People v. Clark CA4/2

Filed 6/28/22 P. v. Clark CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E075532

v. (Super.Ct.No. RIF1503800)

KEJUAN DARCELL CLARK, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Bambi J. Moyer, Judge.

Affirmed with directions.

Patrick Morgan Ford for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Alana

Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.

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 On the twelfth day of a jury trial, the jury found defendant and appellant Kejuan

Darcell Clark, guilty of (1) rape (Pen. Code, § 261, subd. (a)(2)1 ; (2) forced oral

copulation (§ 287, subd. (c)(2)(A))2 ; (3) false imprisonment (§ 236)3 ; (4) first degree

burglary (§§ 459, 460, subd. (a)); and (5) robbery in concert inside an inhabited

dwelling (§§ 211, 213, subd. (a)(1)(A)). The jury found true the allegations that (A) the

rape and forced oral copulation were committed during the burglary (§ 667.61, subd.

(e)(2)); (B) during the burglary, a person other than an accomplice was present in the

residence (§ 667.5, subd. (c)(21)); and (C) the false imprisonment, burglary, and

robbery were committed in association with a criminal street gang with the specific

intent to assist criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).

Defendant admitted (i) suffering a prior strike conviction (§§ 667, subd. (c)&(e)(1),

1170.12, subd. (c)(1); and (ii) committing the charged “felony offenses while released

1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.

2 The record reflects defendant was convicted under section 287, subdivision
(c)(2)(A). The prosecutor alleged that the forced oral copulation occurred on July 25,
2015. In 2015, the relevant law for forced oral copulation was section 288a, subdivision
(c)(2)(A). In the trial court, defendant argued that he was wrongly charged under
section 287, subdivision (c)(2)(A), because that statute did not exist in 2015. The
prosecutor conceded that the proper statute was section 288a. The trial court also
determined that section 288a was the relevant law in 2015 but concluded that citing
section 287 was an error that was “de minimis in nature.” Thus, the record reflects a
conviction under section 287, subdivision (c)(2)(A), despite the offense having been
committed in 2015. We will direct the trial court to correct the indeterminate abstract of
judgment.

3After finding defendant not guilty of kidnapping (§ 207, subd. (a)), the jury
found defendant guilty of false imprisonment, as a lesser included offense.

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from custody prior to the judgment becoming final on the primary offense” 4 (§

12022.1). The trial court sentenced defendant to prison for a determinate term of 20

years plus an indeterminate term of 90 years to life.5 Defendant contends (1) the trial

court erred by excluding evidence of the victim’s sexual history; and (2) Assembly Bill

No. 333 changed the requirements for gang enhancements (§ 186.22, subd. (b)), and the

4 “ ‘Primary offense’ means a felony offense for which a person has been
released from custody on bail or on his or her own recognizance prior to the judgment
becoming final, including the disposition of any appeal, or for which release on bail or
his or her own recognizance has been revoked.” (§ 12022.1, subd. (a)(1).) All the
offenses in the instant case were alleged to have occurred on July 25, 2015. The
primary offense was derived from defendant’s prior strike conviction case (Riverside
Superior Court case No. RIF1407110).
Defendant’s conviction for his prior strike offense occurred on October 7, 2014,
i.e., prior to July 25, 2015. Defendant was granted 36 months of formal probation, with
the condition that he serve 178 days in the work release program. On November 25,
2014, defendant was terminated from the work release program with an outstanding
balance of 178 days. The following day, the trial court revoked defendant’s probation.
On March 5, 2015, defendant posted bail. In the instant case, the trial court imposed a
consecutive two-year prison term for the on-bail enhancement.
Because the issues are not argued on appeal, we leave for another day the
questions of (1) whether bail posted due to a work release probation violation meets the
definition of being on bail for “a felony offense” “prior to the judgment becoming final”
(§ 12022.1, subd. (a)(1); see also People v. McClanahan (1992) 3 Cal.4th 860, 868
[“ ‘[S]ection 12022.1 enhancements . . . are not imposed unless there has been a
conviction of both the “primary offense” and the “secondary offense.” Thus, section
12022.1 enhancements are never imposed unless the defendant has been convicted of a
prior felony as well as a subsequent felony’ ”]); and (2) whether one trial court case can
constitute the basis for both a prior strike conviction and an on-bail enhancement
(People v. McClanahan, supra, 3 Cal.4th at p. 869 [“[T]he Legislature did not intend
on-bail enhancements to operate in the same manner as ‘prior felony conviction’
enhancements”]).

5 Defendant asserts the trial court sentenced him to a determinate term of 20
years eight months. The eight months were imposed in the prior strike case, i.e.,
Riverside Superior Court case No. RIF1407110. Because the eight months were
imposed in a different trial court case, we do not include them herein.

3
evidence in the instant case does not satisfy the new legal requirements, so the gang

enhancement must be reversed. We affirm the judgment with directions.

FACTUAL AND PROCEDURAL HISTORY

There was little dispute regarding the facts that (A) defendant was a gang

member; (B) defendant was in the victim’s house on July 25, 2015; (C) defendant

engaged in intercourse with the victim; (D) the victim orally copulated defendant; (E)

defendant’s associates in the gang stole the victim’s television while defendant and the

victim were engaged in intercourse; (F) defendant stopped engaging in intercourse with

the victim when her house alarm sounded a warning chirp due to one of defendant’s

associates opening a door; and (G) defendant and his gang associates sold the victim’s

television, laptop, and cell phone on July 25, 2015.

The primary disputes in this case pertained to (1) whether the victim knew

defendant prior to July 25, 2015; (2) whether the victim had knowledge of the Sex Cash

Money street gang prior to July 25, 2015; (3) whether the victim invited defendant to

her house; (4) whether the victim consented to intercourse and oral copulation with

defendant; and (5) whether defendant stole the victim’s laptop and cell phone. We

focus our presentation of the facts on the issues that were in dispute.

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 A. PROSECUTION’S CASE IN CHIEF

1. DEFENDANT’S CRIMES

In December 2013, the victim moved to a house in Moreno Valley with her

youngest son (Child)6 . In July 2015, the victim was 44 years old, and Child was two

years old. Child and the victim slept in separate bedrooms. On the night of July 24,

2015, the victim put Child to bed, set the house alarm, and went to sleep. In order to

cool the house, the victim left open a downstairs window in the back of the house.

When the victim went to sleep, she was wearing a T-shirt and shorts.

At approximately 1:00 a.m. on July 25, 2015, the victim woke because she felt

that someone was in her bedroom. Either the victim or defendant turned on the light in

the bedroom. The victim had never seen defendant before.

Defendant asked where the victim’s jewelry was located as he went through her

dresser drawers and closet. The victim heard “noises like bumping around” and realized

“someone was downstairs.” The victim feared for herself and Child. The victim did not

try to escape because she “wasn’t going to leave [Child].” Defendant took the victim’s

cell phone and laptop.

Defendant directed the victim to find a condom. The victim located condoms in

the master bathroom and gave them to defendant. The victim prayed aloud, and

defendant told her “to shut up.” Defendant told the victim, “[Y]ou need to suck this”—

directing her to orally copulate him. The victim complied. At the time, the victim was

6 We omit the victim’s sons’ names to aid in protecting the victim’s identity.

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afraid because she “didn’t know who else was in [her] house. [She] didn’t know who

else was coming up[stairs].”

Defendant put a condom on his penis. The victim was terrified; she could still

hear movement downstairs, she was thinking “of getting shot or hurt or other people

coming [upstairs].” The victim thought that if she screamed it would “make things

worse, and [she] knew [Child] was in the other room.” The victim did not resist

because she “didn’t want to bring more attention to the upstairs,” and she “felt like if

[she] was quiet and cooperated that maybe [she] would be okay somehow.” The victim

believed that if she physically resisted, then she would be hurt. Defendant moved the

victim’s shorts and underwear to the side, and he raped the victim.

The victim’s house alarm began sounding a warning chirp because a person

downstairs opened the garage door. Defendant left. The victim was unable to call the

police because defendant took her cell phone, and she did not have a house phone. The

victim went to her house alarm panel and pressed the button for the police. The victim

went to neighbors’ houses and knocked on their doors. One neighbor came to the door

but did not open it. The victim yelled for the neighbor to call the police. The neighbor

called 911.

The nurse who conducted the sexual assault examination of the victim, on the

morning of July 25, 2015, did not see any injuries on the victim’s body. The nurse

explained that there may not be injuries after a sexual assault if the person attacked does

not physically resist.

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 2. SELECTING THE VICTIM’S HOUSE

Defendant burglarized the victim’s house along with Demario Mosely (Mosely),

Eric Parker (Parker), and M.M.7 Defendant, Parker, and M.M. were members of the

Northside Parkland street gang which is a subset of the Sex Cash Money street gang.

During an interview with law enforcement, M.M. explained that he, defendant,

Mosely, and Parker (collectively, the Group) were drinking and smoking marijuana

together at the Segovia Apartments, in Moreno Valley, waiting for night to fall in order

to burglarize a home. The Group planned to find “a house that looks like they have

money.”

The Group drove to the victim’s neighborhood. Because M.M. was the

youngest, he knocked on doors, and if a person answered, he would “ask if somebody

was there” or “ask to use their phone . . . [because he was] stranded.” For example, he

would ask, “ ‘[I]s Steve there,’ ” and then pretend he was at the wrong address. M.M.

would then “just go to another house.” After knocking on “a few” doors, M.M.

knocked on the victim’s door and no one answered.

Defendant, Mosely, and M.M. went into the victim’s backyard, while Parker

waited in the car as the lookout. M.M. removed the screen from the open window.

Defendant, Mosely, and M.M. entered the house through the window, and defendant

went upstairs to see if the house was empty. Mosely instructed M.M. to help him

remove the television from the wall. After Mosely and M.M. placed the television in

7 M.M. was 16 years old at the time of the burglary. Therefore, we are not using
his full name.

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the car, they went back to the house to get defendant, but defendant was already leaving

with the victim’s laptop and cell phone.

3. THE VICTIM’S FAMILY

The victim’s former husband (Husband) was a member of the Eight Trey Crips

street gang in Los Angeles. In 2000, the victim divorced Husband. After the divorce,

the victim moved from Moreno Valley to Los Angeles. In 2000, the second of the

victim’s three sons (Son), was approximately five years old, i.e., he was born in

approximately 1995. Son moved to Los Angeles with the victim. In approximately

2008, when Son was approximately 13 years old, he moved back to Moreno Valley to

reside with Husband.

In 2015, Son was still residing with Husband, in Moreno Valley. The victim

estimated that from January 2015 to July 2015, she saw Son less than five times because

she had a strained relationship with him. The victim denied having heard of the gang

Sex Cash Money prior to the burglary. The victim denied knowing if Son and her eldest

son were gang members. The victim denied knowing defendant prior to the burglary.

B. DEFENDANT’S CASE

Defendant was born in November 1994. Defendant is a member of the Eight

Trey street gang. Husband was defendant’s “original big homie from Eight Trey” in

Los Angeles. Husband was “like a father figure” to defendant.”

Defendant is also a member of Sex Cash Money and the Northside Parkland

clique. Son is also a member of the Eight Trey gang in Los Angeles and the Sex Cash

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Money gang in Moreno Valley. Son and defendant were “dang near best friends” who

have known each other since they were 11 or 12 years old.

Defendant used to see the victim at Saint Andrews Park in Los Angeles when

defendant played with Son as a child. Son and defendant both attended Moreno Valley

High School. The two were together during the school day and after school. In 2010,

on three or four occasions, the victim drove defendant and Son from school to

Husband’s house and dropped them off.

In early 2014, the victim often dropped Son off at the Segovia Apartments, in

Moreno Valley, and then spent a few minutes talking with her friend, Coco, who lived

at the apartments. Over time, the victim began spending more time with Coco at Coco’s

apartment. Defendant also spent time at Coco’s apartment; he was visiting Coco’s

nephews. When defendant and the victim were at Coco’s apartment, the victim

recognized defendant from “back in the day.” Defendant and the victim talked while

defendant waited for Coco’s nephews.

One night, in June 2015, the victim and defendant were both at a sports bar in

Moreno Valley. The victim was there with Coco. Defendant was there with his friend,

Terry. While at the bar, defendant and the victim kissed.

After that night, when defendant saw the victim alone at the Segovia Apartments,

he flirted with her. Defendant would say things like, “[S]top playing, you gonna let

me.” In other words, “[A]re you going to let me have sex with you?” The victim did

not say no, but she expressed concerns about defendant having “baby mama drama” and

defendant gossiping if they did engage in intercourse.

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 On July 24, 2015, defendant saw the victim in her car at the Segovia Apartments

and approached her. Defendant asked her, “[I]s today the day? Like stop playing, you

always teasing me and stuff. Is today that day? And she’s all like, well, just come to

the house later on. What she was sayin’ is we’ll talk about it, basically.” The victim

told defendant to come to her house at midnight.

Around 11:00 p.m., defendant asked Mosely to give him a ride to the victim’s

house. The plan for the night of July 24, 2015, was for Mosely, M.M., and Parker to

take defendant to the victim’s house, then go to a bar in Riverside, and then go to

defendant’s house.

In the car, defendant directed Mosely to the victim’s house. Defendant had been

to the victim’s house approximately three times before to spend time with Son. When

the Group arrived, the garage door was open. Defendant told Mosely to honk the horn,

which he did, and the victim came out into the garage. The victim greeted defendant

and they walked into the house through the garage.

Inside the house, defendant and the victim joked and flirted with one another.

The victim wanted to check on Child, so defendant and the victim went upstairs.

Defendant waited on the landing while the victim was in Child’s room. When the

victim exited Child’s room, she went to her bedroom and defendant followed. The two

sat down on the victim’s bed and discussed whether defendant planned to tell anyone if

they engaged in intercourse. Defendant said he could keep a secret. The two engaged

in consensual sexual activity.

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 Mosely, who had been waiting in the car, became bored. Mosely decided to “go

inside while [defendant was] upstairs and see what [he] can get.” Mosely and M.M.

climbed through the open window at the back of the victim’s house. Mosely carried a

television, which had been mounted on a wall, to the car where Parker was waiting, and

M.M. carried the victim’s phone and laptop out of the house.

After defendant and the victim stopped engaging in intercourse, due to the house

alarm chirping, the victim went downstairs, and defendant followed. The victim saw

her television was missing. The victim asked if defendant knew who stole her

television. Defendant conceded that his friends “took the TV,” and the victim said,

“[W]ell you set me up then.” Defendant denied planning the burglary, but “[f]rom there

on [the victim] started cussing [defendant] out,” saying things like, “I should never have

messed with your young a-s-s” and that she would “get [Husband] on [defendant’s]

ass.” The victim also said that if defendant did not return her television, then she would

accuse him of rape.

At that point, defendant said, “I’m gonna go out there, I’ll be right back.”

Defendant went to the car. Defendant was angry. Defendant said, “Y’all trippin’.

Maybe we should bring the TV back. And [Mosley said], bro, it’s already sold , it’s

already sold.” Mosley was “the big homie,” meaning he had more clout in the gang, so

he had “some say-so over the little dudes,” like defendant. Thus, in regard to the

television, there was “nothin[g defendant] could really do” without starting “problems

with the big homies against [defendant].” Defendant entered the car, and the Group

“just left it at that and kinda drove off.”

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 C. PROSECUTION’S REBUTTAL CASE

The victim denied knowing anyone named Coco. The victim denied spending

time with a person named Coco at the Segovia Apartments. The victim denied ever

having seen defendant at the Segovia Apartments. The victim denied that she let

defendant into her house. The victim denied that she invited defendant to her house.

The victim denied that she agreed to sexual activity with defendant on the night of July

24 or 25, 2015.

D. SON AND COCO

Son and Coco did not testify at trial. The prosecutor did not include Son or Coco

on the prosecution’s witness list. Defense counsel did not include Son or Coco on the

defense’s witness list.

E. MOTION IN LIMINE

Prior to trial, defense counsel moved to admit evidence of the victim’s sexual

history. Defense counsel argued that a victim’s sexual history cannot be used to prove

consent (Evid. Code, § 1103, subd. (c)(1)), but it can be used to impeach credibility

(Evid. Code, § 1103, subd. (c)(5)). Further, defense counsel asserted, “Evidentiary rules

may impermissibly interfere with a defendant’s constitutional rights when they prevent

the defendant from presenting his defense.” Defense counsel contended the evidence of

the victim’s sexual history was “crucial to Defendant’s claim of innocence.”

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 Defense counsel made an offer of proof in a declaration8 that was based on

information and belief.9 In the declaration, defense counsel asserted, among other

things, that (1) “Parker will testify that [the victim] had a reputation of having sex with

guys from the Segovia Apartments,” and (2) Layelle Hayes, who is a friend of the

victim’s eldest son, would “offer reputation evidence that [the victim] likes to ‘Mess’

with younger guys and she has been known to mess around with other friends of [Son]

and [the victim’s eldest son].”

At the hearing on the motion, the trial court explained the statutory scheme for

attacking a witness’s credibility. The court said, “[Evidence Code section] 786 says,

and I think this is extremely important, [‘E]vidence of traits of his character other than

honesty or veracity[,] or their opposites[,] is inadmissible to attack or support the

credibility of a witness.[’]” The trial court remarked that the evidence described in

defense counsel’s offer of proof “goes to . . . character with respect to promiscuity as

opposed to honesty, and I think that is my primary difficulty with some of what the

Defense is proffering.”

8 Defense counsel labeled the document as an affidavit, but it was in the form of
a declaration. (Fairbanks, Morse & Co. v. Getchell (1910) 13 Cal.App.458, 461 [an
affidavit is a written statement verified by an oral oath sworn before an official
competent to administer oaths]; Code Civ. Proc., § 2003.)

9 In general, a “declaration . . . made on information and belief . . . [does] not
provide competent evidence of the facts stated therein. [Citation.] ‘An affidavit based
on “information and belief” is hearsay and must be disregarded.’ ” (Baustert v.
Superior Court (2005) 129 Cal.App.4th 1269, 1275, fn. 5.)

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 Defense counsel argued, “But it all goes under the umbrella of attacking her

credibility. . . . [S]he was out there, she was having sex, and she did have a reputation

for having sex with younger men, particularly gang members.” The trial court

responded, “It’s not directly relevant to truth and veracity. What it is relevant to is

whether she sleeps around and whether she sleeps around with other gang members.”

The court explained, “It goes right back to consent. . . . [The] rape shield law is there

for a reason, and it seems that this is the exact reason why [the] rape shield law is in

effect. So that we’re not bringing up a complaining witness’s entire sexual history,

which essentially is she had sex with lots of people all the time so she probably

consented.” Defense counsel replied, “I understand that’s what it does, but I’m more

using this to impeach her and to attack her credibility on the fact that she said that she

doesn’t.”

The trial court said the evidence would also be inadmissible under Evidence

Code section 352 because “[i]t’s distracting to the jury. It’s talking about side issues

that are not really focused on the issues in this particular case . . . .” The trial court

excluded Parker’s testimony about the victim’s reputation for engaging in intercourse

with men from the Segovia Apartments and Hayes’s testimony about the victim’s

reputation for “messing” around with younger men and her sons’ friends.

During the trial, defense counsel said he wanted to ask a potential witness

questions that would “imply a relationship between [the victim] and [defendant].” The

trial court responded, “Well, as I said in the original 402s, I do not want the jury

speculating as to a relationship between the two by someone who has seen one or seen

14
the other but not seen them together. That having been said, there are a number of areas

that were asked of [the victim] . . . [¶] . . . [¶] . . . on cross-examination that she denied.

I think those areas can be inquired into by way of impeachment of her veracity with

respect to the answers to those statements. So it goes to truth and veracity regarding

those.”

DISCUSSION

A. STATE LAW ERROR

Defendant contends the trial court erred by excluding evidence of the victim’s

alleged sexual history because such evidence was relevant to the victim’s credibility.

(Evid. Code, § 1103, subd. (c)(5).)10

We review a ruling excluding evidence under the abuse of discretion standard of

review. (People v. Johnson (2019) 32 Cal.App.5th 26, 46.) In a rape prosecution,

“reputation evidence, and evidence of specific instances of the complaining witness’

sexual conduct, or any of that evidence, is not admissible by the defendant in order to

prove consent by the complaining witness.” (Evid. Code, § 1103, subd. (c)(1).)

However, the foregoing law, does not make inadmissible any evidence offered to attack

10 Defendant asserts, “[T]he evidence was admissible under [Evidence Code]
section 1103 (c)(4) because it related to [the victim’s] credibility.” Now and at the time
of defendant’s trial, Evidence Code section 1103, subdivision (c)(4), provides, “If the
prosecutor introduces evidence, including testimony of a witness, or the complaining
witness as a witness gives testimony, and that evidence or testimony relates to the
complaining witness’ sexual conduct, the defendant may cross-examine the witness who
gives the testimony and offer relevant evidence limited specifically to the rebuttal of the
evidence introduced by the prosecutor or given by the complaining witness.” The
People inferred, and we also infer, that defendant intended to cite Evidence Code
section 1103, subdivision (c)(5), which concerns credibility.

15
the credibility of the complaining witness.” (Evid. Code, § 1103, subd. (c)(5).) “One

proper method of impeachment of any witness is to call other witnesses who contradict

him.” (People v. Kinkichi Watanebe (1928) 91 Cal.App. 290, 292.)

Our Supreme Court has “emphasize[d] that ‘[g]reat care must be taken to insure

that this exception to the general rule barring evidence of a complaining witness’ prior

sexual conduct . . . does not impermissibly encroach upon the rule itself and become a

“back door” for admitting otherwise inadmissible evidence.’ ” (People v. Fontana

(2010) 49 Cal.4th 351, 363.)

Defendant contends the evidence of the victim’s reputation for engaging in

intercourse with members of Sex Cash Money was relevant “to show that she was lying

by denying that she knew [defendant], and denying that she knew whether her sons

were [Sex Cash Money] gang members or that she knew anything about the gang before

the incident.”

In seeking to attack the victim’s credibility, defendant could have called

members of Sex Cash Money to testify that they spent time with the victim, that they

told the victim about their gang membership, that they told the victim about Sex Cash

Money, and that they told the victim about Son’s gang membership. The gang members

could provide that testimony without testifying that they engaged in intercourse with the

victim. That testimony would serve the purpose of contradicting the victim’s testimony

without violating the rape shield law (Evid. Code, § 1103, subd. (c)(1)).

To the extent defendant was unable to find such gang members to testify, and

thus had to rely upon reputation evidence as circumstantial evidence of the victim’s

16
knowledge, there was still no need to discuss the victim’s alleged sexual history.

Defense counsel could have asked witnesses if the victim had a reputation for spending

time with gang members. (See Evid. Code, § 1101, subd. (c) [“Nothing in this section

affects the admissibility of evidence offered to . . . attack the credibility of a witness”];

but see Evid. Code, § 786 [“Evidence of traits of his character other than honesty or

veracity, or their opposites, is inadmissible to attack . . . the credibility of a witness”].)

That the victim may or may not have had sexual intercourse during the time she

reportedly spent with gang members is irrelevant to the inference that she knew

defendant, “knew whether her sons were [Sex Cash Money] gang members, or that she

knew anything about the gang before the incident.”

Defendant’s appellant’s reply brief reads, “And the sexual part could have been

sanitized so the witnesses would have testified that [the victim] had many contacts or

experiences with [Sex Cash Money] members.” That is precisely what defense counsel

could have done in seeking to attack the victim’s credibility without violating the rape

shield law (Evid. Code, § 1103, subd. (c)(1)).

At oral argument in this court, defendant asserted that, while the excluded

evidence could have been sanitized, it would have been more effective for the defense

to provide evidence of the victim’s alleged reputation for promiscuity with gang

members, and, because it was impeachment evidence, the trial court erred by excluding

it. We are not persuaded. The evidence of the victim’s alleged reputation for

promiscuity was not necessary for impeachment, and thus, it was within the bounds of

reason to exclude it.

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 In sum, the trial court did not abuse its discretion by excluding the evidence of

the victim’s alleged sexual history because the victim’s alleged sexual history was

irrelevant to her credibility.

B. FEDERAL CONSTITUTION

Defendant asserts the exclusion of evidence pertaining to the victim’s alleged

sexual history violated his federal “constitutional rights to present a defense, to cross-

examine adverse witnesses, and to a fair trial.”

“ ‘Although the complete exclusion of evidence intended to establish an

accused’s defense may impair his or her right to due process of law, the exclusion of

defense evidence on a minor or subsidiary point does not interfere with that

constitutional right.’ [Citation.] ‘A trial court’s limitation on cross-examination

pertaining to the credibility of a witness does not violate the confrontation clause unless

a reasonable jury might have received a significantly different impression of the

witness’s credibility had the excluded cross-examination been permitted.’ ” (People v.

Bautista (2008) 163 Cal.App.4th 762, 783.)

A “[d]efendant’s entitlement to due process of law does not encompass a right to

any process of his own choosing, including the right to introduce irrelevant evidence of

sexual history.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1249.) As concluded ante,

the evidence of the victim’s alleged sexual history was irrelevant to attacking her

credibility. Therefore, defendant did not have a due process right to introduce the

evidence. Further, because the evidence was irrelevant, it did not impact defendant’s

18
right to present a defense or his right of cross-examination. We conclude defendant’s

constitutional rights were not violated.

At oral argument in this court, defendant asserted that the issue of the victim’s

credibility was not a minor issue—it was a critical issue in this case. To be clear, we are

not concluding that the issue of the victim’s credibility was a minor issue. Rather, we

are concluding that the victim’s alleged reputation for promiscuity with gang members

is a subsidiary point because that evidence was not relevant to contradicting her claim

that she did not know of the Sex Cash Money gang.

C. GANG ENHANCEMENT

Defendant contends that, after his trial, Assembly Bill No. 333 (2021-2022 Reg.

Sess.) changed the requirements for gang enhancements (§ 186.22, subd. (b)). In

particular, defendant contends the revised law requires that predicate offenses be

committed in concert with other gang members.11 Defendant asserts that the evidence

in the instant case does not meet that new requirement.

“ ‘ “As in any case involving statutory interpretation, our fundamental task here

is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.]

We begin by examining the statute’s words, giving them a plain and commonsense

meaning. [Citation.]” [Citation.] “ ‘When the language of a statute is clear, we need

go no further.’ [Citation.] But where a statute’s terms are unclear or ambiguous, we

11 The changes at issue here made to the gang enhancement statute by Assembly
Bill No. 333 have been held to apply retroactively. (People v. Sek (2022) 74
Cal.App.5th 657, 667; People v. E.H. (2022) 75 Cal.App.5th 467, 478.) The People do
not dispute that holding.

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may ‘look to a variety of extrinsic aids, including the ostensible objects to be achieved,

the evils to be remedied, the legislative history, public policy, contemporaneous

administrative construction, and the statutory scheme of which the statute is a part.’ ” ’ ”

(People v. Scott (2014) 58 Cal.4th 1415, 1421.)

“ ‘[C]riminal street gang’ means an ongoing, organized association or group of

three or more persons . . . whose members collectively engage in, or have engaged in, a

pattern of criminal gang activity.” (§ 186.22, subd. (f).) The word “members” is plural,

which means more than one member of the gang must have engaged in criminal

conduct.

“ ‘[P]attern of criminal gang activity’ means the commission of, . . . , or

conviction of, two or more of the following offenses, . . . [and] the offenses were

committed on separate occasions or by two or more members.” (§ 186.22, subd. (e)(1).)

Given that multiple members of the gang must be involved in the pattern of criminal

gang activity, the plain meaning of the phrase “the offenses were committed on separate

occasions or by two or more members” means there are two options for establishing the

requisite pattern: (1) prove two different gang members separately committed crimes

on two occasions; or (2) prove two different gang members committed a crime together

on a single occasion. It would not suffice to prove, for instance, that one gang member

committed two crimes on two different occasions. Because it must be demonstrated that

“members” (plural) of the gang are collectively involved in criminal activity—one

individual gang member on a crime spree would be insufficient to prove a collective

pattern of criminal activity.

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 There are cases that disagree with the foregoing interpretation. In People v.

Delgado (2022) 74 Cal.App.5th 1067, 1088 and 1089 (Delgado), the appellate court

concluded that the word “collectively” (§ 186.22, subd. (f)) meant “committed by more

than one person.” Without identifying an ambiguity in the plain language of the statute,

the court turned to legislative history and concluded that the Legislature “inten[ded] to

significantly limit the scope of the gang enhancement” when modifying the statute, and

a significant limitation would only occur if “collectively” were interpreted to mean in

concert, because that interpretation would make the gang enhancement more difficult to

prove. (Ibid.) Thus, the appellate court concluded that, in order to prove a pattern of

criminal activity, the predicate offenses had to be committed by gang members acting in

concert. (Ibid.)

We do not find the Delgado analysis to be persuasive because it turned to

legislative history after merely defining the word “collectively.” (Delgado, supra, 74

Cal.App.5th at pp. 1088-1089.) It did not, with respect to our colleagues, devote

sufficient attention to the plain language of the statute. If “collectively” means the prior

crimes must have been committed in concert, then the first alternative in subdivision

(e)(1) is rendered surplusage. The two alternatives are proving that “[(1)] the offenses

were committed on separate occasions or [(2)] by two or more members.” (§ 186.22,

subd. (e)(1).) If “collectively” means the predicate crimes had to be committed in

concert, then the prosecutor must always prove the predicate crimes were committed

“by two or more members.” The alternative option that “the offenses were committed

on separate occasions” would be surplusage. (§ 186.22, subd. (e)(1).) We avoid

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interpreting the statute in a manner that would render one of the explicit options

surplusage. (People v. Loeun (1997) 17 Cal.4th 1, 9.) In sum, we disagree with

Delgado’s interpretation of the statute.

In People v. Lopez (2021) 73 Cal.App.5th 327, 344-345, the court wrote, “At

trial, the People introduced evidence that gang member William Vasquez committed

two murders in 2005 and gang member Guillermo de Los Angeles committed a

carjacking and robbery in 2005. . . . Assembly Bill 333 will require the prosecution to

prove collective, not merely individual, engagement in a pattern of criminal gang

activity. No evidence was introduced at trial to establish that the crimes committed by

Vasquez and de Los Angeles constitute collective criminal activity by the 18th Street

gang.” We do not find Lopez to be persuasive authority because it did not provide a

plain language analysis of the statute pertaining to the phrases (A) “members

collectively” (§ 186.22, subd. (f)); and (B) “the offenses were committed on separate

occasions or by two or more members” (§ 186.22, subd. (e)(1)).

In sum, a pattern of criminal gang activity may be established by (1) two gang

members who separately committed crimes on different occasions, or (2) two gang

members who committed a crime together on a single occasion. Next, we examine

whether, beyond a reasonable doubt, the jury would have found the predicate offense

requirements were satisfied. (Delgado, supra, 74 Cal.App.5th at p. 1090.)

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 In the instant case, one of the predicate offenses was a robbery committed on

October 13, 2014, by Damon Ridgeway, a member of Sex Cash Money.12 Another

predicate offense was an attempted residential burglary committed by defendant on

April 7, 2014. Thus, there was evidence that two members of Sex Cash Money

committed crimes on separate occasions. Given that evidence, we conclude beyond a

reasonable doubt that the jury would have found that members of Sex Cash Money

“collectively . . . have engaged in[] a pattern of criminal gang activity.” (§ 186.22,

subd. (f).)

DISPOSITION

The trial court is directed to amend the indeterminate abstract of judgment to

reflect the statute in Count 5 is Penal Code section 288a, subdivision (c)(2)(A), and send

the amended abstract of judgment to the appropriate agency/agencies. In all other

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER
Acting P. J.
We concur:

CODRINGTON
J.

RAPHAEL
J.

12Damon Ridgeway was part of a different subset of Sex Cash Money than
defendant. Defendant does not assert there is a lack of substantial evidence for the gang
enhancement due to Mr. Ridgeway being part of a different subset.

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