People v. Frenes CA4/2

Filed 10/22/21 P. v. Frenes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E072198

v. (Super. Ct. Nos. BAF1701308 &
BAF1700147)
MARTIN EZEQULE FRENES,
OPINION
Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge.*

Affirmed with directions.

Richard A. Levy, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Anthony Da

Silva, Deputy Attorneys General, for Plaintiff and Respondent.

* (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.)

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 I.

INTRODUCTION

Defendant and appellant, Martin Frenes appeals from the judgment entered
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following jury convictions for first degree murder (Pen. Code, § 187, subd. (a) ; count 1)

and robbery (§ 211; count 2). The jury also found true as to count 1 that defendant

personally and intentionally discharged a firearm and proximately caused great bodily

injury and death (§ 12022.53, subd. (d)). The jury also found true as to count 1 the

special circumstances of intentionally killing a witness to prevent his testimony in a

criminal proceeding (§ 190.2, subd. (a)(10)), and intentionally killing the victim in

furtherance of the defendant’s criminal street gang (§ 190.2, subd. (a)(22); § 667.5, subd.

(a)(22)). As to count 2, the jury found true that defendant personally used a firearm (§

12022.53, subd. (b)). In a bifurcated proceeding, the trial court found true that defendant

had a prison prior and a strike prior (§§ 667, 667.5, subd. (b)). The trial court sentenced

defendant to a determinate prison term of 26 years for robbery, and a consecutive

indeterminate term of life without the possibility of parole for murder.

Defendant argues the following on appeal: (1) The trial court erred in denying his

motion to sever trial of the robbery and murder counts; (2) the court erred in denying his

request for an in camera hearing on his motion to sever; (3) the court erred in instructing

that the jury could consider an eyewitness’s level of certainty when making an

identification; (4) the court erred in admitting evidence of a jail “kite”; (5) the court failed

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Unless otherwise noted, all statutory references are to the Penal Code.

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to give sua sponte CALCRIM No. 418 on the conspiracy hearsay exception; (6) the trial

court failed to instruct on the elements of defendant’s gang’s predicate crimes, required

for finding true the gang special circumstance (§ 190.2, subd. (a)(22)); (7) there was

insufficient evidence of the gang special circumstance; (8) there was insufficient

evidence of the witness-killing special circumstance; (9) the abstract of judgment

incorrectly states defendant’s convictions were by a court trial, rather than a jury trial;

and (10) his prison prior should be stricken under Senate Bill No. 136 (2019-2020 Reg.

Sess.) (Stats. 2019, ch. 590, § 1).

We agree with the parties that section 667.5, subdivision (b), as amended by

Senate Bill No. 136, requires defendant’s one-year prison prior stricken and this matter

be remanded for resentencing. We also direct the trial court to correct the abstract of

judgment because it incorrectly states that defendant’s convictions were by a court trial,

rather than a jury trial. In all other regards, the judgment is affirmed.

II.

FACTS

A. Robbery

On January 20, 2017, at 7:50 a.m., defendant stopped at a gas station to get gas.

He was driving a silver sedan. A.E. also arrived at the gas station, and entered the gas

station store at the same time as defendant. Defendant attempted to pay for gas with a

$100 bill. The clerk ran the bill through the counterfeit detector machine, which rejected

the bill as counterfeit.

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 Defendant asked the next person in line, A.E., if he would exchange his $100 bill

for cash. A.E. had $1,995 in cash, which he intended to pay for auto repairs. A.E.

removed some cash from his wallet and gave it to defendant in exchange for the $100

bill. After paying for his gas, A.E. left to put gas in his truck. Defendant then paid for

his gas. The clerk noticed defendant had a tattoo on his chin depicting the Mayan symbol

for the number 13, consisting of two bars and three dots.

As A.E. drove home from the gas station, surveillance video showed defendant

may have followed A.E. home. Surveillance video from a nearby business showed a

truck drive past that may have been A.E.’s truck, and then a car drive past in the same

direction a few seconds later that may have been defendant’s car. About five minutes

after leaving the gas station, A.E. arrived home. As he was about to enter his home, A.E.

was surprised to see defendant arrive. Defendant pulled out a gun from his sweatshirt,

pulled the slide to chamber a bullet, pointed the gun at A.E., and said, “‘Give me your

wallet.’” Fearing for his life, A.E. complied. Without saying anything else, defendant

took the wallet and drove away. A.E. called the police. A.E. identified defendant as the

robber in a photographic lineup and in court.

B. Murder

Albert Ramirez was charged with committing murder and attempted murder of

John Moreno in April 2015. Albert and Ricardo Ramirez, who were members of the

Hemet criminal street gang, Southside Criminals (SSC), were also charged with

dissuading a witness in April 2015. In May 2015, Police Investigator Purcell, who was

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investigating the murder, interviewed Jesus Garcia, who was a member of the Perris

Maravilla gang (PMV). Jesus told Investigator Purcell that, on the night of the murder,

Albert and Ricardo drove to his house and, while Ricardo remained in the car, Albert
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tried to hand Jesus a sawed-off rifle. Albert asked Jesus to hold the gun and told Jesus,

“‘I want you to hold on to this.” “‘Hold on to this for me. It’s really hot right now.’”

Jesus explained to Investigator Purcell that the words, “‘really hot right now,’” meant the

gun had just been used to shoot someone. Jesus thus inferred from Albert’s words that

Albert had shot someone with the gun. Jesus refused to take the gun but accepted a spent

casing Albert ejected from the rifle and handed to him. Jesus tossed the casing over his

fence. Investigator Purcell later retrieved the casing. In October 2016, during the

preliminary hearing on the charges against Albert and Ricard, Investigator Purcell

testified to what Jesus had told him.

On January 23, 2017, close to midnight, H.G. awoke to the sound of a gunshot.

Within seconds, there was a second gunshot. H.G. looked out the window that faced a

house at 800 Felipe Place owned by C.B. E.C. lived in a converted garage on C.B.’s

property. E.C. was a close friend of defendant’s. Defendant sometimes visited E.C.

there. Jesus was also a friend of E.C.’s and also occasionally visited E.C.

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Investigator Purcell initially testified Ricardo asked Jesus to hold the gun and
told Jesus, “‘I want you to hold on to this,’” “‘Hold on to this for me. It’s really hot right
now.’” Investigator Purcell then stated that Albert, rather than Ricardo, was the one who
told Jesus to hold the gun and spoke to Jesus about the gun. Ricardo remained in the car.
The testimony that Albert, not Ricardo approached Jesus is consistent with Investigator
Purcell’s preliminary hearing testimony.

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 When H.G., a neighbor, looked out the window, he saw a man wearing jeans and a

black sweatshirt with the hood over his head. The man ran from the property where E.C.

lived, jumped into a Corolla, and drove away with his headlights turned off. H.G. called

911. Investigator Gomez testified he arrived at H.G.’s home within seven minutes of a

call reporting shots fired.

After speaking with H.G., Investigator Gomez contacted C.B. at his residence.

M.N., who lived with C.B., was also present. Investigator Gomez and other officers

conducted a safety sweep of the area, including C.B.’s residence and garage, to make sure

the residents were safe, because C.B.’s neighbor, H.G., told him it sounded like the shots

had come from that area. H.G. had also reported he saw someone in the area after

hearing the shots and saw a white Toyota leaving the area. No evidence of a crime was

found in C.B.’s home at that time. Investigator Gomez saw keys in the driveway but

there was no probable cause to seize them. M.N. said she had not seen the keys before.

C.B. testified that defendant, who was known as “Temper,” was E.C.’s boyfriend.

Defendant frequently visited E.C. at her residence on C.B.’s property. C.B. heard three

gunshots in close sequence emanating from the cross street near his residence. C.B.

testified he told Detective Hall, who interviewed him, that after he heard the shots, he

heard E.C. say, “Oh, Martin,” and saw E.C. talking on the phone as she rushed out of her

house. E.C. returned later that night. C.B. saw her leave again that night, with her purse.

He did not see her take anything else, although he noticed her DVR player in the garage

was gone. C.B. did not see her again for a couple of weeks.

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 M.N. testified she also heard three gunshots while in the kitchen and yelled out to

E.C., “‘Are you okay?’” After the shots, M.N. saw E.C. and, E.C.’s friend, “Dopey,” ride

bicycles out to the street.

J.C. testified that his stepson, D.R., and defendant were good friends. They were

from the same gang, SSC. D.R. was killed in November 2016. J.C. further testified that,

on January 24, 2017, around 12:30 a.m., defendant arrived at J.C.’s house, driving a

Toyota, which was an older, “little white car.” Defendant asked to shower and then said

to J.C., “‘I got to tell you something.’” Defendant said he had just shot “some fool from

Perris.” He did not say who he shot. Defendant said he had “paperwork” on the person

and that the victim was a police informant. Defendant told J.C. he was going to leave

town but did not say why.

J.C. testified that after defendant told him he had shot someone, defendant handed

J.C. an unloaded gun. Defendant did not tell him what to do with the gun. J.C. put the

gun in his truck. The gun had an ammunition clip inserted in it. While at J.C.’s house,

defendant kept looking out the window to see if anyone was coming. J.C. described him

as “paranoid.” When J.C. asked defendant, “‘What are you doing, or what happened?,’”

defendant did not say anything. Defendant did not say or do anything else while at J.C.’s

home. Defendant left at 4:30 or 5:00 a.m., in his small white car.

After defendant left, J.C. texted C.R., J.C.’s estranged wife, to let her know

defendant had just left J.C.’s house and would be gone for a while. J.C. told her this

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because defendant had said he was leaving town because he “got into something” and had

shot someone.

R.G. testified that at 5:00 or 6:00 a.m., E.C. arrived at his home on January 24,

2017, and slept at his house for a few hours. Defendant arrived later that day, looking for

her. He appeared to be in a hurry. Defendant asked R.G. what E.C. had told him.

At 7:30 a.m., on January 24, 2017, Police Detective Young noticed a black

Cadillac with its windows down, parked in front of a residence about a mile from the

residence of J.P., who lived a few houses down the street from C.B. Detective Young

conducted a license plate check, which showed Jesus was the registered owner. Fifteen

minutes later, Young responded to a call from J.P., reporting he found a body (Jesus’s)

and showed Young the body. A wallet recovered from Jesus’s body contained

identification for Jesus. J.P. told Young that he had heard arguing and then two gunshots

around midnight. He thought the arguing and gunshots came from the corner of Felipe

Place and Wright Street, where C.B.’s home was located.

On January 25, 2017, defendant was arrested for an unrelated crime of receipt of

stolen property, and was thereafter incarcerated for the robbery on January 20, 2017.

While in jail on January 25, 2017, defendant had a recorded telephone conversation with

his mother. Defendant said to her, “I need to get f---ing bailed out, like ASAP.” “I just

need you to hit up my people so that way I could get the f--- out of here. Like straight out

and never come back again, for reals.” When his mother asked what was going on,

defendant told her to “read between the lines” and that “it’s something serious.”

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“[W]orst case scenario, I’ll just be in here for the rest of my f---ing life.” “I f---ing need

to get the f--- out of here like straight up. . . . I’m gonna be gone. I’m talking gone out of

the f---ing country gone.” In response to his mother asking what he did, defendant said:

“I f---ing gave somebody a kiss in the face.” A gang expert testified this statement may

have been a reference in gang parlance to defendant shooting Jesus in the face below the

ear. Defendant also told his mother that she should contact J.C. and his wife.

While in jail on February 2, 2017, defendant called J.C. and said he needed $500

for bail. Defendant asked J.C. during the recorded telephone conversation, “you still got

that thing?” J.C. said he did, referring to the gun defendant previously handed him.

Defendant told J.C. to “try to sell that thing . . . to somebody within the circle,” referring

to selling the gun to one of defendant’s friends.

That same day, on February 2, 2017, J.P. told Investigator Alvarez that, after

hearing the gunshots from the corner of Felipe Place and Wright Street, he heard a loud

bang on the side of his house. He pointed to a damaged storm drain that might have been

struck. Investigator Alvarez looked around outside J.P.’s house and found a spent .380-

caliber casing on the side of the house.

The next day, defendant again called J.C. and again asked if he “still got the

thing.” J.C. said he did and that it was “put away.” Defendant told J.C. “I need to f---ing

sell it to get bail.” Defendant repeated that he needed J.C. to “get rid of it” so defendant

could “get bailed out.” J.C. sold the gun for $450 to his brother-in-law’s friend. Instead

of using the money for defendant’s bail, J.C. used the money to pay for his own ticket.

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 On February 10, 2017, the police told J.C. they were looking for a handgun used

in a murder. After J.C. said he did not know anything, he was arrested for gun and

marijuana possession and child endangerment. After spending the night in jail, the next

morning J.C. told the police he could get the gun. The police released J.C. to retrieve the

gun, which he did that same day. J.C. provided the .380-caliber gun to Police Detective

Hall and later pleaded guilty to being an accessory to Jesus’s murder.

Forensic evidence suggested Jesus was shot outside E.C.’s home and he managed

to get to J.P.’s backyard, a few houses down the street, where his body was found.

Investigators also found blood drops leading into J.P.’s backyard, and a .380-caliber spent

casing in front of C.B.’s residence. Jesus had entry gunshot wounds to the right side of

his face, and to the right and left sides of his back. He also had exit wounds to the right

and left sides of his chest. A bullet was removed from Jesus’s left shoulder.

The crime laboratory for ballistics analysis received the recovered .380-caliber

handgun, the spent bullet recovered from Jesus’s autopsy, and two shell casings. The

grooves and marks on the bullet and shell casings indicated the bullet and shell casings

were discharged from the handgun defendant handed to J.C.

During the trial, the prosecution introduced evidence that in 2011, law

enforcement had documented defendant as a potential member of the “Hemet Trece”

street gang and the SSC gang. His moniker was “Temper” and he had gang-related tatoos

and wore gang-related clothing. He also was observed in the SSC gang’s neighborhood

and associating with SSC member, Ricardo. Defendant was found in possession of a

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notebook that stated the words, “Temper,” “Hemet 13,” and other gang writing.

Defendant had a chin tattoo of the Mayan symbol for the number 13, which is associated

with the Sureños jail group.

A correctional officer testified that on September 18, 2018, he found a “kite”

during a search of a jail cell. The correctional officer testified that a kite is a small,

concealed piece of paper used as a message secretly passed to another inmate. It is used

by inmates as a method of communicating with each other surreptitiously. The

confiscated kite was found in the cell of an inmate who was in charge of a group of

inmates known as Sureños. The kite stated defendant was a Sureños member, his

moniker was “Temper,” and his next court appearance date was in September.

Defendant’s mother, sister, and girlfriend testified on his behalf. Defendant’s

mother testified that defendant had been friends with E.C. for about 10 years. E.C. lived

a couple of streets away from defendant’s mother’s house. Defendant’s sister stated that

E.C. was not defendant’s girlfriend. She was a friend. Defendant’s girlfriend, C.F.,

testified that she had known defendant for four years. She stated she had been with

defendant most of the time, from the middle of January 2017, until she and defendant

were arrested on January 25, 2017. They were found sleeping in a green Honda, which

they had been driving around in for a couple of days.

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 III.

MOTION TO SEVER TRIAL

Defendant contends the trial court erred in denying his motion to sever trial of the

robbery charges from trial of the murder charges. We disagree.

A. Procedural Background

The People filed separate felony complaints against defendant for robbery of A.E.

on January 20, 2017, and for the murder of Jesus on January 23, 2017. After the trial

court conducted separate preliminary hearings on the charges, the People filed separate

informations. On November 1, 2018, four weeks before defendant’s trial began on

November 27, 2018, the prosecution moved to consolidate the two cases because the

cases involved crimes committed within three days of each other, and the gang and gun

evidence was cross-admissible.

Anticipating the court would consolidate the cases, defendant requested severance

of the cases, if joined (motion to sever), on grounds of gross unfairness and undue

prejudice. Defendant argued he would be prejudiced by joining the “strong” robbery case

with the weak murder case. Defendant also argued the jury in the robbery case would be

inflamed by evidence of the gang charges in the murder case.

On November 27, 2018, the court heard and took under submission the motions to

consolidate and sever. Two days later, the court adopted its tentative ruling granting the

People’s motion to consolidate the robbery and murder cases, and denying defendant’s

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 3
motion to sever. The court explained that consolidation was proper because the robbery

and murder were the same class of crime. They were both assaultive crimes with

firearms. Therefore, defendant had the burden of showing consolidation presented a

substantial danger of undue prejudice.

The court found defendant had not established sufficient prejudice for severance.

The court noted a finding of cross-admissibility of evidence was no longer required under

section 954.1. However, the court found there was cross-admissibility of evidence,

which dispelled any issue of prejudice. The court stated that gang evidence was cross-

admissible, and the robbery and murder, which were committed within a few days of

each other, may have been committed with the same gun. The court further concluded

that a weak case was not being joined with a strong case. The court believed both cases

were strong. In addition, the court stated that both the robbery and murder offenses had

inflammatory elements. The trial court noted the preference was for joint trials, and

defendant had not made a clear showing of a danger of undue prejudice, required for

severance.

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It appears the two minute orders dated November 29, 3018, incorrectly indicate
that both the motion to consolidate and motion to sever were denied, whereas the
reporter’s transcript states the motion to consolidate was granted and the motion to sever
was denied.

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 B. Applicable Law

Section 954 states regarding consolidation and severance that “[a]n accusatory

pleading may charge . . . two or more different offenses of the same class of crimes or

offenses, under separate counts, and if two or more accusatory pleadings are filed in such

cases in the same court, the court may order them to be consolidated. . . . [T]he

defendant may be convicted of any number of the offenses charged . . . ; provided, that

the court in which a case is triable, in the interests of justice and for good cause shown,

may in its discretion order that the different offenses or counts set forth in the accusatory

pleading be tried separately . . . .” (Italics added.)

Under section 954.1, “[i]n cases in which two or more different offenses of the

same class of crimes or offenses have been charged together in the same accusatory

pleading, or where two or more accusatory pleadings charging offenses of the same class

of crimes or offenses have been consolidated, evidence concerning one offense or

offenses need not be admissible as to the other offense or offenses before the jointly

charged offenses may be tried together before the same trier of fact.” (Italics added.)

The California Supreme Court has construed the words, “‘same class of crimes or

offenses,’” within the meaning of section 954 as “‘“offenses possessing common

characteristics or attributes.”’” (People v. Kemp, supra, 55 Cal.2d at p. 476.) Robbery

and murder are offenses of the “same class of crimes or offenses,” because both are

assaultive crimes against the person, with many attributes in common. As such, the

offenses were joinable under section 954. (§ 954; see also People v. Miller (1990) 50

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Cal.3d 954, 986-987; People v. Thomas (1990) 219 Cal.App.3d 134, 140.) Where it is

undisputed that the statutory requirements for joinder are met, the defendant can

predicate error only on a clear showing of prejudice. (People v. Thomas, supra, at pp.

140-141.)

The determination of prejudice is dependent on the particular circumstances of

each individual case. (People v. Memro (1995) 11 Cal.4th 786, 850 (Memro).) Criteria

supporting severing charges qualifying for consolidation, based on prejudice include: (1)

evidence of the crimes to be jointly tried would not be cross-admissible; (2) among the

consolidated charges are charges that are unusually likely to inflame the jury against the

defendant; (3) “a ‘weak’ case has been joined with a ‘strong’ case, or with another ‘weak’

case, so that the ‘spillover’ effect of aggregate evidence on several charges might well

alter the outcome of some or all of the charges.” (People v. Sandoval (1992) 4 Cal.4th

155, 172-173, affirmed in Victor v. Nebraska (1994) 511 U.S. 1; see also Memro, supra,

at p. 850; People v. Thomas (2012) 53 Cal.4th 771, 799-800.)

“The criteria listed in Sandoval should not be misunderstood as being equally

significant, however. ‘[T]he first step in assessing whether a combined trial [would have

been] prejudicial is to determine whether evidence on each of the joined charges would

have been admissible, under Evidence Code section 1101, in separate trials on the others.

If so, any inference of prejudice is dispelled.’” (Memro, supra, 11 Cal.4th at p. 850; see

also People v. Armstrong (2016) 1 Cal.5th 432, 456 [existence of cross-admissible

evidence “‘alone is normally sufficient to dispel any suggestion of prejudice and to

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justify a trial court’s refusal to sever properly joined charges’”].) “Cross-admissibility

suffices to negate prejudice, but it is not needed for that purpose. Although ‘“we have

held that cross-admissibility ordinarily dispels any inference of prejudice, we have never

held that the absence of cross-admissibility, by itself, sufficed to demonstrate prejudice.”’

(Memro, supra, at p. 850, quoting People v. Sandoval, supra, 4 Cal.4th at p. 173; see also

§ 954.1, enacted June 5, 1990 [codifying rule that cross-admissibility is not required for

consolidation]; People v. Miller, supra, 50 Cal.3d at p. 987; People v. Cunningham

(2001) 25 Cal.4th 926, 985.)

This court must consider “the record before the trial court when it made its

ruling.” (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) We review the trial

court’s ruling granting consolidation and denying severance based on the abuse of

discretion standard of review. (Memro, supra, 11 Cal.4th at p. 850.)

C. Denial of Severance Was Proper

It is undisputed the statutory requirements for joinder of the robbery and murder

cases were met in this case. The robbery and murder offenses are of “the same class of

crime” within the meaning of section 954, because they possess common characteristics

or attributes. (People v. Kemp (1961) 55 Cal.2d 458, 476.) They are both assaultive

crimes involving firearms. Because consolidation of the robbery and murder cases was

proper under section 954, defendant can predicate error only on a clear showing of

substantial danger of undue prejudice. (People v. Thomas, supra, 219 Cal.App.3d at pp.

140-141.)

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 Defendant has not demonstrated prejudice sufficient to mandate severance of the

properly joined robbery and murder charges. The prosecution demonstrated that there

was material cross-admissible evidence. Such evidence included gang evidence in both

cases, and gun evidence that both crimes may have been committed by the same gun. In

addition, the trial court reasonably concluded defendant had not met his burden of

showing prejudice based on joining a strong case with a week case. The trial court

concluded that both the robbery case and murder case were strong cases, such that there

would not be a prejudicial “spillover” effect on either case. During the hearing on

consolidation and severance, defendant conceded the robbery case was a strong case.

Defendant argues, however, that the murder case was a weak case because there was no

evidence of anyone observing defendant at the scene of the murder or witnessing

defendant shoot Jesus. We conclude the trial court reasonably concluded there was no

significant risk of an unjustified conviction based on the spillover effect. The facts

presented in the parties’ written motions and opposition, and oral argument during the

hearings on the motions were sufficient to support the trial court’s determination that the

murder case against defendant was strong, as was the robbery case. Defendant

acknowledged in his factual summary in opposition to consolidation that “the main

evidence against the Defendant is that the Defendant gave a witness a gun to hide that

was later recovered and matched the shell casings found at the scene. The witness [J.C.]

claims the Defendant admitted the shooting to him and that the Defendant murdered Mr.

[Jesus] because he was a snitch.” We thus reject defendant’s contention the murder case

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was weak. There was strong evidence implicating him in Jesus’s murder, as well as in

the robbery.

In addition, it was unlikely the evidence in one of defendant’s cases would inflame

the jury against him in his other case. The robbery case included gang evidence and

evidence that defendant robbed a good Samaritan who kindly gave him change. The

murder case involved a gang-related killing of a police informant. The trial court

reasonably concluded that any inflammatory evidence in either of the cases was not

significantly disparate, and therefore severance was not required. (Memro, supra, 11

Cal.4th at p. 851.)

In denying severance, the trial court correctly noted the preference is for joint

trials. (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1220 [“because consolidation or

joinder of charged offenses ordinarily promotes efficiency, that is the course of action

preferred by the law”].) Here, consolidation and denial of severance was not an abuse of

discretion because defendant did not meet his burden of making a clear showing of

potential prejudice or demonstrate that denying severance would result in gross

unfairness.

D. Denial of an In Camera Hearing on Defendant’s Severance Motion

Defendant contends the trial court abused its discretion by denying his request for

an in camera hearing on his motion for severance of the robbery and murder charges. In

his motion to sever, defendant requested the trial court to hear his motion in camera, out

of the presence of the prosecution, to avoid disclosing to the prosecution attorney work

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product and his defense strategy, which included whether defendant would testify and, if

so, the anticipated content of his testimony and reasons he should not testify in both

cases.

After the court granted consolidation and denied severance of the robbery and

murder cases, the court explained that defendant’s request for an in camera review of his

motion to sever was denied because, under People v. Montes (2014) 58 Cal.4th 809, 833

(Montes), an in camera hearing was discretionary and not required. The trial court

concluded the prosecution had a right to have counsel present during the hearing, and

excluding the prosecutor would be extremely prejudicial. The court added that the

“defense did not vigorously press for an in camera hearing.” In addition, the court

concluded it was not likely defendant would testify in one case and not in the other. The

court noted that defendant needed to testify to explain his recorded jail phone

conversations in the murder case. He also had an incentive to testify in the robbery case

as to his robbery alibi, to explain his whereabouts. The trial court thus reasonably denied

severance, concluding that defendant had an equal incentive to testify in both the murder

and robbery cases.

Defendant argues that the trial court failed to take into account the specific

circumstances of the case which supported an in camera hearing. Defendant asserts that

the trial court was aware he wanted to testify at all on one count but not on the other.

Therefore he would not have been able to testify if the robbery and murder cases were

consolidated. Citing People v. Thomas, supra, 53 Cal.4th at page 800, defendant argues

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that under such circumstances, the robbery and murder cases should not have been

consolidated.

In Thomas, supra, 53 Cal.4th 771 the court stated that “severance is not required

on such grounds unless the defendant makes a showing that ‘“‘he has both important

testimony to give concerning one count and [a] strong need to refrain from testifying on

the other.’”’ [Citations.] The showing must be specific enough to permit the court to

‘weigh the considerations of economy and expedient judicial administration against the

defendant’s interest in having a free choice with respect to testifying.’ [Citation.]” (Id. at

p. 800.) In People v. Sandoval, supra, 4 Cal.4th at page 173, the court held that the

defendant’s showing required for a severance was insufficient “because he merely made a

‘passing reference’ to the circumstance that he wanted to testify in one case and not the

other, and did not explain the nature of the testimony he wanted to give in the one case or

his reasons for not wanting to testify in the other.”

Here, defense counsel merely indicated that defendant might wish to testify in one

case but not the other. He made no offer of proof as to what the testimony might be or

why he did not wish to testify in the other case. Defendant merely requested an in

camera hearing without providing any specific information as to why it was necessary in

weighing the considerations favoring joinder against defendant’s interest in having a free

choice with respect to testifying. (People v. Sandoval, supra, 4 Cal.4th at p. 174; People

v. Thomas, supra, 53 Cal.4th at p. 800.) Defendant argues the trial court prevented him

from providing specific information as to why severance was necessary by denying his

20
request for an in camera hearing. Defendant did not sufficiently demonstrate an in

camera hearing was necessary.

In Montes, supra, 58 Cal.4th at page 833, the prosecutor objected to the trial court

considering the defendant’s declarations submitted under seal in support of his motion to

sever his trial from all other codefendants. The defendant argued the court should review

the declarations in camera. After a hearing on the issue, the trial court sustained the

prosecutor’s objection to the sealed declarations. It reasoned that “the People’s due

process rights were implicated in the severance motions, and that, if it were to consider

the sealed declarations in camera, the People would have no effective way of representing

their substantial interest in the determination of the motions.” (Ibid.)

On appeal, the defendant in Montes argued that the trial court erred in failing to

fulfill its obligation to consider all available evidence relevant to the severance motions.

The Montes court disagreed, holding that the trial court properly denied severance on the

ground the court had sufficient information to make an informed ruling without

considering defendant’s sealed declarations. (Montes, supra, 58 Cal.4th at p. 834.) The

Montes court explained: “In the absence of any law requiring a trial court to accept an in

camera offer of proof for a severance motion, we conclude the trial court’s decision to

permit or not permit such an offer is within the trial court’s discretion. [Citation.] We

have found no abuse of discretion in the trial court’s ruling in this case. Defendant’s

claim that the trial court was unable to make an informed ruling on the merits of his

motions without considering the sealed declarations is belied by the record. At the

21
hearing on the motions, defense counsel discussed the relevant information raised in the

sealed declarations.” (Ibid.)

Defendant argues that in the instant case he could not make the requisite showing

without an in camera hearing. He asserts that, if he had revealed in open court the

information supporting severance, the prosecutor would have gained an unfair advantage

that would have been devastating to his defense. Defendant further asserts the trial court

had no valid basis for assuming it had sufficient information to rule on the motion to

sever without holding an in camera hearing. But, as the moving party on severance, it

was defendant’s burden to present sufficient information to demonstrate that an in camera

hearing was necessary to establish severance should be granted. Defendant failed to do

so. Merely providing a general statement that defendant might testify in one case and not

in the other was insufficient to require the trial court to hold an in camera hearing, outside

the presence of the prosecution. The record shows that the trial court was able to make

an informed ruling on the motion to sever, and defendant did not demonstrate the need or

justification for holding an in camera hearing excluding the prosecutor from the hearing.

Defendant cites Taylor v. Singletary (11th Cir. 1997) 122 F.3d 1390, for the

proposition the trial court erred in denying his request for an in camera hearing. The

court in Taylor held that denying the defendant’s request to be tried after the co-

defendant deprived the defendant of exculpatory testimony by a material witness, in

violation of his right to present a defense and to a fair trial. (Id. at pp. 1391, 1395.)

Taylor is distinguishable. In Taylor the court granted severance but denied the

22
defendant’s request to have his case tried after the co-defendant’s case. (Id. at p. 1392.)

The instant case does not involve a codefendant refusing to testify on fifth amendment

grounds, resulting in depriving the defendant of exculpatory testimony. Even though the

case was not severed, defendant was not prevented from testifying on his own behalf.

Defendant also did not demonstrate he would have actually testified in one of the two

cases had the court severed the charges. In addition, there was no showing that his

decision not to testify in the consolidated trial was prejudicial. Furthermore, the court in

Taylor did not hold that foregoing an in camera hearing was error. Therefore,

defendant’s reliance on Taylor is misplaced, and we conclude the trial court did not abuse

its discretion in not holding an in camera hearing.

IV.

INSTRUCTION ON EYEWITNESS IDENTIFICATION

The court instructed the jury with CALCRIM No. 315, which told the jury to

consider 15 factors when evaluating a witness’s accuracy in identifying the defendant.

One of the factors stated in the instruction was: “How certain was the witness when he or

she made an identification?” Defendant argues that this identification certainty factor

unfairly tipped the scales in favor of the jury finding A.E.’s identification of defendant

was accurate, thus inculpating defendant and lowering the prosecution’s burden of proof,

in violation of defendant’s due process rights.

Shortly before oral argument the California Supreme Court decided People v.

Lemcke (2021) 11 Cal.5th 644 (Lemcke). In Lemcke, our high court rejected the

23
defendant’s due process challenge to the certainty factor in CALCRIM No. 315. (Id. at p.

646.) Lemcke held that, because the identification certainty factor is one of 15 factors the

jury was told to consider when evaluating identification testimony, the instruction “did

not render [the defendant’s] trial fundamentally unfair or otherwise amount to a due

process violation.” (Id. at p. 661.)

The court in Lemcke acknowledged that, “Contrary to widespread lay belief, there

is now near unanimity in the empirical research that ‘eyewitness confidence is generally

an unreliable indicator of accuracy.’ [Citations.]” (Lemcke, supra, 11 Cal.5th at p. 647.)

Lemcke further stated that, “[a]s currently worded, CALCRIM No. 315 does nothing to

disabuse jurors of that common misconception, but rather tends to reinforce it by

implying that an identification is more likely to be reliable when the witness has

expressed certainty.” (Id. at p. 647.) Despite holding there was no due process violation,

the Lemcke court found that reevaluation of the certainty instruction was warranted and

directed trial courts to omit this factor from CALCRIM No. 315 pending further

clarification from the Judicial Council and its Advisory Committee on Criminal Jury

Instructions. (Id. at p. 669.)

During oral argument, defense counsel argued that Lemcke is factually

distinguishable and therefore not controlling. Defense counsel asserted that in Lemcke,

the issue of identification certainty was only a minimal part of the case whereas the

instant case turned entirely on the victim’s certitude that he accurately identified

defendant. While we recognize Lemcke is factually distinguishable, we disagree that

Lemcke is not controlling here.

24
 As in Lemcke, the trial court’s instruction did not deny defendant the opportunity

to challenge the accuracy of A.E.’s identification of defendant, but merely advised the

jury that certainty was one of many factors to be considered in evaluating identification

testimony. (Lemcke, supra, 11 Cal.5th at p. 657; People v. Sánchez (2016) 63 Cal.4th

411, 462.) CALCRIM No. 315 also explicitly advised the jury that the prosecution had

the burden of proving the perpetrator’s identity beyond a reasonable doubt. (CALCRIM

No. 315 [“The People have the burden of proving beyond a reasonable doubt that it was

the defendant who committed the crime. If the People have not met this burden, you

must find the defendant not guilty”].) When considered “‘in the context of the

instructions as a whole and the trial record’” (People v. Foster (2010) 50 Cal.4th 1301,

1335), we conclude that including the identification certainty factor as one of 15 factors

the jury should consider when evaluating an eyewitness identification did not render

defendant’s trial fundamentally unfair or otherwise amount to a due process violation.

(Lemcke, supra, at p. 661.)

Even if the trial court erred in giving the identification instruction, there was no

prejudicial error. The defense was founded on an alibi, not the accuracy of A.E.’s

identification of defendant, and there was substantial evidence tying defendant to the

charged crimes, including A.E.’s testimony he was certain defendant robbed him; A.E.’s

testimony the person who robbed him at home was the same person that exchanged

money with him at the gas station; testimony by the gas station clerk, M.M., who stated

she noticed defendant had a chin tattoo of two bars and three dots, signifying the number

13; M.M.’s testimony identifying defendant in a photograph; a video from a business on

25
A.E.’s drive home, which showed A.E’s truck and a silver sedan that looked like the

same car in the gas station video screenshot; A.E.’s testimony he saw the silver sedan

arrive at his home and defendant pulled out a gun and told A.E., “Give me your wallet”;

and during a police photo lineup, A.E. identified defendant’s photo as the person who

robbed him.

We conclude the identification certainty factor did not result in prejudicial error or

violate defendant’s due process rights. (Lemcke, supra, 11 Cal.5th at p. 669 [defendant

failed to establish that the certainty factor “violated his due process rights or otherwise

constituted error under the circumstances” of the trial as a whole]; People v.

Sánchez, supra, 63 Cal.4th at p. 462 [discerning no prejudice to the defendant in light of

the overall strength of the evidence and because the instruction did not equate certainty

with accuracy]; People v. Wright (1988) 45 Cal.3d 1126, 1144-1145 [any error in failing

to give the instruction requested by the defense on eyewitness factors was harmless in

light of the overall strength of the evidence].)

V.

ADMISSIBILITY OF JAIL “KITE” EVIDENCE

Defendant contends the trial court abused its discretion by allowing evidence of a

jail “kite.” Defendant argues the kite was inadmissible hearsay evidence and

inadmissible under Evidence Code section 352, as more prejudicial than probative. The

People argue the kite evidence was admissible hearsay as a statement showing

defendant’s criminal conspiracy activities within the jail. The People further argue any

26
error was harmless because the kite was properly relied on by the gang expert to

formulate his opinion that defendant was an SSC gang member at the time of the charged

offenses.

A. Background Facts

The People filed a motion in limine requesting to introduce gang evidence, which

included a writing or note referred to as a “kite.” During a section 402 hearing to

establish foundation for introducing the evidence at trial, Correctional Deputy Gonzalez

explained that a kite is a surreptitious message communicated between two inmates,

written on a small piece of paper. The kite the People sought to introduce at trial

consisted of a roster of jail inmates who were members of a jail inmate group known as

the “Sureños.” The Sureños consisted of Hispanic inmates, most of whom belonged to

various Southern California Hispanic street gangs.

Within the jail, the Sureños committed assaults, extortion, and drug dealing. The

chief or leader of the Sureños group at the jail was referred to as the “keyholder.” On

September 19, 2018, jail correctional officers found the subject kite in the keyholder’s

jail cell. The kite provided the keyholder with information he could use to pass

contraband or initiate an assault in court or at other facilities.

As with others listed on the roster, defendant’s name, moniker (Temper), name of

his street gang, booking number, and his next court date were stated on the kite roster.

The kite also stated at the bottom of the roster, a note that “The homie who is assisting

me is Temper.”

27
 Defendant moved to exclude the kite under Evidence Code section 352 and on the

ground it was inadmissible hearsay. The prosecutor argued the kite was relevant and

admissible under the conspiracy hearsay exception. The prosecutor added the kite was

relevant as gang evidence and would be relied upon by the prosecution’s gang expert.

Defense counsel argued it had nothing to do with the charges against defendant and

merely consisted of a list of Hispanic inmates and their gang affiliations. The trial court

ruled the kite was admissible because it was relevant and subject to the conspiracy

hearsay exception.

During the trial, supervising Probation Officer Goodwyn testified that in 2013,

while on the Hemet gang task force, he had contact with defendant and Ricardo during a

traffic stop. Based on Goodwyn’s conversation with Ricardo and observation of Ricard’s

gang-related tattoos, he concluded Ricardo was a member of the SSC gang. Riverside

Sheriff’s Deputy Rutigliano testified that he also participated in a gang task force, from

2012 to 2016. He was with Goodwyn in 2013, when Ricardo and defendant were pulled

over for a traffic stop. Rutigliano interviewed defendant at that time and had multiple

other contacts with him as well. Rutigliano testified that he documented defendant as

belonging to the SSC gang, Hemet 13, based on defendant associating with Ricardo,

defendant’s gang-related tattoos, and the area where defendant and Ricardo were stopped.

Correctional Deputy Gonzalez informed the jury as to what a kite was and that the

Sureños group was an inmate alliance of Hispanic criminal street gang members. While

incarcerated, the Sureños inmates contributed to a majority of the assaults. The

28
prosecution’s gang expert, senior investigator for the County of Riverside District

Attorney’s Office, Hemet Police Officer David Hankins, testified that the kite identified

the criminal street gang and neighborhood defendant was from. In addition, the kite

information contained a message indicating defendant was the keyholder’s “right-hand

man,” which indicated defendant was a member in good standing of a criminal street

gang. Officer Hankins stated that, in his opinion, defendant was a member of the SSC

gang at the time of the charged crimes, based on the totality of the evidence, including the

kite.

B. Hearsay

Hearsay evidence is generally inadmissible unless a hearsay exception applies.

(Evid. Code, §§ 1200, 1201.) Hearsay statements by coconspirators may be admitted

against a party under the coconspirator hearsay exception “if, at the threshold, the

offering party presents ‘independent evidence to establish prima facie the existence of . . .

[a] conspiracy.’ [Citations.] Once independent proof of a conspiracy has been shown,

three preliminary facts must be established: ‘(1) that the declarant was participating in a

conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the

objective of that conspiracy; and (3) that at the time of the declaration the party against

whom the evidence is offered was participating or would later participate in the

conspiracy.’” (People v. Hardy (1992) 2 Cal.4th 86, 139, quoting People v. Leach, 15

Cal.3d 419, 430-431, fn. 10; accord, Evid. Code, § 1223.) We apply the abuse of

29
discretion stand of review to whether the trial court erred in allowing the kite evidence.

(People v. Sanders (1995) 11 Cal.4th 475, 516.)

Defendant argues the kite is inadmissible hearsay because he did not write the kite

note and there was no evidence he adopted its contents. Furthermore, defendant argues

the conspiracy hearsay exception does not apply because there was no corroborating

evidence, apart from the kite, of an ongoing conspiracy when the kite statement was

made or that defendant was a Sureños member, active in a Sureños conspiracy to commit

crimes. Defendant also asserts there was no evidence the conspiracy had any bearing on

the charged crimes, which occurred two years before the kite was found.

The People argue there was sufficient corroborating evidence to establish a prima

facie case that the Sureños were conspiring to commit crimes within the jail. We agree.

Deputy Gonzalez’s testimony provided corroborating independent evidence of the

conspiracy. Such testimony included his statements that the Sureños consisted of an

alliance of Hispanic inmates affiliated with various gangs; the Sureños inmates

committed crimes within the jail, including extortion, drug possession and distribution,

and assaults; the inmate who sent the kite was in the same housing unit as defendant; the

kite was sent to the jail keyholder; defendant’s name was on the kite roster of inmates;

and kites were used by the Sureños to communicate surreptitiously, in furtherance of

committing illegal activities within the jail.

This evidence was sufficient to meet the requisite threshold required for the

conspiracy hearsay exception. There was sufficient evidence establishing that “‘(1) that

30
the declarant was participating in a conspiracy at the time of the declaration; (2) that the

declaration was in furtherance of the objective of that conspiracy; and (3) that at the time

of the declaration the party against whom the evidence is offered [defendant] was

participating or would later participate in the conspiracy.’” (People v. Hardy, supra, 2

Cal.4th at p. 139, quoting People v. Leach, supra, 15 Cal.3d at pp. 430-431, fn. 10;

accord, Evid. Code, § 1223.) Deputy Gonzalez’s testimony and the kite established these

elements. Defendant’s name was on the kite, along with his gang affiliation, the message

at the bottom of the kite indicated defendant was closely involved in Sureños activities,

as the keyholder’s “right-hand man,” and the kite was used by the Sureños in furtherance

of committing jail crimes.

C. Kite Admissibility Under Evidence Code Section 352

Defendant argues that even if the conspiracy hearsay exception applies, the kite

evidence was inadmissible under Evidence Code section 352 as unduly prejudicial, with

little, if any probative value. Defendant asserts the evidence was not relevant to a

disputed issue and was unnecessarily cumulative evidence of his SSC gang membership.

Defendant further argues that evidence he may have been a Sureños member was

irrelevant because the gang special circumstance allegation against him (§ 186.22)

alleged he intentionally killed the victim while an active participant in the SSC gang, not

the Sureños. Defendant notes that the Sureños is a jail organization, not a criminal street

gang under section 186.22, subd. (f). In addition, defendant argues the kite was found

almost two years after the charged crimes and thus did not establish defendant’s gang

31
member status at the time of the charged crimes. As to the prejudicial impact of the kite,

defendant argues it suggests he was deeply involved with the Sureños, which tended to

show he was a hardened criminal, with a propensity to commit violent crimes, and

therefore should not be released.

The admissibility of the kite evidence turns on two components: “(1) whether the

challenged evidence satisfied the ‘relevancy’ requirement set forth in Evidence Code

section 210, and (2) if the evidence was relevant, whether the trial court abused its

discretion under Evidence Code section 352 in finding that the probative value of the

[evidence] was not substantially outweighed by the probability that its admission would

create a substantial danger of undue prejudice.” (People v. Scheid (1997) 16 Cal.4th 1,

13.)

“We have recognized that admission of evidence of a criminal defendant’s gang

membership creates a risk the jury will improperly infer the defendant has a criminal

disposition and is therefore guilty of the offense charged. [Citations.] As defendant

points out, evidence of a defendant’s criminal disposition is inadmissible to prove he

committed a specific criminal act. (Evid. Code, § 1101.) Moreover, even where gang

membership is relevant, because it may have a highly inflammatory impact on the jury,

trial courts should carefully scrutinize such evidence before admitting it.” (People v.

Williams (1997) 16 Cal.4th 153, 193.)

The kite was relevant and had probative value in showing that defendant was an

SSC gang member. A reasonable inference could be made from the kite evidence that

32
defendant was an active SSC member at the time he committed the charged murder.

Defendant’s active SSC membership at the time of the charged murder was, in turn,

relevant to establishing his motive for the murder and the special circumstance gang

allegation.

Although there was other evidence of defendant’s SSC gang membership, the trial

court did not abuse its discretion in concluding the probative value of the kite evidence

outweighed its prejudicial nature. “Although no bright-line rules exist for determining

when evidence is cumulative, we emphasize that the term ‘cumulative’ indeed has a

substantive meaning, and the application of the term must be reasonable and practical.”

(People v. Williams (2009) 170 Cal.App.4th 587, 611.) Here, it was not an abuse of

discretion to admit cumulative evidence concerning defendant’s gang membership

because it was relevant to a key element of his murder charge and special circumstance

allegation, and did not constitute excessive gang evidence. (Ibid. [“The sheer volume of

evidence extended the trial—and the burden on the judicial system and the jurors—

beyond reasonable limits, and the endless discussions among the trial court and counsel

concerning the admissibility of such evidence amounted to a virtual street brawl.”])

Although the probative value of the evidence was minimal because there was other

gang evidence, the kite evidence was also minimally prejudicial for the same reason. The

trial court therefore did not err in allowing the kite evidence to show defendant was an

SSC member.

33
 Furthermore, even if the trial court abused its discretion under Evidence Code

section 352 in allowing the kite evidence, the introduction of the kite evidence was

harmless error because it was not any more inflammatory than the other evidence

introduced during his trial, and was not heavily relied upon, if at all, by either party

during closing argument. In addition, there was strong evidence of defendant’s guilt.

Admission of the kite evidence was therefore harmless error because it is not reasonably

probable that the outcome of the trial would have been more favorable to defendant had

the kite evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)

VI.

CALCRIM No. 418

Defendant contends the trial court erred in failing to give the coconspirator jury

instruction, CALCRIM No. 418, instructing the jury to disregard the kite evidence unless

they found specified prerequisites to admissibility of the evidence. He argues the

instruction was required because the trial court permitted the kite hearsay evidence based

on the conspiracy hearsay exception under Evidence Code section 1223. Defendant was

not charged with conspiracy and neither party requested any instruction on conspiracy,

including CALCRIM No. 418.

CALCRIM No. 418 states that, in deciding whether the People have proved that

the defendant committed any of the charged crimes, the jury may not consider any

statement made out of court by a coconspirator unless the People have proved by a

preponderance of the evidence that: “1. Some evidence other than the statement itself

34
establishes that a conspiracy to commit a crime existed when the statement was made;

[¶] 2. [The coconspirator] . . . was . . . a . . . member[] of and participating in the

conspiracy when (he/she/they) made the statement; [¶] 3. [The coconspirator] made the

statement in order to further the goal of the conspiracy; [¶] AND [¶] 4. The statement

was made before or during the time that [the defendant] . . . was . . . participating in the

conspiracy.”

The CALCRIM No. 418 Bench Notes, entitled “Instructional Duty,” state that

“[t]he court has a sua sponte duty to instruct on the use of a coconspirator’s statement to

incriminate a defendant if the statement has been admitted under Evidence Code section

1223. [Citations.] [¶] The court must also give either CALCRIM No. 415, Conspiracy,

or CALCRIM No. 416, Evidence of Uncharged Conspiracy, with this instruction.”

CALCRIM No. 416, entitled, “Evidence of Uncharged Conspiracy,” states in part:

“The People have presented evidence of a conspiracy. A member of a conspiracy is

criminally responsible for the acts or statements of any other member of the conspiracy

done to help accomplish the goal of the conspiracy.” The instruction further states the

elements which must be proven to establish that a defendant was a member of a

conspiracy in this case. The “Instructional Duty,” Bench Notes for CALCRIM No. 416,

state: “The court has a sua sponte duty to give this instruction when the prosecution has

not charged the crime of conspiracy but has introduced evidence of a conspiracy to prove

liability for other offenses or to introduce hearsay statements of coconspirators.”

35
 These jury instructions and Bench Notes indicate that normally the court is

required sua sponte to provide these conspiracy-related instructions when hearsay

evidence is introduced under the conspiracy hearsay exception (Evid. Code, § 1223). In

the instant case neither party requested the instructions and the trial court did not give

them. Defendant argues the court should have given CALCRIM No. 418, instructing the

jurors that they could not consider the kite evidence unless they found the requisite

underlying conspiracy elements. Defendant asserts that had the trial court given the jury

the instruction, the jury would have found there was insufficient evidence of conspiracy

and thus would not have considered the kite evidence. Defendant further concludes that,

because the jury considered the kite evidence, the jury drew highly prejudicial inferences

about defendant’s character. Such inference, defendant argues, included that he was a

violent, hardened criminal, who had a propensity to commit violent crimes and thus

should be incarcerated, regardless of whether the evidence was sufficient to convict him

of robbery and murder.

We conclude that, even assuming CALCRIM No. 418 should have been given,

any such error in doing so was harmless error. Giving the coconspirator instruction,

CALCRIM No. 418, or other conspiracy instructions likely would have confused the

jury because defendant was not charged with conspiracy. It is also probable the

conspiracy instruction would not have benefitted defendant because instructing on

conspiracy would have drawn the jury’s attention to defendant’s nefarious activities in

jail.

36
 Defendant notes in his reply brief that the prosecutor argued during the trial that

the kite referred to defendant being part of a conspiracy with the Sureños. But this

argument occurred out of the presence of the jury, during the hearing on admissibility of

the kite. The prosecutor stated that he had offered to lay a foundation outside the

presence of the jury to establish the conspiracy, which would require the gang

investigation unit officer to testify about the Sureños’s activities within the jail and how

the kite furthered such activities. The prosecutor added that he did not think it was

necessary to discuss in the jury’s presence the Sureños’s crimes committed in the jail.

The prosecutor said he only wanted to lay a minimal foundation for the conspiracy

hearsay exception outside the presence of the jury. This was done during an Evidence

Code section 402 hearing, during which the trial court ruled the kite evidence was

admissible under the conspiracy hearsay exception.

The record shows that any prejudicial impact of the kite evidence was minimized

by not instructing on conspiracy or giving CALCRIM No. 418, and by the prosecution

not focusing on the kite evidence or related conspiracy during closing argument. We

conclude it was not reasonably probable the trial outcome would have been more

favorable to defendant had CALCRIM No. 418 been given. Therefore, any error in not

giving CALCRIM No. 418 was harmless error. (People v. Prieto (2003) 30 Cal.4th 226,

249, 251-252; People v. Watson, supra, 46 Cal.2d at p. 836.)

VII.

CUMULATIVE ERROR

37
 Defendant contends that the errors raised in his appellate opening brief, discussed

above, amount to cumulative prejudicial error. Issues 1 and 2 (section III of this opinion)

concern consolidation and severance of the robbery and murder cases, and denial of an in

camera hearing on defendant’s motion to sever. Issue 3 (section IV of this opinion)

concern whether the eyewitness identification instruction was proper. Issues 4 and 5

concern the admissibility of the kite evidence and instruction on conspiracy and

admissibility of the kite evidence (sections V and VI of this opinion). Defendant argues

that even if these asserted errors were not, standing alone, sufficient to require reversal of

defendant’s conviction, their cumulative impact requires reversal. We disagree.

“In theory, the aggregate prejudice from several different errors occurring at trial

could require reversal even if no single error was prejudicial by itself.” (In re Reno

(2012) 55 Cal.4th 428, 483.) Here, we did not find multiple prejudicial errors. (People v.

Williams (2013) 56 Cal.4th 165, 201.) There was no error as to issues 1 through 4. As to

issue 5, we concluded that, regardless of whether there was error in not instructing the

jury on admissibility of the kite evidence and conspiracy, such error was harmless and

may have even benefited defendant. “We have either rejected on the merits defendant’s

claims of error or have found any assumed errors to be nonprejudicial.” (People v. Sapp

(2003) 31 Cal.4th 240, 316.) We thus reject defendant’s cumulative error contention,

there being no cumulative prejudicial error supporting reversal. Defendant has had a fair

trial and no miscarriage of justice has resulted. (Pinter-Brown v. Regents of University of

California (2020) 48 Cal.App.5th 55, 100.)

38
 VIII.

INSTRUCTION ON DEFENDANT’S GANG’S PRIMARY ACTIVITIES

Defendant contends the trial court erred in failing to instruct the jury on the

elements of the predicate crimes qualifying as primary activities of the SSC gang.

Defendant asserts the trial court thus failed to instruct on each element of the gang special

circumstance.

The jury found true the gang special circumstance (§ 190.2, subd. (a)(22)), which

authorizes a defendant to be sentenced to “death or imprisonment in the state prison for

life without the possibility of parole” if “[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 [s]ection 186.22, and the murder was carried out to further the

activities of the criminal street gang.” (§ 190.2, subd. (a)(22).)

Subdivision (f) of section 186.22, defines a “criminal street gang” as “any ongoing

organization, association, or group of three or more persons, whether formal or informal,

having as one of its primary activities the commission of one or more of the criminal acts

enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision

(e), having a common name or common identifying sign or symbol, and whose members

individually or collectively engage in, or have engaged in, a pattern of criminal gang

activity.”

The trial court instructed the jury on the special circumstance gang allegation

(§ 190.2, subd. (a)(22)) by giving CALCRIM No. 736, which provides in relevant part:

39
“To prove that this special circumstance is true, the People must prove that: [¶] 1. The

defendant intentionally killed Jesus Garcia; [¶] 2. At the time of the killing, the

defendant was an active participant in a criminal street gang; [¶] 3. The defendant knew

that members of the gang engage in or have engaged in a pattern of criminal gang

activity; and [¶] 4. The murder was carried out to further the activities of the criminal

street gang” (Italics added.)

The instruction defined “a criminal street gang,” consistent with the definition in

section 186.22, subdivision (f), as “any ongoing organization, association, or group of

three or more persons, whether formal or informal. [¶] 1. That has a common name or

common identifying sign or symbol; [¶] 2. That has, as one or more of its primary

activities, the commission of assault with a deadly weapon or by means of force likely to

produce great bodily injury, as defined in section 245 of the Penal Code, or theft and

unlawful taking or driving of a vehicle as defined in section 10851 of the Vehicle Code;

and [¶] 3. Whose members, whether acting alone or together, engage in or have engaged

in a pattern of . . . criminal gang activity.” (Italics added.)

In addition, the trial court instructed that, “[i]n order to qualify as a primary

activity, the crime must be one of the group’s chief or principal activities rather than an

occasional act committed by one or more persons who happen to be members of the

group. [¶] A pattern of criminal gang activity, as used here, means: [¶] 1. The

commission of, or attempted commission of, or conviction of any combination of two or

more occurrences of one or more of the following crimes: Robbery in violation of Penal

40
Code section 211; criminal threats in violation of Penal Code section 422; homicide in

violation of Penal Code section 187; witness intimidation in violation of Penal Code

section 136.1, or felon in possession of a firearm in violation of Penal Code section

29800; [¶] 2. At least one of these crimes was committed after September 26th, 1988;

[¶] 3. The most recent crime occurred within three years of one of the earlier crimes; and

[¶] 4. The crimes were committed on separate occasions or by two or more persons. [¶]

The crimes, if any, that establish a pattern of criminal gang activity need not be gang

related. [¶] If you find the defendant guilty of a crime in this case, you may consider that

crime in deciding whether one of the group’s primary activities was commission of that

crime and whether a pattern of criminal gang activity has been proved.” (Italics added.)

“A trial court has a sua sponte duty to instruct the jury on the essential elements of

a special circumstance allegation.” (People v. Mil (2012) 53 Cal.4th 400, 409.) “[I]t is

well settled that no objection is required to preserve a claim for appellate review that the

jury instructions omitted an essential element of the charge.” (Ibid.) “Against a claim of

this kind, which involves the determination of applicable legal principles, an appellate

court reviews a trial court’s instruction independently.” (People v. Alvarez (1996) 14

Cal.4th 155, 220.)

A. Forfeiture

The People argue defendant forfeited his objection to the instruction by not

objecting to the gang special circumstance instruction or requesting the trial court to

instruct on the elements of the primary activity crimes (predicate crimes). We agree. “If

41
defendant believed the instructions were incomplete or needed elaboration, it was his

obligation to request additional or clarifying instructions. [Citation.] His failure to do so

waives the claim in this court. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468,

514; People v. Rodrigues (1994) 8 Cal.4th 1060, 1189.)

Here, the court instructed the jury on the elements of the gang special

circumstance (CALCRIM No. 736), including the primary activities element. Defendant

did not object to the instruction or request the trial court to instruct on the elements of the

underlying predicate crimes. Because CALCRIM No. 736 was an accurate statement of

the law and defendant did not request amplification by stating the elements of the

predicate crimes, defendant forfeited his objection to the instruction. (People v. Palmer

(2005) 133 Cal.App.4th 1141, 1156; People v. Guiuan (1998) 18 Cal.4th 558, 570;

People v. Spurlock (2003) 114 Cal.App.4th 1122, 1130; People v. Alvarez, supra, 14

Cal.4th at p. 220 [“Because defendant did not request amplification of the otherwise

adequate instructions below, he may not complain here.”])

B. Sua Sponte Duty to Instruct on Predicate Crime Elements

Defendant contends that the trial court had a sua sponte duty to instruct on the

gang’s predicate crimes. Defendant argues that the Bench Notes on instructional duty for

CALCRIM Nos. 1400 and 1401, which instruct on finding a section 186.22 gang crime

(subdivision (a)) and gang enhancement (subdivision (b)), state that the trial court must

instruct on the elements of the underlying predicate gang crimes. The Bench Notes state:

“The court should also give the appropriate instructions defining the elements of crimes

42
inserted in the list of alleged ‘primary activities,’ or the definition of ‘pattern of criminal

gang activity’ that have not been established by prior convictions or sustained juvenile

petitions.” (Italics added.) We note that, unlike other Bench Notes for CALCRIM Nos.

1400 and 1401, the Bench Notes regarding instructing on the elements of the predicate

acts do not state that the trial court must instruct on the predicate act elements or that such

instructions must be given sua sponte.

While the trial court normally “should” do so, as advised in the Bench Notes, the

trial court did not have a sua sponte duty to provide such instruction. The case law
4
defendant cites for the proposition the court had a sua sponte duty to instruct on the

predicate crime elements when instructing on the gang special circumstance is inapposite.

The cited cases concern instructing on the elements of target offenses of conspiracy and

felony murder. Those cases are not on point. They do not address instructing on the

gang special circumstance, where the court properly instructed on all of the elements of

the gang special circumstance but did not provide additional instruction on the elements

of the underlying gang predicate crimes.

C. Harmless Error

Even if the trial court erred in not sua sponte instructing on the elements of the

predicate crimes constituting SSC’s “primary activities,” such deficiency was harmless

error under both Chapman and Watson, because there was unrefuted evidence of crimes

4
People v. Prettyman 1996) 14 Cal.4th 248, 266; People v. Cook (2001) 91
Cal.App.4th 910, 918; People v. Earnest (1975) 53 Cal.App.3d 734, 745; People v. Cain
(1995) 10 Cal.4th 1, 36; People v. Hughes (2002) 27 Cal.4th 287, 348-349.

43
qualifying as “primary activities.” (Chapman v. California (1967) 386 U.S. 18, 24;

People v. Watson, supra, 46 Cal.2d at p. 836.) Those crimes include past and present

crimes enumerated in section 186.22, subdivision (e), including defendant’s charged

crimes of robbery (§ 211) and murder (§ 187), and the crimes the court identified in its

special circumstance instruction of (1) assault with a deadly weapon or by means of force

likely to produce great bodily injury (§ 245) and (2) theft and unlawful taking or driving

of a vehicle (Veh. Code, §§ 10851, 186.22, subds. (e)(1), (2), (3), & (25)).

The court instructed on the charged crimes of robbery and murder but not on the

predicate crimes identified in the special circumstance instruction. However, the

prosecution’s gang expert, Officer Hankins, provided substantial evidence sufficient to

establish beyond a reasonable doubt the primary activities element of the special

circumstance gang allegation. The prosecution introduced testimony and records

establishing convictions of SSC gang members, which included robbery, murder,

criminal threats, felon in possession of a firearm, and witness intimidation. Officer

Hankins testified he was very familiar with the SSC gang as a result of working for many

years in the SSC gang’s territory, investigating crimes committed by SSC gang members,

and speaking to SSC members. He also testified he had extensive training and

experience as a gang expert and had spent 12 years working on the county gang task

force, primarily in Hemet, during which he became familiar with the SSC gang.

Officer Hankins testified about the primary activities of the SSC gang, specifying

criminal activities that constituted the gang’s primary activities. Officer Hankins testified

44
that at the time of defendant’s charged offenses, the SSC gang had many primary

activities, which included “[m]ost notably narcotic sales, stealing vehicles, violent

assaults, felony weapons possessions.” Officer Hankins stated that the violent assaults

included assaults with a deadly weapon in violation of section 245, and the vehicle thefts

included vehicle thefts in violation of Vehicle Code section 10851. Officer Hankins

testified he based his opinion regarding the gang’s primary activities on the type of

crimes he had investigated on a weekly basis and also on a roster on the county court

website, which had a list of SSC gang members and the types of crimes for which they

were arrested and or convicted.

Officer Hankins further testified that several SSC gang members had been

convicted of numerous crimes qualifying as predicate activities under section 186.22,

subdivision (e), including gang member Richard, who committed three robberies, with a

weapons allegation, and a criminal threats offense (§ 186.22, subd. (e)(2), (24)); Albert,

who committed murder, attempt000ed murder, and dissuasion of a witness to benefit the

gang (§ 186.22, subds. (e)(3), (8), (24)); and Ricardo, who committed murder (§ 186.22,

subds. (e)(8), (31)). In addition, Officer Hankins provided evidence that defendant was

involved in drug trafficking, which Officer Hankins testified was one of the gang’s

primary criminal activities (§ 186.22, subds. (e) (1), (2), (3), (4), & (31)). Officer

Hankins also testified that defendant’s gang’s primary activities included vehicle theft

and violent assaults, including with deadly weapons (§ 186.22, subds. (e) (1) and (25)).

45
 Our high court’s harmless error discussion in People v. Sengpadychith (2001) 26

Cal.4th 316 (Sengpadychith), is instructive here even though Sengpadychith involved a

section 186.22, subdivision (b) gang enhancement, rather than a gang special

circumstance. The language in the gang special circumstance statute, section 190.2,

subdivision (a)(22), parallels the language in section 186.22, subdivision (b)(1) regarding

the primary activity element. (People v. Arce (2020) 47 Cal.App.5th 700, 713.)

In Sengpadychith, the court discussed the definition of “primary activities” and

what evidence was sufficient to establish the “primary activities” of a gang, within the

meaning of section 186.22, subdivision (f). The Sengpadychith court explained that

“[s]ufficient proof of the gang’s primary activities might consist of evidence that the

group’s members consistently and repeatedly have committed criminal activity listed in

the gang statute. Also sufficient might be expert testimony, as occurred in Gardeley,

supra, 14 Cal.4th 605. There, a police gang expert testified that the gang of which

defendant Gardeley had for nine years been a member was primarily engaged in the sale

of narcotics and witness intimidation, both statutorily enumerated felonies.

(See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations

he had with Gardeley and fellow gang members, and on ‘his personal investigations of

hundreds of crimes committed by gang members,’ together with information from

colleagues in his own police department and other law enforcement agencies. (Gardeley,

supra, at p. 620.)” (Sengpadychith, supra, 26 Cal.4th at p. 324; see also, People v.

Martinez (2008) 158 Cal.App.4th 1324, 1330.)

46
 In Martinez, the court similarly concluded the gang expert’s testimony was

sufficient to establish the primary activities element. The Martinez defendant argued that

the expert’s testimony did not suffice to prove the gang’s primary activities fell within the

statute or that gang members had engaged in a pattern of criminal activity. The Martinez

court disagreed. (People v. Martinez, supra, 158 Cal.App.4th at p. 1330.) The Martinez

court concluded the gang expert’s testimony was sufficient to establish the primary

activities element because the expert specifically testified about the primary activities of

the gang and directly testified that specified types of criminal activities constituted the

gang’s primary activities. The expert also testified that he had both training and

experience as a gang expert and had spent eight years dealing with the gang, including

investigations and personal conversations with members, and reviews of reports. The

Martinez court held that such testimony provided adequate foundation for the expert’s

opinion on the gang’s primary activities. (Ibid.)

Under Sengpadychith and Martinez, Officer Hankins’s testimony was more than

sufficient to establish the primary activities element. (See also People v. Nguyen (2015) 61

Cal.4th 1015, 1068; People v. Prunty (2015) 62 Cal.4th 59, 82; People v. Vy (2004) 122

Cal.App.4th 1209, 1226.) Officer Hankins’s expert testimony and related supporting

documents regarding the SSC gang’s primary activities provided substantial evidence

establishing defendant’s gang’s predicate crimes. Therefore, we conclude that under

either the Chapman or Watson harmless error standard, any error in not providing

instruction on the elements of the predicate crimes was harmless. (Chapman v.

47
California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836; People

v. Mil, supra, 53 Cal.4th at pp. 409-410.)

IX.

SUFFICIENCY OF EVIDENCE OF GANG SPECIAL CIRCUMSTANCE

Defendant contends there was insufficient evidence to support the gang special

circumstance. He argues that the gang expert’s testimony was insufficient to establish

that the gang’s chief or principal activities included the predicate crimes of (1) assault

with a deadly weapon or by means of force likely to produce great bodily injury (§ 245)

and (2) theft and unlawful taking or driving of a vehicle (§ 10851).

“‘When considering a challenge to the sufficiency of the evidence to support a

conviction, we review the entire record in the light most favorable to the judgment to

determine whether it contains substantial evidence . . . . The same standard of review

applies to the sufficiency of the evidence supporting special circumstance findings.”

(People v. Edwards (2013) 57 Cal.4th 658, 715; accord, People v. Dalton (2019) 7

Cal.5th 166, 243-244.)

As defendant asserted regarding the trial court’s prejudicial error in failing to

instruct on the elements of SSC’s predicate crimes, defendant argues evidence of the two

predicate crimes specified in the gang special circumstance instruction was insufficient.

As to the vehicle theft crime (§ 10851), defendant argues the gang expert may have relied

on car thefts which did not qualify as a predicate crime because the stolen car did not

have a value of at least $950. Defendant’s contention is based on speculation. Defendant

48
has not cited any evidence supporting this argument. The gang expert’s testimony that

the SSC gang’s vehicle theft crimes qualified as predicate crimes was sufficient to

support the primary activities element of the gang special circumstance. (Sengpadychith,

supra, 26 Cal.4th at p. 324; People v. Martinez, supra, 158 Cal.App.4th at p. 1330.)

Defendant further asserts there was insufficient evidence of the other listed

predicate crime, assault with a deadly weapon or by means of force likely to produce

great bodily injury (§ 245). Defendant argues that not all violent assaults qualify as

primary activities under section 186.22, subdivision (e). Only assaults with a deadly

weapon or by means likely to cause great bodily injury qualify (§ 186.22, subd. (e)(1)).

Defendant asserts that Officer Hankins did not specify that, when he stated SSC’s

primary activities included “violent assaults,” he was only referring to violent assaults

qualifying under section 186.22, subdivision (e)(1). But there was no evidence Officer

Hankins was relying on violent assault crimes that did not qualify as a predicate crime.

We therefore conclude there was substantial evidence to support the gang special

circumstance. Such evidence includes gang expert Officer Hankins’s testimony

regarding the SCC gang and related supporting documents. Officer Hankins testified that

the SSC gang had many primary activities, which included “[m]ost notably narcotic sales,

stealing vehicles, violent assaults, felony weapons possessions.” Officer Hankins further

stated that the violent assaults included assaults with a deadly weapon in violation of

section 245, and the auto thefts included vehicle thefts in violation of Vehicle Code

section 10851. Most, if not all, of the crimes Officer Hankins listed as SSC primary

49
activities, qualify as predicate crimes enumerated in section 186.22, subdivision (e). The

gang expert’s testimony, supporting documents, and evidence of the charged crimes

provided substantial evidence of each element of the gang special circumstance,

including the primary activities element. (People v. Sengpadychith, supra, 26 Cal.4th at

p. 324; People v. Martinez, supra, 158 Cal.App.4th at p. 1330; People v. Nguyen, supra,

61 Cal.4th at p. 1068; People v. Prunty, supra, 62 Cal.4th at p. 82; People v. Vy, supra,

122 Cal.App.4th at p. 1226.)

X.

SUFFICIENCY OF EVIDENCE OF WITNESS-KILLING MURDER

SPECIAL CIRCUMSTANCE

Defendant contends there was insufficient evidence to support the witness-killing

special circumstance (§ 190.2, subdivision (a)(10)). We disagree.

The witness-killing special circumstance is stated in subdivision (a)(10) of section

190.2, as follows: “The victim was a witness to a crime who was intentionally killed for

the purpose of preventing his or her testimony in any criminal or juvenile proceeding, and

the killing was not committed during the commission or attempted commission, of the

crime to which he or she was a witness; or the victim was a witness to a crime and was

intentionally killed in retaliation for his or her testimony in any criminal or juvenile

proceeding.” (Italics added.)

The trial court instructed the jury on the witness-killing special circumstance by

giving CALCRIM No. 725, as follows: “The defendant is charged with the special

50
circumstance, murder of a witness in violation of Penal Code section 190.2, sub (a), sub

(10). To prove that this special circumstance is true, the People must prove that: [¶] 1.

The defendant intended to kill Jesus Garcia; [¶] 2. Jesus Garcia was a witness to a

crime; [¶] 3. The killing was not committed during the commission or attempted

commission of the crime to which Jesus Garcia was a witness; and [¶] 4. The

[defendant] intended that Jesus Garcia be killed to prevent him from testifying in a

criminal proceeding.”

“If the defendant intentionally kills a would-be witness for the purpose of

preventing the victim from testifying in a criminal proceeding, it is not a defense to the

special circumstance allegation that he had another purpose as well.” (People v. Stanley

(1995) 10 Cal.4th 764, 801; People v. Sanders, supra, 51 Cal.3d at p. 519.)

Defendant contends that Jesus was not a key witness in Albert and Ricardo’s trial.

We disagree. As noted in the CALCRIM No. 725 comments and cited caselaw, “It is no

defense to the special circumstance allegation that the victim was not an important

witness in the criminal proceeding, so long as one of the defendant’s purposes was to

prevent the witness from testifying.” (People v. Jenkins (2000) 22 Cal.4th 900, 1018; see

also People v. Bolter (2001) 90 Cal.App.4th 240, 242-243 [special circumstance applied

to retaliation for testifying where witness’s actual testimony was innocuous].)

Defendant argues there was no evidence he knew Jesus was going to testify in the

trial or believed that Jesus needed to be prevented from doing so to prevent convictions

against Albert and Ricardo. In addition, defendant asserts that there was no evidence

51
anyone told defendant to kill Jesus or that defendant decided to kill Jesus because

defendant anticipated Jesus would provide important testimony in Albert and Ricardo’s

upcoming trial. However, a reasonable inference could be made from the evidence that

defendant found out that Jesus had provided law enforcement with information linking

Albert and Ricardo to the murder of John Moreno. Most likely, defendant was informed

that Jesus was a police informant after Investigator Purcell testified at Albert and

Ricardo’s preliminary hearing in October 2016. It could be reasonably inferred that

Albert Ricardo, or other gang members informed defendant of Investigator Purcell’s
5
testimony and that Jesus was a police informant. The jury could also reasonably infer

that, after becoming aware of this, defendant killed Jesus to prevent Jesus from testifying,

because defendant believed Jesus would be an adverse witness in Albert and Ricardo’s

future trial. (People v. Jenkins, supra, 22 Cal.4th at p. 1018; People v. Weidert (1985) 39

Cal.3d 836, 853; People v. Sanders, supra, 51 Cal.3d at p. 518.)

Substantial evidence supporting the witness-killing special circumstance against

defendant included J.C.’s testimony that defendant told him “there was paperwork on the

person that he had shot.” It could be reasonably inferred from this statement that

defendant killed Jesus because defendant had been told Jesus had provided the police

with information implicating Albert and Ricardo in John Moreno’s murder. J.C. testified

5
Defendant states in his appellate reply brief: “The fact that Jesus was ultimately
not an important witness is significant circumstantial evidence that Frenes, who as a
member of the gang and close friend of [Ricardo] was likely familiar with the state of the
inculpatory evidence . . . .” (Italics added.)

52
that defendant had told him Jesus “was a police informant.” In addition, Officer Hankins

testified that he believed defendant killed Jesus to prevent him from testifying and in

retaliation for Jesus’s statement to the police against a gang member.

Defendant argues there was no evidence supporting Officer Hankins’s conclusion

that defendant killed Jesus to prevent him from testifying. We disagree. Even though

there was evidence supporting a finding that retribution may have been a motive for

Jesus’s murder, the same evidence also supported a reasonable inference that defendant

killed Jesus to prevent him from testifying at Albert and Ricardo’s upcoming trial. We

thus conclude there was substantial evidence to support the witness-killing special

circumstance against defendant.

XI.

ABSTRACT OF JUDGMENT ERROR

Defendant asserts that the abstract of judgment for defendant’s determinate and

indeterminate sentencing should be corrected to state that defendant’s trial was a jury trial

not a court trial. The People agree, as do we. The abstract of judgment should be

corrected to reflect that defendant’s trial was a jury trial. (People v. High (2004) 119

Cal.App.4th 1192, 1200 [the appellate may “direct the trial court to correct the cited

clerical errors”].)

53
 XII.

PRISON PRIOR SENTENCING ERROR

Defendant requests this court to strike his count 2, prison prior enhancement under

Senate Bill No. 136, which amends section 667.5, subdivision (b). The People agree, as

does this court, that defendant’s one-year prison prior enhancement must be stricken.

Senate Bill No. 136 was passed into law in October 2019, and became effective

January 1, 2020. (Sen. Bill No. 136; Cal. Const., art. IV, § 8, subd. (c)(2).) Senate Bill

No. 136 amended section 667.5, subdivision (b), so as to eliminate all prior prison term

enhancements unless the prior prison term is for a sexually violent felony as defined in

Welfare and Institutions Code section 6600, subdivision (b). It is undisputed that

defendant’s prison prior conviction was not for a sexually violent offense. His 2013

prison prior conviction was for violating section 245, subdivision (a) (assault by force

likely to cause great bodily injury).

Accordingly, under section 667.5, subdivision (b), as amended, defendant’s prison prior

does not qualify as a prison prior enhancement.

As ameliorative legislation, Senate Bill No. 136 applies to all defendants whose

convictions were not final when the legislation took effect on January 1, 2020. (People v.

Cruz (2020) 46 Cal.App.5th 715, 738-739; People v. Lopez (2019) 42 Cal.App.5th 337,

341-342; see generally People v. Brown (2012) 54 Cal.4th 314, 323.) Defendant’s

conviction was not final as of January 1, 2020, the effective date of section 667.5,

subdivision (b), as amended. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Because

54
defendant's conviction is not yet final, and because section 667.5, subdivision (b), as

amended, leads to a reduced sentence, the amendment to section 667.5, subdivision (b),

applies retroactively to defendant’s prison prior. (See People v. Garcia (2018) 28

Cal.App.5th 961, 972; see also In re Estrada (1965) 63 Cal.2d 740, 745.)

Both parties agree this court should strike the one-year prison prior and remand

this matter for resentencing. Although it is unlikely the trial court will change

defendant’s sentence upon remand, after striking defendant’s one-year prison prior

enhancement, this matter should be remanded to allow the trial court to exercise its

discretion on resentencing defendant. Generally, when part of a sentence is stricken, we

must remand for a full resentencing on all counts and allegations. (People v.

Hubbard (2018) 27 Cal.App.5th 9, 13; People v. Navarro (2007) 40 Cal.4th 668, 681;

People v. Buycks (2018) 5 Cal.5th 857, 893.) Therefore, because we reverse defendant’s

one-year section 667.5, subdivision (b) prison prior enhancement under the “full

resentencing rule,” we remand the matter for resentencing to allow the court to exercise

its sentencing discretion in light of the changed circumstances. (People v. Buycks, supra,

at p. 893; People v. Jennings (2019) 42 Cal.App.5th 664, 682.) We take no position on

how the court should exercise its discretion on remand.

XIII.

DISPOSITION

Defendant’s prison prior enhancement (§ 667.5, subdivision (b)) is ordered

stricken and the matter is remanded for resentencing. In all other respects, the judgment

55
is affirmed. The trial court is directed to correct the abstract of judgment to state that

defendant’s convictions were by a jury trial, not a court trial.

After resentencing defendant on remand, the trial court shall issue an amended

abstract of judgment and forward a certified copy to the Department of Corrections and

Rehabilitation.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
Acting P. J.

We concur:

SLOUGH
J.

RAPHAEL
J.

56