People v. Scott CA2/1

Filed 3/18/22 P. v. Scott CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B317191

Plaintiff and Respondent, (Kern County Super. Ct.
No. BF165475)
v.

DELWUAN ORLANDO SCOTT
et al.,

Defendants and Appellants.

APPEAL from judgments of the Superior Court of Kern
County, John R. Brownlee, Judge. Affirmed in part, reversed in
part, and remanded with directions.
Manuel J. Baglanis, under appointment by the Court of
Appeal, for Defendant and Appellant Delwuan Orlando Scott.
David Stanley, under appointment by the Court of Appeal,
for Defendant and Appellant Malik Lequan Watson.
Rob Bonta and Xavier Becerra, Attorneys General,
Lance E. Winters, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General,
Carlos A. Martinez and Catherine Tennant Nieto, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________

Defendants Delwuan Orlando Scott and Malik Lequan
Watson appeal from the judgment following their convictions for
attempted murder, three counts of shooting at an occupied
vehicle or inhabited dwelling, and two gang-related offenses.
Scott also was convicted of evasion of a peace officer.
Defendants raise the following arguments on appeal:1
(1) Scott’s counsel was ineffective for failing to excuse from the
jury a woman Scott claims was his high school guidance
counselor, and the trial court erred by not inquiring further when
Scott brought this to the court’s attention; (2) the trial court
failed to instruct the jury to view the statements of defendants’
accomplice with caution; (3) the evidence supporting the gang
findings was inadmissible hearsay; (4) the trial court incorrectly
believed it lacked discretion under the “Three Strikes” law to
impose Scott’s sentences concurrently; (5) the convictions for
shooting at an occupied vehicle or inhabited dwelling were
statutorily ineligible for the firearm enhancement imposed by the
trial court; (6) the matter must be remanded for the trial court to
exercise its recently enacted discretion to strike the firearm
enhancements; (7) Penal Code2 section 654 barred punishment on
some of the shooting offenses because they all arose from a single

1 The majority of the arguments are raised in Scott’s
appellate briefing, in which Watson expressly joins to the extent
those arguments apply to him.
2 Unspecified statutory citations are to the Penal Code.

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objective; (8) the trial court improperly doubled the
enhancements on Scott’s sentence under the Three Strikes law;
and (9) the errors cumulatively require reversal of the judgment.
We agree with defendants, as does the Attorney General,
that the prosecution relied on hearsay to establish the predicate
offenses underlying the gang findings, a procedure our Supreme
Court recently rejected in People v. Valencia (2021) 11 Cal.5th
818. We thus reverse the gang-related convictions, penalties, and
enhancements.
Among those gang-related penalties we must reverse are
the life sentences imposed on the three counts of shooting at an
occupied vehicle or inhabited dwelling. Absent these life
sentences, those offenses are no longer statutorily eligible for the
firearm enhancements imposed. We therefore reverse the
firearm enhancements on those counts. As for the remaining
firearm enhancements, during resentencing the trial court may
exercise its discretion whether to strike them.
Finally, we agree that enhancements are not doubled under
the Three Strikes law, and the trial court erred by doing so.
None of defendants’ other arguments merits reversal or
other relief. The record is insufficiently developed for us to
conclude on direct appeal that counsel was ineffective for not
taking further action regarding the juror Scott claims to have
known. Nor can we conclude the trial court erred by failing to
inquire further given that counsel did not press the issue. Any
error in failing to instruct the jury on accomplice testimony was
harmless given that other evidence corroborated the statements
at issue. The record does not support Scott’s contention that the
trial court believed it lacked discretion under the Three Strikes
law to sentence him concurrently. The multiple-victim exception

3
defeats defendants’ argument under section 654. We reject the
argument that the errors cumulatively rendered the entire
proceeding unfair.
Accordingly, we reverse the gang findings and related
convictions, penalties, and enhancements, including the firearm
enhancements on the convictions for shooting at an occupied
vehicle or inhabited dwelling. We remand for retrial of the gang
allegations and the two gang-related offenses, or resentencing if
the People choose not to proceed with retrial. We otherwise
affirm the judgments.

FACTUAL BACKGROUND
We limit this summary to the facts relevant to the
resolution of this appeal.

1. Shooting and investigation
At about 1:00 a.m. on August 2, 2016, Filiberto O. was
sitting in a vehicle in front of his home on H. Street3 in
Bakersfield. An SUV drove past him. Shortly thereafter,
Filiberto O. heard gunshots and the back window of his vehicle
shattered. Filiberto O. saw a man standing near the rear of the
SUV shooting at him. Filiberto O. heard more than 10 gunshots,
some of which struck his vehicle. Filiberto O. fled the scene in
his vehicle.
Filiberto O. drove to a liquor store. He saw the SUV drive
past again. The SUV slowed down and Filiberto O. saw the
occupants staring at him. He recognized the person sitting in the

3 Because the victims in this case all live on the same
street, for their privacy we conceal the full name of the street.

4
front passenger seat as the person who had shot at him. Filberto
O. drove away.
Filiberto O. called 911 to report the shooting. Officer
Braxton Tune of the Bakersfield Police Department4 located the
SUV and pursued it on a high-speed chase that lasted 13 minutes
and covered 14 miles. During the chase, Tune saw the occupants
of the SUV discard two items out of the windows.
The police finally were able to stop the SUV in a parking
lot. Three of the SUV’s occupants fled on foot. The driver and
one passenger remained in the SUV.
Officer Nestor Barajas pursued two of the fleeing suspects,
first in his vehicle and then on foot. Although the suspects
managed to evade Barajas, he got within five feet of one suspect,
and saw the other from about 20 feet away. That night, Barajas
looked at booking and Facebook photos and identified Scott and
Watson as the men he was chasing. He identified them again at
trial.
Other officers apprehended the third fleeing suspect,
identified as Demond Rufus. Police presented Rufus and the two
suspects who remained in the SUV, Charles Mitchell and Mycal
Deans, to Filiberto O. Filiberto O. identified Deans as the person
he saw shooting at him.
An officer searched the area where Tune first saw the
suspects discard an item from the SUV during the chase, and
located a .40 caliber pistol.
The next day, Araceli T., who lived near the site of the
shooting, showed police a hole in the wall of her home that was

4 All police officers referred to in this Factual Background
section worked for the Bakersfield Police Department.

5
not there before the date of the shooting. Another nearby
resident, Maria V., found a bullet in her yard, and police found a
bullet lodged in the tire of Maria V.’s vehicle.
Police obtained surveillance video from a gas station
recorded at 12:16 a.m. on August 2, 2016, approximately
45 minutes before the shooting. The prosecution presented the
video and a still frame from that video to the jury. The video is
not in the record on appeal, but the prosecution in closing
argument described it as showing defendants getting out of an
SUV.
A criminalist from the Kern Regional Crime Laboratory
analyzed 19 shell casings recovered from the scene of the
shooting, and opined that the casings were fired from three or
four different weapons.

2. Charles Mitchell’s police interview
Mitchell, one of the suspects from the SUV, testified at
trial. He denied making various statements to police, and the
prosecution impeached him by playing portions of Mitchell’s
police interview following his arrest.
In his interview, Mitchell stated the following: He was
driving the SUV. Rufus, Mitchell’s cousin, was in the front
passenger seat. Mitchell knew two of the three passengers in
back, Deans and defendant Scott. The others referred to the
third passenger in back as “Baby Blue.”
Mitchell denied being a gang member but said Scott was.
He was “pretty sure” Scott was an Eastside Crip.
Mitchell drove to H. Street. The interviewer asked if the
occupants of the SUV were looking for trouble or for a party, to
which Mitchell responded, “Trouble.” Mitchell denied knowing
anyone was armed.

6
 A car was following them. Mitchell pulled over and the car
went past. Scott told Mitchell to stop, then Scott “started
shooting” from inside the SUV. Baby Blue got out of the car and
also fired shots. Mitchell then “took off.”
When Officer Tune was in pursuit, Scott told Mitchell to
“keep going.” Someone threw a gun out the window. When the
police stopped the SUV, Rufus, Scott, and Baby Blue got out and
ran. Mitchell and Deans stayed in the SUV.

3. Gang evidence

a. Prior police contacts
Officer Michael Malley encountered Scott on July 23, 2014.
Malley asked Scott what “hood” he was from, and Scott said,
“Spoonie G.” Malley took that statement to refer to the Spoonie
G subset of the Eastside Crips.
Officer Frederick Martinez encountered Watson at Martin
Luther King, Jr. Park on August 27, 2015. Also present were
Andrew Ward, Stanley Peterson, Montrice Maize, and Jeremiah
Turner. Martinez was familiar with Ward’s tattoos, which
indicated membership in the Eastside Crips and a subset of that
gang, the Stroller Boys.
On October 26, 2015, Officer Ryan Clark stopped a vehicle
driven by Mycal Deans. Also in the vehicle were Sidney Walker,
Kira Davis, Byron Grimes, and defendant Watson. Clark
observed Watson reaching towards the floorboard of the vehicle.
Clark searched the vehicle and found a loaded handgun.
On February 1, 2016, Clark encountered Scott. Scott was
with Deon Hodge and Darius Robinson.

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 Officer Nathan Poteete stopped a vehicle on June 18, 2016
occupied by Mikequell Carter, Michael Carter, Kira Davis, Calvin
Peterson, and Mycal Deans.
Officer Frank McIntyre encountered Scott on July 11, 2016.
McIntyre asked Scott if he was “still active with the Eastside.”
Scott said yes, but he did not “hang out like I used to” for fear of
getting in trouble or being targeted as a gang member.

b. Gang expert’s testimony
The prosecution called Officer Barajas as a gang expert.
Barajas had been with the Bakersfield Police Department for
three and a half years, and in the gang unit for about 18 months.
Barajas explained that the Eastside Crips have a rivalry
with the other Crip gangs in Bakersfield, the Westside Crips and
the Country Boy Crips. The rivalry between the Eastside Crips
and the Country Boy Crips manifests as assaults, shootings, and
murders. H. Street, where the shooting at issue in this case took
place, is in “the heart” of Country Boy Crip territory.
The Spoonie G Crips are a subset of the Eastside Crips.
Martin Luther King, Jr. Park “belongs to the Eastside Crips” and
is “an iconic place for them.”
Primary activities of the Eastside Crips include possession
of firearms for defensive and offensive purposes, murder, robbery,
assault with deadly weapons, assault on police officers, narcotics
sales, burglaries, possession of stolen property, and auto theft.
Barajas opined that the gang has an “ongoing pattern of criminal
activity.”
Barajas identified three crimes committed by other
members of the Eastside Crips. The first was possession of a
firearm and gang participation committed by Dontrell Blinks in
2015. Barajas was familiar with the case because he assisted on

8
it and spoke to the officers who handled the case. He opined
Blinks was an Eastside Crip based on “statements and prior
contacts,” and the finding of guilt in that case.
The second was a firearm possession offense committed by
David Colen in November 2012. Barajas was familiar with the
case because he spoke to the officer who handled it and read the
report. He opined Colen was an Eastside Crip “[b]ased on the
totality of those circumstances of that case and statements
obtained and the location of where it was and his prior contacts.”
The third was a drug possession offense committed by
Marlon Turner in November 2011. Barajas was familiar with
that case by reading the report and speaking to the officer who
handled it. He opined Turner was an Eastside Crip “[b]ased on
the totality of the circumstances of that case, as well as
statements and prior contacts he had.”
Turning to the participants in the offenses at issue in the
instant case, Barajas opined that Mitchell and Rufus were
associates of the Eastside Crips, but not gang members. He
opined that Deans was a member of the Eastside Crips based on
Deans’ tattoos, other cases Deans had been involved in,
conversations Barajas had with other officers, and Deans’ prior
contacts with police. Barajas was “personally familiar” with
Deans’ tattoos, which he observed during a court hearing.
Barajas stated that some of the individuals Officers Clark and
Poteete testified they encountered with Deans were Eastside
Crips members, which Barajas knew either from his own contacts
with those individuals or from conversations with other gang
officers or gang members.
Barajas also opined that Scott was an active member of the
Eastside Crips, based on “general offense reports, as well as the

9
circumstances of this case, and some street checks that were
completed by other officers.” Barajas noted the testimony of
Officers Clark, McIntyre, and Malley, including Scott’s statement
to McIntyre that he was an active member of the Eastside Crips,
and his statement to Malley that he was part of Spoonie G.
Barajas opined that Watson was an active member of the
Eastside Crips. Barajas based this opinion in part on the
testimony of Officer Clark regarding contacting Watson along
with Deans and others in a vehicle from which Clark recovered a
loaded firearm. Also significant was Officer Martinez’s testimony
that he encountered Watson in Martin Luther King, Jr. Park
with individuals known to be Eastside Crip members.
The prosecution presented a hypothetical scenario
matching the circumstances of the shooting in the instant case,
and asked whether the crimes in that hypothetical were
committed for the benefit of, at the direction of, or in association
with the Eastside Crips. Barajas opined that they were. In
Barajas’ view, gang associates and active gang members driving
into rival gang territory with guns indicates “they’re looking for
somebody to shoot.” The shooting would benefit the gang
associates by elevating their status, and it would benefit the
active gang members by “giving them more respect and giving
the gang more respect. Not only that, the general public is now
going to fear this gang even more so just by reading it in the
news.”

PROCEDURAL HISTORY
The jury found both defendants guilty of premeditated and
deliberate attempted murder (§§ 664/187, subd. (a), 189)
(count 1), shooting at an occupied vehicle (§ 246) (count 2), two
counts of shooting at an inhabited dwelling (§ 246) (counts 3 and

10
4), carrying a loaded firearm in public while a member of a
criminal street gang (§ 25850, subd. (c)(3)) (count 5), and
participating in a criminal street gang (§ 186.22, subd. (a))
(count 6). The jury also found Scott guilty of recklessly evading a
peace officer (Veh. Code, § 2800.2.) (count 7).5
The jury found true that both defendants had personally
discharged firearms in committing counts 1 through 4
(§ 12022.53, subd. (c)), and had personally used firearms in
committing counts 5 and 6 (§ 12022.5, subd. (a)). The jury
further found true that counts 1 through 4, and in Scott’s case
count 7, were committed for the benefit of, at the direction of, or
in association with a criminal street gang (§ 186.22, subd. (b)(1)).
In a separate proceeding, the trial court found Scott had
suffered a prior conviction subjecting him to enhancements and
sentencing under the Three Strikes law (§§ 667, subds. (c)–(j),
1170.12).
On each of counts 2 through 4, the trial court sentenced
Scott to 64 years to life, to be served consecutively. These
sentences each incorporated the prior strike, a firearm
enhancement, a prior felony enhancement, and an alternate
penalty based on the true findings on the gang allegations. The
trial court imposed an additional consecutive determinate
sentence of 15 years for count 7, which included, inter alia, a
four-year gang enhancement. The trial court imposed but stayed
sentence on counts 1, 5, and 6 pursuant to section 654. Scott’s
total sentence therefore was 207 years to life.

5 The prosecution argued that Scott encouraged Mitchell to
evade the police and thus was culpable as an aider and abettor.

11
 The trial court imposed consecutive sentences on Watson of
35 years to life on count 1, 25 years to life on count 3, and 25
years to life on count 4, all of which incorporated the firearm
enhancements and alternate penalties based on the true findings
on the gang allegations. The trial court imposed but stayed
sentence on counts 2, 5, and 6. Watson’s total sentence therefore
was 85 years to life.

DISCUSSION

A. Scott Fails To Show Counsel Was Ineffective For Not
Challenging a Juror, or That the Trial Court Erred
By Not Further Investigating Scott’s Claim That He
Knew That Juror
Just before he was sentenced, Scott sent a letter to the trial
court claiming he informed defense counsel during voir dire that
he knew one of the jurors. On appeal, Scott contends defense
counsel was ineffective for failing to excuse the juror or raise the
issue with the trial court, and the trial court erred by not
investigating further upon receipt of Scott’s letter. Watson joins
Scott’s argument, contending the juror’s familiarity with Scott
prejudiced him as well. We reject these challenges.

1. Proceedings below
During jury selection, the trial court asked Scott, Watson,
and their attorneys to stand and face the prospective jurors. The
trial court asked the prospective jurors if any of them recognized
the attorneys or either defendant. None of the prospective jurors
answered yes.
On the day Scott was scheduled to be sentenced, the trial
court received a handwritten letter from Scott. In the letter,

12
Scott claimed that during jury selection he informed defense
counsel that Juror No. 9 had been his counselor in high school.
Scott said it was “beyond me” why “she never said she recognized
me,” and he also “ha[d] no idea why my attorney never brought it
up or asked her.” Scott wrote, “[The] reason I am bringing it up
now is I told [defense counsel] to put it on record and file a
motion for jury misconduct and he told me he couldn’t. He told
me it was too late and to wait for my appeal.”
At the outset of the sentencing hearing, the trial court
informed the parties about the letter, which defense counsel had
not seen, and gave defense counsel an opportunity to review it.
After defense counsel had read the letter, the trial court asked if
the defense had anything else to present other than the letter
and a previously filed sentencing brief. Defense counsel said, “I
don’t believe so.” The trial court asked, “[A]ny legal cause why
judgment should not now be imposed?” Defense counsel said,
“No, Your Honor.” The trial court then discussed some other
matters and proceeded to sentencing.

2. Analysis
To demonstrate ineffective assistance of counsel, Scott
“ ‘must show that counsel’s performance was deficient, and that
the deficiency prejudiced the defense.’ [Citation.]” (People v.
Johnsen (2021) 10 Cal.5th 1116, 1165.) “Usually, ‘ineffective
assistance [of counsel claims are] more appropriately decided in a
habeas corpus proceeding.’ [Citation.]” (People v. Hoyt (2020)
8 Cal.5th 892, 958.) On direct appeal, “we may reverse ‘only if
(1) the record affirmatively discloses counsel had no rational
tactical purpose for the challenged act or omission, (2) counsel
was asked for a reason and failed to provide one, or (3) there

13
simply could be no satisfactory explanation.’ [Citations.]”
(People v. Arredondo (2019) 8 Cal.5th 694, 711 (Arredondo).)
We cannot conclude on the record before us that Scott’s
counsel was ineffective. Scott’s arguments on appeal largely
assume that everything he said in his letter to the trial court was
true and accurate. We are unwilling to make such an
assumption. Thus, one obvious “ ‘satisfactory explanation’ ”
(Arredondo, supra, 8 Cal.5th at p. 711), for counsel’s decision not
to challenge Juror No. 9 is that, contrary to the assertions in
Scott’s letter, Scott never actually informed counsel during jury
selection that he knew Juror No. 9. If Scott did not tell his
counsel that he knew Juror No. 9, counsel certainly was not
ineffective for failing to dismiss her.
It is also conceivable that, even if Scott informed counsel
during jury selection that he knew Juror No. 9, counsel had
reason to keep her on the jury, and may have explained this to
Scott. For that matter, it is conceivable that Scott himself
wanted to keep her on the jury, and raised the misconduct issue
only after he was convicted. In short, the record in this direct
appeal is insufficient for us to assess whether Scott’s letter
accurately describes what happened between him and his
counsel, and if so, whether those events support a claim of
ineffective assistance of counsel. That is a question appropriate
for a habeas corpus proceeding after further development of the
record.
Nor can we conclude that counsel was ineffective for not
pressing the issue at sentencing once he had read Scott’s letter.
Failure to challenge a juror for cause or through peremptory
challenges forfeits later argument that the juror was
unacceptable. (See People v. Taylor (2010) 48 Cal.4th 574, 606;

14
People v. Hart (1999) 20 Cal.4th 546, 589.) If Scott waited until
after the verdict to inform counsel and the trial court that he
recognized one of the jurors during jury selection, he would have
forfeited any challenge to that juror. Counsel cannot be
ineffective for declining to raise a meritless argument.
Scott argues that defense counsel’s failure to offer any
explanation when presented with Scott’s letter should be
interpreted as an admission that defense counsel had no
explanation, and Scott’s letter was accurate. It is at least as
plausible, however, that defense counsel did not wish to make his
client look bad by challenging the veracity of the letter, and
decided as a tactical matter to move on from the issue as quickly
as possible. Again, the record is insufficient to eliminate the
possibility that counsel had sound reasons for his conduct. Scott
thus fails to meet his burden to establish ineffective assistance of
counsel on direct appeal.
We further reject Scott’s contention that the trial court
erred by not inquiring further upon receipt of his letter. “As a
general rule, parties who are represented in court by
counsel of record are required to proceed in court through their
counsel.” (In re Barnett (2003) 31 Cal.4th 466, 471.) Having
received an improper ex parte communication from Scott, the
trial court properly presented it to defense counsel and invited
further comment. Counsel stated there was no reason not to
proceed with sentencing, indicating implicitly that in counsel’s
view, Scott’s letter provided no basis for relief or further inquiry.
The trial court was entitled to accept this implicit representation
from an officer of the court charged with representing Scott’s
interests. It is not the trial court’s duty to question counsel’s
tactical decisions.

15
 Scott argues the trial court should have construed his letter
as a Marsden or Faretta motion seeking to replace his counsel or
represent himself.6 Motions regarding representation are exempt
from the general rule that represented parties must proceed
through counsel. (People v. Clark (1992) 3 Cal.4th 41, 173,
overruled on another ground as stated in People v. Pearson (2013)
56 Cal.4th 393, 462.) “Such motions must be clearly labeled as
such,” however. (Clark, at p. 173.) Scott’s letter was not labeled
as a motion to replace counsel or represent himself, nor did it
contain such a request.

B. Any Error In Failing To Instruct the Jury on
Accomplice Testimony Was Harmless
Defendants argue that because Mitchell was an accomplice
to the charged offenses, the trial court erred by not instructing
the jury to view Mitchell’s statements with caution and not
accept them without corroboration. We hold any error was
harmless.
Section 1111 provides, in relevant part, “A conviction can
not be had upon the testimony of an accomplice unless it be
corroborated by such other evidence as shall tend to connect the
defendant with the commission of the offense.” An accomplice is
“one who is liable to prosecution for the identical offense charged
against the defendant . . . .” (Ibid.)
“When a jury receives substantial evidence that a witness
who has implicated the defendant was an accomplice, a trial
court on its own motion must instruct it on the principles
regarding accomplice testimony. [Citation.] This includes

6 People v. Marsden (1970) 2 Cal.3d 118; Faretta v.
California (1975) 422 U.S. 806.

16
instructing the jury that an accomplice’s testimony implicating
the defendant must be viewed with caution and corroborated by
other evidence.” (People v. Houston (2012) 54 Cal.4th 1186,
1223.) “ ‘[T]estimony’ includes an accomplice’s out-of-court
statements made under questioning by police or under other
suspect circumstances.’ ” (People v. Carrington (2009) 47 Cal.4th
145, 190.)
It is undisputed the trial court in the instant case did not
instruct the jury on the principles of accomplice testimony. It is
also beyond dispute that Mitchell’s statements implicated Scott,
whom Mitchell told police was a gang member who fired on
another vehicle and then encouraged Mitchell to evade a
pursuing officer.7
Assuming arguendo Mitchell was an accomplice and the
trial court should have provided an instruction on accomplice
testimony, we conclude any error in omitting that instruction was
harmless. “Any error in failing to instruct the jury that it could
not convict defendant on the testimony of an accomplice alone is
harmless if there is evidence corroborating the accomplice’s
testimony. ‘ “Corroborating evidence may be slight, may be
entirely circumstantial, and need not be sufficient to establish
every element of the charged offense.” ’ [Citation.]” (People v.
Williams (2010) 49 Cal.4th 405, 456 (Williams).) “The evidence is
‘sufficient if it tends to connect the defendant with the crime in
such a way as to satisfy the jury that the accomplice is telling the

7 Mitchell did not identify Watson by name. Given our
conclusion any instructional error was harmless, we need not
decide if Mitchell’s statements to the police implicated Watson for
purposes of section 1111.

17
truth.’ [Citation.]” (People v. Gonzales and Soliz (2011)
52 Cal.4th 254, 303 (Gonzales & Soliz).)
This standard is more forgiving than the harmless error
analysis under People v. Watson (1956) 46 Cal.2d 818, 836,
“which requires reversal if, after an examination of the entire
case, ‘it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.’ [Citation.]” (Gonzales & Soliz, supra, 52 Cal.4th at
p. 303.) The more stringent Watson harmless error analysis is
required only in the absence of adequate corroboration. (See
Gonzales & Soliz, at p. 304.)
Here, there was adequate evidence corroborating Mitchell’s
statements. Surveillance video presented to the jury showed
defendants with the SUV 45 minutes before the shooting. Officer
Barajas identified both defendants as the suspects he pursued
following the shooting. The criminalist testified that three or
four guns were used, which lends support to Mitchell’s
statements that Scott and Baby Blue both fired weapons.
Mitchell’s statement that Scott was a gang member was
corroborated by Scott’s own statements to Officers McIntyre and
Malley. Scott argues his statements to the police were
inadmissible hearsay, but a defendant’s own out-of-court
statements are not barred by the hearsay rule when offered
against him. (Evid. Code, § 1220; People v. Gonzalez (2021)
12 Cal.5th 367, 409.)
Scott argues that although there was corroborating
evidence of multiple shooters, “no eyewitness, forensic, scientific,
or ballistic evidence” established that Scott himself was a
shooter. Assuming this is so, the law does not require that the
corroborating evidence “ ‘ “establish every element of the charged

18
offense” ’ ” (Williams, supra, 49 Cal.4th at p. 456), only that it
“ ‘tend[ ] to connect the defendant with the crime in such a way as
to satisfy the jury that the accomplice is telling the truth.’
[Citation.]” (Gonzales & Soliz, supra, 52 Cal.4th at p. 303.) The
evidence here satisfied that standard by establishing defendants
were in the SUV shortly before and after the shooting, and
multiple weapons were fired from the SUV.

C. The Gang Findings Were Based on Inadmissible
Hearsay
Defendants argue that Officer Barajas’ testimony regarding
prior crimes committed by Eastside Crip members was based on
inadmissible hearsay, and thus the jury’s gang findings must be
reversed under People v. Valencia (2021) 11 Cal.5th 818
(Valencia). The Attorney General agrees, as do we.
Defendants were convicted of two gang-related offenses—
carrying a loaded firearm in public while a member of a criminal
street gang (§ 25850, subd. (c)(3)), and participating in a criminal
street gang (§ 186.22, subd. (a))—and also were subjected to
alternate penalties and enhancements based on the jury’s finding
that they had committed the other charged offenses for the
benefit of, at the direction of, or in association with a criminal
street gang (§ 186.22, subd. (b)(1)).
To establish that the Eastside Crips were a “criminal street
gang,” as required by these offenses, penalties, and
enhancements, the prosecution was required to prove, inter alia,
that the members of that gang “collectively engage in, or have
engaged in, a pattern of criminal gang activity.” (§ 186.22, subd.
(f).) “A gang engages in a ‘pattern of criminal gang activity’ when
its members participate in ‘two or more’ specified criminal
offenses (the so-called ‘predicate offenses’) that are committed

19
within a certain time frame and ‘on separate occasions, or by two
or more persons.’ [Citation.]” (People v. Loeun (1997) 17 Cal.4th
1, 4; see also § 186.22, subd. (e).)
In Valencia, the prosecution established the predicate
offenses through the testimony of a gang expert whose “only
knowledge of these offenses came from conversations with other
officers and a review of police reports.” (Valencia, supra,
11 Cal.5th at p. 827.) The Supreme Court held this was
reversible error. (Id. at pp. 839–840.) The court held that
predicate offense evidence “constitute[s] case-specific facts that
must be proved by independently admissible evidence.” (Id. at
p. 839.) “[S]uch proof may not be established solely by the
testimony of an expert who has no personal knowledge of facts
otherwise necessary to satisfy the prosecution’s burden.” (Id. at
p. 826, citing People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).)
Valencia disapproved of Court of Appeal decisions holding that
predicate offense evidence constituted background information to
which an expert properly could testify, even if derived from
hearsay. (Valencia, at pp. 831, 835, 839, fn. 17.)
In the instant case, as in Valencia, the prosecution
established the required predicate offenses through the testimony
of a gang expert, Officer Barajas. Barajas testified regarding
three offenses purportedly committed by Eastside Crip members.
As to two of those offenses, Barajas testified he knew of them
based solely on conversations with the officers who handled them
and by reading the reports. Under Valencia, this testimony was

20
inadmissible.8 The error was prejudicial, because there was no
other evidence to establish those predicate offenses.
Accordingly, we must reverse the convictions on counts 5
and 6 and the true gang findings on counts 1 through 4 and 7.
Consistent with the judgment of the Court of Appeal affirmed in
Valencia, we remand for retrial on those counts and allegations,
or should the People choose not to proceed with retrial, for
resentencing. (See Valencia, supra, 11 Cal.5th at p. 828, fn. 7.)
Scott argues the entire judgment should be reversed
because “the gang-related allegations were used by the
prosecution as significant bases to prove motive and intent for
the commission of the charged offenses.” We disagree, because
defendants’ intent was established by admissible evidence.
Although a gang expert may not testify regarding case-
specific facts unsupported by independently admissible evidence,
the expert’s “general testimony about a gang’s behavior, history,
territory, and general operations is usually admissible.”
(Valencia, supra, 11 Cal.5th at p. 838.) Thus, whereas Barajas
did not provide admissible testimony that the Eastside Crips met
the technical definition of a “criminal street gang” for purposes of
section 186.22, he provided admissible testimony that the
Eastside Crips were a gang with a rivalry with another gang, the
Country Boy Crips, and that rivalry historically manifested in

8 It is not clear how much of Barajas’ testimony regarding
the third offense was based on personal knowledge. He testified
he knew about that case both by assisting on it and by speaking
with the officers handling it. Regardless, even if he had personal
knowledge as to that one offense, his testimony was insufficient
to establish the commission of two predicate offenses, as required
under section 186.22, subdivision (e).

21
shootings and assaults. Also admissible was his testimony that
the shooting took place in the heart of Country Boy Crips
territory, and his opinion that gang members who drive into rival
territory armed with guns are looking for someone to shoot. This
testimony was further bolstered by Mitchell’s admission that he
and the others drove to H. Street looking for “[t]rouble.”
There also was admissible evidence that at least some of
the individuals in the SUV, including Scott, were Eastside Crips.
Two police officers testified that Scott had told them he was a
member of the Eastside Crips or its subset Spoonie G, and
Mitchell told police he was “pretty sure” Scott was an Eastside
Crip. Barajas opined that Deans was an Eastside Crip based on
his tattoos, which Barajas personally had observed. (See
Sanchez, supra, 63 Cal.4th at pp. 677–678 [if presence of tattoo is
established by a witness who observed it, expert may testify that
the tattoo is a symbol adopted by a street gang, and that a person
with that tattoo is a member of the gang].) Indeed, Scott
concedes admissible evidence established that Deans was a gang
member with a “desire to shoot someone in Country Boy Crips’
territory.”
The evidence having established that Scott and Deans
drove into Country Boys Crips territory looking for someone to
shoot, it is inconceivable that the jury would not further conclude
that Watson, whom Mitchell’s statements indicated participated
in the shooting,9 shared in their intent. This is so regardless of

9 Although Mitchell did not identify Watson by name, it is
clear that Watson is the Baby Blue to whom Mitchell referred. It
is undisputed there were five occupants of the SUV, four of whom
Mitchell identified by name—Rufus, Dean, Scott, and himself.

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whether the other evidence of Watson’s gang membership was
admissible, an issue we do not decide. We therefore conclude
that reversal of the gang findings does not require reversal of the
entire judgment.
In a letter sent to the court after briefing was completed,
Watson asks us to consider the impact of amendments to
section 186.22 enacted under Assembly Bill No. 333, which
Watson contends require reversal of the gang findings. Because
we are reversing the gang findings under Valencia, it is
unnecessary for us to determine if Assembly Bill No. 333 provides
an alternative basis for reversal, and we decline to do so.

D. The Record Does Not Support Scott’s Contention
That the Trial Court Believed It Was Required To
Impose Consecutive Sentences Under the Three
Strikes Law
Scott contends the trial court sentenced him consecutively
on counts 2 through 4 based on the incorrect conclusion that the
Three Strikes law required it. As we explain, the record does not
support this contention; rather, the record indicates the trial
court imposed consecutive sentences because the counts involved
separate victims and separate acts of violence, bases unrelated to
the Three Strikes law.
There is a split of authority as to whether “Proposition 36
eliminated the trial court’s discretion to impose concurrent
sentences on multiple current serious or violent felony

Thus, the man he identified as Baby Blue could only be Watson,
the fifth occupant of the SUV as identified by the surveillance
video and Officer Barajas. Mitchell told the police that both Scott
and Baby Blue were the shooters.

23
convictions” under the Three Strikes law. (See People v.
Henderson (2020) 54 Cal.App.5th 612, 621 (Henderson), review
granted Dec. 23, 2020, S265172.) The issue currently is pending
before the Supreme Court. Scott urges us to adopt the position of
courts holding that trial courts retain discretion to impose
concurrent sentences even after Proposition 36.
We decline to enter this debate. In every published opinion
in which a defendant has challenged consecutive sentences on the
basis that the trial court misunderstood its discretion under the
Three Strikes law, there was indication in the record that the
trial court in fact believed the Three Strikes law mandated
consecutive sentencing. (See Henderson, supra, 54 Cal.App.5th
at p. 620 [trial court stated the “ ‘three strikes law requires that
on serious or violent felonies, two or more, that they be sentenced
consecutively’ ”]; People v. Marcus (2020) 45 Cal.App.5th 201, 208
[trial court “agreed” that it “lacked discretion to sentence
defendant concurrently”]; People v. Gangl (2019) 42 Cal.App.5th
58, 64, fn. 6 [“trial counsel conceded that consecutive sentences
were mandatory”]; People v. Torres (2018) 23 Cal.App.5th 185,
196 [Three Strikes statutes “ ‘mandate the full term consecutive
sentences’ ”].) Thus, in each of these cases, the reviewing court
appropriately considered whether the trial court misunderstood
its discretion.
In contrast to the above cited cases, there is no indication
in the instant case that the trial court believed the Three Strikes
law mandated consecutive sentencing. Scott’s probation report,
on which the trial court appears to have based its sentencing
decisions, states, “It is recommended Counts Two, Three and
Four be served consecutively as the counts involved separate
victims and separate acts or threats of violence.” During

24
sentencing, the trial court similarly stated, “It’s ordered as to
Count 2, 3, and 4 be served consecutively as the counts involve
separate victims and separate acts or threats of violence.”
Nothing in the Three Strikes law refers to separate victims
or separate acts of violence as a basis for consecutive sentencing.
Rather, these are discretionary bases for imposing consecutive
sentences unrelated to the Three Strikes law. (See People v. Leon
(2010) 181 Cal.App.4th 452, 468 [“A trial court has discretion to
impose consecutive sentences where . . . a single act has resulted
in crimes against multiple victims.”]; Cal. Rules of Court, rule
4.425(a)(2) [among the “[f]actors affecting the decision to impose
consecutive rather than concurrent sentences” is “[t]he crimes
involved separate acts of violence or threats of violence”].) Had
the trial court believed it was required under the Three Strikes
law to impose consecutive sentences, it would have no reason to
cite these other bases. Rather, it would have invoked the Three
Strikes law, which it did not do, nor did the probation report or
the prosecution. Thus, the record makes clear the trial court
did not look to the Three Strikes law in imposing consecutive
sentences.
In arguing to the contrary, Scott refers to the trial court’s
statement at the outset of sentencing that the court “doesn’t take
any pride or satisfaction in sentencing a 22-year-old man to the
sentence that the law requires today. I don’t like doing it, but the
fact of the matter is the law in the State of California requires it.
Whether I like it or not, that is my job, that’s what I have to do,
and the law requires that.” Nothing in this statement refers to
the Three Strikes law or suggests the trial court imposed
consecutive sentences on that basis, particularly when the trial

25
court expressly cited separate, non-Three Strikes bases to impose
consecutive sentences.
In the absence of a record indicating the trial court imposed
consecutive sentences because it believed the Three Strikes law
mandated it, Scott’s argument on this point fails. Nevertheless,
we recognize that general statements that the law “requires” a
particular sentence, as the trial court stated at the outset of
sentencing in this case, can create ambiguity as to when the trial
court was exercising its discretion and when the trial court
believed a particular aspect of the sentence was mandatory.
Given that we are vacating defendants’ sentences for other
reasons, we ask, should the trial court on remand again impose
consecutive sentences, that the trial court make clear on the
record whether it is doing so as a matter of discretion. This will
assist us should there be further appellate review of this case.

E. Reversal of the Gang Findings Requires Reversal of
the Firearm Enhancements Under Section 12022.53,
Subdivision (C) on Counts 2 Through 4
Watson argues counts 2 through 4, the counts for shooting
at an occupied vehicle or inhabited dwelling, are statutorily
ineligible for the firearm enhancement under section 12022.53,
subdivision (c). We conclude our reversal of the gang findings
requires reversal of the firearm enhancements as well.
The 20-year enhancement under section 12022.53,
subdivision (c) applies only to felonies specifically enumerated in
subdivision (a) of that statute. (See § 12022.53, subd. (c).)
Among the enumerated felonies is “[a]ny felony punishable by
death or imprisonment in the state prison for life.” (Id.,
subd. (a)(17).)

26
 Section 246, the offense underlying counts 2 through 4 in
the instant case, normally is not subject to an enhancement
under section 12022.53, subdivision (c), because it is neither an
expressly listed offense nor an offense punishable by death or life
imprisonment. (See §§ 246 [punishable by imprisonment for
three, five, or seven years]; 12022.53, subd. (a).)
As our Supreme Court held in People v. Jones (2009)
47 Cal.4th 566, however, an offense under section 246 is subject
to a section 12022.53, subdivision (c) enhancement when
committed for the benefit of, at the direction of, or in association
with a criminal street gang. (Jones, at pp. 568–569, 572.) This is
because the true gang findings increase the penalty for a section
246 conviction to a life sentence. (§ 186.22, subd. (b)(4)(B); Jones,
at p. 572.) That life sentence, in turn, renders the section 246
conviction eligible for the section 12022.53, subdivision (c)
enhancement as a “felony punishable by . . . imprisonment in the
state prison for life.” (§ 12022.53, subd. (a)(17); Jones, at p. 569.)
Thus, were the gang findings valid in this case, defendants
would be subject to 20-year firearm enhancements on counts 2
through 4. Given that we are reversing the gang findings under
Valencia, however, and therefore reversing the life sentences
imposed under section 186.22, subdivision (b)(4)(B), we must also
reverse the firearm enhancements under section 12022.53,
subdivision (c) on counts 2 through 4. Should the People choose
to retry the gang allegations and the jury finds them true, the
trial court may again impose the firearm enhancements on
counts 2 through 4, subject to its discretion as discussed in
part F, post.
Our holding does not affect the section 12022.53,
subdivision (c) enhancement on count 1, attempted murder, and

27
Watson does not contend otherwise. (See § 12022.53, subd. (a)(1),
(18) [listing attempted murder as an enumerated felony subject
to the 20-year enhancement].)

F. On Remand, the Trial Court May Exercise Its
Discretion Whether To Strike the Remaining
Firearm Enhancements
Subsequent to sentencing in the instant case, Senate Bill
No. 620 amended sections 12022.5 and 12022.53 to grant trial
courts previously unavailable discretion to strike firearm
enhancements in the interest of justice. (People v. Baltazar
(2020) 57 Cal.App.5th 334, 337.) These amendments apply
retroactively to the instant case, in which judgment is not yet
final. (See ibid.) Defendants request that we remand so the trial
court may exercise its discretion whether to strike the firearm
enhancements. The Attorney General agrees remand is
appropriate.
As we have explained, we are reversing the enhancements
under 12022.53, subdivision (c) applied to counts 2 through 4.
We are also reversing the gang-related convictions, counts 5 and
6, the counts to which the trial court applied enhancements
under section 12022.5, subdivision (a). The only firearm
enhancements remaining are the section 12022.53, subdivision (c)
enhancements applied to defendants’ sentences on count 1,
attempted murder. During resentencing, the trial court may
exercise its discretion whether to strike those enhancements.
Also, should the reversed firearm enhancements again be at issue
following retrial, the trial court may exercise its discretion as to
those enhancements as well.

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G. Section 654 Does Not Bar Punishment For Counts 3
and 4
“Section 654 ‘generally precludes multiple punishments
for a single physical act that violates different provisions of law
[citation] as well as multiple punishments for an indivisible
course of conduct that violates more than one criminal statute.’
[Citations.] ‘ “Whether a course of criminal conduct is divisible
and therefore gives rise to more than one act within the meaning
of section 654 depends on the intent and objective of the actor. If
all of the offenses were incident to one objective, the defendant
may be punished for any one of such offenses but not for more
than one.” ’ [Citation.]” (In re Raymundo M. (2020)
52 Cal.App.5th 78, 94, italics & fn. omitted.)
Scott argues that the sole intent and objective of the
shooting was to hit Filiberto O., with no separate objective to
shoot at the two inhabited dwellings, the acts underlying counts 3
and 4. He contends, therefore, that section 654 barred the
punishments for counts 3 and 4.
Scott is incorrect. “[S]ection 654 does not apply to crimes of
violence against multiple victims. [Citation.] The reason is that
‘ “[a] defendant who commits an act of violence with the intent to
harm more than one person or by a means likely to cause harm to
several persons is more culpable than a defendant who harms
only one person.” ’ [Citation.]” (People v. Correa (2012)
54 Cal.4th 331, 341, fn. omitted (Correa).) The multiple-victim
exception “allows separate punishment for each crime of violence
against a different victim, even though all crimes are part of an
indivisible course of conduct with a single principal objective.”
(People v. Felix (2009) 172 Cal.App.4th 1618, 1630–1631.)

29
 Firing multiple shots in a residential neighborhood is “ ‘ “an
act of violence . . . likely to cause harm to several persons . . . .” ’
[Citation.]” (Correa, supra, 54 Cal.4th at p. 341.) In doing so,
Scott and Watson endangered multiple victims, including
Filiberto O. and the residents of Araceli T.’s and Maria V.’s
homes. The multiple-victim exception applies, and there was no
basis to stay the sentences on counts 3 and 4 under section 654.

H. The Trial Court Improperly Doubled the
Enhancements on Scott’s Sentence
In sentencing Scott on counts 2 through 4, the trial court
not only doubled the base term pursuant to the Three Strikes law
(see §§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), but also doubled
the enhancements. As the Attorney General concedes, this was
error. When a defendant has one prior strike conviction,
“enhancements are added after the determination of the base
term and are not doubled.” (People v. Sok (2010) 181 Cal.App.4th
88, 93.) Should the trial court impose enhancements during
resentencing, we direct the trial court to observe this rule.

I. Cumulative Error Does Not Merit Reversal
Scott argues the errors below in the aggregate rendered his
trial unfair and require reversal of the judgment. We have
explained why the errors regarding the gang evidence do not
justify reversing the entire judgment, and the other errors are
technical matters involving sentencing that are easily corrected.
We are satisfied our disposition addresses all errors without need
for reversal of the full judgment.

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 DISPOSITION
As to Delwuan Orlando Scott, we reverse the convictions on
counts 5 and 6, the true findings, penalties, and enhancements on
counts 1, 2, 3, 4, and 7 under Penal Code section 186.22, and the
enhancements on counts 2, 3, and 4 under Penal Code section
12022.53, subdivision (c). Scott’s sentence is vacated. The
judgment otherwise is affirmed.
As to Malik Lequan Watson, we reverse the convictions on
counts 5 and 6, the true findings, penalties, and enhancements on
counts 1, 2, 3, and 4 under Penal Code section 186.22, and the
enhancements on counts 2, 3, and 4 under Penal Code
section 12022.53, subdivision (c). Watson’s sentence is vacated.
The judgment otherwise is affirmed.
The matter is remanded to the trial court with directions to
allow the People to retry defendants on counts 5 and 6 and the
allegations under Penal Code section 186.22. Following retrial,
or if the People elect not to proceed with retrial, the trial court
shall resentence defendants, consistent with this opinion, and
send new abstracts of judgment to the Department of Corrections
and Rehabilitation.
NOT TO BE PUBLISHED.

BENDIX, J.
We concur:

ROTHSCHILD, P. J. CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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