People v. Spicer CA2/3

Filed 5/13/22 P. v. Spicer CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B308931

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA148753)
v.

JESSE SPICER, et al.,

Defendants and Appellants.

APPEALS from judgments of the Superior Court of Los
Angeles County, John J. Lonergan, Judge. Remanded with
directions.
Joanna McKim, under appointment by the Court of Appeal,
for Defendant and Appellant Jesse Spicer.
Joanna Rehm, under appointment by the Court of Appeal,
for Defendant and Appellant Akkeli Frederick.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Jesse Spicer and Akkeli Frederick were jointly tried by one
jury and found guilty of gang-related murder and attempted
murder. While in jail, Spicer made incriminating statements to a
confidential informant masquerading as a fellow inmate,
including ones identifying Frederick as his accomplice. On
appeal, both defendants contend that Spicer’s statements should
have been excluded. They also contend that there is insufficient
evidence to support the judgments, that certain identification
evidence and evidence Spicer was on probation were improperly
admitted, and the trial court should have imposed a discovery
sanction on the prosecution. We reject these contentions but
because Spicer and Frederick are entitled to the benefit of
recently-enacted ameliorative laws, remand is necessary.
BACKGROUND
I. March 27, 2019: the murder of Denzel Gordon and the
attempted murder of Donald Neal
Brothers Isaiah Gordon and Denzel Gordon1 lived at the
Jordan Downs apartments in Watts. Both were members of the
Grape Street Crips, and Denzel was known as Poppy.2 The
Grape Street Crips dominated the area around Jordan Downs.

1
We use first names for members of the Gordon family for
clarity.
2
Although Isaiah denied being a gang member, the People’s
expert testified that he, as well as family members, were Grape
Street Crips.

2
Its rival, Bounty Hunter Bloods, claimed the area around
Nickerson Gardens, also in Watts.
On March 27, 2019, sometime before 7:23 p.m.,3 Isaiah and
Denzel were on Grape Street and 101st Street where their aunt
lived. Isaiah had driven there in his Camaro, which Denzel
wanted to test drive. When Denzel returned after driving the car
for a bit, he turned it off. The car wouldn’t restart, so Denzel
went to get jumper cables. Meanwhile, Isaiah was getting
something from the car when four gunshots were fired. Denzel
was shot in the stomach and died later that night.
Not long after Denzel was shot and about two miles away,
Donald Neal and his friend Dante Myers were in the area of
104th and Broadway at about 7:50 p.m. While sitting in Neal’s
parked Camaro, Neal heard a gunshot. Unsure of where the shot
came from, he drove away but lost control of the car and crashed
into a gate. The car had a bullet hole in its rear.4
When the police arrived, they found parked nearby the car
used in both shootings, a red Nissan Rogue that had been
reported stolen one week before. A backpack containing items
with Spicer’s name on them, including his school identification
card, were in the car.
II. Isaiah’s and Quennisha Gordon’s statements
Just hours after Denzel died, in the early morning of March
28, 2019, Isaiah told Detective Peter McCoy what happened: a
burgundy truck pulled up, “they” said “Bounty Hunters,” and
they shot Denzel. Although Isaiah said he didn’t recognize

3
This is when officers received a report of the shooting.
4
At trial, Neal was unsure whether the damage was from this
shooting or an earlier shooting incident he had been involved in.

3
anyone in the truck, the passenger/shooter “kind of looked like
this boy named Jesse” from Nickerson Gardens. Isaiah couldn’t
really see the shooter’s face because he “low-key, covered up his
face with his other arm.” The shooter wore a black hoodie and
was hanging out of the window.
A few days after this initial interview, the detective again
spoke to Isaiah, who said he “really couldn’t see his [the
shooter’s] face, so that’s why I’m not fittin’ to just say I seen him,
but” he did catch a glimpse of his face. The shooter was Black,
and Isaiah could see a little hair on top. Isaiah now thought it
was the driver who had said, “Bounty Hunters,” and Isaiah had
heard rumors that the driver’s name was Flaca or something like
that. He could not tell if there were more than two people in the
car.
Isaiah told the detective that he knew the shooter’s name
was “Jesse” because “some girl” told him, and Isaiah recognized
Jesse from Instagram. According to Isaiah, Jesse used to date a
girl named Raja5 from the projects, and she and Jesse would post
videos that Isaiah had seen. Isaiah also said he told a friend6 he
knew it was Jesse, and his friend found Jesse’s picture on
Instagram, which he showed to Isaiah. From a photographic six-
pack, Isaiah identified Spicer as the man he saw hanging out of
the car, saying he recognized the side of his face.7
Denzel and Isaiah’s sister, Quennisha, testified that, after
the shooting, Isaiah told her he had seen the shooter. She
showed Isaiah an Instagram profile page, and Isaiah said that

5
Raja is spelled different ways in the record.
6
Isaiah refused to identify his friend by his full name.
7
At trial, Isaiah denied recalling any details about the shooting
and identifying Spicer.

4
the man in it was the shooter.8 Quennisha showed the
photograph, which was of Spicer, to the detective.
III. Surveillance, firearm, and print evidence
Video surveillance from the Jordan Downs complex
captured some of the events. The video shows a red or burgundy
vehicle slow with its passenger, wearing a black sweatshirt,
hanging out of the window when Denzel was shot. The vehicle
then turned onto another street with the passenger still hanging
out of the window.
Cartridge casings recovered from the Gordon and Neal
crime scenes were fired from the same gun, likely a Glock-type
firearm.
Forty-two latent prints were found on the Nissan Rogue,
and a criminalist matched 33 of them to ten people. Eight prints
were Spicer’s, including one from the outside driver’s side front
door, two from the inside driver’s side doorjamb, one from the
outside passenger side rear window, and another from the
outside passenger side front door handle. Frederick’s thumb
print was on the inside passenger side rear door window, and his
palm print was on the hood.9 There is no way to tell when any
prints were left on the car.
Around the times Denzel was murdered and Neal was shot
at, cell phones linked to Spicer and to Frederick were in the
general area of the crime scenes.

8
Quennisha was vague about how she obtained the Instagram
profile page, saying someone showed it to her, and Quennisha
photographed it.
9
Prints belonging to Twyman Samocki, Spicer’s cousin, were in
the car.

5
IV. Social media evidence
Evidence relating to an Instagram account linked to Spicer
was introduced at trial. The account’s user name was
bmbgbhrazy, and the account was registered to email address
jessespicer01@icloud.com and to a phone number ending in 8879.
In recorded jail calls, Spicer confirmed that was his email
address, his phone number, and his user name for his Instagram
account.
The day after Denzel was murdered, 1daprxncess messaged
the Instagram account, asking, “why do you hope im pregnant,”
and the response from the account was, “BC idk what can happen
to me so I want [a] part of me to be in this world if I leave.” The
account messaged Hoddiebhoy_Flocka: “Red want you.”
“Rajaah” also messaged the account, saying “Babe.” On March
28, 2019, a message was sent to the account, “I hope you ain’t
doin’ no dumb shit.” Another message sent to the account after
Denzel was murdered said, “He died foo,” and bmbgbhrazy said,
“Fuck Poppy Bitch.”
When Spicer was arrested on April 23, 2019, he had a new
cell phone with a number different than the one associated with
the Instagram account. The number associated with the
Instagram account was terminated the day Denzel was shot.
V. The Perkins10 operation
After he was arrested, Spicer was placed in a jail cell with a
confidential informant11 pursuant to a Perkins operation. As
explained to the jury, a Perkins operation is when an arrestee
and a confidential informant are placed in a cell in the hopes that

10
Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
11
The agent was not a member of law enforcement and was paid.

6
conversation between them will elicit facts relevant to the
investigation. Here, the Perkins operation was audio and video
recorded, and while it was happening, Detective McCoy was
surreptitiously watching through video monitors. Spicer had not
been given Miranda12 advisements.
The confidential informant began by asking where Spicer
was from, and Spicer answered, “Bounty Hunters.” Soon
thereafter, Detective McCoy went to the cell and told Spicer he
was there because “Poppy got killed.” The detective left, saying
he would return.
The confidential informant proceeded to observe, “It ain’t
no probation violation.” Spicer said they had no evidence, but he
was about “to get violated,” agreeing with the confidential
informant that it was a “hot one,” which refers to murder. Spicer
added they had nothing on him.
The detective returned to the cell and told Spicer that they
had the car and his backpack. The detective left, and the
confidential informant asked if the car was the one used in the
“get down.” Spicer replied, “Uh-huh.” The confidential informant
asked if “the shit went down” in the day or night, and Spicer said,
“It was day time.” When the confidential informant asked why
Spicer left his backpack in the car, Spicer said he had told the
detective he lost it and now “I just gotta stick to my same story.”
The confidential informant wondered if there was a camera
showing how many people were in the car and asked who was
with Spicer in the car. Spicer did not answer directly but
referred to “my cousin, my blood cousin.” When asked what
happened to the gun, Spicer said he got rid of it and that it was a
Glock.

12
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

7
 The confidential informant told Spicer that because it
happened in daytime, somebody probably “seen you do your shit.”
He told Spicer there was a difference between being inside the
car or hanging out the window, so “[y]ou better think. Was your
head all out the window?” Apparently in response, the video
showed Spicer put on his hoodie.
Under the guise of going to an interview, the confidential
informant was removed from the cell so that Detective McCoy
could tell him to drop the name of Spicer’s cousin, Twyman
Samocki, whose nickname was Mock. On returning to the cell,
the confidential informant told Spicer that law enforcement had
Mock in custody. Spicer said Mock was his cousin, but that Mock
didn’t know anything about what happened because Mock wasn’t
there. The confidential informant said that the police were
asking for names, and Mock was saying names, but “I don’t know
what your cousin name that went with you.” Spicer responded,
“Red” and “Akkeli,” his first cousin.
VI. Jail calls
While in jail, Spicer called Raja and said, “They tryin to
make it seem like that, like, I told on my crimey.” Crimey can
refer to a codefendant.
VII. Gang evidence
The People’s gang expert testified that the Bounty Hunter
gang has about four hundred to five hundred members, and its
primary activities include narcotic sales and trafficking, robbery,
burglaries, weapons and ammunition possession, grand theft
auto, assault with deadly weapons, attempted murder, and
murder. The Bounty Hunter gang expects its members,
especially younger ones, to put in work, i.e., commit crimes.

8
Respect is important to gangs, and the most common way to earn
it is to promote and further the gang’s criminal activity.
Committing crimes also instills fear in the community, making
the public unwilling to assist the police.
The feud between the Bounty Hunter gang and its main
rival, the Grape Street Crips, is a violent one. If Bounty Hunter
gang members go into Grape Street Crips’s territory, they are
looking to put in work. Denzel was shot in Grape Street Crips’s
territory, but Neal was shot at in Broadway Gangster Crips’s
territory, and that gang has a neutral relationship with the
Bounty Hunter gang.
The gang expert had several contacts with Spicer, who was,
in the expert’s opinion, a Bounty Hunter gang member. About
one week before Denzel was killed, Spicer told a patrol officer
during a stop that he was a Bounty Hunter gang member. After
Denzel’s murder, Spicer got a gang tattoo, an ape, signifying
dominance and fear and that he was evolving as a gang member.
Typically, such tattoos need to be earned. BHRAZY is one of
Spicer’s monikers, and BH stands for Bounty Hunter.
In the expert’s opinion, Frederick was also an active
member of the Bounty Hunter gang, and his monikers were Red
and Young God.
To evidence the predicate crimes, the People introduced
evidence that Desean Taylor, a Bounty Hunter, was convicted in
2018 of robbery, and he was a member of the gang during the
robbery investigation and conviction. Donald Ray Byrd was
convicted of assault with a firearm, which occurred in December
2017. He was a member of the Bounty Hunter gang during the
investigation of that crime.

9
 When presented with hypotheticals modeled on the facts of
this case, the expert opined that such crimes would be committed
in association with and for the benefit of the gang. The violent
acts benefit the gang because they instilled fear in the
community, promoted the gang, and committing the two crimes
in such a short span of time enhanced the gang’s reputation for
violence.
VIII. Verdicts and sentences
A jury found Spicer and Frederick guilty of the first degree
murder of Denzel (Pen. Code,13 § 187, subd. (a); count 1); the
willful, deliberate and premeditated attempted murder of Isaiah
(§§ 664, 187, subd. (a); count 2); and shooting from a motor
vehicle at Denzel and Isaiah (§ 26100, subd. (c); count 5).14 As to
Spicer, the jury found true personal gun use allegations under
section 12022.53, subdivisions (b), (c), and (d), as to counts 1 and
5 and under subdivisions (b) and (c), as to count 2. As to
Frederick, the jury found true principal gun use allegations
under section 12022.53, subdivisions (b), (c), (d) and (e)(1), as to
counts 1 and 5 and under subdivisions (b), (c) and (e)(1), as to
count 2. As to all counts and both defendants, the jury found true
gang allegations (§ 186.22, subd. (b)(1)(C)).
Spicer was originally sentenced in November 2020, but
then, pursuant to a motion for resentencing, was resentenced on
February 17, 2021 to 25 years to life on count 1 and to 15 years to
life on count 2. The trial court imposed and stayed sentences for

13
All further undesignated statutory references are to the Penal
Code.
14
The jury acquitted Spicer of counts 3 and 4 for the attempted
murders of Neal and Myers and of count 6 for shooting at an
occupied vehicle.

10
the gun and gang enhancements on each count. On count 5, the
trial court imposed the upper term plus a term for the gang
enhancement and stayed the sentence.
Frederick was also originally sentenced in November 2020,
but was resentenced on April 20, 2021 to 32 years to life
composed of 25 years to life on count 1 and the high term of seven
years to life on count 2. The trial court imposed but stayed
sentences on the remaining allegations and stayed an upper term
sentence on count 5.
DISCUSSION
I. Admission of Spicer’s jailhouse statement
Both defense counsel moved to exclude Spicer’s jailhouse
statements to the confidential informant, arguing that he made
the statements to a proxy for the police and therefore his Fifth
and Sixth Amendment and Miranda rights were violated. The
trial court overruled the objections, and specifically found that
Spicer’s statements were not testimonial and his Miranda rights
were not violated, under Perkins, supra, 496 U.S. 292. Both
Spicer and Frederick now contend that Spicer’s statements
should have been excluded.
A. Spicer15
The Fifth Amendment privilege against self-incrimination
prohibits admitting a suspect’s statements made during a
custodial interrogation in the absence of advisement of Miranda
rights and the suspect’s knowing and intelligent waiver of them.

15
Frederick joins Spicer’s arguments. We need not decide the
propriety of the joinder as to each argument because we find that
Spicer’s statements were properly admitted.

11
(People v. Leon (2020) 8 Cal.5th 831, 842–843.) Miranda
advisements were designed to preserve the privilege during a
police-dominated atmosphere, which can work to undermine a
person’s will to resist and compel the person to speak when the
person would not otherwise do so freely. (Perkins, supra, 496
U.S. at p. 296.)
However, conversations “between suspects and undercover
agents do not implicate the concerns underlying Miranda.”
(Perkins, supra, 496 U.S. at p. 296.) When a suspect speaks
freely to someone the suspect believes is merely a fellow inmate,
the coercive atmosphere is absent. (Ibid.) Miranda forbids
coercion, not mere strategic deception by taking advantage of a
suspect’s misplaced trust in someone the suspect supposes is a
fellow prisoner. (Perkins, at p. 297.) “Ploys to mislead a suspect
or lull him into a false sense of security that do not rise to the
level of compulsion or coercion to speak are not within Miranda’s
concerns.” (Ibid.) Miranda does not protect suspects from
boasting about their criminal activities to persons whom they
believe are cellmates. (Perkins, at pp. 297–298.)
Spicer acknowledges Miranda’s limited applicability to his
conversation with a confidential informant. He therefore
suggests that we follow Justice Thurgood Marshall’s dissent in
Perkins, supra, 496 U.S. at pages 303 to 309, as Justice Marshall
found that the defendant’s statements should have been
excluded. But, as Spicer also acknowledges, we are not at liberty
to do so. (See generally Auto Equity Sales, Inc. v. Superior Court
(1956) 57 Cal.2d 450, 455.)
Spicer alternatively argues that the “general rule” in
Perkins should not apply because of the nature of the confidential
informant’s questions, Spicer’s age (18 years), and the custodial

12
setting. In essence, Spicer’s argument is his statements were
involuntary. On this issue, the question is whether his statement
was the “ ‘product of an “ ‘essentially free and unconstrained
choice’ ” or whether the defendant’s “ ‘will has been overborne
and his capacity for self-determination critically impaired’ ” by
coercion.’ ” (People v. Flores (2020) 9 Cal.5th 371, 426.) We
consider the totality of the circumstances to determine whether
the prosecution met its burden of establishing by a
preponderance of the evidence that defendant’s confession was
voluntary, with no single circumstance being dispositive. (Ibid.)
Circumstances to consider include any police coercion, the
interrogation’s length, location, and continuity, and the
defendant’s maturity, education, and overall health. (People v.
Suarez (2020) 10 Cal.5th 116, 157.) A confession is essentially
not free when a suspect’s confinement was physically oppressive,
or the suspect’s mental state was visibly compromised. (People v.
Spencer (2018) 5 Cal.5th 642, 672.) A confession also may be
involuntary if extracted by threats or violence, obtained by direct
or implied promises, or secured by the exertion of improper
influence. (People v. Benson (1990) 52 Cal.3d 754, 778.)
Spicer argues that his statements were coerced because the
conversation was not “free flowing.” The informant posed
questions to him, asking, for example, whether it was possible a
camera captured the shooting or there were witnesses, whether
the shooting happened during the day or night, whether Spicer
was hanging out of the car window, what happened to the gun,
and who else was in the car with him. However, Spicer cites no
authority to show these questions were inappropriate, especially
given Perkins. To the contrary, in People v. Fayed (2020) 9
Cal.5th 147, 157, the defendant made incriminating statements

13
to his cellmate, who, unbeknownst to the defendant, was an
informant for law enforcement. Even though the informant
asked leading questions, ingratiated himself to the defendant by
expressing sympathy for his actions, and was much more than a
passive listener, the court did not find that such tactics were
likely to procure an untrue statement, improper, or coercive.
(Id. at p. 166.)
Similarly here, even if the informant was not a passive
listener, he did not threaten or intimidate Spicer or make
improper promises, and the circumstances of Spicer’s
confinement were not oppressive. At all times, the informant
acted as a friendly confidante or as an older figure familiar with
gang and prison life, which did not create a coercive environment.
(See, e.g., People v. Rodriguez (2019) 40 Cal.App.5th 194, 198–
199 [rejecting contention that defendant was coerced because
informant posed as an older, well-connected gang member];
People v. Linton (2013) 56 Cal.4th 1146, 1178 [questioners did not
use aggressive, hostile, or threatening tone; interrogation not
coercive].)
Further, while Spicer was young, just 18 years old, he was
nonetheless legally an adult, and the record gives no reason to
suspect he suffered from any physical or mental disability, or
that his mental acuity was lacking. To the contrary, Spicer had
some familiarity with the juvenile criminal justice system, and
things he said during the Perkins operation showed some level of
sophistication. For example, Spicer said he would stick to his
story regarding how his backpack ended up in the car and he
understood the limits of what the police knew. We therefore do
not agree that Spicer’s youth alone is enough to show that his
will was overcome.

14
 B. Frederick
Focusing on that part of Spicer’s statement identifying him,
Frederick argues that the statement was hearsay without
exception.16 We disagree.
1. Declarations against penal interest
The general hearsay rule is that evidence of a statement
made other than by a witness while testifying at the hearing and
that is offered to prove the truth of the matter stated is
inadmissible. (Evid. Code, § 1200, subds. (a), (b).) An exception
is for a statement against the declarant’s penal interests. (Id.,
§ 1230; see generally People v. Chhoun (2021) 11 Cal.5th 1, 42–
43.) The rationale underlying this declaration-against-penal-
interest exception is that persons who implicate themselves
criminally give reasonable assurance of the veracity of their
statements. (People v. Grimes (2016) 1 Cal.5th 698, 711
(Grimes).) For the exception to apply, the declarant must be
unavailable, the declaration must be against the declarant’s
penal interest when made, and the declaration must be
sufficiently reliable to warrant admission. (Ibid.) To determine
the statement’s trustworthiness, the court may consider the
circumstances in which it was made, the declarant’s possible
motive, and the declarant’s relationship to the defendant. (Ibid.)
We review a trial court’s ruling under Evidence Code
section 1230 for abuse of discretion. (Grimes, supra, 1 Cal.5th at
pp. 711–712.)

16
The People argue that Frederick did not object to the statement
on this ground. Even if he did not, we would address the issue as
it affects his substantial rights. (§ 1259.)

15
 Frederick argues that Spicer’s statement incriminating
Frederick was not against Spicer’s penal interest because when
Spicer made the statement, Spicer had already incriminated
himself as the shooter. Therefore, naming Frederick did not
expose Spicer to any additional or more serious charge or
punishment than Spicer already faced. In making this assertion,
Spicer relies on the rule established in People v. Leach (1975) 15
Cal.3d 419, 441, that Evidence Code section 1230 does not permit
the admission of any statement or part of a statement that does
not specifically disserve the declarant’s interests.
Our Supreme Court in Grimes, supra, 1 Cal.5th at pages
713 to 714, clarified the Leach rule, noting it usually applies so as
to exclude statements made when a declarant inculpates others
to shift the blame or to curry favor. (See also Williamson v.
United States (1994) 512 U.S. 594, 600 [exception does not
authorize admitting portion of third party’s out-of-court
confession tending to shift blame to defendant].) The Leach rule
cannot be applied by rote but instead requires a contextual
approach. Grimes, at page 715, thus observed it had applied the
Leach rule to bar admission of a third party’s self-serving
confession that shifted responsibility to others but had also
applied it to allow admission of “portions of a confession that,
though not independently disserving of the declarant’s penal
interests, also are not merely ‘self-serving,’ but ‘inextricably tied
to and part of a specific statement against penal interest.’ ”
(Grimes, at p. 715.) In sum, the exception’s nature and purpose
“does not require courts to sever and excise any and all portions
of an otherwise inculpatory statement that do not ‘further
incriminate’ the declarant. Ultimately, courts must consider each
statement in context” to answer whether the statement, even if

16
not independently inculpatory of the declarant, is nevertheless
against the declarant’s interest such that a reasonable person in
the declarant’s position would not have said it unless true.
(Grimes, at p. 716.)
Applying this contextual approach here, Spicer’s statement
identifying Frederick was against Spicer’s penal interest. The
statement was not self-serving, did not minimize Spicer’s role in
the crimes, and did not shift blame. (See, e.g., People v. Samuels
(2005) 36 Cal.4th 96, 120–121 [declarant’s statement that
defendant paid him to kill victim admissible because it was not
exculpatory, self-serving or collateral]; People v. Cortez (2016) 63
Cal.4th 101, 128 [declarant’s statement did not suggest he was
trying to improve his situation with police].) Rather, the
statement incriminated Frederick and Spicer. (See, e.g., People
v. Greenberger (1997) 58 Cal.App.4th 298, 335 [statement
inculpating declarant as shooter and defendant as driver
admissible].)
Nor was the statement collateral. Instead, it was
inextricably tied to the rest of Spicer’s statement. That is, Spicer
had given some bare details of the crime: he admitted being
involved in a “hot one” (a murder) and the “get down”; he got rid
of the gun; and he was hanging out of the window, apparently
with his hoodie on. Although it was reasonable to infer from this
that Spicer was the shooter, the extent of his involvement and
level of criminal culpability were not certain. Spicer’s statement
that Frederick was with him increased Spicer’s level of criminal
culpability because Frederick was also a Bounty Hunter gang
member and the murder victim was a rival gang member.
Therefore, although Spicer might not have been intimately
familiar with the intricacies of the gang enhancement statute and

17
that his admission increased the chances of its applicability, it is
reasonable to infer that Spicer would have understood that
committing a gang-related crime with a fellow gang member
might lead to more adverse consequences and punishment. (See
Grimes, supra, 1 Cal.5th at p. 718 [declarant’s unfamiliarity with
intricacies of death penalty law did not negate inference he
understood committing murder on his own would be punished
more severely than playing lesser role in murder]; see also id. at
p. 717 [statements don’t have to significantly enhance personal
liability to be admissible].) Spicer’s admission that he committed
the crimes with a fellow gang member was therefore against his
penal interests.
For these reasons, People v. Gallardo (2017) 18 Cal.App.5th
52, cited by Frederick, is distinguishable. The court in that case
found the declarant’s statement unreliable because he had made
conflicting statements about his involvement in the crimes, he
had repeatedly tried to mitigate his own blameworthiness, and
the undercover informants asked leading or narrative questions
in which they prompted specific answers. (Id. at pp. 74–75.) In
contrast, there was no conflict in Spicer’s story, he did not try to
mitigate his blameworthiness, and the informant did not exert
any untoward pressure on Spicer to get him to name Frederick or
suggest to Spicer that Frederick was involved.
Frederick, however, argues that even if the statement was
against Spicer’s penal interests, the statement was unreliable.
We do not agree. Although Spicer wasn’t speaking in the comfort
of his home to a close friend, Spicer did not know he was
speaking to a confidential informant. As far as he knew, he was
talking to an older, experienced fellow gang member whom he
had no reason to distrust. Frederick also suggests that Spicer

18
implicated him because Spicer wanted to exculpate his other
cousin, Mock. It is unclear why Spicer would want to incriminate
one family member over another but, in any event, Spicer had no
motive to lie to a person he would have perceived to be a friendly
fellow inmate. If Spicer wanted to exculpate Mock, he could have
done so without incriminating Frederick. Spicer’s statement
therefore had sufficient indicia of reliability to satisfy the
exception’s second prong. The trial court did not abuse its
discretion in admitting the evidence.
For the same reasons, we reject Frederick’s argument that
the trial court abused its discretion by not excluding the
statement under Evidence Code section 352. Spicer’s statements
were highly probative, and the resulting prejudice was simply
that the statements were damaging. However, prejudicial in this
context is not synonymous with damaging. (People v. Karis
(1988) 46 Cal.3d 612, 638.)
2. Bruton
Frederick also contends that admitting Spicer’s statement
violated Frederick’s Sixth Amendment right to confront witnesses
under Bruton v. United States (1968) 391 U.S. 123, 127. Broadly
stated, Bruton applies when a facially incriminating statement of
a nontestifying codefendant is introduced at their joint trial. (See
generally People v. Gallardo, supra, 18 Cal.App.5th at p. 68.)
However, Bruton applies only to testimonial hearsay statements.
(People v. Cortez, supra, 63 Cal.4th at p. 129.) Spicer’s
statements to the confidential informant were not testimonial.
(Davis v. Washington (2006) 547 U.S. 813, 825 [statements
unwittingly made to government informant not testimonial];
accord, People v. Fayed, supra, 9 Cal.5th at p. 169.) Therefore, as
Frederick acknowledges, Cortez forecloses his claim.

19
II. Admission of Isaiah’s identification of Spicer
Spicer contends that the trial court prejudicially erred in
admitting evidence that Isaiah identified him as the shooter.
Spicer thus appears to argue that Quennisha’s testimony about
the Instagram profile page, Detective McCoy’s testimony about
his conversation with Quennisha, and all of Isaiah’s statements
to the detective about the shooting should have been excluded
because they culminated in a suggestive identification procedure.
As an initial response to this, while Spicer objected to the
Instagram photo, he concedes he did not object to the other
evidence and that any issue as to that evidence has not been
preserved for appellate review. But because Spicer also argues
that his counsel’s failure to object to the evidence constituted
ineffective assistance of counsel, he urges us to analyze the
matter in that context. To establish ineffective assistance of
counsel, a defendant must show that counsel’s representation fell
below an objective standard of reasonableness under prevailing
professional norms and that counsel’s deficient performance
resulted in prejudice, that is, there is a reasonable probability
that but for counsel’s failings defendant would have achieved a
more favorable result. (People v. Bell (2019) 7 Cal.5th 70, 125;
Strickland v. Washington (1984) 466 U.S. 668, 687–688.)
Spicer fails on the first prong because his counsel did not
err by failing to object to the identification evidence. Spicer’s
specific claim of error appears to be that “the identification
procedure” was unduly suggestive, and Isaiah’s identification of
Spicer as the shooter was unreliable. To “determine whether the
admission of identification evidence violates a defendant’s right
to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so,

20
(2) whether the identification itself was nevertheless reliable
under the totality of the circumstances, taking into account such
factors as the opportunity of the witness to view the suspect at
the time of the offense, the witness’s degree of attention at the
time of the offense, the accuracy of his or her prior description of
the suspect, the level of certainty demonstrated at the time of the
identification, and the lapse of time between the offense and the
identification.” (People v. Cunningham (2001) 25 Cal.4th 926,
989.)
What Spicer means by “identification procedure” is unclear.
Spicer seems to lump all identification evidence—e.g., the
Instagram photograph and Quennisha’s and Isaiah’s statements
that “Jesse” was the shooter—under the misnomer of
“identification procedure.” But the only identification procedure
instigated by law enforcement was the photographic six-pack
Detective McCoy showed to Isaiah. The Instagram photograph
and Isaiah’s and Quennisha’s statements to the detective were
what led the detective to include Spicer’s photograph in the six-
pack. It is therefore unclear under what theory the Instagram
photograph and the witnesses’ statements about it should have
been excluded.
As for the photographic six-pack, Spicer suggests it was
unduly suggestive because it amounted to a single person show-
up. That is, Isaiah had already identified Spicer from the
Instagram photo, so of course Spicer stood out in the
photographic six-pack. But, as we have said, what led the police
to include Spicer in that six-pack was evidence—including
Isaiah’s own statements—that Spicer was involved in Denzel’s
murder. It is wholly unclear how evidence Isaiah provided to the
police that Spicer was the shooter unduly suggested to Isaiah to

21
select Spicer or tainted the six-pack. (Cf., People v. Slutts (1968)
259 Cal.App.2d 886, 889–891 [drawing beard on defendant’s
photograph improperly suggestive].) Analogizing the six-pack
here to a single person show-up is inapt, and the identification
evidence did not render the photographic six-pack unduly
suggestive. Rather, the jury was able to evaluate how Spicer
ended up in the photographic six-pack and could have, but
apparently did not, discount that evidence.
III. Admission of evidence Spicer was on probation
Spicer contends that references made during the Perkins
operation that he was on probation violated his right to a fair
trial. We disagree.
A. Additional background
Before trial, Spicer’s counsel objected to any references
made during the Perkins operation about Spicer being on
probation. The prosecutor argued that the references provided
context, showing how the confidential informant built rapport
with Spicer, and that Spicer was not interrogated. The trial court
said it would not allow Spicer’s “juvenile probation to come into
play” but also would not require the People to “take out this word
and that word.” “I think in the big picture he was in fact on
probation in some way. I’m not going to allow the People to get
into the details of what he was on probation for as a juvenile or
what that juvenile sustained petition was about. . . . [¶] But
when I’m looking at this and trying to do . . . [a] 352 analysis, I
think the probative value of the transcript, the statements in
[their] entirety greatly outweigh[ ] any prejudicial effect.”
The Perkins operation was played for the jury, and during
it, the confidential informant first raised the notion of probation.

22
After Detective McCoy came into the cell and said he would
return in a few minutes to talk about Poppy getting killed, the
confidential informant observed that Spicer was there for “no
probation violation.” When Spicer said the police had no
evidence, the confidential informant said, “You never know,”
because people talk. Spicer replied, “Man shit. I aint going out
like that. Shit. About to get violated though.” When the
confidential informant asked, “What, on a hot one?” Spicer said,
“Hell yeah.”
Later, after the two men discussed details of the murder,
the confidential informant told Spicer he “wouldn’t even give a
fuck about a violation,” that Spicer should take a violation and
“run with it,” and Spicer should tell the police he had weed in his
backpack and somebody snatched it—“You just got to use your
head, but you have to take a violation or a case.” Spicer replied,
“Violation,” and the confidential informant agreed that he too
“would take a violation. But you—you on juvenile probation”
and, “Fuck that. You on—you now on probation. Just say you
catch a violation.” The confidential informant then explained
that by the time Spicer got processed on a violation he could be
released, and then “you’re off the juvenile shit.” The confidential
informant exhorted that it was better to deal with probation, to
“run along with that probation violation shit, and be happy.”
B. The trial court did not abuse its discretion.
Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is “evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency
in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Id., § 210.)
Generally, evidence of prior criminal acts is inadmissible to show

23
a defendant’s disposition to commit such acts. (Id., § 1101,
subd. (a).) However, evidence that a person committed an
uncharged crime may be admitted to prove something other than
the defendant’s character, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake, as
well as to attack or support the credibility of a witness. (Id.,
§ 1101, subds. (b), (c).) Evidence that a defendant was on
probation or parole may have probative value, and the trial court
can take measures to reduce the risk of undue prejudice from
admitting such evidence. (People v. Fuiava (2012) 53 Cal.4th
622, 667–668 [defendant’s prior convictions and parole status
admissible to establish that motive for shooting at officers was to
avoid arrest].)
Although admitting evidence of a defendant’s prior
criminality could prejudice the defendant’s case and render
suspect the outcome of the trial, whether to admit such evidence
rests in the trial court’s sound discretion. (People v. Harris (1994)
22 Cal.App.4th 1575, 1580–1581; see, e.g., People v. Jennings
(2000) 81 Cal.App.4th 1301, 1314.)
Here, the People argue the evidence was not admitted
under Evidence Code section 1101; instead, the evidence was
admitted to give context to Spicer’s statements and to show they
were voluntarily made. While that was certainly the basis for the
People’s argument why references to probation should not have
been redacted, it did not eliminate the danger that references to
probation could suggest Spicer had committed a prior crime.
Notwithstanding that danger, the trial court acted within its
discretion in admitting the references to probation. Reviewing
the Perkins operation as a whole, it is clear why the trial court
did not agree that all references to probation should be redacted.

24
As the People argued, the references did give context to the
Perkins operation and to Spicer’s statements. The confidential
informant continually referred to probation in the context of
advising Spicer to take a probation violation. Specifically, the
confidential informant told Spicer to say he had been selling weed
and somebody took his backpack containing the weed, apparently
to explain how the backpack ended up in the car. The
confidential informant thus was building rapport with Spicer and
suggesting what Spicer could do to limit his criminal liability.
Even if the trial court erred in admitting references to
Spicer’s probationary status, any error was harmless because it is
not reasonably probable a result more favorable to him would
have resulted in the absence of any error. (People v. Mullens
(2004) 119 Cal.App.4th 648, 652, 659 [admission of evidence
prohibited by Evid. Code, §§ 352, 1101 reviewed under harmless
error standard of People v. Watson (1956) 46 Cal.2d 818, 835–
836].) Isaiah thought the shooter looked like a boy he knew
named Jesse. When shown a photograph of Spicer from
Instagram and the photographic six-pack, Isaiah said he was the
shooter. Independent of all this, items belonging to Spicer—
including his identification—were in the car used in Denzel’s
murder and the attempted murder of Neal. Spicer’s fingerprints
were in that car. And the references to probation were hardly the
most damning things said during the Perkins operation. Spicer
admitted he was involved in Denzel’s murder and that he
personally got rid of the gun. Spicer also confirmed details about
the crimes a participant would know: the shooting was
committed during the daytime, and the gun used was a Glock,
which aligned with forensic analysis of cartridges found at the

25
crime scenes. We therefore cannot find that references to Spicer
being on probation prejudiced him.
For the same reasons, admitting the evidence did not
render Spicer’s trial fundamentally unfair. (See generally Estelle
v. McGuire (1991) 502 U.S. 62, 70; People v. Partida (2005) 37
Cal.4th 428, 439 [even incorrect evidentiary ruling denies a
defendant due process of law only if it makes trial fundamentally
unfair].)
IV. Sufficiency of the evidence
Both defendants contend that the evidence was insufficient
to support the jury’s verdicts. We disagree.
This contention requires us to “ ‘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 presume in support of the judgment the
existence of every fact the trier of fact reasonably could infer from
the evidence. [Citation]. If the circumstances reasonably justify
the trier of fact’s findings, reversal of the judgment is not
warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A
reviewing court neither reweighs evidence nor reevaluates a
witness’s credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th
838, 890.)
Under this standard of review, we now explain why the
evidence was sufficient to support Spicer’s and Frederick’s
convictions.

26
 A. Spicer
Spicer was convicted of murder, attempted murder, and
shooting from an occupied vehicle. Murder is the unlawful killing
of a person with malice aforethought. (§ 187, subd. (a).)
Attempted murder “requires the specific intent to kill and the
commission of a direct but ineffectual act toward accomplishing
the intended killing.”17 (People v. Lee (2003) 31 Cal.4th 613, 623.)
Finally, any “person who willfully and maliciously discharges a
firearm from a motor vehicle at another person other than an
occupant of a motor vehicle is guilty of a felony.” (§ 26100,
subd. (c).)
The evidence was more than sufficient to support Spicer’s
convictions of these crimes. Isaiah identified Spicer as the
shooter, saying he recognized Spicer because Spicer had dated a
girl, Raja, from the projects. Instagram messages confirmed
Spicer had dated Raja, lending credibility to Isaiah’s
identification. Spicer made incriminating statements to the
confidential informant that he was involved in a “hot one” and
provided accurate details about the crime, i.e., the murder
occurred during the daytime and the gun used was a Glock.
Spicer said he got rid of the gun; in fact, the police never
recovered the gun. Spicer’s fingerprints and items with his name
on them (including his school identification) were in the car used
to commit the crimes. A cell phone linked to Spicer was in the
area the crimes were committed around the time they were
committed. When Spicer was arrested, he had a new cell phone
with a different number than the one he had, and he had

17
Spicer does not address the sufficiency of the evidence to
support the premeditation finding.

27
terminated the account associated with his old cell phone, which
shows he was trying to get rid of anything tying him to the
crimes.
Spicer, however, points out that at trial Isaiah recanted his
prior identifications and statements, saying he did not remember
telling the detective anything. However, a witness’s out-of-court
identification that the witness later recants at trial may still
support a conviction. (People v. Cuevas (1995) 12 Cal.4th 252,
275–277.) And there was an explanation for Isaiah’s failure to
remember any of his prior statements to the detective: the
Gordon family, including Isaiah and Denzel, were gang members.
The gang expert testified that crime victims who are gang
members often will not snitch because it could put their families
in danger. (See, e.g., id. at p. 268 [fear or intimidation may
explain witness’s recantation of prior statement].)
Spicer points to other supposed weaknesses in the evidence.
Isaiah said his back was to the shooter, the shooter “kind of”
looked like a boy named Jesse, Isaiah couldn’t really see the
shooter’s face, he only caught a glimpse of the shooter’s face, and
both Isaiah and Quennisha were guarded about who first showed
them Spicer’s Instagram photograph. And, although Spicer’s
fingerprints and backpack were in the car, it is impossible to tell
when they were put there. However, on appeal, we may not
reweigh evidence; instead, it was the trier of fact’s job to evaluate
and weigh it. (See generally People v. Covarrubias, supra, 1
Cal.5th at p. 890; Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d
51, 67–68 [jury may weave cloth of truth from evidence].)
Although Spicer also argues that there was insufficient
evidence to support his conviction for the crimes as an aider and
abettor, he was not prosecuted as such. Rather, the prosecution’s

28
theory was Spicer was the shooter, and the jury found personal
gun use allegations true as to him and principal gun use
allegations true as to Frederick. Spicer’s conviction therefore was
not based on an aider and abettor theory of liability, but even if it
were, the above-cited evidence would be more than sufficient
evidence of it as well.
B. Frederick
The prosecution’s theory as to Frederick was that he drove
the car, and so he was prosecuted as an aider and abettor. A
person aids and abets the commission of a crime when the
person, acting with (1) knowledge of the perpetrator’s unlawful
purpose, and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by
act or advice aids, promotes, encourages, or instigates,
commission of the crime. (People v. Nguyen (2015) 61 Cal.4th
1015, 1054.) Factors relevant to aiding and abetting are presence
at the scene of the crime, companionship, and conduct before and
after the offense. (Ibid.)
The key piece of evidence that Frederick aided and abetted
these crimes came from Spicer, and, as we have said, Spicer’s
statements were admissible against Frederick. When the
informant asked the name of Spicer’s cousin that “went with
you,” Spicer responded, “Red” and “Akkeli.” Red is Frederick’s
moniker. Such testimony of a single witness may be sufficient to
support a conviction unless that testimony is physically
impossible or inherently improbable. (People v. Young (2005) 34
Cal.4th 1149, 1181.) The remaining evidence against Frederick
might not have been sufficient by itself to show he was with
Spicer, but when combined with Spicer’s statement it buttressed
that conclusion. Frederick’s prints were in the stolen car used to

29
commit the crimes, and so were Spicer’s prints. Frederick’s cell
phone was in the general area of the crime scenes when the
crimes were committed, and so was Spicer’s cell phone. Frederick
was a Bounty Hunter gang member, and so was Spicer.
That Frederick’s prints were not found in the driver’s area
and that it cannot be ascertained when his prints were left in the
car were matters for the jury to consider in evaluating the
evidence. (See generally People v. Covarrubias, supra, 1 Cal.5th
at p. 890.) Similarly, it was the jury’s task to evaluate the
strength of evidence that the cell phone that was in the general
area of the crimes when they were committed belonged to
Frederick. Also, even though Isaiah could not tell how many
people were in the car, the jury could reasonably infer it was just
two because Spicer identified only Frederick as being in the car
with him that day.
The evidence being sufficient that Frederick was present
during the commission of the crimes, it was also sufficient to
establish the elements of aiding and abetting. Frederick and
Spicer were members of the same gang. Their gang membership,
coupled with the gang expert’s testimony, showed that they were
putting in work, i.e., committing crimes for their gang; hence,
Frederick knew of Spicer’s unlawful purpose. As the driver,
Frederick facilitated and promoted that unlawful purpose.
Frederick not only drove Spicer into rival gang territory, but the
video shows the car slowing down as Spicer hangs out the
window to shoot at Denzel and Isaiah. Frederick therefore
maneuvered the car in a manner so that Spicer could shoot from
the window. (See, e.g., In re Jose D. (1990) 219 Cal.App.3d 582,
585 [defendant aided and abetted crime by maneuvering car so
accomplice could shoot victim].)

30
 Also, in one of his statements, Isaiah said the driver called
out, “Bounty Hunters.” Calling out his gang’s name just before
Spicer shot Denzel evidences Frederick’s intent to aid the crime.
Frederick then drove Spicer several miles away, to where Neal
was parked, so that Spicer could again shoot at someone. That
two crimes were committed just miles and about 30 minutes
apart from each other severely undercuts the notion that
Frederick was merely dozing in the car’s back seat or busy
smoking dope, as he suggests. Instead, the evidence shows that
Frederick actively aided and abetted his cousin and fellow gang
member to commit the crimes.
V. Late discovery
Spicer contends that the video—not the audio—of the
Perkins operation should have been excluded because the video
was not produced until after trial commenced or, alternatively,
the trial court should have instructed the jury with CALCRIM
No. 30618 on late discovery. We disagree.
A. Additional background
Spicer’s defense counsel objected under section 1054 to the
video of the Perkins operation because she had not been told of
its existence until after trial began and it had not been turned

18
The instruction states that parties must disclose their evidence
to the other side before trial within the time limits set by law,
and failure to do so may deny the other side the chance to
produce all relevant evidence, to counter opposing evidence, or to
receive a fair trial. The instruction goes on to state that an
attorney failed to timely disclose evidence, so in “evaluating the
weight and significance of that evidence, you may consider the
effect, if any, of that late disclosure.” (CALCRIM No. 306.)

31
over until the end of the first day of witness testimony. The
prosecutor represented that she learned about the video’s
existence the Friday before starting trial, immediately let defense
counsel know about the video, and turned it over a week later, on
receiving it herself. She further explained that Detective McCoy
had not known about the video either.
The trial court overruled the objection, saying it would not
preclude the People from playing the video although it might
consider other sanctions. The video was played for the jury.
Thereafter, defense counsel asked that the video not be
admitted into evidence and that the trial court instruct the jury
with CALCRIM No. 306. The trial court found that the defense
was not disadvantaged by the late discovery and declined to give
CALCRIM No. 306.
B. No discovery violation occurred.
Before trial, the prosecution must disclose to the defense
categories of evidence in the prosecution’s possession or known to
be in the possession of investigating agencies. (§ 1054.1.)
Evidence that must be disclosed includes a defendant’s
statements and all “relevant real evidence” obtained as part of
the investigation. (Id., subds. (b), (c).) If the prosecution fails to
comply with its discovery obligations, a trial court may make any
order necessary to enforce the discovery statutes, including
informing the jury of any untimely disclosure. (People v. Verdugo
(2010) 50 Cal.4th 263, 279–280.) Disclosures shall be made at
least 30 days prior to trial, unless good cause is shown why a
disclosure should be denied, restricted, or deferred. (§ 1054.7.)
“If the material and information becomes known to, or comes into
the possession of, a party within 30 days of trial, disclosure shall
be made immediately, unless good cause is shown why a

32
disclosure should be denied, restricted, or deferred.” (Ibid.) We
review a trial court’s ruling on whether to impose a discovery
sanction for abuse of discretion. (People v. Ayala (2000) 23
Cal.4th 225, 299.)
The trial court did not abuse its discretion either by
refusing to exclude the video or to give CALCRIM No. 306. First,
the prosecutor and the investigating officer did not know the
video existed until just before trial. Immediately on receiving it,
the prosecutor gave it to the defense. On appeal, Spicer
incorrectly interprets statements the prosecutor made as stating
she turned it over one week after getting it, but that
interpretation is incorrect, and nobody below, including defense
counsel, interpreted her comments that way. Thus, the
prosecutor complied with section 1054.7, because she told defense
counsel about the video when she discovered its existence and
turned it over to them as soon as she got it. (See People v.
Verdugo, supra, 50 Cal.4th at p. 287 [prosecutor produced notes
when he learned about them during trial; no discovery violation
found].)
Second, to prevail on a claim alleging a violation of
discovery statutes, the appellant must show a reasonable
probability the result of the proceedings would have been
different had the evidence been timely disclosed. (People v. Mora
and Rangel (2018) 5 Cal.5th 442, 467.) Spicer argues that the
late disclosure prevented him from developing a defense.
However, it is unclear why that would be so. The defense had the
audio of the Perkins operation long before trial. A crucial
difference between the audio and the video was the latter showed
Spicer pulling his hoodie over his head, suggesting he covered his
face when he shot Denzel. Yet, the prosecutor represented that

33
when the audio was turned over, a “supplemental” (which likely
is a reference to a report) containing the detective’s observation
that Spicer pulled up his hood was also turned over. Therefore,
even before it received the video, the defense knew that Spicer
had covered his head. (Cf. People v. Filson (1994) 22 Cal.App.4th
1841, 1848–1852 [failure to disclose defendant’s recorded
statement reversible error because relevant to defense he was too
intoxicated to form specific intent necessary to commit the crime],
disapproved on another ground by People v. Martinez (1995) 11
Cal.4th 434, 452.)
Finally Spicer cites Brady v. Maryland (1963) 373 U.S. 83,
which requires the prosecution to disclose to the defense all
exculpatory, material evidence known to the prosecution team.
The video was not exculpatory; it was incriminating. Further,
the prosecutor did disclose the video, albeit not within 30 days of
trial. Accordingly, no Brady violation occurred. (See, e.g., People
v. Verdugo, supra, 50 Cal.4th at p. 287 [no Brady error where
evidence not favorable to defense and was disclosed at trial].)
VI. Assembly Bill No. 33319
As we have said, the jury found gang allegations true
against both defendants as to all counts. However, Assembly Bill
No. 333, which took effect on January 1, 2022, made significant
amendments to the gang statute, section 186.22. The legislation
redefined “pattern of criminal gang activity” in five respects.
(1) Previously, the predicate offenses had to have been
committed, or convictions had to have occurred, within three
years of each other. Now, additionally, the last offense must have

19
The parties submitted supplemental letter briefs on Assembly
Bill No. 333 and other recently-enacted laws.

34
occurred within three years of the date the current offense is
alleged to have been committed. (§ 186.22, subd. (e)(1).) (2) The
amended law now states that the predicate crimes must have
been committed by “members,” not simply “persons,” as the law
had formerly stated. (Ibid.) (3) The amendments impose a new
requirement that the predicate offenses “commonly benefited a
criminal street gang, and the common benefit of the offense is
more than reputational[.]” (Ibid.) (4) Looting, felony vandalism,
felony theft of an access card or account, and other identity fraud
crimes no longer qualify as predicates, while other offenses
(kidnapping, mayhem, torture, and felony extortion) now do so
qualify. (Ibid.) (5) The currently charged offense may not be
used to establish the pattern of criminal gang activity. (Id. at
subd. (e)(2); see People v. Lopez (2021) 73 Cal.App.5th 327, 345
(Lopez).)
Assembly Bill No. 333 also modified the definition of
“criminal street gang.” Previously, section 186.22 stated that a
criminal street gang was “any ongoing organization, association,
or group” of three or more persons, whether formal or informal.
That language has been changed to “an ongoing organized
association or group of three or more persons, whether formal or
informal.” (§ 186.22, subd. (f), italics added.) The previous
definition required that the gang’s “members individually or
collectively engage in, or have engaged in,” the pattern of
criminal gang activity. (Former § 186.22, subd. (f), italics added.)
Now, the word “individually” has been excised and the gang’s
members must “collectively” engage in, or have engaged in, the
pattern of criminal gang activity. (§ 186.22, subd. (f).) The
amendment also added a new subdivision that clarifies what it
means to benefit the gang: “As used in this chapter, to benefit,

35
promote, further or assist means to provide a common benefit to
members of a gang where the common benefit is more than
reputational. Examples of a common benefit that are more than
reputational may include, but are not limited to, financial gain or
motivation, retaliation, targeting a perceived or actual gang rival,
or intimidation or silencing of a potential current or previous
witness or informant.” (§ 186.22, subd. (g).)
Defendants argue that they are entitled to the ameliorative
benefits of the amendments to section 186.22, and the People
agree. Courts of Appeal that have considered the issue have
concluded that Assembly Bill No. 333’s amendments to section
186.22 apply retroactively where, as here, defendants’ convictions
were not final before the amendments took effect. (See, e.g.,
Lopez, supra, 73 Cal.App.5th at pp. 343–344; People v. E.H.
(2022) 75 Cal.App.5th 467, 478; People v. Sek (2022) 74
Cal.App.5th 657, 667; People v. Vasquez (2022) 74 Cal.App.5th
1021, 1032; see generally In re Estrada (1965) 63 Cal.2d 740, 745
[absent contrary evidence, an amendment reducing punishment
applies retroactively to nonfinal judgments].)
Under this authority, Assembly Bill No. 333 retroactively
applies to Spicer’s and Frederick’s case, which was not final when
the amendments took effect. And, as the People further concede,
the evidence did not establish the new statutory requirements of
section 186.22. There was no evidence, for example, that the two
predicate offenses introduced at trial benefited a criminal street
gang in a way that was more than reputational. (§ 186.22,
subd. (e)(1).) Indeed, the jury was instructed, in accordance with
the law in effect at the time, that the predicate offenses did not
have to be gang-related. Given this evidentiary deficit, the true
findings on the gang enhancements and the gang-related gun use

36
enhancements as to Frederick20 must be reversed and the matter
remanded to allow the prosecution the option of retrying the
enhancements and establishing all elements required by
Assembly Bill No. 333.21
Defendants, however, also argue that section 1109, which
was added by Assembly Bill No. 333, applies. Section 1109,
subdivision (a), provides, inter alia, that if requested by the
defense, a charged section 186.22, subdivision (b) or (d)
enhancement “shall be tried in separate phases,” with the
question of guilt of the underlying offense to be determined first
and the truth of the gang enhancement tried thereafter. The
People’s concession regarding retroactivity does not extend to
section 1109, and we need not decide whether it is retroactive
because remand will give defendants an opportunity to try the
gang allegations separately. (See generally People v. Perez (2022)
__ Cal.App.5th __, __ [2022 WL 1302282] [section 1109 is not
retroactive]; but see People v. Burgos (2022) 77 Cal.App.5th 550
[section 1109 is retroactive].) But to the extent defendants
contend that admission of the gang evidence nonetheless
rendered their trial fundamentally unfair, we reject that
contention. It is not reasonably probable that defendants were
prejudiced by any failure to bifurcate the gang allegations. (See,

20
As we have said, the jury found true gun use enhancements as
to Frederick under section 12022.53, subdivision (e)(1), which
applies to any principal in the commission of an offense if “(A)
The person violated subdivision (b) of Section 186.22. (B) Any
principal in the offense committed any act specified in
subdivision (b), (c), or (d).”
21
As remand for a potential retrial of the gang enhancements is
required, we need not decide whether any of the other new
elements of section 186.22 were met.

37
e.g., People v. E.H., supra, 75 Cal.App.5th at p. 480.) The gang
evidence was inextricably tied to and relevant to prove the
underlying charges, and in particular, motive and intent. (See
generally People v. Hernandez (2004) 33 Cal.4th 1040, 1049–1050
[gang evidence often relevant to charged offense].)
VII. Additional ameliorative recently-enacted laws
Defendants may be entitled to the benefits of other
recently-enacted ameliorative laws: Assembly Bill No. 518,
Senate Bill No. 567, and Assembly Bill No. 124.
When defendants were sentenced, section 654 provided
that a criminal act punishable in different ways by different
provisions of law must be punished under the provision providing
the longest potential term of imprisonment. Our legislature has
since passed Assembly Bill No. 518 (Stats.2021, ch. 441), effective
January 1, 2022. It amended section 654, and, as amended, the
section now provides that an act or omission punishable in
different ways by two different provisions of law, as in this case,
may be punished under either provision. Hence, the longest term
of imprisonment is no longer mandatory.
Also effective January 1, 2022 are amendments to section
1170 made by Senate Bill No. 567 (2021–2022 Reg. Sess.)
(Stats.2021, ch. 731) and Assembly Bill No. 124 (2021–2022 Reg.
Sess.) (Stats.2021, ch. 695). As relevant here, section 1170,
subdivision (b), now makes the middle term the presumptive
sentence unless certain circumstances exist. And where the
defendant was a youth, meaning under the age of 26, the low
term shall be imposed unless the trial court finds that
aggravating circumstances outweigh mitigating ones such that
imposing the low term would be contrary to the interests of
justice. (§ 1170, subd. (b)(6).)

38
 The People concede that these changes in law also are
retroactive and that they potentially confer ameliorative benefits
to Spicer and/or Frederick.22 For the reasons we have discussed
in regard to the retroactivity of Assembly Bill No. 333, we agree
with the parties that the amendments made by Assembly Bill
Nos. 124 and 518 and Senate Bill No. 567 also apply
retroactively. (See generally People v. Sek, supra, 74 Cal.App.5th
at p. 673 [Assembly Bill No. 518 is retroactive]; People v. Flores
(2022) 73 Cal.App.5th 1032, 1038–1039 [Senate Bill No. 567 is
retroactive].)
Because we are remanding for a possible retrial of the gang
enhancements and a full resentencing (see, e.g., People v. Buycks
(2018) 5 Cal.5th 857, 893), the trial court shall resentence
appellants in accordance with Assembly Bill Nos. 124 and 518
and Senate Bill No. 567 should they be relevant to any potential
sentence on remand.
VIII. Spicer’s custody credits.
Spicer was arrested on April 23, 2019 and originally
sentenced on November 2, 2020. The trial court awarded him
551 days of actual custody credits but, as the People concede, he
was entitled to 560 days.
DISPOSITION
The true findings on the gang allegations are reversed as to
Spicer and Frederick, the true findings on the principal gun use
allegations are reversed as to Frederick, and Spicer’s and
Frederick’s sentences are vacated. The matter is remanded with

22
Frederick was over the age of 26 when he committed the crimes
and therefore is not entitled to any benefit under newly-enacted
section 1170, subdivision (b)(6).

39
the direction to the trial court to provide the People an
opportunity to retry the section 186.22, subdivision (b), gang
allegations under the law as amended by Assembly Bill No. 333.
At the conclusion of any retrial on the gang allegations or on
remand if the People elect not to retry the gang allegations, the
trial court shall resentence Spicer and Frederick and consider the
potential applicability of Assembly Bill Nos. 124 and 518 and
Senate Bill No. 567. Any new abstract of judgment should reflect
that Spicer has 560 actual days of custody credit, and any new
abstract of judgment shall be forwarded to the Department of
Corrections and Rehabilitation. In all other respects, the
judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

KIM, J.*

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

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