Filed 3/27/23 P. v. Ware CA4/1
Opinion on remand from Supreme Court
OPINION ON REMAND FROM THE CALIFORNIA SUPREME COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D072515
Plaintiff and Respondent,
(Super. Ct. No. SCD255884)
v.
VICTOR WARE et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of San Diego County,
Leo Valentine, Jr., Judge. Affirmed in part, reversed in part, and remanded
for resentencing.
Lynda A. Romero, under appointment by the Court of Appeal, for
Defendant and Appellant Dionte Simpson.
David L. Polsky, under appointment by the Court of Appeal, for Defendant
and Appellant Victor Ware.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, A. Natasha Cortina,
Warren J. Williams, and Christine Levingston Bergman, Deputy Attorneys
General, for Plaintiff and Respondent.
Dionte Simpson, Victor Ware, and Nicholas Hoskins (collectively
appellants) are members of 5/9 Brim (Brim), a criminal street gang in San Diego
that is a set of the Bloods gang. The Neighborhood Crips (NC) and West Coast
Crips (WCC), (together, the Crips), other criminal street gangs, are the main
rivals of the Brims. A jury found appellants guilty of the following crimes
related to their gang involvement:
Count 1 (all appellants): Between January 1, 2012 and
April 23, 2014, conspired to commit murder (Pen. Code,1
§§ 182, subd. (a), 187) for the benefit of a criminal street
gang. (§ 186.22, subd. (b)(1).)
Counts 2 and 3 (Simpson): June 14, 2011, attempted
murder of victims 1 and 2 (§§ 664, 187, subd. (a)) involving
the personal use of a firearm (§ 12022.53, subds. (b), (c) and
(e)(1)), and for the benefit of a street gang. (§ 186.22, subd.
(b)(1).)
Counts 4 and 5 (Simpson): June 14, 2011, assaulted
victims 1 and 2 with a firearm (§ 245, subd. (b)) for the
benefit of a street gang. (§ 186.22, subd. (b)(1).)
Count 6 (Simpson): April 4, 2012, participated in a
criminal street gang conspiracy (§ 182.5) for the crime of
premeditated attempted murder committed on or about
April 4, 2012. (§§ 664, 187, 189.)
Count 7 (Hoskins): August 27, 2013, participated in a
criminal street gang conspiracy (§ 182.5) for the crime of
premeditated attempted murder committed on or about
August 27, 2013. (§§ 664, 187, 189.)
1 Undesignated statutory references are to the Penal Code.
2
Counts 8, 12, and 13 (Ware): January 29, 2014, and April
23, 2014, possessing a firearm by a felon. (§ 29800, subd.
(a)(1)).
Count 9 (Ware): March 25, 2014, participated in a criminal
street gang conspiracy (§ 182.5) for the crime of
premeditated attempted murder committed on or about
March 25, 2014. (§§ 664, 187, 189.)
Count 10 (Ware): March 25, 2014, first degree attempted
murder (§§ 664, 187, subd. (a)) involving the personal use
and discharge of a firearm (§ 12022.53, subds. (b), (c) and
(e)(1)) for the benefit of a criminal street gang. (§ 186.22,
subd. (b)(1).)
Count 14 (Ware): May 6, 2014, assault by means likely to
produce great bodily injury (§§ 245, subd. (a)(4)) for the
benefit of a criminal street gang. (§186.22, subd. (b)(1).)
Ware subsequently admitted a prison prior allegation. (§ 667.5, subd. (b).)
The court sentenced appellants to prison as follows: (1) Ware, 27 years, plus 40
years to life; (2) Simpson, 36 years, plus 25 years to life; and (3) Hoskins, 25
years to life.
Appellants challenged the sufficiency of the evidence supporting their
convictions for conspiracy to commit murder (count 1) and criminal street gang
conspiracy (counts 6, 7, 9). Appellants also challenged the instruction regarding
coconspirators’ statements. Ware asserted that the trial court erred by failing to
instruct the jury that it could find multiple conspiracies existed. Simpson,
joined by Hoskins, asserted that their conspiracy convictions must be reversed
because the jury was allowed to consider overt acts after the conspiracy
terminated and overt acts that were not proven. Hoskins, joined by Simpson,
also contended that their conspiracy convictions violated their right to free
speech under the First Amendment because the court admitted evidence of their
social media posts to establish participation in the alleged conspiracy.
3
Simpson challenged the evidence supporting his convictions for attempted
murder (counts 2 and 3) and assault with a firearm (counts 4 and 5). Ware
challenged the sufficiency of the evidence supporting the gang enhancement
attached to his attempted murder conviction (count 10) and the evidence
supporting one of his convictions for possessing two handguns found during the
search of his residence (counts 12 and 13). He also challenged counts 12 and 13
on statute of limitations grounds. He further asserted that he received
ineffective assistance when his trial counsel failed to move to suppress the gun
found during his January 29, 2014, pat down search (count 8), and for conceding
his guilt on all three firearm possession counts (counts 8, 12, and 13). Finally,
Ware argued that the trial court incorrectly imposed sentence for both the
firearm enhancement and the gang enhancement, and improperly imposed
sentences for both conspiracy to commit murder and attempted murder. Finally,
Simpson and Ware sought remand to allow the trial court to exercise its
discretion to strike or impose the section 12022.53 firearm enhancements
attached to counts 2 and 3. Simpson and Hoskins also claimed cumulative error.
In an unpublished opinion originally issued on July 21, 2020,2 we reversed
Ware’s and Hoskins’s gang conspiracy convictions, but rejected appellants’
remaining arguments regarding their convictions. We agreed to vacate
Simpson’s and Ware’s sentences and remanded the matter for resentencing.3
Hoskins petitioned the California Supreme Court for review of his conviction for
conspiracy to commit murder, the sole remaining conviction against him,
2 We subsequently modified the opinion on July 29, 2020, and again
modified the opinion after denial of rehearing on August 12, 2020.
3 Our conclusion that the trial court did not err renders it unnecessary to
address Simpson’s cumulative error claim.
4
arguing insufficient evidence supported his conviction.4 (See People v. Ware
(2022) 14 Cal.5th 151, 156.) The Supreme Court concluded that insufficient
evidence was presented at trial to show Hoskins had the requisite intent to
participate in a conspiracy to kill rival gang members, it reversed his judgment,
and remanded the matter for further proceedings. (Id. at p. 175.)
We accepted the parties’ stipulation for the issuance of an immediate
remittitur as to Hoskins.5 Simpson and Ware filed supplemental briefs jointly
contending: (1) their gang-related enhancements must be reversed in light of
the changes made to section 186.22 by Assembly Bill No. 333 (2021–2022 Reg.
Sess.) (Stats. 2021, ch. 699, §§ 1–5) (Assembly Bill 333); (2) Assembly Bill No.
1869 (2019–2020 Reg. Sess.) (Stats. 2020, ch. 92, § 11; (Assembly Bill 1869),
requires that any unpaid portion of the criminal justice fee imposed pursuant to
Government Code section 29550.1 be vacated; and (3) upon resentencing, the
trial court must apply section 1385, as amended by Senate Bill No. 81 (2021–
2022 Reg. Sess.) (Stats. 2021, ch. 721, § 1) (Senate Bill 81), which lists factors
courts must consider that weigh heavily in favor of striking enhancements.
Ware also contends that (a) Assembly Bill 333 requires reversal of his gang
conspiracy conviction (count 9) and (b) pursuant to Senate Bill No. 483 (2021–
2022 Reg. Sess.) (Stats. 2021, ch. 728, § 3) (Senate Bill 483), we must order the
prior prison term enhancement imposed under section 667.5, subdivision (b)
stricken. Finally, Simpson asserts that amendments to section 654 require
reconsideration of his sentence on counts 2 through 4.
4 The Supreme Court denied petitions for review filed by Simpson and
Ware.
5 All arguments made by solely by Hoskins have been deleted except for
his arguments pertaining to reversal of his gang conspiracy conviction.
5
The People agree with these contentions except for Ware’s argument that
Assembly Bill 333 requires reversal of his gang conspiracy conviction. We
conclude that Simpson and Ware are entitled to the ameliorative benefit of these
new laws. We vacate our August 12, 2020 opinion after denial of rehearing and
reissue that opinion, addressing these new arguments at the end of this opinion
in sections IV and V.D-G. We also made changes to the discussion in sections
I.E., V.A. and V.B., required by the vacation of the true findings on the gang
enhancement and gang-related firearm enhancements.
FACTUAL BACKGROUND
We limit our summary of the factual background to the expert testimony
regarding the gangs at issue, the relevant crimes of which the jury found
appellants guilty, and some of the overt acts pertaining to the conspiracy
convictions. Viewed in the light most favorable to the judgment, the evidence
was as follows.
Prosecution’s Gang Expert
On April 11, 2011, Dereck Peppers, a respected Brim gang member known
as an “original gangster,” was killed in Brim territory. Police suspected that a
rival Crips gang member had murdered Peppers. Simpson and Ware knew
Peppers. Peppers’s murder sparked a gang war between Brim and WCC and
spiked the number of homicides attributed to African-American gangs.
Appellants were Brim gang members and members of a Brim subset
known as Tiny Hit Squad. Young Hit Squad was another Brim subset. At some
point Tiny Hit Squad and Young Hit Squad merged, creating a commingled
group known as Hit Squad. A “hit” means to kill someone. Members of the Hit
Squad included appellants and alleged coconspirators, Lamont Holman, Mykein
Price, Timothy Hurst, Emanuel Peavy, Damonte Lucas, Clyde Ellis, Rahman
Taylor, Nino Sanchez, Deondre Cooper, Leron Johnson, Jamon Smith, Edward
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Laplanche, Edward Paris, Aaron Hurst, Norman Sanchez, Maurice Chavarry,
Sherbly Gordon, and Steven Mahaney. Brandin Orchord was also a Brim
member and a member of Young Hit Squad. Jontae Jones was a member of the
Hit Squad.
A gang that has been the target of a shooting by a rival gang is expected to
retaliate or “get back” at the rival gang. A rival gang graffitiing in another
gang’s territory would also require retaliation. Failure to retaliate would make
the gang appear weak and invite other gangs to prey on its members. The
retaliation has to be equal to the insult suffered, but is preferably “one step
above.”
Blood gangs, including Brim, associate with the color red. Crips gang
members traditionally wear blue. Gang members “put[ ] in work” for a gang by
going on missions, such as committing burglaries, robberies or shootings. For
shootings, gang members go into rival gang territory to seek rival gang
members. A gang member on a mission might target a particular rival gang
member. If the target cannot be located, the gang member will look for a
substitute, such as someone dressed in the rival gang’s color.
Gang members share guns. For example, in one 24-hour period the
prosecution gang expert saw that one gun had been used by three different gang
members. When it is time to go on a mission, a gang member will pick up a gun
and pass it off to the person on the mission and then return the gun so that
other gang members would have access to it. Gang members often store their
guns at the home of a female who is not on parole or probation.
The gang expert reviewed a large amount of social media evidence
pertaining to Brim gang members and explained to the jury how social media
worked. The gang expert believed that gang members in a set knew when other
gang members in the same set had engaged in or were part of criminal activity
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as evidenced by social media posts. Gang membership does not end when an
individual goes into custody. Gang members in custody still have access to
cellphones and social media. Gang members also monitor rival gangs on social
media.
It is common for Brim gang members to replace the letter “C” with a “K” or
to place the letter “K” after the letter “C.” The letter “k” after the letter “c”
refers to “Crip Killer.” Blood gang members also replace the letter “c” with the
letter “b” when writing. For example, the word “cool” becomes “bool.” “Crab,”
“Nap bashing,” “Toasty K,” “wet toast,” or “west toast” are derogatory terms for
NC or WCC.
June 14, 2011 - Simpson’s Attempted Murder and Assault with Firearm
Convictions (Counts 2-5)
On this day a group of five men, including Simpson, Orchord, Paris, and
Chavarry started arguing with two Crips gang members on a street corner.
Paris and Orchord began throwing gang signs with their hands. As the two
Crips started to walk away, Simpson pulled out a gun, someone said “Fuck
Crabs,” and Simpson fired two or three shots. The two rival gang members fled.
Simpson gave the gun to Orchord, who subsequently hid it in his garage.
After learning that the suspect group might be inside Orchord’s
apartment, police officers went to the apartment where they eventually
contacted Orchord and Paris. Officers later found Simpson and Lucas hiding in
the attic and Chavarry hiding under some clothing. Officers found a loaded
revolver about a foot from where Simpson had been hiding.
Officers who responded to the scene located two expended .45-caliber shell
casings in the front yard of a residence, and a bullet further down the street.
During a search of Orchord’s residence officers found a loaded .45-caliber
semiautomatic firearm hidden in the garage. Subsequent ballistics tests linked
this firearm to the shooting.
8
Police placed Simpson and Lucas in the back of a patrol car and the
prosecution played their recorded conversation for the jury. The gang expert
also interpreted some of the conversation. When Lucas commented that the
police have not “found the other one,” Simpson told him to shut up and
explained to him why the police put them in the back of a patrol car together.
This was an example of an older gang member schooling a younger one on police
investigations.
When Lucas said, “they found the second one,” Simpson commented, “On
Brims,” asking Lucas to swear on the gang that police had found both guns. The
gang expert interpreted Simpson’s reply, “I got life,” as an admission that he
knew a gun would be linked to a shooting and there may be evidence connecting
him to the shooting. Simpson and Lucas also discussed who would take the
responsibility for the gun, with Simpson telling Lucas that he should accept the
charge and take the hit for the gang because he was the youngest.
The garage contained Brim gang graffiti that included the gang monikers
for Paris, Johnson, Chavarry, Hoskins, Orchord, Ware, and Peavy. The graffiti
referenced “CK” meaning “Crip Killing” and “crab” which is a derogatory term
for a Crips gang member.
January 2012 Shootings (Overt Acts 1-5)
On January 3, 2012, a man with a dark complexion fired shots in WCC
territory and then escaped in a vehicle. Later that day, a shooting took place in
Brim territory. Two days later a third shooting took place in Brim territory.
Bullet casings recovered from that shooting, matched the first shooting,
suggesting to the expert that these shootings were consistent with “get back.”
April 1, 2012 - Murder of M.B. (Overt Acts 4-6)
On April 1, 2012, M.B. was fatally shot. M.B., who was not a gang
member, was in Crips territory while wearing all blue clothing. The gang expert
9
considered this shooting to be a “mission” because an armed Brim gang member
went to rival gang territory and shot a person without knowing whether that
person was part of the rival gang. Ballistics testing conducted on cartridge
casings recovered at the scene tied these casings to a nine-millimeter gun used
during the shooting on April 4, 2012. Police recovered this gun on April 5, 2012,
during a contact with coconspirators Norman Sanchez, Smith, and Lucas.
April 3, 2012 - Murder of W.L.
On this day, W.L., a nongang member, was fatally shot in the face by a
Black person driving a stolen vehicle. Police later arrested coconspirator Ellis
with the murder weapon.
April 4, 2012 - Attempted Murder of T.L. (Overt Acts 7-11) and Simpson
Gang Conspiracy (Count 6)
On this day, NC gang member T.L., W.L.’s son, was shot by a memorial
set up near the location of his father’s shooting. Police recovered nine-
millimeter casings from the scene. The casings were from two separate
firearms, one of which was the same firearm used to kill M.B. three days earlier.
One of the firearms was also used for return fire during the January 5, 2012
shooting.
Following their arrest for possessing a firearm, police placed Smith and
Norman Sanchez in a patrol car together and recorded their conversation.
Smith stated, “They found that thing,” referring to the gun officers found. Later
in the recording, Norman Sanchez said, “We did this ride shit for the homie.”
The gang expert explained that a “ride” means going on a mission for the gang.
“For the homie” meant that the men did the shooting on someone’s behalf, such
as getting payback for a shooting that occurred in Brim territory. Norman
Sanchez and Lucas later pleaded guilty to this shooting.
Police linked the nine-millimeter Beretta handgun recovered during Smith
and Norman Sanchez’s arrest to the April 1 and April 4, 2012 shootings. The
10
gang expert opined that this shooting and the April 1 shooting were consistent
with a gang mission because the gun was used multiple times in rival gang
territory. Additionally, these shootings were committed at the beginning of the
week that NC celebrated its gang, which is April 1 through 7.
On April 9, 2012, a social media status update on Hoskins’s account
stated, “Son was born healthy. Crossys got Hit. All I need is some Dro and my
day is set. LOL. [#]Happy Easter.” The gang expert explained that a “crossy” is
a rival Crips gang member and that the post referenced the shooting of a Crips
gang member.
May 2, 2012 - Arrest of Simpson’s Girlfriend in Possession of Firearm
Linked to Three Shootings
In the early morning hours on this day, an officer contacted Adrianna P.
as she walked down the street in violation of curfew. A search of Adrianna’s
cellphone revealed “Blood” gang terminology in several text messages, some of
which were attributed to Simpson. The officer recovered a loaded nine-
millimeter firearm from Adrianna’s purse. Testing revealed that this gun had
been used during the January 5, 2012 shooting, the January 7, 2012 shooting,
and April 4, 2012 shooting.
During a police interview, Adrianna admitted that Simpson fathered her
child and that he had given her the gun immediately before the officer contacted
her.6 She stated that everyone looked up to Simpson and that he got all the
guns. She claimed that he passed guns to lots of people including,
coconspirators Norman Sanchez, Lucas, and Paris. Adrianna stated that
6 During trial, Adrianna’s story changed. She stated that she found the
gun and decided to keep it. She admitted dating Simpson, but claimed that
she did not know who fathered her child.
11
Simpson called Nino Sanchez “his son,” and that Nino looked to Simpson as a
father.
May 11, 2012 - Murder of C.T. (Overt Acts 12-14)
On this day, C.T., a nongang member, was in NC territory when a driveby
shooter shot and killed him. The night before C.T. was killed, a post appeared
on Hoskins’s social media page stating, “I’m making a lot of stupid decisions but
[I don’t give a fuck]. Deal with the consequences when they get here. #[you only
Brim once].”
June 4, 2012 - Recovery of Smith & Wesson Handgun from a Brim Gang
Member
On this day, police officers arrested Brim member Calvin Hunt for an
outstanding warrant. After dropping Hunt off at jail for processing, officers
discovered a loaded Smith & Wesson .40-caliber handgun on the floorboard of
the backseat of their patrol car. The gun had been used for C.T.’s murder on
May 11, 2012, and contained Ellis’s DNA. The gang expert concluded that the
firearm was a gang gun used by multiple Brim gang members.
June 18, 2013 - Attempted Murder of D.S. (Overt Acts 31-34)
On this day Orchord went to D.S.’s residence with a female companion
under the premise that she had a hair appointment with D.S. When D.S., who
was not a gang member, opened his door, Orchord stepped out from behind his
companion, said “What’s up Blood,” and shot D.S. in the chest.
The next day, Paris posted on his public Facebook page a photograph of
Orchord, Paris, Price, and Taylor entitled “Crab say the Brims aren’t here, Don’t
near [nigga]. Won’t war with us.” In the photograph, Orchord was tossing
“Brim” with one hand and “Crip killer” with the other hand. Paris had a
revolver pointed at a “W” made with his other hand, which disrespected WCC.
Taylor had a gun in his waistband, and Price was spelling out “Blood” with his
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hands. The gang expert interpreted this post as a threat to rival Crips gang
members, leading to possible retaliation by the Crips.
Officers sought the individuals in the photograph in different Brim
locations. They located Paris and Orchord, who wore the same clothing depicted
in the photograph. Simpson, Jones, another Brim member, and some girls were
with them. One officer observed Jones discard a firearm in a trashcan. The
gun, a .22-caliber revolver, contained Orchord’s DNA and was the gun used to
shoot D.S.
Officers placed Simpson and Paris in the back of a patrol car and recorded
their conversation. In the recording, Simpson sounded very angry and excited.
Simpson swore loyalty to Brim and referenced Hit Squad multiple times. Police
took Simpson into custody that day for possessing narcotics for sale and
recklessly evading a police officer. He has remained in custody since that date.
August 27, 2013 - Attempted Murder of B.T. (Overt Acts 38-42) and
Hoskins’s Gang Conspiracy (Count 7)
On this date, B.T., a Lincoln Park gang member, was walking in WCC
territory when a white minivan approached him. A passenger leaned out of the
minivan’s window and began firing in Taylor’s direction. The shooter was a
Black male wearing a black T-shirt with a red bandana over his face. The driver
of the minivan was a Black male wearing a white T-shirt with hair braided in
cornrows. Further investigation revealed that the minivan was registered to
Brim gang member Timothy Hurst. Hurst was convicted for this shooting.
The gang expert stated that this shooting was consistent with a hunting
mission looking for a potential rival, but the person shot at was not a rival.
Officers collected .40 caliber casings from the scene. This firearm was later used
in two other shootings: (1) the October 22, 2013 driveby shooting of N.C. inside
Crips territory; and (2) the October 23, 2013 shooting toward three African-
American males who were inside a garage at a nearby apartment. An affiliate of
13
WCC lived in an apartment adjacent to the garage. Police recovered the firearm
used for this shooting from coconspirators Mahaney and Nino Sanchez.
Hurst’s cellphone contained Hoskins’s contact information. Hoskins’s
grandmother lived next door to Hurst’s grandmother. Police found Hoskins’s
DNA on the passenger side interior door of the minivan. About six months
before this shooting, Hoskins’s social media account displayed a photograph of
Hurst in front of a WCC hangout about a mile from the August 27 shooting. In
the photograph, Hurst was tossing up Brim and Crips killer hand signs.
On August 27, 2013, Paris’s social media account displayed two
photographs of Hoskins and Paris in WCC territory, also about a mile or so from
the shooting location, throwing up gang signs disrespectful to Crips. On
February 27, 2014, Hoskins’s social media account had a post stating, “I switch
up on bitckh (N word), fast. I love my bros, but I’m truer to the code shit. I turn
on TB if he does some gay shit and vice versa. Nothing personal. #one Brims.”
The gang expert explained that Hoskins was accusing Timothy Hurst, aka Tim
Brim (TB), of snitching and was saying that if somebody snitched on him, he
would go after them because he was truer to the code of no snitching.
December 14, 2013 - Attempted Murder of N.S. and T.W. (Overt Acts 61-63)
On this day, the two victims, a WCC associate and an affiliate of a Brim
rival, were shot in Brim territory. The gang expert explained that the rival gang
members were shot because they “trespass[ed]” in Brim territory. He considered
the shooting to be a proliferation of the war between the two rival gangs.
Officers recovered 18 expended nine-millimeter casings from two firearms. They
also found a loaded magazine for a semiautomatic handgun that contained Nino
Sanchez’s DNA.
14
December 15, 2013 - Attempted Murder (Overt Acts 63-65)
On this day two African-American males approached a residence in WCC
gang territory on foot and fired shots. After the shooting, officers observed a
WCC gang member yelling. The next day, Hoskins’s social media account
contained a post stating, “I’m tired of grinding, fighting, running, jail, death,
stress, betrayal, and everything else this game has to offer. But it’s what we
signed up for. Right?”
Officers recovered one expended .40-caliber casing and 11 expended nine-
millimeter casings from the scene. Ballistics testing linked eight of the nine-
millimeter casings to the firearm used in shootings that occurred on March 2,
2014, April 12, 2014, and April 15, 2014.7 Coconspirator Peavy was charged
with the April shootings and coconspirator Holman was charged with the March
shooting.
Police later arrested coconspirator Price in possession of a .40 caliber
semiautomatic pistol determined to be the second firearm used in this shooting
and the shooting the day before. Price made a jailhouse call to coconspirator
Peavy telling Peavy that he had been arrested with the gun and would take the
blame for the gun.
January 29, 2014 - Ware Arrest for Possessing a Firearm (Count 8)
On this day, officers contacted Ware and found a loaded nine-millimeter
handgun tucked into his waistband. At trial, the parties stipulated that Ware
had a prior felony conviction. After his arrest, Ware made a jailhouse call to a
female and talked about being arrested with a gun. He said that he needed to
7 The March 2, 2014, shooting occurred in WCC gang territory toward a
WCC affiliate and his girlfriend. The day before this shooting, the following
message appeared on Hoskins’s social media account, “I realize why they
want me off the streets. I’m a loose [cannon]. Unpredictable. Threat to
society and myself. LOL. [#]fucK it.”
15
slow down because he was “doing a gang of shit,” and was glad he only got
locked up for gun possession.
March 25, 2014 - Ware’s Attempted Murder and Gang Conspiracy
Convictions (Counts 9-10 and Overt Acts 76-81)
On the afternoon of March 25, 2014, Ware drove his gold Lexus into “the
most active area” in WCC territory at the time. Based on his experience, a
detective stated that this WCC territory was “absolutely” a good place to find
rival WCC gang members. The passenger, a young African-American male with
cornrows wearing a black hoodie fired several shots at M.W., a WCC gang
member. One witness then saw the shooter get out of the car and chase M.W.,
while firing his weapon. This witness saw no one else on the street that could
have been the shooter’s target. Eight minutes after the shooting and about a
mile from where it occurred, officers found the abandoned Lexus and Ware in
Brim territory.
Officers collected nine-millimeter casings, all from the same firearm, from
the scene. Police did not match these casings to any other shooting.
Surveillance video obtained from a school showed Ware driving around WCC
territory before the shooting. The gang expert opined that the shooting was
gang motivated and that Ware drove around rival gang territory on a mission
looking for the target rival gang member.
Inside the Lexus, officers found a letter with the name “Victor Boston” on
it, which was Ware’s nickname. The letter was addressed to M.H., a Lincoln
Park gang member. The Lincoln Park gang is an ally of the Brim gang. The
letter referenced Ware’s purchase of the Lexus. In the letter, Ware states, “I’m
hella triv out here, squad. I might looking at some [jail] time myself. They
found two challys of mine and that little sawed-off with my print, bro.” The
gang expert explained that Ware was telling M.H that they found two of his
guns as well as a sawed-off shotgun with his fingerprint. In the letter, Ware
16
also wrote, “Gon’ learn one day. CK.” Meaning people will learn about Crip
killing. Ware also wrote, “I have nothing to talk about. I’ll take it all on the
chin. Then do it again. Brim gang.” The gang expert opined that this passage
meant Ware would not snitch, but he would take responsibility for the guns and
do more shootings or Crip killing.
A few lines down, he said, “Bro, it’s snitches in the set. I’ll type weird shit,
but I just wanted you to know I was out here and I got you. Get with me, bro,
ASAP.” Here, Ware was telling M.H. that things were weird among the gang
and people in the gang might be cooperating with law enforcement. At the
bottom of the letter, Ware said, “I’m not on paperwork,” which meant he was not
on a probation or parole Fourth Amendment waiver status. Ware signed the
letter “H$” and “THS” which referred to Hit Squad and Tiny Hit Squad.
April 12, 2014 - Murder of G.B. (Overt Acts 89-94)
On this day two men jumped out of a car and walked up to WCC gang
member G.B. and his cousin. One of the men asked, “What’s that Brim life
like?” and both opened fire on G.B. G.B. died after being shot nine times.
Officers recovered 19 expended nine-millimeter casings from the crime
scene that had been fired from two separate firearms. Testing of these casings
uncovered the DNA of coconspirators Peavy and Holman. Cellphone records
revealed communications between Peavy and Holman before the murder.
During the investigation, law enforcement recorded a holding cell conversation
between Peavy and Holman. The men discussed this murder and the finding of
their DNA on the shell casings from the murder scene. Holman said, “No doubt.
We fucked up, homie.”
April 15, 2014 - Attempted Murder of B.T. (Overt Acts 96-100)
On this day B.T., a WCC associate and two other men were standing in an
area close to WCC gang territory. A silver Ford Taurus that matched the
17
vehicle involved in the March 2, 2014 shooting, parked nearby. A man, later
identified as coconspirator Peavy got out of the driver’s side of the Taurus,
approached the men and asked, “This is Crip? This is Crip?” B.T. responded,
“Ain’t nobody on no gangbanging shit out here.” Peavy pulled a gun and fired at
B.T., with one round hitting B.T. in the foot. Peavy ran back to the Taurus and
the car sped away. Further investigation revealed that Peavy’s girlfriend had
rented the Taurus on February 15.
After this shooting several social media posts appeared on Hoskins’s
account, including one on the day of the shooting stating, “I ain’t going to
survive too much longer in Dago. Too much shit going on, and I can’t keep my
ass out of the mix.” The next day, the following post appeared on Hoskins’s
account, “The status of an OG . . . isn’t established by age or how long you been
around. I mean it count but you need the stripes and reputation to match. Big
homie. LOL.” The gang expert explained that a gang member needs put in to
work to gain OG or original gangster status.
On April 17, 2014, the following appeared on Hoskins’s account, “Think
about it. We all young, dumb, black, and ain’t turning down shit. We all think
we tough. All of us got too much pride to take a loss. What you think going to
happen when we butt heads. [Bl59d]. That’s what.” The gang expert explained
that the author had too much pride to walk away or take a loss, would not turn
down a fight or gunfight, and would move forward to the end.
On April 20, 2014, a photograph appeared on coconspirator Gordon’s social
media page showing Gordon tossing up “fuck nappy heads,” and captioned, “The
Blood, Little Bick Nick.” A status update on this account said, “It’s a new Brim
and town, and he mash on everybody. Ain’t fucking with the Brims or him.
They call him Little Bick Nick.” The gang expert explained these posts
announcing that Gordon had received the gang name “Little Bick Nick” and that
18
he will fight any Brim rival. A comment on this post from Hoskins’s account
stated, “I’m Big Bick Nick. CKA Baby Mikey. Sherb know what’s bracking.
Brim bidness.” The gang expert explained that Hoskins was “Bick Nick” and
“Baby Mikey” and that “CKA” was a reference to Crip killing and was used
instead of putting “aka.” The gang expert further explained that for a young
gang member to take your name, such as Gordon taking Hoskins’s, there had to
be a level of respect and it meant the older gang member was working toward
rider or original gangster status.
DISCUSSION
I.
SUFFICIENCY OF EVIDENCE
A. General Legal Principles
Where a defendant challenges the sufficiency of the evidence
supporting a conviction, we examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial
evidence from which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We
presume in support of the judgment the existence of every fact the trier of
fact could reasonably deduce from the evidence. (Ibid.) “The same standard
applies when the conviction rests primarily on circumstantial evidence.
[Citation.] Although it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate
court[,] that must be convinced of the defendant’s guilt beyond a reasonable
doubt. [Citation.] ‘ “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also
reasonably be reconciled with a contrary finding does not warrant a reversal
19
of the judgment.” ’ ” (Id. at pp. 1053–1054.) Reversal for insufficient
evidence is warranted only when it appears that under no hypothesis
whatsoever is there sufficient evidence to support the jury’s verdict. (People
v. Bolin (1998) 18 Cal.4th 297, 331.)
B. Conspiracy to Commit Murder (Count 1)
1. Conspiracy Legal Principles
“The law of conspiracy . . . permit[s] the imposition of criminal sanctions
for [an] agreement alone, plus an overt act in pursuit of it, regardless of whether
the crime agreed upon actually is committed.” (United States v. Feola (1975) 420
U.S. 671, 694.) A conspiracy conviction “requires proof that the defendant and
another person had the specific intent to agree or conspire to commit an offense,
as well as the specific intent to commit the elements of that offense, together
with proof of the commission of an overt act ‘by one or more of the parties to
such agreement’ in furtherance of the conspiracy.” (People v. Morante (1999) 20
Cal.4th 403, 416.)
“It is seldom possible for the prosecution to offer direct evidence of an
agreement to commit a crime. The agreement to commit the crime is usually
made in secrecy. The conspiracy must be inferred by the trier of fact from all
the circumstances that are proven, and if the inference is a reasonable one it will
not be disturbed on appeal.” (People v. Chavez (1962) 208 Cal.App.2d 248, 253.)
“Common design is the essence of a conspiracy and the crime can be committed
whether the parties comprehend its entire scope, whether they act in separate
groups or together, by the same or different means known or unknown to them,
if their actions are consistently leading to the same unlawful result . . . .”
(People v. Means (1960) 179 Cal.App.2d 72, 80.) Evidence is sufficient to prove
an agreement “ ‘ “if it supports an inference that the parties positively or tacitly
came to a mutual understanding to commit a crime. [Citation.] The existence of
20
a conspiracy may be inferred from the conduct, relationship, interests, and
activities of the alleged conspirators before and during the alleged
conspiracy.” ’ ” (People v. Maciel (2013) 57 Cal.4th 482, 515–516 (Maciel).) Each
member of the conspiracy is liable for the acts of other members in carrying out
the common purpose of the conspiracy. (In re Hardy (2007) 41 Cal.4th 977,
1025.)
“While mere association does not prove a criminal conspiracy [citation],
common gang membership may be part of circumstantial evidence supporting
the inference of a conspiracy.” (People v. Superior Court (Quinteros) (1993) 13
Cal.App.4th 12, 20 (Quinteros).) Where “the evidence establishes that a
particular gang has a specific illegal objective . . . evidence of gang membership
may help to link gang members to that objective.” (United States v. Garcia (9th
Cir. 1998) 151 F.3d 1243, 1247 (Garcia).)
“Other than the agreement, the only act required is an overt act by any of
the conspirators, not necessarily the defendant, and that overt act need not itself
be criminal.” (People v. Smith (2014) 60 Cal.4th 603, 616.) “ ‘[A]n overt act is an
outward act done in pursuance of the crime and in manifestation of an intent or
design, looking toward the accomplishment of the crime.’ ” (People v. Zamora
(1976) 18 Cal.3d 538, 549, fn. 8.) “The purpose of the overt act is simply to show
that the agreement has proceeded beyond the meeting of the minds stage to
some direct or physical act, however innocent in itself, tending toward the
furtherance of the objective of the conspiracy.” (People v. Saugstad (1962) 203
Cal.App.2d 536, 549–550.) A conspiracy conviction can rest on a single overt act.
(People v. Jurado (2006) 38 Cal.4th 72, 122 (Jurado).)
21
2. Analysis
a. General introduction
The amended information alleged that appellants conspired, “[o]n or about
and between January 1, 2012 and April 23, 2014” with each other and other
unknown persons to commit murder. Police identified 18 other Brim gang
members, who were also Hit Squad members as coconspirators. The amended
information alleged the commission of 104 overt acts in furtherance of the
conspiracy. The object of the conspiracy was to kill suspected rival NC and WCC
gang members.
The jury convicted appellants of conspiracy to commit murder. It is
undisputed that the prosecution relied exclusively on circumstantial evidence
and presented no direct evidence of a conspiracy to commit murder.
Simpson and Ware challenge their convictions, generally contending that
the prosecution presented insufficient evidence showing they entered into any
agreement to commit murder, claiming their guilt was based on their gang
membership and virtually nothing else. Simpson and Ware claim that the
evidence did not show they possessed the specific intent to commit murder.
Simpson also asserts that his conspiracy conviction must be reversed because
the jury was allowed to consider overt acts after the conspiracy terminated, and
overt acts that the prosecution failed to prove. Finally, Simpson argues that his
conspiracy conviction violated his free speech rights under the First Amendment
and the California Constitution.
b. Existence of and participation in a conspiracy
We have examined the entire record in the light most favorable to the
judgment, including the relationship, interests, conduct and activities of the
alleged conspirators and coconspirators before and during the alleged
conspiracy. (Maciel, supra, 57 Cal.4th at pp. 515–516.) We conclude that the
22
record supports the reasonable inference that Simpson and Ware and their
coconspirators tacitly came to a mutual understanding to murder rival NC and
WCC gang members and that they participated in the conspiracy.
The prosecution gang expert was the detective investigating Brim from
October 2011 through October 2015. At any given time, Brim had between 200
and 220 members. Simpson and Ware and their coconspirators were Brim gang
members, and members of a Brim subset known as the Hit Squad. A “hit”
means to kill someone. Some of the primary activities of Brim included murder
and assaults with firearms.
The main rivals of the Brims are the Crips, specifically NC and WCC. In
2011, Peppers’s murder sparked a gang war between Brim and WCC. Simpson
and Ware knew Peppers. In June 2011, about two months after Peppers’s death,
Simpson shot at two Crips gang members and was subsequently convicted of two
counts each of attempted murder and assault with a firearm.8 With Simpson
during the shooting were coconspirators Paris, Chavarry, and Lucas. Paris
pleaded guilty to aiding and abetting this shooting.
Simpson argues that the June 2011 shooting cannot be considered as
evidence of a conspiracy because the prosecution did not allege the shooting as
an overt act and the shooting preceded the alleged start date for the conspiracy.
Simpson is wrong. Incidents occurring before the start of the conspiracy may be
considered as circumstantial evidence supporting the existence of the
conspiracy. (Maciel, supra, 57 Cal.4th at pp. 515–516.) Notably, sometime
between the date of the June shooting and February 2012, Simpson got “CK” or
“Crip Killer” tattoos on his elbows.
8 As discussed post, the evidence supports these convictions. (Post, pt.
I.D.)
23
After Adrianna’s arrest in May 2012, her statements to police provided
further circumstantial evidence from which the jury could infer the existence of
a conspiracy to commit murder.9 Namely, she stated that Simpson placed a gun
in her purse, everybody looked up to Simpson, that he got all the guns and
passed the guns to lots of people including, coconspirators Norman Sanchez,
Lucas, and Paris.10 Coconspirators Norman Sanchez and Lucas pleaded guilty
to the April 4, 2012 attempted murder of NC gang member, T.L. (overt acts nos.
7-11) Coconspirator Timothy Hurst was convicted of the August 2013 attempted
murder of B.T., a Lincoln Park gang member who was walking in WCC territory
(overt acts nos. 38-42). Although B.T. was not a rival Crips gang member, the
gang expert stated that this shooting was consistent with a hunting mission
looking for a potential rival, but the person shot at was not a rival. The jury
convicted Ware of attempting to murder a WCC gang member in March 2014
based on his participation in this shooting (overt acts nos. 76-81). Ware’s
9 Simpson’s focus on Adrianna’s trial testimony where she recanted her
earlier statements to police is misplaced because we may not reweigh the
evidence or substitute our own assessment of the witnesses’ credibility for the
determination made by the jury. (People v. Snow (2003) 30 Cal.4th 43, 66.)
10 We reject Simpson’s contention that Adrianna’s testimony regarding
putting the gun in her purse cannot be considered because it is
uncorroborated accomplice testimony. The instructions required jurors to
decide whether Adrianna was an accomplice to the crimes alleged against
appellants. Assuming the jury found Adrianna was an accomplice, the
testimony that Simpson put a gun in her purse, evidence that goes to the
existence of the conspiracy, need not be corroborated. (People v. Cooks (1983)
141 Cal.App.3d 224, 312 (Cooks); People v. Buono (1961) 191 Cal.App.2d 203,
215–216, fn. omitted [“[T]he corroboration required by Penal Code section
1111 does not include the corpus delicti and is confined to the matter of
connection of the individual defendant with the crime.”].)
24
moniker, CK (Crip Killer) Vick, evidenced his motive to kill rival Crips gang
members.
This evidence amply supported the jury’s finding that Simpson and Ware
and their coconspirators entered into a tacit agreement to murder rival NC or
WCC gang members. This evidence also established Simpson and Ware’s
participation in the conspiracy and their attempted murder convictions show
that they harbored an intent to kill. (People v. Lee (2003) 31 Cal.4th 613, 623–
624 [attempted murder “requires the specific intent to kill and the commission of
a direct but ineffectual act toward accomplishing the intended killing” and an
aider and abettor must share the specific intent of the direct perpetrator].) The
overt act requirement is also satisfied by Simpson’s and Ware’s convictions of
attempted murder.11
c. Overt acts after conspiracy ended or not proven
Simpson alleges that his conspiracy convictions must be reversed because
the court allowed the jury to consider overt acts 15, 44, 103, and 104 which were
not proved or occurred after the conspiracy terminated. He claims that the jury
11 Simpson notes that only two of the 104 overt acts named him, and out
of the remaining 100 overt acts, he was in custody for 69 of them, he was not
depicted in photographs or involved in any of the social media messages, and
there was no evidence he knew or was aware of the social media posts. These
points are not persuasive because a conspirator need not personally
participate in any of the overt acts as long as he or she conspired to commit
the crime and a coconspirator committed an overt act. (People v. Morante
(1999) 20 Cal.4th 403, 417.) Moreover, “[a]lthough a defendant’s arrest and
incarceration may terminate his participation in an alleged conspiracy, his
arrest does not terminate, or constitute a withdrawal from, the conspiracy as
a matter of law.” (Cooks, supra, 141 Cal.App.3d at p. 316.) Rather, “[o]nce
the defendant’s participation in the conspiracy is shown, it will be presumed
to continue unless he is able to prove, as a matter of defense, that he
effectively withdrew from the conspiracy.” (Ibid.) Simpson failed to make
such a showing.
25
could have based the conspiracy convictions on one of the improperly included
overt acts because the verdict form did not require that the jury reveal which
overt act they found had been committed and there was no requirement that the
jury unanimously agree on the same overt act to support a conspiracy
conviction. (People v. Valdez (2012) 55 Cal.4th 82, 154, fn. 40.) The People
argue that any error in presenting these four overt acts was harmless. We agree
with the People.
The People alleged that the conspiracy ended “on or about” April 23, 2014.
Overt acts 103 and 104 contain statements admitted as declarations of a
coconspirator (Evid. Code, § 1223) that took place in May 2014, after the
conspiracy allegedly ended.12 A conspiracy usually ends when the substantive
crime for which the coconspirators are being tried is either attained or defeated.
(People v. Leach (1975) 15 Cal.3d 419, 431.) Nonetheless, it is a question for the
fact finder to determine when a charged conspiracy has ended, “considering the
unique and the nature and purpose of the conspiracy of each case.” (People v.
Saling (1972) 7 Cal.3d 844, 852.)
The precise date on which an offense was committed need not be stated in
an accusatory pleading unless the date is material to the offense. (§ 955.) For
example, in People v. Peyton (2009) 176 Cal.App.4th 642 (Peyton), the defendant
had been charged with committing certain sex offenses against a child “ ‘on or
about October 1, 2005,’ ” but the evidence showed that the offenses occurred in
the fall of 2004. (Id. at p. 660.) The appellate court upheld the convictions
12 Overt act 103 alleged, “On or about May 9, 2014, Emanuel Peavy posed
in a photograph with a firearm wearing a red ‘THS’ (Tiny Hit Squad) shirt
with ‘Brims,’ and ‘Fuck Crabs’ on the back of the shirt.’ ” Overt act 104
alleged, “On or about May 10, 2014, the message, ‘Fuck Wet Toast!!!!!!!!! 3-11
Till My Motherfuckin DEATH,’ was posted to Leron Johnson’s Facebook
account.”
26
despite this variance, finding that “evidence is not insufficient merely because it
shows the offense was committed on another date,” the October 1, 2005 date was
not material to any of the charged offenses, and defendant showed no prejudice.
(Ibid.)
Here, the alleged April 23, 2014 end date was not material to the
conspiracy charge, nor were the jurors instructed on the beginning or end date of
the conspiracy. Rather, the court instructed the jurors that the crime required
the commission of one of the 104 alleged overt acts, but did not require all jurors
to agree on the specific act or acts committed. Additionally, the jurors were
instructed that they could only consider statements of coconspirators “made
before or during the time that the defendants were participating in the
conspiracy.” (CALCRIM No. 418.) Thus, it was up to the jury to determine the
precise end date of the conspiracy and whether the coconspirators statements
alleged in overt acts 103 and 104 were part of the conspiracy.
Simpson next complains that the evidence did not support overt acts 15
and 44, noting that the prosecution failed to present any evidence to support
overt act 15.13 Overt act 44 alleged that “on or about October 1, 2013” Simpson
and Paris posed in a photograph with Simpson displaying Crip Killer hand signs
and Paris imitating shooting a gun with his hand, but this was inaccurate
because Simpson was in custody on that date and could not have posed for a
photograph.
We fail to discern any prejudice based on the inclusion of overt acts 15 and
44 in the instructions. The court instructed the jurors that the People were
13 Overt act 15 alleged, “On or about June 6, 2012, Dionte Simpson posed
in a video posted onto Youtube displaying Fuck Neighborhood Crips hand
signs with his right hand in the shape of a gun pointed at Neighborhood
Crips hand sign.”
27
required to prove the commission of at least one overt act, but that they did not
need to agree on which specific over act or acts were committed. If the evidence
did not support overt acts 15 and 44, then none of the jurors could not have
relied on these two overt acts to support the conspiracy convictions.
d. Right to free speech
Simpson joined in Hoskins’s argument his conspiracy conviction violated
his right to free speech under the First Amendment and the California
constitution because the prosecution presented evidence of his social media
postings to support the conviction as overt acts 11, 21, and 73. The People
contend Simpson forfeited this claim by failing to object to the social media
evidence on this ground post. Even assuming the issue is properly before us, the
People assert the argument is meritless because Simpson is not being punished
for his social media posts, but for a conspiracy to commit murder. We decline to
deem this constitutional challenge forfeited because we easily reject the
argument on its merits.
As the People correctly note, Simpson is being punished for his
participation in a conspiracy, not for his social media posts. Evidence Code
section 1220 allows evidence of a statement by a declarant that is offered
against him. Simpson’s social media posts qualify as an admission under this
section and were admissible to prove his participation in the conspiracy. (People
v. Hardy (1992) 2 Cal.4th 86, 142 [defendants’ statements admissible to prove
participation in a conspiracy].) The “admission of . . . evidence, relevant to
actual criminal conduct, does not violate [a defendant’s] constitutional free
speech rights.” (People v. Smith (2003) 30 Cal.4th 581, 626; People v.
Quartermain (1997) 16 Cal.4th 600, 629 [“evidence [of racial epithets] was
relevant to the issues being tried, and thus its use did not violate the First
Amendment”].)
28
C. Gang Conspiracy (Counts 6, 7, 9)
Appellants challenge their gang conspiracy convictions under section 182.5
on different grounds. We start our discussion by reviewing the gang conspiracy
statute. We then turn to a joint argument made by Simpson and Ware, before
addressing each appellant separately.
1. Gang Conspiracy Legal Principles
Enacted by voter initiative, section 182.5 “created a new form of
conspiracy that is distinct from the traditional understanding of the crime . . . .”
(People v. Johnson (2013) 57 Cal.4th 250, 261 (Johnson).) The statute provides:
“[A]ny person who actively participates in any criminal
street gang . . . with knowledge that its members engage in
or have engaged in a pattern of criminal gang activity . . .
and who willfully promotes, furthers, assists, or benefits
from any felonious criminal conduct by members of that
gang is guilty of conspiracy to commit that felony and may
be punished as specified in subdivision (a) of Section 182.”
(§ 182.5, italics added.)
In Johnson, our high court explained that gang conspiracy under section
182.5 differs from criminal conspiracy in five ways. (Johnson, supra, 57 Cal.4th
at pp. 261–262.) First, the defendant “must be an active gang participant with
knowledge of other members’ pattern of criminal gang activity.” (Id. at p. 262.)
Second, a gang conspiracy requires the commission or attempted commission of
felonious criminal conduct. (Ibid.) Third, a gang conspiracy does not require
any prior agreement among the conspirators to promote, further, or assist in the
commission of a particular target crime. Accordingly, “an active and knowing
gang participant who acts with the required intent to promote, further, or assist
in the commission of a felony by other gang members can violate section 182.5.”
(Ibid.) Fourth, a gang conspiracy “requires the actual commission of felonious
criminal conduct as either an attempt or a completed crime.” (Ibid.) Fifth, a
gang conspiracy includes “not only a gang member who promotes, furthers, or
29
assists in the commission of a felony, but also an active and knowing participant
who merely benefits from the crime’s commission, even if he or she did not
promote, further, or assist in the commission of that particular substantive
offense.” (Ibid.) The court explained, “[d]ue to the organized nature of gangs,
active gang participants may benefit from crimes committed by other gang
members. When such benefits are proven along with the other elements of the
statute, section 182.5 permits those benefitting gang participants to be convicted
of conspiracy to commit the specific offense from which they benefitted.” (Ibid.)
2. Analysis
a. Gang conspiracy to commit attempted murder
Citing People v. Iniguez (2002) 96 Cal.App.4th 75 (Iniguez), Simpson and
Ware contend that their gang conspiracy convictions must be reversed because
there is no such crime as conspiracy to commit attempted murder. In Iniguez,
the appellate court concluded that the crime of conspiracy to commit attempted
murder does not exist. (Id. at p. 79.) The court explained that “the crime of
attempted murder requires a specific intent to actually commit the murder,
while the agreement underlying [a] conspiracy [to commit attempted murder]
contemplate[s] no more than an ineffectual act. No one can simultaneously
intend to do and not do the same act, here the actual commission of a murder.”
(Ibid.) Put differently, “one cannot conspire to try to commit a crime” because
conspiracy requires an agreement to commit a crime, not an agreement to
attempt to commit a crime. (Johnson, supra, 57 Cal.4th at p. 264.)
Simpson and Ware’s reliance on Iniguez is misplaced because traditional
conspiracy, at issue in Iniguez, requires evidence of an agreement. (Iniguez,
supra, 96 Cal.App.4th at p. 78.) Gang conspiracy, however, does not require
evidence of an agreement. Rather, as our high court explained, gang conspiracy
“does not contemplate an agreement to commit an ineffectual act. . . . Unlike
30
Iniguez, there is no logical impossibility or absurdity in recognizing the crime of
conspiracy to actively participate in a gang.” (Johnson, supra, 57 Cal.4th at
p. 264.) Instead, for gang conspiracy, the “act of assistance or promotion
replaces the required prior agreement to commit a crime that is ordinarily at the
heart of a traditional conspiracy.” (Id. at p. 262.) Accordingly, it is possible to
be guilty of a gang conspiracy to commit an attempted offense.
b. Ware (Count 9)
The jury found Ware guilty of attempted murder and gang conspiracy
arising out of the shooting on March 25, 2014, where he drove his car into WCC
territory and his passenger fired a gun at a WCC gang member. Ware submits
that to find him liable for gang conspiracy the jury was required to find that his
passenger, the direct perpetrator of the shooting, was a Brim gang member. He
claims that his conviction must be reversed because the identity of the shooter
was never uncovered.14
The People disagree, claiming we should reject Ware’s interpretation that
a section 182.5 crime must be committed by multiple members of the gang,
because this interpretation narrows the application of the law when it was
meant to expand liability. In any event, the People assert that the evidence
demonstrated that Ware’s accomplice in the driveby shooting was also a Brim
gang member. As we shall explain, we agree with Ware that the jury was
required to find that his passenger, the direct perpetrator of the shooting, was a
member of Brim, but reject his assertion that the evidence did not support this
finding.
The statute requires the prosecution prove that the defendant “willfully
promote[ ], further[ ], assist[ ], . . . any felonious criminal conduct by members of
14 Simpson joins in Ware’s argument because it supports his argument
that overt acts 76 to 81 arising out of this shooting were not proven.
31
that gang. . . .” (§ 182.5, italics added.) Thus, the plain language of the statute
requires that Ware’s passenger, the shooter, be a Brim gang member. The jury
instruction for this crime follows this interpretation. For Ware, the trial court
instructed the jury as follows:
“1. Defendant actively participated in a criminal street
gang;
“2. When the defendant participated in the gang, he knew
that the members of the gang engage in or have engaged in
a pattern of criminal gang activity;
“3. On March 25, 2014 members of the criminal street gang
committed Deliberate and Premeditated Attempted Murder
in violation of Penal Code Sections 664/187/189;
“AND
“4. Defendant willfully promoted, furthered, assisted or
benefitted from, the commission of the March 25, 2014
Deliberate and Premeditated Attempted Murder by
members of the gang.” (Italics added.)
There is no evidence regarding the shooter, other than he was an African-
American male with hair in cornrows. Nonetheless, based on the totality of the
evidence presented during trial the jury could reasonably infer that the shooter,
Ware’s passenger, was a Brim gang member.
The gang expert testified that Brim and WCC were in a gang war and that
Ware was part of a Brim subset known as the Hit (or kill) Squad with a number
of other Brim gang members. The gang expert testified that gang members put
in work for the gang by going on missions. Shooting missions involve gang
members going into rival gang territory seeking a rival gang member or a
substitute, such as someone dressed in the rival gang’s color. The gang expert
testified that gang members tend to work with people they trust.
32
Additionally, gang members work with “ ‘backup’ or ‘someone[ ] [who has]
your back. No matter what happens out there, somebody, one of your trusted,
one of your chosen few is going to be behind you. When shots are fired, when
the fight goes down, no matter what, they’re not going to turn and run and leave
you hanging by yourself.’ ” The expert noted that gang members in the same set
are expected to back each other up and that the failure to do so would result in
some type of disciplinary action because failure to backup another gang member
makes the set look weak. The gang expert opined that this particular shooting
was gang motivated and that Ware drove around rival territory on a mission
looking for a rival gang member. The expert noted that Ware and coconspirator
Nino Sanchez were arrested together in August 2009 in a stolen car. Ware was
also arrested in 2010 with coconspirator Holman.
Brim and Crips gang members were in a gang war. The gang expert
testified that this particular shooting, targeting a WCC gang member, was a
gang mission, that gang members take “backup” and these individuals are
people that the gang member trusts. From this evidence, the jury could
reasonably infer that Ware drove a trusted Brim gang member into rival gang
territory to commit the shooting. Accordingly, we reject Ware’s argument that
the evidence failed to support his gang conspiracy conviction.
c. Simpson (Count 6)
The jury found Simpson guilty of gang conspiracy arising out of a shooting
on April 4, 2012, where two individuals shot NC gang member T.L. while he
stood near a memorial set up for his father, who had been murdered in a driveby
shooting the day before. Brim gang members Norman Sanchez and Lucas later
pleaded guilty to this shooting. Simpson argues that his gang conspiracy
conviction must be reversed for two reasons. First, he contends that the nature
of Norman Sanchez’s and Lucas’s convictions was not presented to the jury;
33
thus, there was no prior jury finding that the crime of premeditated and
deliberate attempted murder was committed on April 4, 2012. Second, he
argues that there is no evidence he willfully participated, promoted, assisted, or
benefitted from the April 4, 2012 shooting in any manner.15 He asserts we
should reject any argument that he benefitted from the shooting without doing
anything to obtain that benefit because such a finding would condemn him for
his associations, not for his actions.
The People ignore Simpson’s first argument, which we conclude is
dispositive. Accordingly, we need not address whether Simpson willfully
promoted, furthered, assisted, or benefitted from the April 4, 2012 shooting.
The prosecution must prove that the defendant “willfully promote[d],
further[ed], assist[ed], or benefit[ted] from any felonious criminal conduct by
members of that gang. . . .” (§ 182.5, italics added.) Regarding this element, the
court instructed the jury that to find Simpson guilty of gang conspiracy it must
find that “[o]n April 4, 2012, members of the criminal street gang committed
Deliberate and Premeditated Attempted Murder in violation of . . . Sections
664/187/189.” The elements of attempted murder are “specific intent to kill and
the commission of a direct but ineffectual act toward accomplishing the intended
killing.” (People v. Lee (2003) 31 Cal.4th 613, 623.) “[A]ttempted murder and
premeditated attempted murder are the same offense.” (People v. Sedillo (2015)
235 Cal.App.4th 1037, 1049.) Premeditation constitutes a penalty provision that
15 The only evidence of Simpson’s possible involvement in this shooting is
the fact that Simpson drove a gold colored Lexus, and the statement of a
witness that he saw a gold car in the area and that the shooters ran in the
direction of the gold car. This same witness testified that the men got into a
tan or white 90’s model Ford Crown Victoria. Additionally, about a month
after this shooting Simpson gave the gun involved in this shooting to his
girlfriend. The girlfriend stated the Simpson passed guns to lots of people.
34
prescribes an increase in punishment, but this “ ‘penalty provision is separate
from the underlying offense and does not set forth elements of the offense or a
greater degree of the offense charged.’ ” (Ibid.)
To convict Simpson of gang conspiracy the jury needed to find that the
April 4, 2012 shooting was an attempted murder committed by a Brim gang
member. While it is undisputed that Norman Sanchez and Lucas were Brim
gang members, there is no evidence in the record regarding to what crime these
individuals pleaded guilty, or whether this crime constituted a felony. It is not
within the common knowledge of laypersons to be able to determine from the
testimony to what crime Norman Sanchez and Lucas pleaded guilty, or whether
that crime constituted a felony. Without any evidence regarding the nature of
the crimes committed by these Brim gang members the jury is left with
speculation. “ ‘But speculation is not evidence, less still substantial evidence.’ ”
(People v. Waidla (2000) 22 Cal.4th 690, 735.) The lack of evidence regarding
the nature of Norman Sanchez’s and Lucas’s convictions constitutes a failure of
proof regarding an element of the crime of gang conspiracy. Accordingly,
Simpson’s gang conspiracy conviction must be reversed. (People v. Diaz (2005)
125 Cal.App.4th 1484, 1490–1491 [“The prosecution bears the burden of proving
all elements of the offense, and must persuade the fact finder beyond a
reasonable doubt of the facts necessary to establish those elements.”].)
d. Hoskins (Count 7)
i. Additional background
The jury found Hoskins guilty of gang conspiracy arising out of a shooting
on August 27, 2013, where a white minivan approached B.T., a Lincoln Park
gang member walking in WCC territory, and the minivan’s passenger, who wore
a red bandana over his face, fired a gun in B.T.’s direction. Further
35
investigation revealed that the minivan was registered to Brim gang member
Timothy Hurst and Hurst was later convicted for this shooting.
During opening statement, the prosecutor told the jurors that he would
present Timothy Hurst’s free talk and that Hurst would testify at trial about the
information he provided in that free talk. He claimed that Timothy Hurst would
testify that Hoskins instigated the shooting because the Crips had disrespected
Brim by coming into Brim territory to take photographs, that Nino Sanchez was
the shooter in the red bandana and Hoskins was a back seat passenger.
Ultimately, Timothy Hurst refused to testify, was held in contempt, and
none of the evidence from the free talk was presented at trial. During closing
argument, the prosecution used social media postings and Hoskins’s contact
with, B.T., the victim of the shooting after Timothy Hurst’s arrest to support the
gang conspiracy charge. Specifically, the evidence against Hoskins consists of
the following:
“About six months before the August 27 shooting, Hoskins
was in WCC territory, about a mile from where the
shooting occurred, and he posted on social media a
photograph of Timothy Hurst tossing up Brim and Crip
killer hand signs. The morning of August 27 a posting on
fellow gang member Paris’s social media account showed
two photographs of Hoskins and Paris in the same location
making gang-related hand signs, including flipping off
WCC.
“The unknown shooter wore a red bandana around his face.
At some unknown time a photograph was posted on
Hoskins’s social media account showing Hoskins with a
bandana over his face captioned, “Rags around our face to
beat the case in case the N word look 5/9 Brim gang. Nap
bashing. Toe smashing. 3k, 4k, YH[$].” The gang expert
interpreted the caption as meaning you should hide your
face in case another person sees you. Nap bashing means
bashing in NC. Toe smashing means smashing on WCC.
36
30k references WCC and 40k represents NC. The YHS
with the dollar sign means Young Hit Squad.
“The gang expert stated that Timothy Hurst and Hoskins
grew up next to each other and concluded that the men
were “extremely close friends.” Hoskins’s DNA was found
on the passenger side of Hurst’s minivan. After Hurst’s
arrest, Hoskins and Hurst’s girlfriend discussed the case
against Hurst that included photographs of witness
statements by B.T., the shooting victim.
“Hoskins reached out to B.T., the shooting victim, through
social media asking him not to testify so that Hurst could
beat the case. The response from B.T.’s account read, “I’m
not testifying on Blood what the paperwork say?” The
expert explained the response as swearing on the gang to
not testify. This was followed by a series of
communications between the two accounts culminating
with the person using the Hoskins account to challenge and
then threaten the person using B.T.’s account.”
ii. Analysis
To establish Hoskins’s guilt of gang conspiracy the prosecution was
required to prove that Hoskins “willfully promote[d], further[ed], assist[ed], or
benefit[ed] from any felonious criminal conduct by members of that gang. . . .”
(§ 182.5, italics added.) Regarding this element, the court instructed the jury
that to find Hoskins guilty of gang conspiracy it must find that “[o]n August 27,
2013, members of the criminal street gang committed Deliberate and
Premeditated Attempted Murder in violation of . . . Sections 664/187/189.”
Although the record established that Timothy Hurst was a Brim gang member,
we located no evidence in the record of what crime Timothy Hurst pleaded guilty
regarding this shooting.
We requested and received supplemental briefing from the parties on: (1)
whether the jury received any evidence informing them of what crime Timothy
Hurst pleaded guilty as related to his involvement in the August 27, 2013
37
shooting; and (2) assuming the jury received no evidence informing them of what
crime Timothy Hurst pleaded guilty as related to his involvement in the
August 27, 2013 shooting, whether sufficient evidence supports the jury’s verdict
against Hoskins on count 7, gang conspiracy.
All parties agree that the jury received no evidence informing them of
what crime Timothy Hurst pleaded guilty as related to his involvement in the
August 27, 2013 shooting. Hoskins claims that this omission requires his gang
conspiracy conviction be reversed because the evidence fails to show that any
Brim gang member suffered a felony conviction related to this shooting. We
agree. (See ante, pt. I.C.3.c.) Based on this failure of proof, we reverse Hoskins’s
gang conspiracy conviction.
D. Simpson’s Attempted Murder and Assault Convictions (Counts 2-5)
Simpson challenges the sufficiency of the evidence supporting his
convictions for attempted murder (counts 2 and 3) and assault with a
semiautomatic firearm (counts 4 and 5) arising from the June 14, 2011 shooting.
He claims the evidence does not establish that he was the shooter and intended
to kill, or that he aided and abetted the shooting. Specifically, he argues that
T.J., an accomplice and admitted liar, was the only witness to identify him as
the shooter, claiming that all other witnesses gave differing descriptions of the
shooter.
Attempted murder requires the specific intent to kill and the commission
of a direct but ineffectual act toward accomplishing the intended killing. (People
v. Ervine (2009) 47 Cal.4th 745, 785.) Attempted murder also requires express
malice, meaning the assailant desires the victim’s death or knows to a
substantial certainty that the victim’s death will occur. (People v. Booker (2011)
51 Cal.4th 141, 178.) “Intent to unlawfully kill and express malice are, in
essence, ‘one and the same.’ ” (People v. Smith (2005) 37 Cal.4th 733, 739.)
38
Intent to kill may be inferred from the defendant’s acts and the circumstances of
the crime. (Id. at p. 741.) “The act of shooting a firearm toward a victim at close
range in a manner that could have inflicted a mortal wound had the shot been
on target is sufficient to support an inference of an intent to kill.” (People v.
Houston (2012) 54 Cal.4th 1186, 1218.) The circumstance that the bullet misses
its mark or fails to prove lethal is not dispositive. (Smith, at pp. 741–742.)
Attempted murder does not necessarily require a specific target and an
indiscriminate would-be killer who fires into a crowd is just as culpable as one
who targets a specific victim. (Houston, at p. 1218.)
To support a conviction, accomplice testimony must be corroborated by
independent evidence which, without aid or assistance from the accomplice’s
testimony, tends to connect the defendant with the crime charged. (People v.
Szeto (1981) 29 Cal.3d 20, 27.) “ ‘Corroborating evidence may be slight, entirely
circumstantial, and entitled to little consideration when standing alone.
[Citations.] It need not be sufficient to establish every element of the charged
offense or to establish the precise facts to which the accomplice testified.
[Citations.] It is “sufficient if it tends to connect the defendant with the crime in
such a way as to satisfy the jury that the accomplice is telling the truth.” ’ ”
(People v. Manibusan (2013) 58 Cal.4th 40, 95.) “ ‘The trier of fact’s
determination on the issue of corroboration is binding on the reviewing court
unless the corroborating evidence should not have been admitted or does not
reasonably tend to connect the defendant with the commission of the crime.’ ”
(People v. Romero and Self (2015) 62 Cal.4th 1, 32–33.)
We are satisfied that substantial evidence supports Simpson’s attempted
murder and assault convictions. T.J. admitted that on the day of the shooting
she lied when she told an officer that she had not seen anything. During her
police interview, which took place three years before she entered witness
39
protection, T.J. identified Simpson as the shooter. She claimed that Orchord
was in the bathroom during the shooting and that he ran outside after the
shooting. During trial, T.J. similarly stated that Simpson was the shooter, that
Orchord was in the bathroom during the shooting and that he ran outside after
the shooting.
Assuming the jury found T.J. was an accomplice, the testimony of other
witnesses sufficiently corroborated T.J.’s testimony that Simpson was the
shooter. Brenda, a neighbor who knew Orchord, also testified that Orchord was
not outside during the initial argument. After the shooting, T.J. saw Simpson
give the gun to Orchord who then hid the gun inside the garage. Police found a
firearm in the garage and ballistics testing linked this firearm to the shooting.
The witnesses who observed the altercation on the street testified
inconsistently regarding the physical appearance of the shooter. We examined
this testimony in depth and focused on the consistencies in the testimony, which
described a person meeting Simpson’s physical description.
A police officer who was patrolling the area 30 minutes before the shooting
saw Paris and Simpson hanging out with a group of Brim gang members in front
of Orchord’s garage. All the men wore blue jeans and T-shirts, including
Simpson who wore a white T-shirt. The officer stated that Simpson did not have
a full beard and described him as about 180 to 190 pounds with short black hair.
Raymond, a school worker, heard the argument. He heard the shooter say “fuck
that, fuck that” followed by two gunshots. After the shooting and at trial, he
described the shooter as an African-American man in his 20’s with a muscular
build.
Maritza, a neighbor, also heard the argument. She described the shooter
on the day of the incident as about 5 feet 10 inches tall and weighs 220 pounds
with a full beard. Police photographed Paris, Orchord, Chavarry, Lucas, and
40
Simpson after the shooting. While Paris, Orchord, Chavarry, Lucas were
relatively clean shaven, Simpson had sufficient stubble on his face to be
construed as a full beard.
Carlos, a construction worker, heard the argument. He described the
shooter as about 5 feet 10 inches or 5 feet 11 inches tall and weighing about 220
to 230 pounds. He did not mention the shooter’s hairstyle to the officer.
Elizabeth, another school worker, looked outside her second floor window after
hearing the argument and described the shooter as an African-American man in
his mid-20’s, with very short hair, about 5 feet 7 inches or 5 feet 8 inches. She
later described the shooter as being tall.
On the day of the shooting, Simpson had short hair. One officer who
observed the Brim gang members after their arrests described Simpson as the
largest and “[d]efinitely the most muscular” of the group. This officer described
Lucas, who also had short hair, as about 5 feet 7 inches tall and 160 pounds. He
described Paris and Orchord as being about the same height as Lucas, with
Orchord having a medium build, while Paris was thinner than Lucas and had
his hair in braids. Although police detected no gun shot residue on Simpson
after his arrest, Simpson had sufficient time to change clothes and thus had
sufficient time to wash his hands.
T.J.’s corroborated testimony supported the verdicts against Simpson on
the attempted murder and assault charges. (In re Frederick G. (1979) 96
Cal.App.3d 353, 366 [testimony of a single witness may support a judgment,
“even if it is contradicted by other evidence, inconsistent or false as to other
portions.”].) Additionally, the testimony of the other eyewitnesses suggests that
Simpson, the largest man of the group, was the shooter. “Conflicts and even
testimony which is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine
41
the credibility of a witness and the truth or falsity of the facts upon which a
determination depends.” (People v. Maury (2003) 30 Cal.4th 342, 403.)16
E. Ware’s Gang Enhancement (Count 10)
Ware challenged the sufficiency of the evidence supporting the gang
enhancement connected to his March 25, 2014, attempted murder conviction
(count 10). He claimed the evidence did not establish that (1) the shooting was
directed by, for the benefit of, or in association with, the Brim gang; and (2)
conducted with the specific intent to further criminal conduct by gang members.
As we will discuss in section I.V.B.1., we vacate the jury’s true finding on the
gang enhancement attached to count 10, rendering this argument moot.
F. Ware Gun Possession (Counts 12 and 13)
1. Additional Background
On April 23, 2014, at about 5:00 a.m., officers executed a search warrant
at Ware’s apartment. SWAT officers used a bullhorn to call out the occupants of
the apartment. Ware’s mother came out and said that other people were inside,
but no one else exited the apartment. After 20 minutes of unsuccessfully calling
out the other occupants, SWAT officers used a “flash bang” to clear the
16 In a passing argument, Simpson claims the evidence does not support
the finding that he intended to kill the victims because the shooting did not
take place from close range. We are not persuaded by this argument.
One witness described the distance between the two groups as “30 feet
max.” Another witness described the distance between the shooter and his
intended targets as 15 to 20 feet. “ ‘The act of firing toward a victim at a
close, but not point blank, range “in a manner that could have inflicted a
mortal wound had the bullet been on target is sufficient to support an
inference of intent to kill . . . .” ’ ” (Smith, supra, 37 Cal.4th at p. 741.)
“ ‘[T]he crime of attempted murder requires no physical injury to the
victim. . . .’ ” (People v. Bland (2002) 28 Cal.4th 313, 328–329.) Moreover,
these same two witnesses described the victims as retreating. “[F]iring at a
fleeing victim reasonably reflects an intention to kill.” (People v. Bolin (1998)
18 Cal.4th 297, 319.)
42
apartment. Ware, his sister, half-brother, and a younger female friend of the
family then came out of the apartment.
After entering the apartment, officers found the door to the sister’s
bedroom locked and forced entry into that room. Inside the sister’s bedroom,
officers found two handguns, a .40 caliber Hi-Point handgun and a Ruger. The
loaded Hi-Point was hidden between the mattress and box springs. The Hi-
Point firearm contained Ware’s DNA. Officers found the unloaded Ruger inside
a dresser drawer. The Ruger was one of the stolen handguns from the
January 29, 2014, residential burglary involving Nino Sanchez. The DNA
results from the Ruger handgun were too low for comparison. Neither gun was
connected to any of the shootings at issue in this case.
Counts 12 and 13 charged Ware with possession of a firearm by a felon.
The information and the verdict forms did not designate which gun was
associated with each count. During trial, defense counsel conceded Ware’s guilt
on both counts, stating that Ware constructively possessed the guns found in his
sister’s bedroom. For purposes of analysis, we designate count 12 as pertaining
to the Ruger firearm and count 13 as pertaining to the Hi-Point firearm.
2. Gun Possession (Count 12 (Ruger))
Ware contends that the evidence does not support the inference that he
actually or constructively possessed the Ruger handgun because it was found in
his sister’s bedroom and did not contain his DNA.17 He notes that the
prosecution presented no evidence showing he lived at the apartment and that
he had access, the right to access, or the means to access his sister’s room
without her assistance and consent. He acknowledges that his counsel conceded
his guilt to this count during closing argument, but claims this concession does
17 Simpson joins in this argument because it supports his contention that
overt acts numbers 70 and 71 were not supported by the evidence.
43
not bar sufficiency of the evidence review. Assuming this court concludes that
defense counsel’s concession forfeited the sufficiency of the evidence challenge,
he contends that his attorney rendered constitutionally ineffective assistance of
counsel.
As a preliminary matter, we note that the Attorney General did not
respond to the sufficiency of the evidence issue as having been forfeited by
defense counsel’s concession during closing argument. “Two of the most basic
premises of our criminal justice system” are “the presumption of innocence and
the duty of the prosecution to prove guilt beyond a reasonable doubt.” (People v.
Belton (1979) 23 Cal.3d 516, 520.) “Implicit in these principles is the duty of the
prosecution to prove each element of the crime charged. ‘One of the greatest
safeguards for the individual under our system of criminal justice is the
requirement that the prosecution must establish a prima facie case by its own
evidence before the defendant may be put to his defense.’ ” (Ibid.) Any concession
by defense counsel during closing argument did not alter this fundamental duty.
Indeed, a challenge to the sufficiency of evidence is forfeited in the trial court
only by failure to file a timely notice of appeal. (People v. Rodriguez (1998) 17
Cal.4th 253, 262.) Accordingly, we turn to the merits of Ware’s contention.
The elements of the crime of being a felon in possession of a firearm are
conviction of a felony and ownership or knowing possession, custody, or control
of a firearm. (§ 29800, subd. (a)(1); CALCRIM No. 2510.) Ware does not dispute
that he had suffered a prior felony conviction. He challenges his conviction on
the ground insufficient evidence showed he constructively possessed the Ruger
firearm found in his sister’s locked bedroom because it did not contain his DNA.
“Possession may be either actual or constructive as long as it is
intentional.” (People v. Spirlin (2000) 81 Cal.App.4th 119, 130.) “ ‘Constructive
possession occurs when the accused maintains control or a right to control the
44
contraband; possession may be imputed when the contraband is found in a place
which is immediately and exclusively accessible to the accused and subject to his
dominion and control, or to the joint dominion and control of the accused and
another. . . . The elements of unlawful possession may be established by
circumstantial evidence and any reasonable inferences drawn from such
evidence.’ ” (People v. Busch (2010) 187 Cal.App.4th 150, 162.) “[T]here is no
single factor or specific combination of factors which unerringly points to
possession . . . . [T]he question of possession turns on the unique factual
circumstances of each case.” (People v. Land (1994) 30 Cal.App.4th 220, 228.)
“Constructive possession means the object is not in the defendant’s
physical possession, but the defendant knowingly exercises control or the right
to control the object.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.)
“Dominion and control” cannot be inferred from the defendant’s mere proximity
or access to the weapon. (People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)
“[S]omething more must be shown . . . .” (Ibid.) Nonetheless, “the necessary
additional circumstances may, in some fact contexts, be rather slight.” (Ibid.)
That slight, something more, exists here.
Police found Ware in the apartment at 5:00 a.m. with his mother, sister
and half-brother. From these facts, jurors could reasonably infer that Ware
resided at the apartment. After officers announced their presence to execute a
search warrant, Ware’s mother exited the residence while Ware, his sister and
two others remained inside for 20 minutes knowing that officers were there to
search the residence for contraband. Before Ware’s sister and the other
occupants exited the residence someone actively used the lock on the sister’s
bedroom door to exclude officers from this room.
Ware does not dispute that he constructively possessed the Hi-Point
firearm found in his sister’s locked bedroom at some point because this firearm
45
contained his DNA. The lack of Ware’s DNA on the Ruger firearm does not
necessarily show the opposite; rather, we must examine the unique
circumstances of this case. The existence of the Hi-Point firearm in his sister’s
bedroom shows that Ware had access to this room and suggests that he shared
dominion and control of this room with his sister. (People v. Rushing (1989) 209
Cal.App.3d 618, 622 [“A defendant does not avoid conviction if his right to
exercise dominion and control over the place where the contraband was located
is shared with others.”].) Additionally, the Ruger firearm was one of the stolen
handguns from the January 29, 2014 residential burglary involving Nino
Sanchez, Ware’s fellow Hit Squad member. Finally, the gang expert testified
that gang members store their guns where officers do not have ready access.
The locked bedroom of a family member counts as such a location.
We find that sufficient evidence existed from which a rational trier of fact
could reasonably infer that Ware knowingly exercised control, or the right to
control the Ruger firearm, and therefore constructively possessed it.
Accordingly, the evidence supports his conviction for being a felon in possession
of the Ruger firearm.
3. Statute of Limitations Defense (Count 13 (Hi-Point))
Ware concedes that the evidence shows he actually possessed the Hi-Point
handgun at some point because police found his DNA on this weapon. He
argues, however, that there was no evidence that he possessed the Hi-Point gun
within the statute of limitations period for this offense. He claims that he did
not forfeit this issue because it pertains to the sufficiency of the evidence to
support the charge. Assuming we find this issue forfeited by failure to raise it
below, Ware submits his defense attorney rendered ineffective assistance by
failing to raise this issue and by conceding his guilt given the existence of a
viable defense to the charged possession.
46
The People argue that Ware forfeited this issue because the information
was not untimely on its face. Even assuming the issue is not forfeited, the
People contend that substantial evidence supports a finding that the offense was
committed within the statute of limitations period. We agree with the People
that substantial evidence shows that the prosecution of this charge was timely.
Accordingly, we decline to address the forfeiture argument to avoid Ware’s
secondary argument that defense counsel was constitutionally ineffective for
failing to raise this issue, and proceed to the merits.
“A felony prosecution commences for statute of limitations purposes
when an indictment or information is filed, or an arrest warrant or bench
warrant issues . . . .” (People v. Castillo (2008) 168 Cal.App.4th 364, 366.)
The prosecution bears the burden of proving an offense occurred within the
applicable statute of limitations period by a preponderance of the evidence.
(Id. at p. 369.) The crime of illegal firearm possession by a felon is a felony
subject to a three-year statute of limitations. (§§ 18, 801, 29800, subd. (a)(1).)
Here, the prosecution commenced upon the filing of the original
information on December 18, 2014, charging Ware with the possession “[o]n
or about April 23, 2014.” Accordingly, to meet its burden, the prosecutor
needed to prove that Ware possessed the Hi-Point handgun at some point
after December 18, 2011. Ware claims that the prosecutor failed to meet this
burden because there is no evidence when he physically possessed the Hi-
Point firearm and deposited his DNA on it, and the prosecution failed to
establish he had constructive possession of this weapon on April 23, 2014,
when police found the gun in his sister’s bedroom. As discussed ante
regarding the Ruger firearm, the presence of the Hi-Point firearm on
April 23, 2014 in his sister’s bedroom, established Ware’s constructive
possession of this weapon. (Ante, pt. I.F.2.) Accordingly, the evidence
47
sufficiently showed that Ware’s possession of the Hi-Point handgun occurred
within the limitations period.
II.
ALLEGED INSTRUCTIONAL ERROR
A. CALCRIM No. 418
1. Additional Background
The information identified numerous overt acts which contained
statements of oral or written expression, or nonverbal conduct. The court
admitted some of the statements under the admissions of a coconspirator
exception to the hearsay rule. (Evid. Code, § 1223.) The trial court, without
objection, instructed with CALCRIM No. 418, which provided:
“In deciding whether the People have proved that
the defendants committed the crime charged, you
may not consider any statement made out of court by
Edward Paris, Leron Johnson, Nicholas Hoskins, Dionte
Simpson, Victor Ware, Damonte Lucas, Norman Sanchez,
Emanuel Peavy, Lamont Holman, Maurice Chavarry,
Sherbly Gordon, Steven Mahaney, Rahman Taylor,
Deandre Cooper, Jamon Smith, Nino Sanchez, Mykein
Price, Timothy Hurst, Clyde Ellis, Edward Laplanche,
Aaron Hurst,[18] or unless the People have proved by a
preponderance of the evidence that:
“1. Some evidence other than the statement itself
establishes that a conspiracy to commit a crime existed
when the statement was made;
“2. [The co-conspirators] were members of and
participating in the conspiracy when they made the
statement;
“3. [The co-conspirators] made the statement in order
to further the goal of the conspiracy; [¶] AND
18 We collectively refer to these individuals as “the coconspirators.”
48
“4. The statement was made before or during the
time that the defendants were participating in the
conspiracy.
“A statement means an oral or written expression, or
nonverbal conduct intended to be a substitute for an oral or
written expression. [¶] Proof by a preponderance of the
evidence is a different standard of proof than proof beyond
a reasonable doubt. A fact is proved by a preponderance of
the evidence if you conclude that it is more likely than not
that the fact is true. [¶] You may not consider statements
made by a person who was not a member of the conspiracy
even if the statements helped accomplish the goal of the
conspiracy. [¶] You may not consider statements made
after the goal of the conspiracy had been accomplished.”
(Bolding added.)
2. Analysis
Appellants contention that CALCRIM No. 418 informed the jury that their
intent and the coconspirator’s statements could be proved by a preponderance of
the evidence which violated their constitutional right to due process by lessening
the prosecution’s burden of proof. Simpson asserts that this erroneous
instruction affected his substantial rights so that we should reach the merits of
his claim despite defense counsel’s failure to object. The People assert that
appellants forfeited this claim by failing to object to the instruction at trial. In
any event, the People claim that the instructions as a whole properly instructed
the jury on the prosecution’s burden of proof. We consider appellants’
arguments on their merits because “[a]scertaining whether claimed
instructional error affected the substantial rights of the defendant necessarily
requires an examination of the merits of the claim . . . .” (People v. Andersen
(1994) 26 Cal.App.4th 1241, 1249.)
We review a claim of instructional error de novo. (People v. Posey (2004)
32 Cal.4th 193, 218.) We “first ascertain what the relevant law provides, and
49
then determine what meaning the instruction given conveys. The test is
whether there is a reasonable likelihood that the jury understood the instruction
in a manner that violated the defendant’s rights.” (People v. Andrade (2000) 85
Cal.App.4th 579, 585.) Where the “determination of error depends on the
meaning communicated by an instruction, we must ascertain how a hypothetical
‘reasonable juror’ would have, or at least could have, understood the words in
question.” (People v. Mickey (1991) 54 Cal.3d 612, 670.) “ ‘ “[T]he correctness of
jury instructions is to be determined from the entire charge of the court, not
from a consideration of parts of an instruction or from a particular
instruction.” ’ ” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
Additionally, we must interpret the instructions at issue to support the
judgment rather than defeat it, so long as the instructions are reasonably
susceptible of such an interpretation. (People v. Sy (2014) 223 Cal.App.4th 44,
59.)
“Evidence Code section 1223 provides an exception to the hearsay rule as
to statements made during the existence of a conspiracy that are in furtherance
of its objective.” (People v. Herrera (2000) 83 Cal.App.4th 46, 59.) CALCRIM
No. 418 is tied to Evidence Code section 1223 and must be given when a
coconspirator’s statement has been admitted under Evidence Code section
1223.19 (Judicial Council of Cal. Crim. Jury Instns. (2018), Bench Notes to
19 Evidence Code section 1223 states, “Evidence of a statement offered
against a party is not made inadmissible by the hearsay rule if: (a) The
statement was made by the declarant while participating in a conspiracy to
commit a crime or civil wrong and in furtherance of the objective of that
conspiracy; (b) The statement was made prior to or during the time that the
party was participating in that conspiracy; and (c) The evidence is offered
either after admission of evidence sufficient to sustain a finding of the facts
specified in subdivisions (a) and (b) or, in the court’s discretion as to the order
of proof, subject to the admission of such evidence.”
50
CALCRIM No. 418, p. 219.) CALCRIM No. 418 protects criminal defendants by
instructing the jury not to consider statements made by coconspirators unless
the People have proven, by a preponderance of the evidence, that there was a
conspiracy, the declarant was a member of the conspiracy, the declarant made
the statement to further the goal of the conspiracy, and the statement was made
before or during the time the defendant was participating in the conspiracy.
Appellants’ argument is based on a misreading of the instruction. The
first paragraph of CALCRIM No. 418 clearly informed the jurors that they could
not consider any coconspirator’s out-of-court statements in deciding the
conspiracy charges unless the People proved by a preponderance of the evidence
four requirements for considering the out-of-court statements. CALCRIM No.
418 did not instruct the jurors regarding what they needed to find to convict
appellants of conspiracy. On this issue, the court instructed with CALCRIM No.
563 which provided that the People would have to prove four elements, the
existence of an agreement, the necessary intent to agree and kill, and the
commission of an overt act. In turn, CALCRIM No. 220 expressly told the jury,
“Whenever I tell you the People must prove something, I mean they must prove
it beyond a reasonable doubt unless I specifically tell you otherwise.” CALCRIM
No. 418 is not confusing and, when considered with the other instructions
provided to the jury, did not reduce the prosecution’s burden of proof.
Accordingly, we reject appellants’ claim of instructional error.
B. Multiple Conspiracies
The jury found Ware guilty of conspiracy to murder suspected NC and
WCC gang members (count 1). It also found him guilty of attempted murder
based on the March 25, 2014 shooting (count 10) where he drove his car into
WCC territory and his passenger shot at a WCC gang member. To the extent
the conspiracy had an objective apart from the attempted murder in count 10,
51
Ware submits that the crimes committed in furtherance of the conspiracy reveal
not a single overarching conspiracy but many different conspiracies. Citing
People v. Jasso (2006) 142 Cal.App.4th 1213, 1220 (Jasso), Ware asserts that the
question whether there were multiple conspiracies, or a single conspiracy, was
an issue of fact for the jury to decide if evidence existed to support alternative
findings. He claims that because there were multiple conspiracies, the trial
court erred in failing to sua sponte instruct the jury that it could find the
existence of multiple conspiracies.
The People contend that Ware forfeited the purported error by failing to
ask the court to amplify the instructions provided. Assuming we determine the
claim is cognizable, the People argue that there is a split of authority whether
the existence of a single conspiracy, as opposed to multiple conspiracies, is one of
law for the trial court or one of fact for the jury. Even assuming the question is
one for the jury to decide, the People assert that a sua sponte duty to instruct on
multiple conspiracies exists only when there is evidence to support alternative
findings and the facts here support only one conspiracy.
In addressing whether a trial court has a sua sponte duty to instruct the
jury to determine the number of conspiracies committed, another panel of this
court noted that trial courts are required to give correct jury instructions on the
general principles of law relevant to issues raised by the evidence, with or
without a request. (People v. Kopp (2019) 38 Cal.App.5th 47, 84, review granted
Nov. 13, 2019, S257844 (Kopp)20.) Accordingly, we decline to find the claim
20 The Supreme Court has limited review in Kopp, supra, 38 Cal.App.5th
47 to the following questions: “(1) Must a court consider a defendant’s ability
to pay before imposing or executing fines, fees, and assessments? (2) If so,
which party bears the burden of proof regarding the defendant’s inability to
pay?” We may cite Kopp for its persuasive value while review is pending.
(Cal. Rules of Court, rule 8.1115(e)(1).)
52
forfeited and turn to the issue whether the existence of a single conspiracy, as
opposed to multiple conspiracies, is one of law for the trial court or one of fact for
the jury. On this issue, we follow Kopp and conclude “that the number of
conspiracies is a question of fact” and that a trial court has a duty “to instruct
the jury, sua sponte, to determine the number of conspiracies ‘where the
evidence supports alternative findings.’ ” (Id. at p. 85.)
For purposes of analysis, we will assume, without deciding, that the
evidence supported alternative findings regarding the existence of a single, or
multiple conspiracies. However, we conclude that because the People charged a
single conspiracy, Ware suffered no prejudice in the court’s failure to instruct
the jury to determine if there were multiple conspiracies.21 As another court
explained, “we fail to see how charging defendant with one count of conspiracy,
instead of multiple counts, could prejudice defendant. Any error would therefore
be harmless. [¶] Furthermore, assuming there were multiple conspiracies, we
do not see how the existence of the uncharged conspiracies can result in the
reversal of a guilty finding in the one conspiracy that was charged. If the
evidence submitted to the jury supports the guilty finding on the charged
conspiracy, the fact that the same evidence might also have supported other
conspiracies, which were not charged, is of no consequence to the issue of
innocence or guilt on the charged conspiracy.” (People v. Vargas (2001) 91
Cal.App.4th 506, 553.) We agree with this assessment and conclude that any
assumed error was harmless.
21 The cases Ware cites to show prejudicial error involved situations
where the defendant was convicted of multiple conspiracies and the issue
presented was whether the trial court erred in not instructing the jury on
whether a single conspiracy existed. (See People v. Meneses (2008) 165
Cal.App.4th 1648, 1651, 1671; Jasso, supra, 142 Cal.App.4th at p. 1215;
Kopp, supra, 38 Cal.App.5th at pp. 55, 88.)
53
III.
WARE’S ALLEGED INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
A. General Legal Principles
A defendant seeking reversal for ineffective assistance of counsel must
prove both deficient performance and prejudice. (Strickland v. Washington
(1984) 466 U.S. 668, 687 (Strickland).) To demonstrate prejudice, defendant
must show a reasonable probability that he would have received a more
favorable result had counsel’s performance not been deficient. (Id. at
pp. 694–695.) “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Id. at p. 694.) “The likelihood of a
different result must be substantial, not just conceivable.” (Harrington v.
Richter (2011) 562 U.S. 86, 112.)
“On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more
appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013)
57 Cal.4th 986, 1009.) Where counsel’s trial tactics “for challenged decisions
do not appear on the record, we will not find ineffective assistance of counsel
on appeal unless there could be no conceivable reason for counsel’s acts or
omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.)
B. Pat Down Search on January 29, 2014
1. Additional Background
On this date, a gang suppression team officer observed Ware and
another African-American male walking down the street in an area claimed
by the Lincoln Park gang. The officer, who had never seen or contacted Ware
54
before, noticed that Ware wore a black hat with a white “W” on it, leading
him to suspect that Ware might be affiliated with WCC, a Lincoln Park rival.
The officer stopped the men and let Ware’s companion leave after
determining that this individual was not involved in gang activity. The
officer handcuffed Ware and searched him, despite Ware stating that he did
not want to be searched. During the search, the officer found a loaded gun.
At trial, the parties stipulated that on the date of this incident Ware
had a prior felony conviction. In count 8, the jury convicted Ware of being a
felon in unlawful possession of a firearm based on the discovery of the gun
during this stop and frisk.
Before this matter was assigned for trial, Ware requested at least three
Marsden22 hearings “maybe more.” After being assigned for trial, Ware
requested three Marsden hearings. At the first hearing, Ware complained
about the following: (1) pressure to accept a 20-year plea agreement; (2)
violations of the Fourteenth and Eighth Amendments; (3) excessive bail; (4)
failure to visit; and (5) failure to provide discovery. After hearing from
defense counsel, the court denied the motion.
At the second hearing, Ware raised several issues, including that he
wanted counsel to challenge “a gang-enhancement issue that had illegal
search-and-seizure issues.” After hearing Ware’s other complaints, the court
commented “we’ve had one attorney in this matter file various motions, none
of which have had any merit. So attorneys shouldn’t file motions that don’t
have merit, right. You need to fight where you can fight and concede where
you need to concede. It’s like a—like a smart football game, all right.
Sometimes you don’t want the guy to get a touchdown, but you don’t care if
22 People v. Marsden (1970) 2 Cal.3d 118.
55
he gets five yards, so you concede the five yards. Play smart, all right. I
mean, that’s the way I look at it. And [your defense counsel is] a good
tactician that way. He’s been around a long time.”
At a third pretrial Marsden hearing, Ware complained about certain
motions he wanted filed, a lack of communication, and withholding
exculpatory evidence. After hearing from defense counsel, the court denied
the motion, commenting that Ware had “a very good attorney” representing
him.
During a posttrial proceeding regarding Ware’s prior convictions, Ware
requested another Marsden hearing. At this hearing, Ware argued, among
other things, that counsel improperly admitted his guilt on this possession
charge because the officer illegally obtained the gun during the search and
that the gun was “fruit from a poisonous tree.” Defense counsel responded
that he conceded guilt on the possession charges for tactical reasons, stating
this was “a tactical decision that someone could second-guess.” Counsel also
noted that he did not file “a search and seizure motion” because he did not
“believe such a motion was there . . . based on the nature of the search and
the circumstances surrounding it.” At the end of the hearing, defense counsel
stated that he and Ware had disagreements about certain legal issues, he
believed the issues raised were all “tactical decisions that [he] made
consciously and intentionally based on the state of the facts and the state of
the law.”
At a second posttrial Marsden hearing, Ware indicated his desire to
request a new trial to argue, among other things, ineffective assistance of
counsel. The court continued the matter to conduct its own research. At the
subsequent hearing, the court concluded that Ware lacked grounds for the
56
appointment of counsel to review the record for the possible filing of a new
trial motion based on ineffective assistance of counsel.
2. Analysis
Ware concedes that defense counsel thoroughly cross-examined the
detaining officer at trial regarding the reason for stopping and searching him.
He contends, however, that defense counsel provided constitutionally
ineffective assistance by failing to file a suppression motion because the stop
and search violated his Fourth Amendment right to be free from unlawful
searches and seizures.23 Ware submits that the record on appeal is
sufficiently complete to reveal there could be no rational basis for failing to
challenge the detention and search. Specifically, he claims that defense
counsel addressed his reason for not filing a suppression motion at the
Marsden hearing, but failed to provide a meaningful response. The People
disagree, arguing that Ware failed to rebut the presumption that defense
counsel rendered reasonable professional assistance and cannot show that a
motion to suppress the firearm would have been successful.
Ware has the burden of establishing “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” (Strickland, supra, 466 U.S. at p. 687.)
Ware admits that it is “particularly challenging” to show ineffective
assistance on direct appeal. Ware is correct. This standard is “highly
demanding” and requires that a defendant prove “gross incompetence.”
(Kimmelman v. Morrison (1986) 477 U.S. 365, 382.) “[A] court must indulge a
23 Simpson joins in this argument claiming that the failure to move to
exclude the gun as evidence allowed inadmissible evidence to be admitted to
prove his conviction of count 1 which denied him due process of law and
constituted a miscarriage of justice.
57
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” (Strickland, at p. 689.)
In People v. Mendoza Tello (1997) 15 Cal.4th 264, the Supreme Court
unanimously reversed the Court of Appeal’s reversal of the defendant’s
conviction on the grounds that counsel was ineffective for failing to file a
suppression motion; the court did so due to gaps in the record: “On this
record, we do not know what [the deputy] would have said had he been asked
at a suppression hearing why he did what he did. . . . [P]erhaps he did have a
reason, of which defense counsel was aware, and which justified counsel’s
actions. Perhaps there was some other reason not to suppress the evidence.”
(Id. at p. 267.) “No one gave [the deputy] the opportunity to point to any
specific and articulable facts justifying his actions. Nor did the prosecution
have the opportunity to offer some other possible reason not to suppress the
evidence.” (Ibid.)
We decline to resolve Ware’s ineffectiveness of counsel claim because
the record does not “affirmatively disclose[ ]” that Ware’s counsel had no
rational tactical purpose for his allege omission. (People v. Fosselman (1983)
33 Cal.3d 572, 581.) Here, the record suggests that counsel made a tactical
decision to not to file a suppression motion based on “the nature of the search
and the circumstances surrounding it.” Accordingly, we reject this ineffective
assistance claim “without prejudice to any rights [Ware] may have to relief by
way of a petition for writ of habeas corpus.” (People v. Garrido (2005) 127
Cal.App.4th 359, 367.)
58
C. Concession of Guilt Firearm Possession (Counts 8, 12, 13)
1. Additional Background
During opening statement, defense counsel conceded Ware’s guilt for
unlawfully possessing the firearms as alleged in counts 8, 12, and 13
(collectively the possession charges). Counsel instead focused on why the
evidence would not establish the other counts against his client. At closing
argument, defense counsel again addressed the possession charges, stating:
“Let’s turn to Count 12 and 13, possession of the firearms.
I told you in opening statements. I’ll tell you again. I’m
not going to stand up here and argue that because they
were locked in his sister’s bedroom that they were not his
at least constructively. Mr. Ware is guilty of those counts.
Those firearms were found in his house.
“All of the banter about, well, he didn’t come out fast
enough. He didn’t do all those things. Doesn’t really
matter. He’s responsible for those firearms. His sister was
not packing guns in her bedroom.
“But on April 23, 2014, . . . two weapons were found . . . .
There are some important facts to remember about these
weapons. Neither of these guns was used in any of the 18
shootings presented in this case.
“Ware’s prints and DNA were not even on the gun from the
1-29-14 burglary that was found. No prints or DNA from
any other person were found on these guns, especially no
one from the specific conspiracy group that we are here to
talk about.
“Turning to Count 8. January 29, 2014. Another news
flash. He’s guilty. He was carrying that weapon when he
was stopped on the street. Don’t need to argue about why
he was stopped. I would point out he wasn’t with anyone
from this group. And, again, the same points. That gun
was not involved in any of the 18 shootings. There was no
DNA or prints from any other person found on that gun.”
59
When addressing the lack of evidence tying Ware to the charged
conspiracy, defense counsel acknowledged the two occasions that Ware
illegally possessed firearms and concentrated on the lack of evidence against
Ware on the conspiracy charge.
2. Analysis
Ware asserts defense counsel provided constitutionally deficient
assistance during opening and closing arguments by admitting the possession
charges. He claims that he had viable defenses to the possession charges;
namely, grounds existed to suppress the gun found during the January 2014
pat down search and the evidence did not show he constructively possessed
the two guns found in his sister’s bedroom.24 The People argue that defense
counsel made a reasonable tactical decision to concede Ware’s guilt on the
possession charges. Further, the People assert that Ware failed to
demonstrate a reasonable probability that, but for counsel’s alleged error, the
result of the proceedings would have been different.
“[A] defense attorney’s concession of his client’s guilt, lacking any
reasonable tactical reason to do so, can constitute ineffectiveness of counsel.”
(People v. Gurule (2002) 28 Cal.4th 557, 611.) However, defense counsel
cannot be faulted for adopting “a more realistic approach” based on the
evidence. (Id. at p. 612.) Partial concessions of culpability are a legitimate
tactical choice by defense counsel where the incriminating evidence is strong.
(See, e.g., People v. Hart (1999) 20 Cal.4th 546, 631; People v. Bolin (1998) 18
Cal.4th 297, 334–335.)
24 Simpson joins in Ware’s argument claiming that the concession of the
firearm possession counts allowed inadmissible or defensible evidence to be
admitted to prove his conviction of count 1.
60
Here, Ware undisputedly had a firearm on his person during the
January 2014 pat down search (count 8)25 and possessed the Hi-Point
firearm (count 13) found in his sister’s bedroom at one point because it
contained his DNA. Defense counsel’s concession on counts 8 and 13 simply
reflected the reality of the evidence, and the recognition that to argue Ware
did not possess these firearms would likely damage counsel’s credibility with
the jury. Thus, it was a reasonable tactical decision. (Gurule, supra, 28
Cal.4th at p. 612.) For the same reasons, Ware cannot show prejudice from
defense counsel’s tactical decision on these counts, because it is not
reasonably probable that in the absence of counsel’s concession, he would
have received a better verdict. (See Strickland, supra, 466 U.S. at pp. 693–
696.)
Regarding the Ruger firearm also found in Ware’s sister’s bedroom
(count 12), defense counsel similarly had a tactical reason for conceding
Ware’s guilt. Namely, the evidence suggested Ware placed both guns in his
sister’s bedroom to thwart the officers during the pending search. (Ante, pt.
I.F.2.) Again, to argue otherwise, would likely damage counsel’s credibility
with the jury. On the record before us, we cannot conclude that defense
counsel had no rational tactical purpose for making the concession he did
regarding count 12.
Finally, for the first time in his reply brief, Ware cites McCoy v.
Louisiana (2018) ___U.S.___, 138 S.Ct. 1500 (McCoy) to assert that defense
counsel’s concessions violated the Sixth Amendment and constitute a
structural error warranting a new trial. Presumably, Ware tendered this
25 The question whether defense counsel provided ineffective assistance
by failing to move to suppress this gun cannot be resolved on this record.
(See, ante, pt. II.B.2.)
61
new argument in his reply brief because the Attorney General argued in his
respondent’s brief that McCoy did not apply.
In McCoy, defense counsel informed defendant two weeks before trial
that he intended to concede defendant’s guilt of a triple homicide. (McCoy,
supra, ___U.S. ___, 138 S.Ct. at p. 1506.) Defendant was “ ‘furious’ ” insisting
he was innocent and had been out of state when the murders occurred.
(Ibid.) Two days before trial, the court denied defendant’s request to
terminate his counsel’s representation based on counsel’s intent to concede
guilt. (Ibid.) During counsel’s opening statement, out of earshot of the jury,
defendant again informed the court he disagreed with counsel’s concession of
guilt. (Id. at p. 1507.) Nevertheless, defense counsel told the jury it was
“ ‘unambiguous’ ” that “ ‘my client committed three murders.’ ” (Ibid.)
The Supreme Court reversed the conviction, holding that, “[A]
defendant has the right to insist that counsel refrain from admitting guilt,
even when counsel’s experienced-based view is that confessing guilt offers the
defendant the best chance to avoid the death penalty. . . . [I]t is the
defendant’s prerogative, not counsel’s, to decide on the objective of his
defense . . . .” (McCoy, supra, ___U.S. ___, 138 S.Ct. at p. 1505.) The Court
stated that defense counsel provides assistance, but some decisions are
reserved to the client, including whether “the objective of the defense is to
assert innocence . . . .” (Id. at p. 1508.)
Having reviewed McCoy, supra, ___U.S. ___, 138 S.Ct. 1500 and its
progeny, we find no Sixth Amendment violation because the record in the
Marsden hearings make clear that Ware disagreed with defense counsel’s
tactical decision to concede guilt on the possession charges. Ware never
objected to the concession claiming factual innocence.
62
As noted in McCoy, “ ‘[n]o blanket rule demand[s] the defendant’s
explicit consent’ to implementation of that strategy [of concession].” (McCoy,
supra, ___U.S. ___, 138 S.Ct. at p. 1505.) Rather, McCoy makes clear that for
a Sixth Amendment violation to exist, a defendant must make his intention
to maintain innocence clear to his counsel, and counsel must override that
objective by conceding guilt. (Id. at p. 1509 [“When a client expressly asserts
that the objective of ‘his defence’ is to maintain innocence of the charged
criminal acts, his lawyer must abide by that objective and may not override it
by conceding guilt” [second italics added].) Here, nothing in the record
demonstrates Ware’s unambiguous intent to maintain his factual innocence
of the possession charges. Rather, the record shows that Ware had a gun on
his person during the January 2014 stop and that one of the guns found
during the April 2014 search contained his DNA. The issue was not one of
innocence, but of how to best defend Ware against these charges and the
third possession charge. No violation of Ware’s constitutional right to counsel
occurred.
Ware’s reliance on People v. Eddy (2019) 33 Cal.App.5th 472 (Eddy) is
misplaced. During a posttrial Marsden hearing, defense counsel in Eddy
admitted knowing defendant’s desire to claim innocence as his defense, but as
a tactical decision, explained he would concede guilt on the lesser offense at
closing argument. (Id. at p. 478.) Defendant told the trial court that he
advised counsel “not to go that route, and he had done it anyway.” (Id. at
pp. 478–479.) The appellate court, consistent with McCoy, supra, ___U.S.
___, 138 S.Ct. at p. 1505, “conclude[d] that defendant has established a
violation of his right to decide the objective of his defense under McCoy, and
because this violation constitutes structural error,” reversed the murder
conviction. (Eddy, at p. 483.)
63
Thus, in Eddy, “the record establishe[d] that defendant instructed his
counsel to maintain his innocence before the closing argument and that this
instruction was not honored.” (Eddy, supra, 33 Cal.App.5th at p. 482.) Here,
however, Ware never argued that he was factually innocent of the possession
charges. Accordingly, Eddy is not controlling. (Accord, People v. Flores
(2019) 34 Cal.App.5th 270, 280 [“Flores’s objective at both trials was express
and unambiguous: to maintain his innocence of the acts alleged as the actus
reus of the charged crimes—i.e., driving the car and possessing the
weapons—irrespective of the weight of the evidence against him.”].)
IV.
IMPACT OF ASSEMBLY BILL 333
A. Assembly Bill 333 Amendments to Section 186.22
“ ‘In 1988, the Legislature enacted the California Street Terrorism
Enforcement and Prevention Act (STEP Act; § 186.20 et. seq.) to eradicate
criminal activity by street gangs.’ ” [Citation.] Among other things, the STEP
Act created ‘a sentencing enhancement for a felony committed “for the benefit of,
at the direction of, or in association with any criminal street gang” (§ 186.22,
subd. (b)(1)).’ ” (People v. Tran (2022) 13 Cal.5th 1169, 1205–1206 (Tran).) The
purpose of the STEP Act was to increase punishment for defendants who commit
felonies in furtherance of criminal street gang activity. (People v. Fuentes (2016)
1 Cal.5th 218, 223.)
In 2000, in an initiative measure known as Proposition 21, voters
amended the STEP Act. (People v. Lopez (2022) 12 Cal.5th 957, 969.) Among
other things, Proposition 21 added section 182.5 to the Penal Code to create the
crime of gang conspiracy. (Ibid.)26 Section 182.5 provides, in relevant part,
26 Proposition 21 also added a list of new special circumstances in which
the punishment for first degree murder is set at death or life in prison
64
“[A]ny person who actively participates in any criminal street gang, as defined
in subdivision (f) of Section 186.22, with knowledge that its members engage in
or have engaged in a pattern of criminal gang activity, as defined in subdivision
(e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits
from any felonious criminal conduct by members of that gang is guilty of
conspiracy to commit that felony and may be punished as specified in
subdivision (a) of Section 182.” Thus, section 185.2 expressly incorporates
specific provisions of section 186.22. “Proposition 21 also amended the existing
gang enhancement in section 186.22, subdivision (b)(1) to create a new tiered
system of enhancements with five-year enhancements for individuals convicted
of serious felonies and 10-year enhancements for individuals convicted of violent
felonies.” (People v. Lopez, at pp. 969–970.)
In 2021, the Legislature passed Assembly Bill 333, which became effective
on January 1, 2022. (Tran, supra, 13 Cal.5th at p. 1206.) Assembly Bill 333
made several amendments to section 186.22, subdivisions (e) and (f) which are
integral to the interpretation of gang conspiracy statute and the gang and gang-
related firearm enhancements. When defendants were tried, former section
186.22 defined a “ ‘criminal street gang’ ” as “any ongoing organization,
association, or group of three or more persons . . . whose members individually
or collectively engage in, or have engaged in, a pattern of criminal gang activity.”
(Former § 186.22, subd. (f), italics added.) Assembly Bill 333 narrowed the
definition to “an ongoing, organized association or group of three or more
without the possibility of parole, including a gang murder enhancement
where “ ‘[t]he defendant intentionally killed the victim while the defendant
was an active participant in a criminal street gang, as defined in subdivision
(f) of Section 186.22, and the murder was carried out to further the activities
of the criminal street gang.’ (Prop. 21, § 11; see § 190.2, subd. (a)(22).)”
(People v. Rojas (2022) 80 Cal.App.5th 542, 550 (Rojas) review granted Oct.
19, 2022, S275835.)
65
persons . . . whose members collectively engage in, or have engaged in, a pattern
of criminal gang activity.” (§ 186.22, subd. (f), italics added.) This change
requires that the People “prove that two or more gang members committed each
predicate offense.” (People v. Delgado (2022) 74 Cal.App.5th 1067, 1072.)
Under the former version of section 186.22, the phrase “pattern of criminal
gang activity” was defined as “the commission of, attempted commission of,
conspiracy to commit, or solicitation of, sustained juvenile petition for, or
conviction of, two or more of [specified] offenses, provided at least one of these
offenses occurred after the effective date of this chapter, and the last of those
offenses occurred within three years after a prior offense, and the offenses were
committed on separate occasions, by two or more persons.” (Former § 186.22,
subd. (e), italics added.)
Assembly Bill 333 changed this definition. Now, the predicate offenses
must have been committed by two or more “members” of the gang (as opposed to
any persons) and must have “commonly benefited a criminal street gang” and
“the common benefit of the offense [must be] more than reputational. (§ 186.22,
subd. (e)(1), italics added.) Additionally, at least one of these predicate offenses
must occur after the effective date of this chapter, and the last of those offenses
must have occurred within three years of the prior offense and within three
years of the date the current offense is alleged to have been committed. (Ibid.)
The currently charged offense no longer counts as a predicate offense. (§ 186.22,
subd. (e)(2).) The new law also reduced the number of qualifying offenses that
can be used to establish a pattern of criminal gang activity, removing vandalism,
looting and several fraud-related offenses from the list. (§ 186.22, subd.
(e)(1)(A)-(Z).)
Assembly Bill 333 requires the prosecution to prove the benefit the gang
derives from the current offenses is “more than reputational.” (Stats. 2021, ch.
66
699, § 3 [enacting § 186.22, subd. (g)].) “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).) Finally, Assembly Bill 333 added section 1109
requiring bifurcation of gang enhancements charged under section 186.22,
subdivision (b) or (d) to be tried separately from the underlying charges upon
request from the defense. (Stats. 2021, ch. 699, § 5.) The defendant’s guilt on
the underlying offense must first be determined, and a trial on the gang
enhancement is held if the defendant is first found guilty of the underlying
offense. (§ 1109, subds. (a)(1) & (a)(2).)
The changes to section 186.22 made by Assembly Bill 333 “affect not only
the gang enhancement allegations under that statute but other statutes that
expressly incorporate provisions of section 186.22.” (People v. Lopez (2021) 73
Cal.App.5th 327, 346.) As we noted above, a gang conspiracy under section
182.5 incorporates the proof requirements for “criminal street gang” as defined
in section 186.22. Additionally, the gang-firearm enhancement (§ 12022.53,
subd. (e)(1)(A)) and gang-murder special circumstance (§ 190.22, subd. (a)(22))
incorporate the proof requirements of section 186.22.
B. Analysis
1. Gang and Gang-Firearm Enhancements
The jury found true that Simpson committed the crimes alleged in counts
1 through 5 in association with, and to benefit, a gang. (§ 186.22, subd. (b)(1).)
The jury also found true the allegations that the offenses Ware committed in
counts 1, 10, and 14 were gang crimes under subdivision (b) of section 186.22.
All parties agree that Assembly Bill 333 applies retroactively to Simpson and
Ware, and a remand is required to afford the prosecution an opportunity to
67
prove the gang and gang-firearm enhancements under the amended law. We
agree and remand for possible retrial of these enhancements.
The trial court instructed the jury based on the old requirements of section
186.22. As relevant here, the jury was instructed that to determine whether a
“pattern of criminal gang activity” existed, they needed to find the most recent
predicate offense occurred within three years of one of the earlier crimes and
that the crimes “need not be gang-related.” The jury was also informed and “if
you find a defendant guilty of a crime in this case” it may be considered to decide
the “group’s primary activities.” Also, the jury was not instructed they needed to
find the predicate offenses benefited the gang or that the benefit was more than
reputational as required under the amended statute. (§ 186.22, subd. (e)(1).)
“[T]he absence of instruction on the amended version of section 186.22
requires reversal unless ‘it appears beyond a reasonable doubt that the error did
not contribute to th[e] jury’s verdict.’ ” (People v. E.H. (2022) 75 Cal.App.5th
467, 479.) We cannot conclude that these instructional errors were harmless.
For example, the prosecution presented evidence of three predicate offenses but
these convictions cannot qualify as predicates under the new requirements of
Assembly Bill 333 because there was no testimony about how those crimes
benefited the Brim gang. (§ 186.22, subd. (e)(1).) The jurors were also permitted
to consider the current offenses in determining whether the prosecution had
proven a pattern of criminal gang activity. Accordingly, we vacate the jury’s
true findings for the section 186.22 gang enhancement allegations and remand
the matter for the People to determine whether to retry Simpson and Ware
under the amended law.
The jury also found true gang-related firearm enhancements under section
12022.53, subdivision (e)(1) (which requires a finding that a person “violated
subdivision (b) of Section 186.22”), attached to counts 2 and 3 for Simpson and
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count 10 for Ware. Because the gang enhancements must be reversed for
instructional error, these vicarious, gang-related firearm enhancements must
also be stricken since they may be imposed only if the gang enhancement has
already been found true. (§ 12022.53, subd. (e)(1).)
In conclusion, the proper remedy is to vacate the section 186.22 gang
enhancements and the section 12022.53, subdivision (e)(1) gang-related firearm
enhancements and remand to allow the prosecution an opportunity to retry
these enhancements and meet its burden of proof pursuant to the new
requirements in Assembly Bill 333. (See People v. Lopez, supra, 73 Cal.App.5th
at pp. 346–347.)
2. Gang Conspiracy
Ware contends that Assembly Bill 333 requires his conviction for actively
participating in a gang conspiracy (§ 182.5, count 9) be reversed. He notes that
section 182.5 incorporates the proof requirements for “criminal street gang” as
defined in section 186.22. Because Assembly Bill 333 changed the definition of a
“criminal street gang” he contends that for the same reasons the gang and gang-
related firearm enhancements must be reversed, his gang conspiracy conviction
must also be reversed.27 In a lengthy argument, the Attorney General disagrees
that Ware’s gang conspiracy conviction must be reversed. He contends that
subdivision (c) of article II, section 10 of the California Constitution restricts the
Legislature from amending “an initiative statute by another statute” unless the
subsequent statute is “approved by the electors” or “the initiative statute
permits amendment . . . without the electors’ approval.” Additionally,
Proposition 21 expressly states, “ ‘The provisions of this measure shall not be
27 Simpson does not join in this argument because our original opinion
concluded that insufficient evidence supported his gang conspiracy
conviction. (See ante, pt. I.C.2.c.)
69
amended by the Legislature except by a statute passed in each house by rollcall
vote entered in the journal, two-thirds of the membership of each house
concurring, or by a statute that becomes effective only when approved by the
voters.’ ” (People v. Lopez (2022) 82 Cal.App.5th 1, 17–18.) “There is no dispute
that Assembly Bill 333 ‘was enacted without voter approval, and without the
requisite two-thirds votes in both houses of the Legislature.’ ” (Id. at p. 18.)
Thus, the Attorney General asserts Assembly Bill 333 appears to be an
unconstitutional amendment to the offense of gang conspiracy enacted by the
voters via Proposition 21. He contends we can invalidate the amendments made
by Assembly Bill 333 as applied to the gang conspiracy offense, rather than
severing and invalidating those amendments in their entirety.
The arguments made by the Attorney General have been addressed by
several courts in the context of gang conspiracy and the gang-murder special
circumstance, and their conclusions are split. In Rojas, supra, 80 Cal.App.5th
542, a divided panel of the Fifth District held Assembly Bill 333 could not alter
the proof requirements for a “criminal street gang” from those in effect at the
time the voters enacted Proposition 21. (See Rojas, at pp. 550–558 [because
Assembly Bill 333 was passed without voter approval and without the requisite
two-thirds vote in both houses of the state Legislature, it cannot amend section
190.2, subdivision (a), without violating the constitutional prohibition on
legislative amendment of a statute adopted by initiative].) In contrast, in People
v. Lee (2022) 81 Cal.App.5th 232 (Lee), review granted October 19, 2022,
S275449, the Second District, Division 4 rejected the analysis in Rojas.
The Lee court reasoned the voters “did not contemplate a time-specific
incorporation of the then-current version of section 186.22, subdivision (f), into
the gang-murder special-circumstance statute.” (Lee, supra, 81 Cal.App.5th at
p. 241.) It explained, “Section 186.22 was originally enacted by the Legislature
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in 1987. [Citation.] As part of Proposition 21, in March 2000 the electorate
amended certain provisions of section 186.22 by increasing the sentences of the
gang enhancements provided by subdivisions (b), (c), and (d). [Citation.] The
electorate also updated the list of predicate offenses to be used to determine a
‘ “pattern of criminal gang activity” ’ in subdivision (e). However, the voters
reenacted section 186.22, subdivision (f) without substantive change. [Citation.]
As such, subdivision (f) of section 186.22 cannot be deemed ‘among the
initiative’s statutory provisions’ made immune from legislative amendment by
force of article II, section 10 of the state Constitution.” (Lee, at p. 242.) “In
short, the voters left intact the Legislature’s power to amend the definition of a
criminal street gang in section 186.22, subdivision (f).” (Lee, at p. 242.)
In People v. Lopez, supra, 82 Cal.App.5th 1, relying on Lee, supra, 81
Cal.App.5th 232, another panel from the Fifth District court determined there
was no time-specific provision in Proposition 21 for section 182.5 as there was
for other provisions of the criminal law. (People v. Lopez, at pp. 23–24.) The
Lopez court concluded, “[W]e agree with Lee’s conclusion that ‘the electorate
clearly knew how to express the intent to freeze a statutory definition,’ ” and
“[t]he absence of such time-specific language in section 182.5 leads to our
rejection of the People’s claim.” (People v. Lopez, at pp. 24–25.)
Because our high court will resolve this split of authority, we need not
belabor the Attorney General’s contentions in this appeal. We agree with the
analysis in Lee, supra, 81 Cal.App.5th 232 and People v. Lopez, supra, 82
Cal.App.5th 1 and conclude that Assembly Bill 333 applies retroactively to
section 182.5. The Attorney General does not argue that the prosecution
presented evidence that would meet the new evidentiary requirements of section
186.22, subdivisions (e) and (f) as now incorporated into section 182.5. We
conclude that Ware is entitled to the benefit of the ameliorative changes in the
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law made by Assembly Bill 333 for purposes of his criminal gang conspiracy
conviction. We reverse the gang conspiracy conviction and remand the matter to
allow the prosecution the opportunity to elect whether to retry this charge under
current law.
V.
SENTENCING ISSUES
A. Gun Use Enhancements Under Section 12022.53
The jury found true firearm use allegations attached to counts 2 and 3 for
Simpson and count 10 for Ware. (§ 12022.53, subds. (b), (c), and (e)(1).) The
court imposed sentences, of 20 years, and six years eight months for Simpson
and 20 years for Ware. Effective January 1, 2018, approximately five months
after the sentencing hearing, Senate Bill No. 620 amended sections 12022.5 and
12022.53 to provide that trial courts may, “in the interest of justice pursuant to
Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed . . . .” (§§ 12022.5, subd. (c), 12022.53, subd.
(h).) The new legislation granted trial courts discretion they did not previously
possess to strike firearm enhancements. (People v. Woods (2018) 19 Cal.App.5th
1080, 1090.)
We vacated the true findings for the section 12022.53 gang-related firearm
enhancements and remanded the matter to allow the prosecution an opportunity
to retry these enhancements and meet its burden of proof pursuant to the new
requirements in Assembly Bill 333. (Ante, pt. IV.B.1.) Should the People retry
Simpson and Ware and these allegations are again found true, they must be
sentenced under the current law.
B. Ware’s Personal Gun Use Enhancement (Count 10)
In count 10 the jury found Ware guilty of attempted premeditated murder
and found true a gang enhancement allegation under section 186.22, subdivision
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(b)(1), and two firearm enhancement allegations under sections 12022.53,
subdivisions (b) and (e)(1), and 12022.53, subdivisions (c) and (e)(1). At
sentencing, the trial court set the minimum parole eligibility period for count 10
at 15 years, pursuant to subdivision (b)(5) of section 186.22. It also imposed and
stayed a 10-year firearm enhancement under section 12022.53, subdivision (b),
and imposed a 20-year firearm enhancement under section 12022.53,
subdivision (c). Ware asserts that the matter must be remanded for
resentencing because he did not personally use the firearm in count 10; thus, he
claims that the trial court was statutorily barred from imposing increased
punishments under both section 186.22 and section 12022.53. The People
conceded the error.
We vacated the true findings for the section 12022.53 gang-related firearm
enhancements and remanded the matter to allow the prosecution an opportunity
to retry these enhancements and meet its burden of proof pursuant to the new
requirements in Assembly Bill 333. (Ante, pt. IV.B.1.) Should the People retry
Ware and this allegation is again found true, he must be sentenced under the
current law.
C. Ware’s Sentences for Conspiracy (Count 1) and Attempted Murder (Count 10)
The jury found Ware guilty of conspiracy to murder suspected NC and
WCC gang members (count 1). It also found him guilty of attempted murder
based on the March 25, 2014 shooting (count 10) where he drove his car into
WCC territory and his passenger shot at a WCC gang member. The trial court
sentenced Ware to 25 years to life in prison for the conspiracy, plus an
additional enhanced life term for the attempted murder. Ware contends that
section 654 barred the trial court from imposing sentences for both the
conspiracy and the substantive offense because they shared the same objective.
The People disagree, arguing that Ware could be punished for both conspiracy
73
and attempted murder because the conspiracy was not limited to the single
attempted murder charged in count 10, but extended to an agreement to kill
rival Crips gang members, spanning several years. We agree with the People.
“Section 654 bars multiple punishment for separate offenses arising out of
a single occurrence where all of the offenses were incident to one objective.”
(People v. Lewis (2008) 43 Cal.4th 415, 519, disapproved on another ground in
People v. Black (2014) 58 Cal.4th 912, 919–920.) “ ‘Whether a course of criminal
conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all
the offenses were incident to one objective, the defendant may be punished for
any one of such offenses but not for more than one.’ ” (People v. Correa (2012) 54
Cal.4th 331, 336.)
“Because of the prohibition against multiple punishment in section 654, a
defendant may not be sentenced ‘for conspiracy to commit several crimes and for
each of those crimes where the conspiracy had no objective apart from those
crimes. If, however, a conspiracy had an objective apart from an offense for
which the defendant is punished, he may properly be sentenced for the
conspiracy as well as for that offense.’ [Citations.] Thus, punishment for both
conspiracy and the underlying substantive offense has been held impermissible
when the conspiracy contemplated only the act performed in the substantive
offense [citations], or when the substantive offenses are the means by which the
conspiracy is carried out [citation]. Punishment for both conspiracy and
substantive offenses has been upheld when the conspiracy has broader or
different objectives from the specific substantive offenses.” (People v. Ramirez
(1987) 189 Cal.App.3d 603, 615–616, fn. omitted.) The question whether
defendant had the same objective in committing more than one offense is a
74
question of fact for the trial court, and we review the court’s finding under the
substantial evidence standard. (People v. Osband (1996) 13 Cal.4th 622, 730.)
In count 10, Ware aided and abetted the attempted murder of WCC gang
member, M.W., on March 25, 2014. Count 1 alleged that Ware conspired to
murder suspected NC and WCC gang members with numerous coconspirators.
The charged conspiracy consisted of 104 overt acts, 13 of which were shootings,
including the March 25, 2014 shooting.
The conspiracy charge had a broader objective beyond the attempted
murder of the specific individual charged in count 10. Where, as here, a
conspiracy has “an objective apart from an offense for which the defendant is
punished, [the defendant] may properly be sentenced for the conspiracy as well
as for that offense.” (In re Cruz (1966) 64 Cal.2d 178, 181; see also, People v.
Amadio (1971) 22 Cal.App.3d 7, 15 [conspiracy to receive stolen property
included more than receipt of property in substantive counts]; People v. Collins
(1966) 242 Cal.App.2d 626, 640 [conspiracy went beyond instances of theft for
which defendant was convicted]; People v. Scott (1964) 224 Cal.App.2d 146, 152
[conspiracy lasted for months; evidence of numerous incidents other than those
comprising the substantive offenses].) The fact both count 1 and 10 had a single
objective, killing a WCC or NC gang member, “does not bar multiple punishment
for separate crimes.” (People v. Lochmiller (1986) 187 Cal.App.3d 151, 153.) To
accept Ware’s argument would allow him to escape punishment that is
commensurate with his culpability. (See People v. Latimer (1993) 5 Cal.4th
1203, 1211, compare, People v. Cavanaugh (1983) 147 Cal.App.3d 1178, 1182
[multiple punishment is prohibited where the substantive offenses are merely
the means of achieving the conspiracy’s objective].) Accordingly, the trial court
did not err when it punished Ware for both the conspiracy and the attempted
murder.
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D. Unpaid Portion of Criminal Justice Fee Must Be Vacated
The court ordered Simpson and Ware to pay a $154 criminal justice fee
under Government Code section 29550. Assembly Bill 1869 “added section
1465.9 and Government Code section 6111, which provide that on and after July
1, 2021, the unpaid balance of such fees imposed by the court ‘shall be
unenforceable and uncollectible and any portion of a judgment imposing those
costs shall be vacated.’ (§ 1465.9, subd. (a); Gov. Code, § 6111, subd. (a).)”
(People v. Pacheco (2022) 75 Cal.App.5th 207, 215.) The parties agree and we
conclude, that on remand, the trial court must vacate any unpaid portion of the
criminal justice fee.
E. Sentencing Discretion Under Amended Section 1385
The jury found true firearm enhancements on counts 2 and 3 for Simpson
and count 10 for Ware. (§ 12022.53, subds. (b), (c), & (e)(1).) In our prior
opinion, we remanded for resentencing to allow the trial court to exercise its
discretion to strike the firearm use enhancements attached to these counts
under section 1385. Effective January 1, 2022, Senate Bill 81 amended section
1385 “to specify factors that the trial court must consider when deciding
whether to strike enhancements from a defendant’s sentence in the interest of
justice.” (People v. Sek (2022) 74 Cal.App.5th 657, 674 (Sek).) Under the
amended law, unless dismissal is prohibited under an initiative statute, trial
courts are now required to dismiss an enhancement if it is in the furtherance of
justice to do so. (§ 1385, subd. (c)(1).) In exercising its discretion, the court must
“consider and afford great weight to” evidence of the mitigating circumstances
listed in subparagraphs (A) through (I), “unless the court finds that dismissal of
the enhancement would endanger public safety.” (§ 1385, subd. (c)(2).)
Simpson and Ware contend that, on remand for resentencing, the trial
court must comply with that new provision. The People agree that Simpson and
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Ware can raise any claims regarding the changes to section 1385 on remand.
Because any resentencing in this case will take place after Senate Bill 81
became effective on January 1, 2022, the trial court must apply the new law in
any such proceeding. (Sek, supra, 74 Cal.App.5th at p. 674.)
F. Ware’s Prior Prison Term Enhancement Must Be Stricken
At sentencing, the trial court imposed a one-year enhancement under
section 667.5, subdivision (b) (section 667.5(b)), for a prior prison term resulting
from drug convictions in violation of Health and Safety Code sections 11350,
subdivision (a), and 11351.5. Effective January 1, 2020, Senate Bill No. 136
(2019–2020 Reg. Sess.) (Stats 2019, ch. 590, § 1) (Senate Bill 136), limited prior
prison term enhancements to those terms served for specified sexually violent
offenses. (People v. Jennings (2019) 42 Cal.App.5th 664, 681.) Ware argued that
this change applied retroactively and requested that the section 667.5,
subdivision (b) enhancement be stricken. In our prior opinion, we declined to do
so because we had vacated Ware’s sentence and he could raise the matter at his
resentencing hearing. Ware contends that, due to another change in the law, we
should reconsider his request. The parties agree and we conclude, that on
remand, the trial court must strike the prior prison term enhancement imposed
under section 667.5, subdivision (b).
In 2021, the Legislature enacted Senate Bill 483 which sought to make the
changes implemented by Senate Bill 136 retroactive. (Stats. 2021, ch. 728, § 1
[“it is the intent of the Legislature to retroactively apply . . . Senate Bill 136 of
the 2019-20 Regular Session to all persons currently serving a term of
incarceration in jail or prison for these repealed sentence enhancements”].)
Senate Bill 483 added former section 1171.1, now section 1172.75, to the Penal
Code. (Stats. 2021, ch. 728, § 3, eff. Jan. 1, 2022; Stats. 2022, ch. 58, § 12, eff.
June 30, 2022.) Subdivision (a) of section 1172.75 states that “[a]ny sentence
77
enhancement that was imposed prior to January 1, 2020, pursuant to [section
667.5, subdivision (b)], except for any enhancement imposed for a prior
conviction for a sexually violent offense . . . is legally invalid.”
Because Ware served his prison prior term for drug-related offenses, not a
sexually violent offense, he is entitled to the benefit of Senate Bills 136 and 483.
On remand, the trial court is directed to strike Ware’s one-year prior prison
term enhancement resulting from drug convictions in violation of Health and
Safety Code sections 11350, subdivision (a) and 11351.5.
G. Recent Amendment to Section 654 Applies Retroactively to Simpson
Simpson asks us to remand the matter on the ground his sentence fails to
comply with the ameliorative change to former section 654. The Attorney
General concedes the new discretion afforded by Assembly Bill 518 applies and
that a remand is required. The People’s concession is proper.
At the time of Simpson’s sentencing in 2017, former section 654,
subdivision (a) required that a defendant who committed an act punishable by
two or more provisions of law be punished under the provision that provided for
the longest possible term. (Stats. 1997, ch. 410, § 1.) “As amended by Assembly
Bill 518, . . . section 654 now provides the trial court with discretion to impose
and execute the sentence of [any] term, which could result in the trial court
imposing and executing [a] shorter sentence rather than the longe[st] sentence.”
(People v. Mani (2022) 74 Cal.App.5th 343, 379.) These amendments apply
retroactively to Simpson’s nonfinal sentence. (See Ibid.) Simpson’s sentence is
vacated and the matter remanded for further proceedings, after which the trial
court may reconsider all sentencing choices.
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DISPOSITION
As to appellant Simpson, we reverse his conviction on count 9 (gang
conspiracy, § 182.5). On counts 1 through 5, we vacate the true findings on the
gang enhancement allegations (§ 186.22, subd. (b)). On counts 2 and 3, we
vacate the true findings on the gang-related firearm enhancement allegations
(§ 12022.53, subds. (b)–(d) & (e)(1)). Simpson’s sentence is vacated and the
matter is remanded to the superior court. On remand, the court is directed to
strike the unpaid balance of the $154 criminal justice fee and the People shall
decide whether to retry Simpson for gang conspiracy, the gang enhancement
allegations (§ 186.22, subd. (b)), and gang-related firearm enhancement
allegations (§ 12022.53, subds. (b)–(d) & (e)(1)). Upon determination as to the
status of count 9 and these allegations (no retrial, or retrial and final resolution)
Simpson is to be sentenced consistent with current law. In all other respects,
Simpson’s judgment is affirmed.
As to appellant Ware, on counts 1, 10, and 14, we vacate the true findings
on the gang enhancement allegations (§ 186.22, subd. (b)). On count 10, we
vacate the gang-related firearm enhancement allegations. (§ 12022.53, subds.
(b)–(d) & (e)(1)). Ware’s sentence is vacated and the matter is remanded to the
superior court. On remand, the court is directed to strike (1) the unpaid balance
of the $154 criminal justice fee and (2) Ware’s one-year prior prison term
enhancement under section 667.5, subdivision (b) for a prior prison term
resulting from drug convictions in violation of Health and Safety Code sections
11350, subdivision (a), and 11351.5. The People shall decide whether to retry
Ware on the gang enhancement allegations (§ 186.22, subd. (b)), and gang-
related firearm enhancement allegations (§ 12022.53, subds. (b)–(d) & (e)(1)).
Upon determination as to the status of these allegations (no retrial, or retrial
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and final resolution) Ware is to be sentenced consistent with current law. In all
other respects, Ware’s judgment is affirmed.
After sentencing, the clerk of the superior court shall prepare an amended
abstract of judgment for each appellant reflecting the appropriate modifications,
as set forth above, and forward it to the California Department of Corrections
and Rehabilitation.
O’ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DO, J.
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