [William] answered the question the way
he did. You asked the question, but he chose to answer it the
way he did. And so whatever was in his mind when he answered
it, it’s up to him to decide how he wants to deal with it in
response to any other questions on the issue. [¶] But I don’t see
the fault as being the question. I see the issue as being the
answers. And so that’s my ruling.”
After conferring with his client, William’s counsel told the
court William did not want to resume the stand. With his
attorney’s permission, William personally addressed the court at
length. William said he had told his attorney before he testified
that he would not testify if his juvenile offense would come in.
He blamed the court and counsel: “You said you was gonna make
a ruling on it. You never did. So that’s a mistake on your behalf.

39
Then my attorney opened up the door for a question that I
answered. That’s what’s now allowing the D.A. to ask me that
question. So he messed up. [¶] He messed up, and you messed
up by not making a ruling before I testified. And that right there
is too prejudicial to me to this jury.”
The court told William it had remedied the issue
concerning the delayed Evidence Code section 1101 ruling by
deciding the issue in William’s favor. As for William’s complaint
about his attorney, the court said the People would be allowed to
ask William about his prior offense because of William’s
testimony, not his counsel’s action: “You chose to answer the
question in the way that you did. The question he asked was not
an inappropriate one, in my opinion; but you chose to answer it,
and that’s how you chose to answer it. That’s on you, not on
[your attorney] or me.” The court advised William there were
many ways his counsel could approach the impeachment evidence
and “lessen the blow” of this information.
William told the court, “[I]f he would have never asked me
that question, I would have never answered it. And I know what
you’re talking about where there’s other ways he could go into it,
because when I said I don’t commit violent crimes, I know I been
convicted for that when I was a juvenile. [¶] But if they’re not
gonna be able to use my juvenile, of course I’m gonna say that.”
“Well,” responded the trial court, “my rulings don’t give you
license to not tell the truth. That’s the bottom line. And while I
understand that you expected . . . it wouldn’t be used generally to
impeach you, that still doesn’t give you the right to be anything
less than completely candid with this jury and to tell the truth
before this jury.” The court advised William he could either
continue to testify or refuse to testify further, in which case the

40
court would strike his testimony and instruct the jury not to
consider it.
William elected to resume his testimony, and his attorney
questioned him on direct examination about his juvenile
adjudication. On cross-examination, William acknowledged that
his testimony the prior day that he did not shoot at rivals was not
true.

B. Failure to Rule on Admissibility of Prior Before
William Decided Whether to Testify
William argues the court’s failure to rule on the
admissibility of his juvenile offense prior to him taking the
witness stand denied him the opportunity to make a knowing and
intelligent waiver of his Fifth Amendment rights and deprived
him of the effective assistance of counsel. As William
acknowledges, prior convictions for crimes of moral turpitude,
including juvenile adjudications, may be introduced to impeach a
witness’s credibility, subject to the balancing test of Evidence
Code section 352. (Evid. Code, § 788; People v. Castro (1985)
38 Cal.3d 301, 313–316; People v. Hinton (2006) 37 Cal.4th 839,
888; People v. Lee (1994) 28 Cal.App.4th 1724, 1739.) Although
William notes that California law permits a trial court to delay
ruling on a motion to exclude priors, he argues “the better view”
is that the trial court should be required to rule on the
admissibility of a defendant’s priors before he or she testifies. He
argues that “in order to decide whether [he] should testify, he and
[his counsel] needed to know if his juvenile prior would be
admitted for impeachment.” But William did know that. The
court ruled before the People rested that William’s juvenile
adjudication would not be admitted to impeach his general
veracity if he chose to testify.

41
 William did not know when he started to testify whether
the facts underlying his juvenile offense would come in under
Evidence Code section 1101, subdivision (b), which is a different
question.9 However, the trial court ensured that William was not
prejudiced by its delay in ruling on that issue: Recognizing that
William had to decide whether to testify without the benefit of a
ruling on the admissibility of the evidence under Evidence Code
section 1101 subdivision (b), as a matter of fairness the court
refused to allow the evidence to be introduced under that statute.
Ultimately, William was impeached by the conduct
underlying his juvenile offense for a reason that did not exist
before he took the stand: his demonstrably false trial testimony
that while some gang members might shoot rivals, he did not.
This testimony opened the door to the previously-excluded
evidence that William had in fact shot rival gang members,
subject to the court’s balance under Evidence Code section 352,
because that evidence tended to show that particular statements
in his testimony were false. “[A] witness who makes a sweeping
statement on direct or cross-examination may open the door to
use of otherwise inadmissible evidence of prior misconduct for the
purpose of contradicting such testimony.” (Andrews v. City and

9 It is also a question William made no effort to have
answered. If William had believed he needed the Evidence Code
section 1101, subdivision (b) ruling in order to decide whether to
testify, he could have and should have asked for a ruling before
he took the witness stand. The “ ‘failure to press for a ruling on a
motion to exclude evidence forfeits appellate review of the claim
because such failure deprives the trial court of the opportunity to
correct potential error in the first instance.’ ” (People v. Valdez
(2012) 55 Cal.4th 82, 143.)

42
County of San Francisco (1988) 205 Cal.App.3d 938, 945–946
[prior incidents of correctional officer’s misconduct admissible to
impeach his claim that he had “developed patience working with”
prisoners]; see also People v. Turner (2017) 13 Cal.App.5th 397,
410–411 [defendant’s prior arrest for possessing the same type of
ammunition as that involved in present prosecution admissible
after defendant testified suggesting he was framed]; People v.
Cooks (1983) 141 Cal.App.3d 224, 324 [cross-examination of
defendant about his conviction for handgun possession admissible
to impeach his testimony that he had never possessed a gun];
People v. Reyes (1976) 62 Cal.App.3d 53, 61–62 [defendant who
denied on direct examination ever engaging in bookmaking
properly impeached with an otherwise inadmissible prior
conviction for bookmaking].) In light of William’s false testimony,
the trial court appropriately revisited the question whether the
facts of the juvenile adjudication should be admitted for the new
purpose of rebutting his specific untruthful statements.

C. Admissibility of the Juvenile Prior
William contends his prior conduct should nonetheless
have been excluded because it was cumulative and more
prejudicial than probative. The circumstances of a prior offense
are admissible to directly impeach a witness’s testimony, subject
to Evidence Code section 352. (People v. Dalton (2019) 7 Cal.5th
166, 214.) We review the trial court’s evidentiary ruling for an
abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.)
We cannot say the trial court abused its discretion when it
determined the evidence was more probative than prejudicial. As
William testified he did not shoot members of rival gangs,
evidence that he had done so was therefore extremely probative
as a direct refutation of William’s testimony and as evidence of

43
his present lack of veracity. It is true, as William notes, that the
juvenile offense was relatively remote, but this is not particularly
significant because the prior offense was introduced not to show
that the juvenile conduct itself demonstrated a lack of honesty
but to demonstrate that William was testifying dishonestly at the
present time.
William complains the conduct was similar to the charges
in the Smith murder, but the trial court could reasonably
conclude that despite the similarity it was not unduly
inflammatory or prejudicial. Given the serious nature of the
charges against William, his already-acknowledged gang
membership, and the other prior convictions presented to the
jury, it was reasonable for the court to determine that evidence of
his juvenile conduct was not likely to inflame the jury. “ ‘ “The
prejudice which [Evidence Code section 352] is designed to avoid
is not the prejudice or damage . . . that naturally flows from
relevant, highly probative evidence.” [Citations.] “Rather, the
statute uses the word in its etymological sense of ‘prejudging’ a
person or cause on the basis of extraneous factors.” ’ [Citation.]
Painting a person faithfully is not, of itself, unfair.” (People v.
Harris (1998) 60 Cal.App.4th 727, 737.) Moreover, the jury was
instructed with CALCRIM No. 316 on the appropriate use of the
impeachment evidence: If the jury found a witness had
committed a crime or misconduct, that fact could be considered
“only in evaluating the credibility of the witness’s testimony.” We
presume the jury understood and followed the instructions given.
(People v. Gonzalez (2018) 5 Cal.5th 186, 202.)
The evidence, moreover, was not cumulative: Although
William argues his four prior adult convictions and his
admissions to being a gang member and a drug dealer were

44
sufficient to impeach his character and credibility, none of that
evidence tended to prove that William had testified untruthfully
in the present case.
William also argues that the facts underlying his juvenile
offense were inadmissible because Evidence Code section 1102,
subdivision (b) requires evidence rebutting a witness’s evidence of
his good character to be in the form of opinion evidence only, not
specific acts of misconduct. As we have already concluded the
evidence was properly admitted on other grounds, we need not
consider this argument.

D. Ineffective Assistance of Counsel
In the alternative, William argues his counsel provided
ineffective assistance of counsel within the meaning of Strickland
v. Washington (1984) 466 U.S. 668 when he asked William
questions concerning his responsibility, as a member of his gang,
to show force when he encountered a rival, thereby opening the
door to admission of his juvenile adjudication without having
obtained a definitive ruling on the admissibility of his juvenile
adjudication prior to commencing his testimony. To establish
ineffective assistance of counsel, William must demonstrate that
“ ‘(1) counsel’s representation was deficient in falling below an
objective standard of reasonableness under prevailing
professional norms, and (2) counsel’s deficient representation
subjected the petitioner to prejudice, i.e., there is a reasonable
probability that, but for counsel’s failings, the result would have
been more favorable to the petitioner.’ ” (In re Jones (1996)
13 Cal.4th 552, 561.)
William first argues his counsel’s representation fell below
the standard of care when he “questioned appellant about
violence in gang culture [when] counsel knew that the court was

45
still considering admission of the juvenile prior under Evidence
Code section 1101, subdivision (b),” thus running the risk of the
evidence coming in under that statute. William cannot establish
any prejudice from testifying before that issue was resolved
because the trial court ultimately ruled in William’s favor and did
not admit the evidence under Evidence Code section 1101,
subdivision (b). We need not consider whether counsel’s
questioning before obtaining a definitive ruling constituted
deficient performance because William has not demonstrated any
prejudice. (People v. Maury (2003) 30 Cal.4th 342, 416,
disapproved in part by Barnett v. Superior Court (2010)
50 Cal.4th 890, 901.)
Next, William acknowledges that his counsel made a
“tactical decision to rebut the gang expert’s claim that gangs
expect, even require, violence from their members toward rivals,
through appellant rather than relying on the testimony of his
gang expert,” but he argues counsel’s representation was
deficient when he questioned William about what he personally
would do when encountering a rival gang member. Claims of
ineffective assistance based on counsel’s alleged actions or failure
to act in a particular manner should be raised in a habeas corpus
proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264,
266-267.)
William, however, claims the issue is properly raised on
appeal because “[t]here could be no tactical reason” for counsel’s
inquiries. (See People v. Ray (1996) 13 Cal.4th 313, 349 (Ray)
[“In order to prevail on [an ineffectiveness] claim on direct
appeal, the record must affirmatively disclose the lack of a
rational tactical purpose for the challenged act or omission”].)
Trial counsel indicated he framed his question with awareness of

46
the need to avoid opening the door to the prior conviction, and the
trial court stated it believed the question was appropriate, but
the record does not shed light on counsel’s reasons for posing
these questions. As the record on appeal does not affirmatively
demonstrate the absence of any rational tactical purpose for
counsel’s inquiry, William’s claim must be denied on direct
appeal. (Ibid.)

II. William and Wesley: Refusal to Exclude Davis
Identification
William and Wesley moved to exclude Davis’s past and
future identifications of them because the recording10 of a
September 29, 2015, police interview with Davis had not been
retained by law enforcement. Both William and Wesley contend
the trial court erred when it denied their motions.
The federal due process clause requires the state to
preserve “evidence that might be expected to play a significant
role in the suspect’s defense.” (California v. Trombetta (1984)
467 U.S. 479, 488 (Trombetta).) The evidence “must both possess
an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably
available means.” (Id. at p. 489.) Where the lost evidence is not
exculpatory on its face, a state’s failure to preserve such
“potentially useful” evidence violates due process only where the
defendant shows bad faith on the part of the prosecutor or police.

10 On appeal, Wesley refers to the recording as a videotape,
but the court, the prosecutor, and William and Wesley’s trial
counsel all described it as an audio recording.

47
(Arizona v. Youngblood (1988) 488 U.S. 51, 57–58 (Youngblood).)
The presence or absence of bad faith on the part of the state is
closely related to law enforcement’s “knowledge of the
exculpatory value of the evidence at the time it was lost or
destroyed.” (Id. at pp. 56–57, fn. *.) We view the evidence in the
light most favorable to the superior court’s finding and determine
whether there was substantial evidence to support its ruling.
(People v. Carter (2005) 36 Cal.4th 1215, 1246; People v. Alvarez
(2014) 229 Cal.App.4th 761, 776.)

A. Trial Court Proceedings
On September 29, 2015, approximately six weeks after the
Foxworth shooting, Davis met with detectives and looked at a
photographic lineup. He identified a photograph of William as
the person who shot Foxworth. Lane recorded the interview, and
Lane believed he had loaded the recording onto an official
computer system prior to his retirement. However, De La Torre
subsequently searched the computer system but was unable to
locate the recording. The recording went missing before either
William or Wesley was arrested.
Counsel for William and Wesley11 argued the audio was not
maintained in good faith and he “believe[d]” Davis gave
exculpatory evidence as to William and/or Wesley during the
interview as to whether they were involved in the Foxworth
incident. Counsel asserted that on August 21, 2015, Davis had
been shown a photographic lineup and identified a person who
was not William or Wesley as the shooter. “And then now we’re
in a car,” counsel said, referring to the September 29, 2015,

11 William and Wesley were represented by the same attorney
at their separate trials.

48
meeting. “I have no idea what was said in that car, none
whatsoever. I don’t know if Junior Davis was influenced,
whether he looked at things and said, you know, that doesn’t look
like the guy. And then they showed him. Oh, that’s the guy. I
don’t know. And that’s the fact of what I believe I have a basis to
show that there’s some exculpatory information.”
The prosecutor argued Davis had not established the lost
interview was exculpatory, particularly as to William, because
Davis had identified William as the shooter. The prosecutor
disputed defense counsel’s account of the August 21 interview,
stating that Davis had not in fact identified anyone as the
shooter in the earlier lineup. The prosecutor represented that
Davis had stated that one of the people in the photographs looked
familiar and that he would know the person if he saw him in
person. However, Davis did not circle a photograph.
The prosecutor pointed out that the police had every
motivation to maintain the recording because it contained Davis’s
identification of William as the shooter. The prosecutor also
argued the defendants had comparable evidence reasonably
available to them despite the loss of the recording, because Davis,
Lane, and De La Torre were all available to testify.
The trial court found no Trombetta or Youngblood violation.
For the Trombetta factors, the court said, “I’m not saying that the
evidence might have demonstrated exculpatory information. But
it seems to me that Mr. Davis is available to testify and the
officer is available to testify,” so comparable evidence remained
available despite the loss of the recording. The evidence
concerning the earlier interview and the lost interview was all
available to the defense. On the Youngblood analysis, the court
found the defendants had failed to demonstrate that the failure

49
to preserve the recording was intentional, and there was no
logical reason to think that it was intentional: Davis identified
William as the shooter in the lost recording, “which is something
I would imagine they [the police] would want to keep.”

B. Sufficiency of the Evidence
The trial court did not make a finding whether the absent
evidence was exculpatory on its face, or even if it was potentially
useful to Wesley and William. Instead, the court focused on the
other portions of the Trombetta/Youngblood inquiries: whether
comparable evidence was available (Trombetta) and whether the
loss of the recording was in bad faith (Youngblood). The evidence
was sufficient to support the trial court’s findings.
First, the evidence was sufficient to demonstrate that
comparable evidence was available to Wesley and William
despite the absence of the recording. William called Lane as a
witness in his trial, and Davis and De La Torre were witnesses at
both trials, so they could be (and were) questioned about Davis’s
identification of William and non-identification of Wesley, exactly
what happened during the lost interview, and the loss of the
recording. Therefore, even if the missing recording were to have
had an exculpatory value that was apparent before it was lost, it
was not “of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available
means.” (Trombetta, supra, 467 U.S. at p. 489.)
Second, the evidence was sufficient to support the trial
court’s determination that to any extent the evidence was
potentially useful, the evidence was not destroyed in bad faith.
As the court noted, the recording contained Davis’s identification
of William as the shooter, and this inculpatory evidence gave law
enforcement a compelling motivation to preserve it. William

50
theorizes the recording would have shown that the detectives
coached Davis into making his identification, and Wesley urges
us to conclude the recording was destroyed because during the
interview the detectives communicated to Davis that Wesley was
the second perpetrator, prompting Davis’s later identification of
Wesley at the preliminary hearing, but this is speculation
unsupported by evidence.
Neither appellant has demonstrated any error in the
court’s denial of the motions to exclude Davis’s identifications.

III. William and Scott: Admission of Statements Made to
an Undercover Agent
Over defense objection, the prosecution presented
statements from Gabb, obtained by an undercover agent, in
which Gabb incriminated himself, William, and Scott in the
Smith murder.

A. Confrontation Clause
On appeal, William and Scott contend that admitting this
evidence violated the Confrontation Clause of the United States
Constitution and their due process right to a fair trial. The Sixth
Amendment right of confrontation applies only to testimonial
statements. (Crawford v. Washington (2004) 541 U.S. 36, 51
(Crawford).) A statement is testimonial if it is made with some
degree of formality or solemnity, and the primary purpose of the
statement must pertain to a criminal prosecution; that is, “the
statement must have been given and taken primarily for the
purpose ascribed to testimony—to establish or prove some past
fact for possible use in a criminal trial.” (People v. Cage (2007)
40 Cal.4th 965, 984; People v. Leon (2015) 61 Cal.4th 569, 603.)

51
 William and Scott argue the statements Gabb made to the
undercover agents were testimonial in nature because the agent’s
purpose was to establish past events for criminal prosecution.
The California Supreme Court has recently stated, “In the
context of an interrogation, as used in the colloquial and not legal
sense, ‘ “it is in the final analysis the declarant’s statements, not
the interrogator’s questions, that the Confrontation Clause
requires us to evaluate.” [Citation.] . . . An interrogator’s
questions, unlike a declarant’s answers, do not assert the truth of
any matter.’ [Citation.] In that regard, the high court has also
noted that statements made unknowingly to an informant or
statements between fellow prisoners are ‘clearly nontestimonial.’
(Davis v. Washington [(2006) 547 U.S. 813,] 825.)” (People v.
Fayed (2020) 9 Cal.5th 147, 168–169.) Other courts have
similarly concluded that statements unwittingly made to an
informant in a jail cell are not testimonial. (See People v.
Gallardo (2017) 18 Cal.App.5th 51, 67–68; People v. Arauz (2012)
210 Cal.App.4th 1394, 1402; People v. Almeda (2018)
19 Cal.App.5th 346, 362–363.) In this case, there is no evidence
indicating Gabb knew he was speaking to a police informant or
otherwise anticipated his statements would “be used
prosecutorially.” (Crawford, supra, 541 U.S. at p. 51.)
Accordingly, his statements were nontestimonial and do not
implicate the Sixth Amendment right to confrontation.

B. Reliability of Statements Admitted as Statements
Against Penal Interest
Hearsay is an out-of-court statement offered to prove the
truth of the matter asserted in the statement. (Evid. Code,
§ 1200.) Hearsay is inadmissible unless it falls within an
exception to the hearsay rule. (Ibid.) One such exception is

52
found in Evidence Code section 1230, which provides in part,
“Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay
rule if . . . the statement, when made, . . . so far subjected him to
the risk of civil or criminal liability . . . that a reasonable man in
his position would not have made the statement unless he
believed it to be true.” “To demonstrate that an out-of-court
declaration is admissible as a declaration against interest, ‘[t]he
proponent of such evidence must show that the declarant is
unavailable, that the declaration was against the declarant’s
penal interest when made and that the declaration was
sufficiently reliable to warrant admission despite its hearsay
character.’ [Citation.] ‘In determining whether a statement is
truly against interest within the meaning of Evidence Code
section 1230, and hence is sufficiently trustworthy to be
admissible, the court may take into account not just the words
but the circumstances under which they were uttered, the
possible motivation of the declarant, and the declarant’s
relationship to the defendant.’ ” (People v. Grimes (2016)
1 Cal.5th 698, 711 (Grimes).) We review a trial court’s ruling
under Evidence Code section 1230 for abuse of discretion. (Ibid.)
William and Scott argue that Gabb’s statements were
inadmissible as declarations against penal interest because they
were unreliable, false in several respects, and untrustworthy. We
cannot say the trial court abused its discretion when it
determined Gabb’s statements were sufficiently reliable and
trustworthy as to be admissible as declarations against penal
interest. Gabb made his statements to a person he believed to be
a fellow gang member. As there was evidence before the court
that gang members faced negative consequences if they

53
attempted to take credit for criminal acts they had not
committed, the fact that Gabb’s audience was someone he
understood to be a gang member suggested Gabb would have
been unlikely to take credit for crimes he did not commit.
Gabb’s statements were also corroborated in many details.
For instance, Gabb said that during the shooting, he and the
“young homie” wore masks, while the “big homie” would have
been hard to see because of the vehicle’s tinted glass. An
eyewitness testified that the two passengers wore masks but the
driver did not. Gabb identified the weapons that were used as
revolvers rather than semi-automatic handguns, and this was
consistent with the fact that no casings were found at the scene of
the shooting. He correctly reported that Smith’s girlfriend was
present when he was shot, and that she was affiliated with a
particular gang. Gabb’s account was also supported by the
evidence that William and Scott had possessed the rental vehicle
used in the shooting on the day of the shooting; and furthermore,
that phones linked to William and Scott had been in the area
where the shooting occurred at approximately the time of the
shooting.
Additionally, Gabb’s account that his two co-participants
were apprehended in the rental car they had used for the crime
because the “big homie” had to go to his parole office corresponds
with William and Scott’s arrest in the rented vehicle at William’s
parole office. Gabb described being in the same courthouse as
William and Scott one day and being able to look at the
paperwork relating to the incident; he reported learning that
William and Scott had been implicated by rental car and cell
tower information, but Gabb had not been similarly implicated
because he had not brought a cell phone with him on the day of

54
the Smith shooting. The three men had in fact been at the same
courthouse on the same day, and there was evidence that
William, who was representing himself in the early stages of the
case, had received discovery that mentioned the rental car and
cell tower information, and identified William and Scott but not
the third participant.
William argues the evidence is unreliable because Gabb
referred to his co-participants as “Big Homie” and “Little Homie”
rather than identifying them by name, and he used the term
“they” without specifying the individuals’ real names. Gabb,
however, did also refer to the “Little Homie” as Marqus, Scott’s
first name, and William was seven years older than Scott. The
evidence that tended to corroborate Gabb’s statement, such as
the apprehension of William and Scott at the parole office in the
rented vehicle and the fact that they were all at court on the
same day, clearly supported the inference that the “homies” were
William and Scott.
William and Scott contend Gabb’s testimony contained too
many inaccuracies to be reliable: Gabb said marijuana had been
found in the vehicle in which William and Scott were arrested,
but none was found; contrary to Gabb’s account, William was not
on a parole hold at the time of the Smith murder; Gabb was
incorrect when he said William had previously served eight years
in prison; and Gabb falsely claimed to have bailed Scott out of
jail. Scott and William also argue Gabb’s statement that the
shooters jumped out of the vehicle is inconsistent with the
evidence of the bullet trajectories and the fact that other
witnesses did not recall seeing or hearing anyone exiting the
truck. Statements may be reliable even if they have some
inconsistencies with the physical evidence, provided they do not

55
negate all possibility of the statement being true. (See People v.
Cudjo (1993) 6 Cal.4th 585, 607–608.) The small inaccuracies as
to the presence of marijuana, a parole hold, the exact length of
William’s previous prison time, and bail are small discrepancies
that do not negate the possibility of Gabb’s account being true.
As for the contention that Gabb’s report that the shooters left the
car to shoot was inconsistent with the physical evidence, the
evidence does not show that Gabb was necessarily incorrect.
There was testimony that trajectory analysis is an inexact
science, and the crime scene reconstruction expert who opined
that the shots were fired from the truck acknowledged he made a
number of assumptions about the vehicle’s location, many factors
contribute to a bullet trajectory, and he had neither measured a
Dodge Ram’s window height nor taken into account other factors
that would affect the trajectory of the bullets. The fact that
witnesses to the event did not see or hear the shooters exit the
vehicle did not foreclose the possibility that they had done so
briefly. While these details provided fodder for argument as to
the weight of Gabb’s account, they do not establish that the court
acted outside the bounds of reason when it concluded that Gabb’s
statement was sufficiently reliable to be admitted as a
declaration against penal interest.

IV. William: Admission of Evidence of Threats
William objected to the introduction of evidence that Davis
received two threatening texts in September 2018, shortly before
he testified at Wesley’s trial, one of which read, “Do U want to
die,” and the other stating, “I’m watching you now.” The trial
court ruled the texts admissible to demonstrate that Davis was
testifying despite being afraid to do so, provided that the parties
stipulated that neither defendant was involved in sending the

56
texts. The jury was instructed that the texts were admitted into
evidence for the limited purpose of the effect, if any, that they
had on Davis. William argues the texts should have been
excluded under Evidence Code section 352 as they were more
prejudicial than probative, and their admission undermined his
state and federal rights to a fair trial. He contends the evidence
was cumulative because other evidence established Davis’ fear,
specifically the telephone call he received after the Foxworth
shooting and the subsequent early morning visit to his apartment
by three people, whom he believed to include William and
Wesley.
Reviewing the court’s ruling for an abuse of discretion
(People v. Myles (2012) 53 Cal.4th 1181, 1212 (Myles)), we find
none here. As William acknowledges, evidence that a witness is
afraid to testify is relevant to the witness’s credibility. (Evid.
Code, § 780; People v. Olguin (1994) 31 Cal.App.4th 1355,
1368-1369.) “A witness who testifies despite fear of recrimination
of any kind by anyone is more credible because of his or her
personal stake in the testimony. Just as the fact a witness
expects to receive something in exchange for testimony may be
considered in evaluating his or her credibility [citation], the fact a
witness is testifying despite fear of recrimination is important to
fully evaluating his or her credibility. For this purpose, it
matters not the source of the threat.” (Olguin, at pp. 1368–1369.)
The fact that Davis came to court and took the witness stand
notwithstanding the attempts to intimidate him tended to bolster
his credibility. (See Myles, at p. 1211.) Moreover, although
William argues that the evidence was cumulative, these texts
were recent, unlike the evidence William claims was sufficient to

57
establish fear, and so they tended to show that at the time of trial
Davis still had reason to be afraid but testified nonetheless.
William contends the admission of this evidence was
prejudicial because it suggested someone was willing to use
violence to silence a witness, and despite the stipulation and the
limiting instruction, “no reasonable juror could have failed to
draw the propensity inference against William” and the other
defendants because of the other evidence offered for the purpose
of credibility that tended to equate gang membership, violence,
and witness intimidation. William concludes that this evidence
incurably prejudiced him on counts because its prejudicial value
as propensity evidence of violence far outweighed any probative
value it had on witness truthfulness. This contention is
unpersuasive. As the record reflects, the jury was informed that
neither defendant was involved in sending the texts, and the jury
was instructed it could only consider them for the purpose of
their effect on Davis. We presume the jury generally
understands and follows instructions. (Myles, supra, 53 Cal.4th
at pp. 1211–1212.)

V. William: Failure to Instruct with CALCRIM No. 305
The trial court has a duty to instruct on the general
principles of law relevant to the issues raised by the evidence and
necessary to the jury’s understanding of the case. (People v.
Molano (2019) 7 Cal.5th 620, 667.) William asked the court to
instruct the jury with CALCRIM No. 305 that statements in
Scott’s rap videos could be considered only against Scott.
CALCRIM No. 305 provides, “You have heard evidence that
defendant . . . made a statement (out of court/before trial). You
may consider that evidence only against (him/her), not against
any other defendant.” The People argued, inter alia, that Scott’s

58
recorded lyrics constituted statements against penal interest and
were therefore properly considered against both Scott and
William. The court declined to give the instruction.
In William’s opening brief, he argued that the court erred
in refusing to give CALCRIM No. 305 because Evidence Code
section 1220, the exception to the hearsay rule for admissions of a
party, applies only to the party making the admission, and so
Scott’s rap lyrics were admissible only against Scott. In a
footnote, William anticipated that the People would argue that
the evidence was admissible against him under Evidence Code
section 1223, a hearsay exception for the statements of a co-
conspirator, and he argued that the People were foreclosed from
making that argument because they would be adopting a position
not advanced in the trial court.
In their briefing, the People did not make either argument.
Instead, the People argued, as they did in the trial court, that
Scott’s lyrics were admissible against both Scott and William as
declarations against penal interest under Evidence Code section
1230.
The People have the better argument. The trial court
properly declined to give CALCRIM No. 305 because Scott’s
recorded rap lyrics were admissible against both defendants as
declarations against Scott’s penal interest. (Evid. Code, § 1230.)
Scott’s statements were clearly not testimonial: he was
celebrating his exploits in a privately recorded video that was not
made for the purpose of memorializing facts for a possible future
prosecution. The statement was against Scott’s penal interest, as
he subjected himself to criminal liability for the homicide when
he described shooting Smith. His statements were trustworthy
because he provided multiple details that matched the facts of

59
the Smith killing, including facts that were not publicly known at
the time the videos were made, and because there was evidence
that there could be repercussions for a gang member who took
credit for crimes he did not commit. And Scott was unavailable,
as he did not testify at trial.
In his reply brief, William does not dispute the
admissibility of the lyrics of the rap videos against him as
declarations by Scott against his penal interest. Rather, he
argues that the prosecutor was prohibited from relying on that
exception to the hearsay rule to oppose CALCRIM No. 305
because prior to trial, when arguing Scott’s pretrial motion in
limine to exclude the rap videos, the prosecutor argued they were
admissible as admissions of a party and the trial court denied the
motion in limine on that basis. William reasons that this
amounted to a forfeiture of any other grounds upon which the
evidence could be admissible against any party, and therefore the
only basis on which the appropriateness of CALCRIM No. 305
could be argued and considered was whether the admissions of
Scott could be admitted against William. He characterizes the
People’s argument against giving CALRIM No. 305 as a “claim
that evidence is determined to be admissible during a jury
instruction conference.”
Even if we assume, arguendo, that William is correct that
advancing one basis for admissibility precludes presentation of
other bases later, William does not identify, and we have not in
our review located, any point in the trial record when William
objected to the introduction of the rap lyrics against him on
hearsay grounds such that the People would have been called on
to articulate a theory of admissibility as to him. From our review
of the record, it appears that prior to trial, Scott filed a motion in

60
limine to exclude his rap videos as prejudicial, inadmissible
hearsay. William did not seek to exclude the videos in his own
motions in limine. William asserts that the videos were admitted
“over objection by counsel for the defendants” (italics added), and
refers this court to a page in the reporter’s transcript in which
William’s counsel stated that he intended to join in all but one of
Scott’s motions in limine. William does not acknowledge that on
the next page of the transcript, the court said, “Well, some of
them you don’t need to necessarily join in,” and William’s counsel
responded, “I’m going to join—I think Your Honor is right.”
We have not located, and William has not identified, any
subsequent statement in the record as whether William intended
to join this particular motion in limine. There is no indication in
the record that William sought a ruling as to himself when the
court heard Scott’s motion in limine. William’s counsel did not
raise the issue of whether the rap videos were admissible against
him when Scott’s motion in limine was argued, and he remained
silent while Scott’s counsel and the prosecutor argued about
whether the videos qualified as Scott’s admissions and whether
they should be admitted as videos or by transcript only. William’s
counsel spoke only after the court had ruled on the motion in
limine, at which time he advised the court he did not concede the
videos were filmed inside the vehicle used in the Smith killing,
and he would object to their introduction if no foundation was
laid that they were filmed inside the truck. The trial court
recognized that counsel had made no concession and
acknowledged the possibility of “a relevance or foundational
problem.”
William cannot now argue that the prosecutor is prohibited
from defending the admissibility of the videos against him

61
because that would require “adopting a position that was not
advanced in the trial court.” William’s failure to take any action
at the hearing on the motion in limine to raise or address the
admissibility of the rap videos against himself meant there was
no occasion for the People to advance a position concerning the
admissibility of the statements against William. We reject
William’s argument that CALCRIM No. 305 had to be given
based on the ruling on Scott’s motion in limine. The court
properly refused to give CALCRIM No. 305 because Scott’s
recorded rap lyrics were admissible against both defendants as
declarations against Scott’s penal interest. (Evid. Code, § 1230.)

VI. William and Scott: Sufficiency of the Evidence to
Support Convictions on Count One
William and Scott contend the evidence was insufficient to
support their convictions for murdering Smith, specifically with
respect to the element of identity. “ ‘ “When considering a
challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable
to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” [Citation.] We
determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” [Citation.] In so doing, a reviewing court “presumes in
support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” ’ ” (People v. Rangel (2016)
62 Cal.4th 1192, 1212–1213 (Rangel).)

62
 The evidence of identity was sufficient to support the
conviction. As a starting point, as set out above in Section III.B.
of our Discussion, accomplice Gabb, believing he was speaking to
a fellow gang member who was in fact a confidential informant,
made extensive statements describing the shooting and
implicating William and Scott. Gabb talked about committing
the shooting with the “big homie” and the “young homie.”
Although he did not identify William and Scott by full names, a
number of his statements make clear that he meant William and
Scott, not the least of which was using Scott’s first name when
referring to the young homie. Gabb stated that the men, along
with the big homie’s girlfriend, were caught in the rental car in
the shooting after the “big homie” told Gabb he was going to visit
his parole office. William, Scott, and Pringle were in fact
arrested in the rented Dodge Ram truck when they went to
William’s parole office. Gabb described being at the same
courthouse as the other participants and reviewing the
paperwork on the case, from which he learned that the police had
identified William and Scott and had rental car and cell tower
information, but they were unable to identify the third suspect—
and Gabb explained to the informant that he knew he could not
be identified by cell tower information because he had no phone
that day. Other evidence confirmed that William, Scott, and
Gabb had been in the same courthouse on the same day, and that
at the time they were together, William, who was representing
himself at that time, had just received police reports detailing the
investigation. The “big homie” and “young homie” names Gabb
used also corresponded to the respective ages of William and
Scott.

63
 Gabb’s account of the events on the day of the shooting was
also corroborated by cell tower evidence that phones connected to
Scott and William were in the vicinity of the location of the
shooting at the approximate time of the shooting and afterwards.
William criticizes the cell phone evidence as reliant on an
unproven assumption that a particular phone was in William’s
possession on the day of the murder, and he notes that he
testified he used multiple phones and was using a different phone
on the day of the Smith shooting. Based on the totality of the
evidence, however, a reasonable jury could have rejected
William’s testimony and inferred that William had carried and
used the phone associated with him during and after the Smith
shooting.
Further evidence of Scott’s identity was found on his phone,
which showed he conducted internet searches about the shooting
the following day and saved a screen shot of a news story about
the murder. Finally, Scott’s phone contained a rap video of him
day after the shooting in which he bragged about committing the
murder and identified the gang and attire of the victim, the street
on which the shooting occurred, and the fact that they made a U-
turn just before the shooting occurred. The fact that the truck
made a U-turn was not known to the police or public when the
video was recorded.
William and Scott, however, assert that Gabb’s account is
untrustworthy because it contained inaccuracies. They contend
Gabb’s statement that he and Scott jumped out of the car to shoot
was demonstrably false because the coroner’s report was
consistent with shots fired from a downward angle as from a
vehicle and neither percipient witness saw or heard anyone exit
the truck. Scott also points out that Gabb reported that drugs

64
were found in the rental truck, when none were in fact found. “In
deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts.
[Citation.] Resolution of conflicts and inconsistencies in the
testimony is the exclusive province of the trier of fact.” (People v.
Young (2005) 34 Cal.4th 1149, 1181 (Young).) “ ‘ “ ‘Although an
appellate court will not uphold a judgment or verdict based upon
evidence inherently improbable, testimony which merely
discloses unusual circumstances does not come within that
category. [Citation.] To warrant the rejection of the statements
given by a witness who has been believed by a trial court, there
must exist either a physical impossibility that they are true, or
their falsity must be apparent without resorting to inferences or
deductions. [Citations.] Conflicts and even testimony which is
subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of
the facts upon which a determination depends.’ ” ’ ” (People v.
Beck and Cruz (2019) 8 Cal.5th 548, 627 (Beck and Cruz).)
William and Scott have not shown that Gabb’s account was
physically impossible or false on its face. As discussed previously
in Section III.B. of our Discussion, other aspects of Gabb’s
account were corroborated by the evidence and the evidence did
not foreclose the possibility that the shooters did briefly step out
of the truck. Moreover, the existence of some discrepancies does
not necessarily render Gabb’s statement false. The jury was
entitled to review the evidence and decide the weight, if any, to
give to Gabb’s statement to the confidential informant. We
neither reweigh the evidence nor reevaluate the credibility of

65
witnesses. (People v. Lindberg (2008) 45 Cal.4th 1, 27
(Lindberg).)
The evidence of identity was sufficient to permit a
reasonable jury to convict William and Scott of Smith’s murder
beyond a reasonable doubt. “A jury’s finding will not be reversed
unless it is clearly shown that under no hypothesis is there
sufficient evidence to support it. [Citation.] As long as
substantial evidence supports the jury’s finding, the possibility
that the jury could reasonably have reached a different
conclusion does not justify reversal.” (People v. Mendez (2010)
188 Cal.App.4th 47, 59.)

VII. William: Sufficiency of the Evidence to Support
Convictions on Counts Four, Five, Six, Seven, Eight,
Ten, and Eleven
William challenges the sufficiency of the evidence to
support his convictions on all remaining counts. We review the
record in the light most favorable to the judgment to determine
whether substantial evidence supports the convictions. (Rangel,
supra, 62 Cal.4th at p. 1212–1213.)

A. Counts 4 and 5: Foxworth Murder and Robbery
William contends that the evidence is insufficient to
establish identity with respect to the Foxworth murder and
robbery. Davis identified William as the shooter from a
photographic lineup, at the preliminary hearing, and at trial.
Cell tower evidence showed that a phone connected to William
was in the area of the gas station where Foxworth was robbed
and murdered when the incident occurred. Finally, Davis’s
identification of the other participant, Wesley, was corroborated

66
by the DNA evidence, which, while not direct evidence against
William, tends to bolster the credibility of Davis’s identifications.
William asserts that eyewitness identifications are often
unreliable, and that Davis’s identification of him was “made
under suspect circumstances” because it took place more than a
month after the crime, in a patrol car, and was based on a
suggestive photographic lineup in which William was the only
person wearing two earrings and the only one with hair in
cornrows. He points out variations in Davis’s descriptions of the
shooter over the years and dismisses the cell tower evidence
because William lived near the scene of the crime. Finally, he
dismisses the evidence of Wesley’s DNA under Foxworth’s
fingernails that corroborated Davis’s identification of Wesley,
stating that Wesley’s presence “was not probative of appellant’s
presence at the scene.”
The evidence of identity was sufficient to support the
convictions. The testimony of a single witness is sufficient to
prove a fact (Evid. Code, § 411), and, unless the testimony is
physically impossible or inherently improbable, to support a
conviction. (Young, supra, 34 Cal.4th at p. 1181.) No inherent
improbability appears in Davis’s identification testimony, and
nothing about the evidence shows the Foxworth murder would
have been physically impossible for William to perpetrate.
“Inconsistencies in . . . initial descriptions of the perpetrator and
any suggestiveness in the lineup or photo arrays they were
shown are matters affecting the witness’s credibility, which is for
the jury to resolve.” (People v. Elliott (2012) 53 Cal.4th 535, 585.)
As for the value of the cell tower evidence and the DNA evidence,
that, too, was for the jury to decide. We do not reweigh the
evidence on appeal. (Lindberg, supra, 45 Cal.4th at p. 27.)

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 B. Counts 6, 7, and 8: Prince Attempted Murder,
Robbery, and Possession of Firearms by a Felon
William contends the evidence is insufficient to establish
identity with respect to his convictions of the Prince attempted
murder, robbery, and possession of firearms by a felon because it
rested on the testimony of Detective Perkins, which he argues
was unreliable. Perkins saw William drive quickly away from
the scene of the shooting in a black minivan, and she identified
William from a photographic lineup.
“ ‘ “ ‘To warrant the rejection of the statements given by a
witness who has been believed by a trial court, there must exist
either a physical impossibility that they are true, or their falsity
must be apparent without resorting to inferences or
deductions.’ ” ’ ” (Beck and Cruz, supra, 8 Cal.5th at p. 627.)
William argues that it was inherently impossible and “defies
credulity” that Perkins could have accurately identified the
driver because she was “43 feet” away and had only moments to
view the driver as he sped away.
Perkins testified she saw a minivan heading in her
direction at approximately 40 miles per hour. She testified she
could see the driver’s face and she momentarily locked eyes with
the driver of the minivan as it was 25 to 30 feet away from her.
William’s private investigator measured the distance that
Perkins had estimated as 30 feet and found it to be 43 feet. It is
neither physically impossible nor inherently improbable that a
police officer could make an accurate identification of the driver
of an approaching vehicle traveling at approximately 40 miles per
hour. Moreover, Perkins not only saw the driver, but she read
out the license plate number for the minivan so it would be
recorded on her patrol car’s audio system. The minivan’s license

68
plate matched the license plate of a minivan rented by William’s
girlfriend. This supports Perkins’ identification and is also
evidence tending to prove William committed these crimes.
William speculates that Perkins’s identification was tainted
by information provided to her by other law enforcement officers,
but he does not identify any evidence to support this claim.
Other evidence of William’s identity included the recovery at the
scene of a cell phone with his selfie photographs, although
William disputes the evidentiary value of this evidence because
he claims the prosecution did not establish he had been in
possession of that phone at that time and place.
As William has not established that Perkins’s testimony
was physically impossible or inherently improbable, Perkins’s
testimony was sufficient to establish his identity. (Evid. Code,
§ 411.) The evidence was sufficient to support William’s
convictions on these counts.

C. Counts 10 and 11: Berto and Yang Robberies
Pringle’s grandmother rented a black Infiniti SUV for
Pringle to drive, and the next day a black Infiniti SUV was used
to rob Berto. Fifteen minutes after Berto was robbed of his
$50,000 Rolex Sky Dweller watch, William took a photograph of
himself wearing a watch that looked exactly like it.
Evidence was presented at trial permitting the inference
that approximately two weeks later, the Infiniti rented by
Pringle’s grandmother was used in the Yang robbery before being
involved in a car accident and losing its license plate. The
following day William used his cell phone to try to sell Yang’s
watch. William admitted trying to sell Yang’s watch but denied
participating in the robbery, maintaining he was attempting to
sell the watch for a friend who had died.

69
 William claims the People never proved he was one of the
masked assailants who robbed Berto and Yang, only that he was
in possession of the stolen watches. Although possession of
recently stolen property is not itself sufficient to support a
conviction for robbery, “ ‘[p]ossession of recently stolen property is
so incriminating that to warrant conviction there need only be, in
addition to possession, slight corroboration in the form of
statements or conduct of the defendant tending to show his
guilt.’ ” (Grimes, supra, 1 Cal.5th at p. 731.) Here, the
corroborating evidence is William’s connection to the rented black
Infiniti used to commit the robberies. The evidence presented at
trial demonstrated that William regularly used vehicles rented
by others to commit his crimes, and this Infiniti was rented by
his girlfriend’s grandmother. The evidence was sufficient to
permit a reasonable jury to conclude that William committed the
two robberies.

VIII. Scott: Denial of Motion to Bifurcate or Empanel a
Separate Jury
After Wesley’s trial was severed from that of his co-
defendants, Scott moved to bifurcate the trial, or, alternatively, to
seat a second jury to decide his guilt separately from William’s or
to try the counts involving Scott before those involving William.
The prosecutor opposed bifurcation because much of the evidence
would be admissible against both defendants. The trial court
denied Scott’s motion.
On appeal, Scott does not contend the court’s failure to
bifurcate or employ separate juries was prejudicial error with
respect to counts 9 and 12, the firearms charges against him.
This leaves counts 1 and 2, the Smith murder and Bay attempted
murder in which both Scott and William were charged. With

70
respect to these counts, Scott acknowledges this was a “classic
case” for a joint trial, as he and William were charged jointly with
having committed common crimes involving common events and
common victims. He does not allege the failure to order a
separate trial on these counts was error. Instead, Scott contends
the court should have tried the counts involving him before the
rest of the charges against William, or else it should have ordered
a second jury. Scott was found not guilty on count 2, so the only
issue remaining on appeal pertains to count 1.
Section 1098 states in pertinent part that “[w]hen two or
more defendants are jointly charged with any public offense,
whether felony or misdemeanor, they must be tried jointly, unless
the court order separate trials. (Italics added.) This law thus
establishes a legislative preference for joint trials, subject to a
trial court’s broad discretion to order severance.” (People v.
Thompson (2016) 1 Cal.5th 1043, 1079.) Offenses that are either
“connected together in their commission” or “of the same class of
crimes” should be tried jointly unless a defendant makes “a clear
showing of potential prejudice.” (People v. Jones (2013)
57 Cal.4th 899, 925.) In assessing potential prejudice, courts
consider whether: (1) evidence on the crimes to be jointly tried
would not be cross-admissible in separate trials; (2) certain
charges are unusually likely to inflame the jury against the
defendant; (3) one of the cases is sufficiently weak that there is a
danger of a spillover effect of aggregate evidence on several
charges; and (4) whether the matter is a capital case. (Ibid.)

71
 Separate juries for jointly tried defendants are an
alternative to outright severance. (Thompson, supra, 1 Cal.5th at
p. 1085.) “ ‘[T]he decision to use dual juries is largely a
discretionary one, and . . . “[w]hen the trial court’s denial of
severance and impanelment of dual juries is urged as error on
appeal . . . the error is not a basis for reversal of the judgment in
the absence of identifiable prejudice or ‘gross unfairness . . . such
as to deprive the defendant of a fair trial or due process of
law.’ ” ’ ” (Id. at pp. 1085–1086.)
Scott argues he was prejudiced by the joint trial. He claims
he was “dirtied up” by being tried jointly with William,
characterizing the evidence on the Smith murder as weak but the
evidence against William on other counts as stronger. He points
out he “sat through weeks of a trial where his codefendant was
tried for murder, attempted murder, and robberies that took up
far more time than the trial on the charges involving appellant
and where the evidence was far stronger.” Given the “ugly
picture” the prosecution painted of William, Scott contends
“[t]here is little possibility that the single jury hearing all of these
charges together did not become prejudiced against appellant due
to the mountain of evidence and charges against William.”
Complaining of a “spillover effect” of the evidence of the other
crimes, Scott argues that if the jury hearing counts 1 and 2 (the
Smith murder and Bay attempted murder) had not heard the
evidence on the other murder and robbery charges involving
William, he would have achieved a better result on the Smith
murder count.

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 Scott has not identified prejudice or gross unfairness from
the joint trial such as to deprive him of a fair trial or due process.
The offenses with which William was charged were more
numerous, but not more serious, than the special circumstances
first degree murder alleged against Scott and William together.
Some amount of the evidence was cross-admissible, specifically
William’s use of a rental car to commit the Smith murder as well
as other crimes, and the evidence relating to the gang special
circumstance and gang enhancement allegations. The cases were
not capital cases. The evidence of William’s other crimes,
including another murder and multiple robberies, was not
particularly inflammatory or likely to prejudice the jury against
Scott when compared with the evidence against Scott: The jury
was going to see and hear evidence of Scott’s callousness
regarding the Smith murder because Scott had recorded a video
rapping about the murder in which he proudly bragged “I did
that,” dubbed himself “Hitman,” said he “whack[ed]” members of
a rival gang every time he saw them, and said he wanted his
victim’s brain. (Smith was shot in the head.) Scott also searched
for media coverage of Smith’s murder and saved a news story
about the murder as souvenir.
Scott argues the evidence of William’s other crimes was
stronger than the evidence of the Smith murder, but that is
hardly the case. Scott and William were identified by their
accomplice Gabb as the other participants in the murder; there
were photographs of them in the vehicle used to commit the
murder; cell tower evidence placed Scott’s phone at the scene of
the shooting; and Scott recorded himself boasting about shooting
Smith with lyrics that contained details of the shooting. Scott
has not demonstrated any error.

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IX. Wesley: Ineffective Assistance of Counsel
“A defendant seeking relief on the basis of ineffective
assistance of counsel must show both that trial counsel failed to
act in a manner to be expected of reasonably competent attorneys
acting as diligent advocates, and that it is reasonably probable a
more favorable determination would have resulted in the absence
of counsel’s failings.” (People v. Price (1991) 1 Cal.4th 324, 386
(Price).) Wesley argues his trial counsel’s failure to move to
suppress Davis’s identifications of Wesley and William “based on
the unfairly suggestive procedures used and the dearth of other
circumstances indicating reliability of the identifications”
constituted ineffective assistance of counsel. Wesley argues this
issue is properly raised on appeal since there could be no
reasonable tactical or strategic reason for not directly challenging
the admissibility of the identifications based on an allegedly
suggestive identification procedure. (See Ray, supra, 13 Cal.4th
at p. 349 [to prevail on an ineffectiveness claim on direct appeal,
“the record must affirmatively disclose the lack of a rational
tactical purpose for the challenged act or omission”].)
To determine whether an extrajudicial identification is so
unreliable as to violate a defendant’s right to due process, a trial
court must determine whether the identification procedure was
unduly suggestive and unnecessary, and, if so, whether the
identification was nonetheless reliable under the totality of the
circumstances. (People v. Gonzalez (2006) 38 Cal.4th 932, 942.)
The “defendant has the burden of showing that the
identification procedure was unduly suggestive and unfair ‘as a
demonstrable reality, not just speculation.’ ” (People v. Cook
(2007) 40 Cal.4th 1334, 1355.) Wesley’s argument about unfair
procedures boils down to an inference that because Davis did not

74
identify Wesley from a photographic lineup on September 29,
2015, and he did identify Wesley at the preliminary hearing in
2017, at some point law enforcement must have done something
unfairly suggestive to prompt Davis to identify Wesley. Wesley
acknowledged in the trial court that he had no evidence to
support this theory: “I have no idea what was said in that car,
none whatsoever. I don’t know if Junior Davis was influenced,
whether he looked at things and said, you know, that doesn’t look
like the guy. And then they showed him. Oh, that’s the guy. I
don’t know.” Wesley also describes the trial testimony that Davis
focused on a photograph other than Wesley’s when he looked at
the lineup on September 29, 2015, and he stated that the other
person looked either similar to the driver or similar to someone
involved in the offense. He claims the “powerful if not
overwhelming inference” from this evidence is that law
enforcement engaged in impermissibly suggestive tactics to
obtain Davis’s later identification of Wesley, but this is
speculation.
In light of the absence of evidence to support Wesley’s claim
of suggestive identification procedures, reasonably competent
counsel could reasonably have concluded that it was futile to seek
to suppress the identifications. Counsel does not render
ineffective assistance of counsel by failing to make motions he or
she reasonably determines to be futile. (Price, supra, 1 Cal.4th at
p. 387.) Because the record does not demonstrate the absence of
any rational tactical purpose for the failure to move to suppress
Davis’s identifications, Wesley’s claim must be denied on direct
appeal. (Ray, supra, 13 Cal.4th at p. 349.)

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X. Wesley: Sufficiency of the Evidence to Support
Special Circumstances Finding on Count 4
Wesley was convicted of the first degree murder of
Foxworth, with the special circumstance found true that the
murder was committed in the course of a robbery. He contends
the special circumstance finding must be vacated because the
evidence was insufficient to support a finding that he acted with
reckless indifference to human life.
“ ‘[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction must be . . . to
determine whether the record evidence could reasonably support
a finding of guilt beyond a reasonable doubt.’ [Citation.] ‘ “When
considering a challenge to the sufficiency of the evidence to
support a conviction, we review the entire record in the light most
favorable to the judgment to determine whether it contains
substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.” ’
[Citation.] A reviewing court ‘presumes in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.’ [Citation.] ‘[A]n appellate court may
not substitute its judgment for that of the jury. If the
circumstances reasonably justify the jury’s findings, the
reviewing court may not reverse the judgment merely because it
believes that the circumstances might also support a contrary
finding.’ [Citation.] We do not reweigh the evidence or resolve
conflicts in the testimony when determining its legal sufficiency.
[Citation.] Rather, before we can set aside a judgment of
conviction for insufficiency of the evidence, ‘it must clearly appear
that upon no hypothesis whatever is there sufficient evidence to

76
support [the jury’s finding].’ ” (People v. Garcia (2020)
46 Cal.App.5th 123, 144–145 (Garcia).)
A defendant acts with reckless indifference to human life
when he or she “ ‘ “knowingly engag[es] in criminal activities
known to carry a grave risk of death.” ’ ” (People v. Banks (2015)
61 Cal.4th 788, 801.) “Reckless indifference to human life has a
subjective and an objective element. [Citation.] As to the
subjective element, ‘[t]he defendant must be aware of and
willingly involved in the violent manner in which the particular
offense is committed,’ and he or she must consciously disregard
‘the significant risk of death his or her actions create.’
[Citations.] As to the objective element, ‘ “[t]he risk [of death]
must be of such a nature and degree that, considering the nature
and purpose of the actor’s conduct and the circumstances known
to him [or her], its disregard involves a gross deviation from the
standard of conduct that a law-abiding person would observe in
the actor’s situation.” ’ [Citation.] ‘Awareness of no more than
the foreseeable risk of death inherent in any [violent felony] is
insufficient’ to establish reckless indifference to human life; ‘only
knowingly creating a “grave risk of death” ’ satisfies the statutory
requirement.” (In re Scoggins (2020) 9 Cal.5th 667, 677
(Scoggins).)
“Determining a defendant’s culpability under the special
circumstances statute requires a fact-intensive, individualized
inquiry.” (Scoggins, supra, 9 Cal.5th at p. 683.) In People v.
Clark (2016) 63 Cal.4th 522 (Clark), the California Supreme
Court identified factors to consider when assessing a jury’s
finding a defendant acted with reckless indifference to human
life: (1) whether the defendant knew weapons would be used
during the felony and/or used weapons during the felony;

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(2) whether the defendant was physically present at the crime
and had opportunities to restrain the crime and/or aid the victim;
(3) the duration of the felony; (4) the defendant’s knowledge of his
or her cohort’s likelihood of killing; and (5) the defendant’s efforts
to minimize the risks of violence during the felony. (Id. at
pp. 618–623; see also Scoggins, at p. 677.) None of these factors
is necessary, nor is any one of them necessarily sufficient, to
demonstrate a person acted with reckless indifference. (Clark, at
p. 618.)
We analyze the totality of the circumstances to determine
whether Wesley acted with reckless indifference to human life.
(Scoggins, supra, 9 Cal.5th at p. 677.) With respect to the first
Clark factor, whether the defendant knew weapons would be
used during the felony and/or used weapons during the felony,
Wesley notes that the evidence was that this was a classic drug
rip-off. From this, and from the fact that the men struggled with
Foxworth before William shot him, Wesley posits that the crime
had been planned as a “nonlethal theft,” and that therefore he
could not be found to have acted with reckless indifference unless
he knew at the outset that William was armed with a firearm.
As Wesley notes, there was no evidence that he knew at the
outset that William was armed, but that is not dispositive. In
laying out the relevant factors for reckless indifference, the
California Supreme Court has clearly stated that no single factor
is necessary, nor is any single factor necessarily sufficient, to
demonstrate a person acted with reckless indifference. (Clark,
supra, 63 Cal.4th at p. 618.)

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 On the second Clark factor, evidence of Wesley’s presence
at the murder supported a finding he acted with reckless
indifference to human life. “Proximity to the murder and the
events leading up to it may be particularly significant
where . . . the murder is a culmination or a foreseeable result of
several intermediate steps. . . . In such cases, ‘the defendant’s
presence allows him to observe his cohorts so that it is fair to
conclude that he shared in their actions and mental
state. . . . [Moreover,] the defendant’s presence gives him an
opportunity to act as a restraining influence on murderous
cohorts. If the defendant fails to act as a restraining influence,
then the defendant is arguably more at fault for the resulting
murders.’ ” (Clark, supra, 63 Cal.4th at p. 619; see Garcia, supra,
46 Cal.App.5th at p. 148 [“Presence at the scene of the murder is
a particularly important aspect of the reckless indifference
inquiry”].) Wesley was present at the scene of the murder and
actively involved in every step except the actual shooting—a fact
tending to establish that although he was not the actual killer,
Wesley shared in his co-participant’s actions and mental state.
(Clark, supra, at p. 619.) When Foxworth resisted handing over
the money without receiving the drugs in return, Wesley had a
choice. He could have chosen not to engage with Foxworth and to
tell his brother to let Foxworth go. As Wesley was the driver of
the car and sped off immediately after the shooting, it is a
reasonable inference that Wesley could have ended the
interaction by driving off when Foxworth proved not to be an easy
mark. But Wesley chose to create danger to Foxworth by fighting
with him, preventing him from getting away, and pulling him
back into the car. Until just moments before William shot
Foxworth, Wesley was engaged in a violent physical struggle

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with Foxworth that resulted in his DNA being left under
Foxworth’s fingernails. Wesley’s own personal conduct
dramatically increased the danger to Foxworth.
There was also no evidence suggesting Wesley attempted to
restrain his co-participant’s conduct or to aid Foxworth. (Garcia,
supra, 46 Cal.App.5th at p. 148 [substantial evidence supported
robbery-murder special-circumstance finding where defendant
“did not restrain the actions of his accomplices or check on the
condition of his victims”].) Wesley was not interceding to restrain
William. He was actively struggling with Foxworth and
preventing Foxworth’s escape. Nor did Wesley make any attempt
to aid Foxworth or to summon aid for him after William shot him.
Instead, Wesley hurriedly drove away, demonstrating he
prioritized avoiding detection above Foxworth’s life.
The third Clark factor is “[t]he duration of the interaction
between victims and perpetrators,” which is significant because a
longer duration of interaction increases the likelihood the victim
will be harmed. (Clark, supra, 63 Cal.4th at p. 620.) While there
was no evidence that the incident took a particularly long time,
the evidence did show that instead of abandoning the robbery
plan when Foxworth resisted initial efforts to take his money,
Wesley turned to violence: He engaged in a physical fight with
Foxworth, grabbed at him and pulled him into the car, and
prevented Foxworth from extricating himself, deliberately
prolonging the incident and thereby heightening the danger to
Foxworth.
The fourth Clark factor is whether the defendant had
“knowledge of factors bearing on a cohort’s likelihood of killing.”
(Clark, supra, 63 Cal.4th at p. 621.) No evidence was introduced
at trial on this factor.

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 The final Clark factor considers whether the defendant
undertook “apparent efforts to minimize the risks of violence.”
(Clark, supra, 63 Cal.4th at pp. 621–622.) As we have already
discussed, the record demonstrates that Wesley escalated the risk
of violence in this case by engaging in a physical altercation with
Foxworth and pulling him into the vehicle, personally increasing
the risk to Foxworth by preventing his escape and forcing him
into a confined space.
Wesley argues he only “contemplated a nonviolent theft of
funds from a putative purchaser of drugs. There might be a
struggle but if so the perpetrators would flee (as occurred here)
with no prospect of deadly force.” But as discussed above,
Wesley’s conduct was not consistent with a nonviolent theft of
funds and flight if they encountered physical resistance.
Considering all the factors, we conclude the evidence permitted a
reasonable jury to conclude beyond a reasonable doubt that
Wesley acted with reckless indifference to human life.

XI. All Appellants: Issues Relating to Amendments to
Section 186.22
Section 186.22 provides for enhanced punishment when a
person is convicted of an enumerated felony committed “for the
benefit of, at the direction of, or in association with a criminal
street gang, with the specific intent to promote, further, or assist
in any criminal conduct by gang members.” (§ 186.22,
subd. (b)(1).) Effective January 1, 2022, Assembly Bill No. 333
(2021–2022 Reg. Sess.) (Assembly Bill 333) amended section
186.22 to require proof of additional elements to establish a gang
enhancement. (Assem. Bill 333, § 3, amended § 186.22, eff. Jan.
1, 2022; Stats. 2021, ch. 699, §§ 1–4.) This court asked the People,
and the appellants if the provision impacted their appeals, to file

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supplemental briefing regarding the effect of newly enacted
Assembly Bill 333.
We received and have considered supplemental briefing
from William, Scott, and the People, all of whom agree, as do we,
that appellants are entitled to the ameliorative effects of
Assembly Bill 333’s amendments to section 186.22 because their
judgments were not final when the new legislation took effect.
(People v. Lopez (2021) 73 Cal.App.5th 327, 343 (Lopez).) We also
agree with the parties that the amendments to section 186.22
require that this matter be remanded to the trial court for the
People to have an opportunity to retry the allegations affected by
these statutory changes.

A. Assembly Bill 333’s Statutory Changes
A “ ‘criminal street gang’ ” was formerly defined in section
186.22 as “an ongoing organization, association, or group of three
or more persons, whether formal or informal, having as one of its
primary activities the commission of one or more [enumerated
criminal acts], having a common name or common identifying
sign or symbol, and whose members individually or collectively
engage in, or have engaged in, a pattern of criminal gang
activity.” (§ 186.22, former subd. (f), italics added.) Effective
January 1, 2022, Assembly Bill 333 narrowed the definition of
“ ‘criminal street gang’ ” to “an ongoing, organized association or
group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or
more [enumerated criminal acts], having a common name or
common identifying sign or symbol, and whose members
collectively engage in, or have engaged in, a pattern of criminal
gang activity.” (§ 186.22, subd. (f), italics added.)

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 “Assembly Bill 333 also altered the requirements for
proving the ‘pattern of criminal gang activity’ necessary to
establish the existence of a criminal street gang. [Formerly], a
‘pattern of criminal gang activity’ mean[t] ‘the commission of,
attempted commission of, conspiracy to commit, or solicitation of,
sustained juvenile petition for, or conviction of two or more of
[enumerated] offenses, provided at least one of these offenses
occurred after the effective date of this chapter and the last of
those offenses occurred within three years after a prior offense,
and the offenses were committed on separate occasions, or by two
or more [persons].’ (§ 186.22, subd. (e).) As of the effective date,
Assembly Bill 333 redefine[d] ‘pattern of criminal gang activity’
to require that the last of the predicate offenses ‘occurred within
three years of the prior offense and within three years of the date
the current offense is alleged to have been committed,’ and that
the predicate offenses ‘were committed on separate occasions or
by two or more members, the offenses commonly benefited a
criminal street gang, and the common benefit of the offenses is
more than reputational.’ (Assem. Bill 333, § 3; amended § 186.22,
subd. (e)(1), eff. Jan. 1, 2022.) In addition, the currently charged
offense cannot be used as a predicate offense under the
amendments. (Id., subd. (e)(2).)” (Lopez, supra, 73 Cal.App.5th
at p. 345.)
“Assembly Bill 333’s changes to section 186.22 affect not
only the gang enhancement allegations under that statute but
other statutes that expressly incorporate provisions of section
186.22. Here, two other statutes that refer specifically to section
186.22 are implicated: section 190.2, subdivision (a)(22) and
section 12022.53, subdivision (e)(1). Section 190.2, subdivision
(a)(22) establishes a gang murder special circumstance: ‘The

83
defendant intentionally killed the victim while the defendant was
an active participant in a criminal street gang, as defined in
subdivision (f) of Section 186.22, and the murder was carried out
to further the activities of the criminal street gang.’ ” (Lopez,
supra, 73 Cal.App.5th at pp. 346–347.)
“Section 12022.53 provides for sentence enhancements for
the use of firearms in the commission of an enumerated felony.
The statute first provides for escalating punishments depending
on how the firearm is used. The least severe penalty is set forth
in section 12022.53, subdivision (b), which provides for a
consecutive 10-year term for a defendant who ‘personally uses’ a
firearm in a felony. Next, a consecutive 20-year term is imposed
under section 12022.53, subdivision (c), if the defendant
‘personally and intentionally discharges a firearm’ in the
commission of the offense. Finally, section 12022.53,
subdivision (d) provides for a consecutive sentence enhancement
of 25 years to life when the defendant ‘personally and
intentionally discharges a firearm and proximately causes great
bodily injury . . . or death’ during the commission of the offense.
“While these subdivisions provide punishment for offenders
who personally use a firearm during the commission of their
crimes, the penalties may also be imposed on any person who is a
principal in the offense under certain gang-related circumstances:
First, the person who is a principal must be ‘convicted of a felony
committed for the benefit of, at the direction of, or in association
with any criminal street gang, with the specific intent to promote,
further, or assist in any criminal conduct by gang members’ as
set forth in section 186.22, subdivision (b). (See § 12022.53,
subd. (e)(1)(A).) Second, ‘[a]ny principal in the offense’ must have
‘committed any act specified in subdivision (b), (c), or (d),’ that is,

84
any principal involved in the offense must have personally used a
firearm in the escalating use categories provided in section
12022.53, subdivisions (b) through (d). (§ 12022.53, subd.
(e)(1)(B).)” (Lopez, supra, 73 Cal.App.5th at p. 347.)

B. Impact of Assembly Bill 333
William and Scott contend, and the People agree, that in
light of the statutory changes of Assembly Bill 333, the
enhancement findings under section 186.22, subdivision (b) and
the gang special circumstances findings under section 190.2,
subdivision (a)(22) must be vacated and the matter remanded to
afford the prosecution an opportunity to retry the gang special
circumstance and enhancements to meet its burden of proof
under the amendments to section 186.22. We agree with the
parties. As the definition of a criminal street gang has been
narrowed by Assembly Bill 333 and new elements added in order
to prove a criminal street gang and a pattern of criminal activity,
both the gang enhancement allegations and the special
circumstances findings under section 190.2, subdivision (a)(22)
must be vacated; on remand, the People must be afforded the
opportunity to prove the gang enhancements and the gang
special circumstance in compliance with the amended section
186.22. (Lopez, supra, 73 Cal.App.5th at p. 347.)
Although the parties did not address this in their briefing,
the amendments to section 186.22 also affect the gang-related
firearm enhancements imposed under section 12022.53,
subdivision (e)(1). “Because this enhancement depends on a
finding that the principal was ‘convicted of a felony committed for
the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further,
or assist in any criminal conduct by gang members’ as set forth in

85
section 186.22, subdivision (b) (see § 12022.53, subd. (e)(1)(A)),
the changes to section 186.22 made by Assembly Bill 333 require
that the true findings on these enhancements, too, be vacated
and the matter remanded to the trial court.” (Lopez, supra,
73 Cal.App.5th at pp. 347–348.)
Accordingly, as to Scott, on count 1, the jury’s findings on
the section 190.2, subdivision (a)(22) gang special circumstance
and the section 186.22, subdivision (b)(1)(C) must be vacated.
As to William, the section 190.2, subdivision (a)(22) gang
special circumstance finding on count 1 must be vacated; the
section 186.22, subdivision (b)(1)(C) enhancement findings on
counts 1, 4, 6, 7, 10, and 1112 must be vacated; the section 186.22,

12 William and the People agree that the impact of Assembly
Bill 333 is moot with respect to the gang enhancement findings
under section 186.22, subdivision (b)(1)(C) on counts 10 and 11
because the trial court struck the gang enhancement on those
counts, but we disagree. The trial court struck the gang
enhancement on those counts at sentencing because it had
imposed a firearm enhancement under section 12022.53,
subdivisions (b) and (e)(1), and the court was prohibited by
section 12022.53, subdivision (e)(2) from imposing the gang
enhancement in combination with that firearm enhancement.
Section 12022.53, subdivision (e)(2) provides, “An enhancement
for participation in a criminal street gang . . . shall not be
imposed on a person in addition to an enhancement imposed
pursuant to this subdivision, unless the person personally used or
personally discharged a firearm in the commission of the offense.”
(Italics added.) As discussed above, section 12022.53, subdivision
(e)(1) enhancements do not require the defendant to personally
use or discharge a firearm; they apply to any person who is a
principal in the commission of an offense if (1) the person violated
section 186.22, subdivision (b) and (2) any principal in the offense
personally used and/or discharged a firearm as specified in

86
subdivision (b)(1)(A) enhancement findings on counts 5, 8, 13,
and 14 must be vacated; and the sentence enhancements imposed
under section 12022.53, subdivision (e)(1) on counts 1, 10, and 11
must be vacated. We note that the amendments to section 186.22
do not disturb the true findings on William’s enhancement
allegations for personal use and/or discharge of a firearm under
section 12022.53, subdivisions (b), (c), and (d).
Although Wesley did not submit supplemental briefing, we
nonetheless consider his sentence on appeal because, given the
ameliorative changes in the law, his sentence is now
unauthorized; that is, the trial court imposed a sentence that now
could not be lawfully imposed in that case. (See People v.
Anderson (2020) 9 Cal.5th 946, 962.) As to Wesley, on counts 4
and 15, the findings on the section 186.22, subdivision (b)(1)(C)
enhancements and on the section 12022.53, subdivision (e)(1)
enhancements must be vacated.
Our conclusion that the section 190.2, subdivision (a)(22)
gang special circumstance findings must be vacated makes it
unnecessary to address Scott’s claim that instructional error
lowered the prosecution’s burden of proof on that special
circumstance. Similarly, our determination that the gang
enhancement findings must be vacated and the matter remanded

section 12022.53, subdivision (b), (c), or (d). As the true findings
on both the gang and firearm enhancements on these two counts
must be vacated due to Assembly Bill 333, the statutory basis for
the striking the gang enhancement at sentencing disappears, and
we identify no impediment to the People retrying both
enhancements. Should these enhancement allegations be found
true again after retrial, we are confident the trial court will apply
section 12022.53, subdivision (e)(2) at resentencing.

87
moots William’s argument that the evidence was insufficient to
support the gang enhancement findings on counts 4, 5, 10, 11, 13,
and 14. Finally, William’s argument in his supplemental briefing
that the sentences on counts 5, 8, 13, and 14 were unauthorized
under People v. Briceno (2004) 34 Cal.4th 451 (defining “serious
felony” section 1192.7, subdivision (c)(28) as including any felony
offense committed for the benefit of a criminal street gang under
section 186.22, section (b)(1)), has been mooted by our
determination that the section 186.22, subdivision (b)(1)(A)
findings must be vacated and the matter remanded to give the
People the opportunity to retry the allegations. Should a Briceno
issue arise when William is resentenced on those counts, he may
raise the issue in the trial court at that time.
The matter must be remanded to the trial court, where the
prosecution shall be afforded an opportunity to retry the gang
special circumstance and gang-related enhancements to meet its
burden of proof pursuant to Assembly Bill 333’s new
requirements.

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 DISPOSITION
For each defendant, the gang enhancement allegation
findings under section 186.22, the special circumstances findings
under section 190.2, subdivision (a)(22), and the gang-related
firearm enhancement findings under section 12022.53,
subdivision (e)(1) are vacated. The matters are remanded to the
trial court for retrial if the People so elect. In all other respects,
the judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.
We concur:

GRIMES, Acting P. J.

HARUTUNIAN, J.


Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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