Opinion
G062761
10-02-2024
THE PEOPLE, Plaintiff and Respondent, v. KAMYRON DEJON BARNETT et al., Defendants and Appellants.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant Kamyron Dejon Barnett. Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Desmond Elijah Ochoa. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles A. Ragland, Assistant Attorney General, Eric A. Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Riverside County No. RIF1901406 Bernard Schwartz, Judge. Affirmed in part, reversed in part and remanded.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant Kamyron Dejon Barnett.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Desmond Elijah Ochoa.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles A. Ragland, Assistant Attorney General, Eric A. Swenson and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
GOODING, J.
Defendants Kamryon Dejon Barnett and Desmond Elijah Ochoa were each found guilty of two counts of first degree murder and one count of premeditated attempted murder. The jury also found true three gang special circumstance allegations and a gang-related firearm enhancement charged as to each of the three counts. At a later bifurcated phase of the trial, the jury found true a gang enhancement charged as to each count. Barnett and Ochoa were each sentenced to 20 years in prison, plus two consecutive terms of life without the possibility of parole, plus 57 years to life. They timely appealed their judgments, asserting multiple errors.
As to Ochoa, we reverse for prejudicial instructional error and remand for retrial. As to Barnett, we agree the prosecutor, Kimberly Melissa Degonia, committed prosecutorial error in some respects, but based on the entire record, conclude it was not prejudicial and affirm the judgment as to Barnett.
STATEMENT OF FACTS
I.
THE MURDERS
On March 7, 2018, while standing outside a car in the parking lot of a fast-food restaurant in Moreno Valley, brothers Jeremiah and Elijah Asencio, ages 17 and 20, respectively, were killed in a drive-by shooting (the murders). B.S., a friend of Jeremiah and Elijah who was standing by the car with Jeremiah and Elijah, escaped unharmed.
A motorist called 911 at 8:17 p.m. to report the shooting. The motorist said he saw shots fired from the passenger side of a black or gray Dodge Caliber in the parking lot of the fast-food restaurant about three or four minutes earlier. He told the dispatcher the direction the car was heading as it left the parking lot. At trial, the motorist testified he saw flames coming out of the barrel of a gun and heard four or five "pretty consistent" shots.
The survivor, B.S., ran to Jeremiah and Elijah's house, which was nearby, and told their mother they had been shot and were dead. Later that night, B.S. told investigating officers he thought the shooter was a young man named J.W.
J.W. was a member of Sex Cash, a gang on the east side of Moreno Valley. Lavish Goons is a subset of Sex Cash. Sex Cash and Lavish Goons (collectively Sex Cash/Lavish Goons) were, at the time of the murders, the gangs primarily affiliated with the east side of Moreno Valley. Their rivals were Wild Flax and Edgemont, two gangs associated with the west side of Moreno Valley. B.S. was a Wild Flax gang member.
The day before the murders, J.W. had been involved in a physical altercation with three or four Wild Flax members at a smoke shop in territory claimed by Wild Flax. He believed B.S. was one of the Wild Flax members involved in the altercation.
Based in part on B.S.'s identification of the shooter, the investigating officers detained J.W. and brought him in for questioning on March 9, 2018. The questioning continued into the early morning hours of March 10. J.W. did not admit to the murders; instead, he told the investigating officers Ochoa, a fellow Sex Cash/Lavish Goons member, was the driver of the Dodge Caliber and J.C., also a Sex Cash/Lavish Goons member, was the shooter.
March 7, the date of the murders, is an important date for Sex Cash/Lavish Goons members. March 7 was the birthday of Christian White, nicknamed Ace, who was shot and killed in 2014, allegedly by a Wild Flax gang member. Every year on March 7, Sex Cash/Lavish Goons members celebrate "Ace Day" in memory of Ace's death.
During questioning, J.W. told the investigating officers that on March 7, 2018, he was with other Sex Cash/Lavish Goons members at an apartment complex (the Apartments) for an Ace Day gathering. He said he, Ochoa, and J.C. were at the Apartments during the gathering, smoking marijuana for 15 to 20 minutes in a stolen Dodge Caliber along with Barnett and M.J., two other Sex Cash/Lavish Goons members. When the marijuana was gone, J.W. got out of the Dodge Caliber. He did not remember who else got out of the Dodge Caliber with him, but he told the investigating officers he saw Ochoa drive away from the Apartments in the Dodge Caliber and return to the Apartments sometime later. He said after Ochoa came back, Ochoa and J.C. directed M.J. to take the Dodge Caliber and dump it. J.W. told the investigating officer that shortly after the Dodge Caliber returned to the Apartments, he drove J.C. home from the Ace Day gathering. During the drive, J.C. said he had shot Jeremiah and Elijah.
Videos from various CCTV cameras confirmed the shooter was in a Dodge Caliber. Through the videos, the investigating officers were able to track the car from the Apartments, through the murders, and back to the Apartments. According to the video evidence, the Dodge Caliber arrived at the Apartments at about 7:27 p.m. and left the Apartments at about 8:00 p.m. The videos followed the Dodge Caliber through the streets until it pulled into a gas station near the site of the murders at 8:07 p.m. Video from inside the convenience store attached to the gas station showed J.C., whose face is clearly visible, pay for gas at the counter. The Dodge Caliber pulled out of the gas station at 8:09 p.m., and entered the parking lot of a fast-food restaurant at 8:15 p.m. As the Dodge Caliber moved through the parking lot, it passed a silver car with three figures standing by it. A second later, two of the three figures by the silver car fell to the ground and the third figure ran toward the restaurant. The Dodge Caliber then exited the parking lot and returned to the Apartments, arriving around 8:25 p.m. Seven minutes later, the Dodge Caliber left the Apartments.
The day before the murders, March 6, 2018, a Dodge Caliber was stolen from a home in Moreno Valley. On March 9, 2018, two days after the murders, the owner of the stolen Dodge Caliber discovered his car in the parking lot of a middle school near the site of the murders. The owner called investigating officers, who came and took possession of the Dodge Caliber, in which they discovered M.J.'s telephone.
Based on J.W.'s identification of Ochoa as the driver and J.C. as the shooter, the investigating officers served 16 search warrants for various social media and telephone accounts, including accounts belonging to Ochoa, Barnett, J.C., J.W., B.S., and others. Much of the evidence presented at trial came from the material produced in response to the search warrants.
In September 2018, Ochoa and Barnett, who had become suspects following review of the social media and telephone account materials, were arrested. Each was charged with two counts of willful, deliberate, premeditated first degree murder for the killings of Jeremiah and Elijah (Pen. Code § 187, subd. (a) [counts 1 &2]) and one count of attempted premeditated murder for the attempted murder of B.S. (§§ 664, 187, subd. (a) [count 3]). Counts 1 and 2 included three gang-related special circumstances-murder to further the activities of a criminal street gang (§ 190.2, subd. (a)(22)), murder by discharge of a firearm from a vehicle (§ 190.2, subd. (a)(21)), and commission of multiple first degree murders (§ 190.2, subd. (a)(3)) (collectively, gang-murder special circumstances)). Counts 1, 2, and 3 also included gang-related firearm sentencing enhancement allegations (§ 12022.53, subds. (c), (d), (e) &(g) (collectively gang-related firearm enhancements)), and gang sentencing enhancement allegations that the murders and attempted murder were committed "for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in any criminal conduct by gang members" (§ 186.22, subds. (b)(1) &(5) (gang enhancements)).
All further statutory references are to the Penal Code unless otherwise indicated.
Barnett and Ochoa were tried together. Both were convicted of two counts of first degree murder and one count of attempted murder. The jury found true the gang-murder special circumstances and gang-related firearm enhancements for Barnett and Ochoa on each count. Later, in the bifurcated phase of the trial, the jury found the gang enhancements true for Barnett and Ochoa on each count.
II.
EVIDENCE LINKING BARNETT TO THE MURDERS
The evidence presented at trial to link Barnett to the murders included DNA analysis providing very strong support for the proposition that Barnett contributed to the DNA found on the interior rear passenger door handle of the Dodge Caliber. The prosecutor also introduced evidence of multiple text messages between Barnett and others in the year preceding the murders including: (1) a March 2017 text message in which Barnett told J.C. he would need to fight or kill a rival gang member in order to be a member of Sex Cash/Lavish Goons; (2) a January 6, 2018 text conversation between Barnett and a fellow gang member in which Barnett sent a photograph of bullets he just acquired; (3) a February 5, 2018 text conversation between Barnett and Ochoa in which Barnett reported B.S. had been disrespecting Sex Cash/Lavish Goons; (4) a February 6, 2018 message from Barnett to Ochoa attaching a screen shot of messages Barnett had sent to B.S. accusing B.S. of being a phony and not being tough, to which B.S. responded "Fuck Ace"; and (5) a February 24, 2018 text conversation between Barnett and B.S. in which each challenged the other to fight.
The prosecutor introduced evidence at trial showing J.C. became a member of Sex Cash/Lavish Goons sometime before the murders took place.
At trial, an investigating officer testified it could not be determined from the photograph whether the bullets were for a semiautomatic weapon or a revolver.
On February 28, 2018, Barnett had three text conversations regarding a fight with B.S. and other Wild Flax members, including: (1) a text conversation with a Wild Flax member in which Barnett asks that B.S. be present at the fight; (2) a text conversation with Ochoa in which Barnett reports that B.S. and another Wild Flax member are coming to Barnett's house to fight; and (3) a text conversation with a Wild Flax member, again asking if B.S. will be coming to the fight (though ultimately Barnett says he does not want to fight).
Evidence was also presented of text conversations and social media posts in the days leading up to murders including: (1) a March 1, 2018 conversation with M.J. in which Barnett says he intends to steal a gun; (2) Barnett's March 3, 2018 social media post of a himself holding a revolver; (3) a March 3 and 4, 2018 conversation with a fellow Sex Cash/Lavish Goons member, in which Barnett indicates he has access to a .357 revolver and intends to shoot someone; (4) J.C.'s March 6, 2018 conversation with another Sex Cash/Lavish Goons member stating that Barnett intends to take a gun and go after someone named JoJo who had been disrespecting Ace; and (5) Barnett's March 6, 2018 conversation informing a Sex Cash/Lavish Goons member that Barnett has access to two stolen cars.
The investigating officers did not find any casings at the murder scene which would be consistent with a revolver being used to commit the murders. The murder weapon was never located.
The prosecutor also presented evidence of Barnett's conversations with N.P., a senior Sex Cash/Lavish Goons gang member, in the minutes and hours following the murders. At 8:27 p.m.-10 minutes after the 911 call and about 12 minutes after the murders-Barnett texted N.P. and asked for a return call. At 8:29, N.P. called Barnett and the two spoke for 95 seconds. At 8:53, Barnett texted N.P. the following message: "[J.C.] just drop 2 waffles [Wild Flax members]", followed 20 seconds later by a second text: "[B.S.] n his homies."
Finally, the prosecutor presented evidence of other communications by Barnett after the murders, including: (1) a March 7, 2018 text conversation with a Sex Cash/Lavish Goons member in which Barnett stated he and Ochoa would be the next ones to kill Wild Flax members; (2) a March 26, 2018 text conversation with a Wild Flax member, which Barnett begins with "we didn't mean to do it sir"; (3) a March 29, 2018 communication where Barnett sent Ochoa rap lyrics referencing the murders and stating that he (Barnett) would "do some time"; and (4) a March 29, 2018 text conversation where Ochoa asked if Barnett still had the revolver shown in the March 3, 2018 social media post and Barnett said he did not.
III.
EVIDENCE LINKING OCHOA TO THE MURDERS
Based on grainy, indistinct, and distant video from the gas station, an investigating officer testified Ochoa was the individual who got out of the driver's seat of the Dodge Caliber at the gas station just before the murders. In addition, at trial J.W. admitted he told the investigating officers during his first interview that Ochoa was the driver and that Ochoa had directed M.J. to dump the Dodge Caliber after the murders. (J.W. also testified that during his second interview, he told the investigating officers he wished to recant his earlier statement that Ochoa was the driver because he had no idea who was driving the Dodge Caliber.) An investigating officer testified that Jo.W., another Sex Cash/Lavish Goons member who did not testify at trial, had corroborated J.W.'s statement that Ochoa was the driver of the Dodge Caliber. A DNA swab taken from the steering wheel of the Dodge Caliber provided "very strong support" for the proposition that Ochoa contributed to the DNA found on the steering wheel.
Although they bear the same initials, Jo.W. and J.W. are different individuals.
Evidence gathered from the social media and telephone warrants was also presented including: (1) Ochoa's February 5, 2018 text conversation with Barnett in which, after being told that B.S. was disrespecting Sex Cash/Lavish Goons, Ochoa responded "I gone die before his 18 birthday" which an investigating officer testified was a typo and meant Ochoa intended B.S. to die before his next birthday; (2) Ochoa's February 19, 2018 text conversation with B.S. in which B.S. challenged Ochoa to a fight; (3) Ochoa's February 24, 2018 text conversation with J.C. asking about B.S.'s current location; and (4) Ochoa's February 24, 2018 text conversation with B.S. in which B.S. challenged Ochoa to come fight him at a gas station next to the fast-food restaurant where the murders would occur.
Ochoa was also involved in the February 28, 2018 conversations attempting to schedule a fight with B.S. and other Wild Flax members: (1) a text conversation with Barnett setting the elementary school as the fight location; (2) a text conversation with another Sex Cash/Lavish Goons member discussing the fight; and (3) a text conversation asking J.C. to come to the fight.
Evidence of Ochoa's communications after the murders also was offered at trial, including: (1) a March 8, 2018 text message in which Ochoa asked J.C. if he is okay; (2) Ochoa's March 29, 2018 transmission to Barnett of some original rap lyrics referencing the murders; (3) Ochoa's March 29, 2018 text conversation asking Barnett if he still has the gun shown in a March 3, 2018 social media post of Barnett with a revolver, to which Barnett replied he did not; and (4) rap lyrics written by Ochoa after the murders that reference the murders and state that he is Picasso with a gun.
DISCUSSION
I.
CLAIMS ON APPEAL
Barnett makes six arguments on appeal: (1) the trial court erred in refusing to bifurcate the gang-murder special circumstances and the gang-related firearm enhancements; (2) the court erred in refusing to allow Barnett's counsel to argue in closing that the possible involvement of other individuals in the murders created reasonable doubt as to Barnett's guilt; (3) the jury improperly used certain evidence as propensity evidence; (4) the prosecutor engaged in error; (5) cumulative error; and (6) insufficient evidence.
Ochoa joins in all of Barnett's arguments except Barnett's claim of insufficient evidence. Ochoa asserts three additional, individual arguments: (1) he should be sent back to juvenile court for a second transfer hearing under the recent amendment to Welfare and Institutions Code section 707; (2) the jury was improperly instructed that it could not consider exonerating testimony without corroboration; and (3) his abstract of judgment needs to be corrected to reflect his actual date of birth. We begin by addressing Ochoa's individual arguments.
II.
OCHOA'S INDIVIDUAL ARGUMENTS
A. Ochoa's Transfer from Juvenile Court
Ochoa was 16 years old on March 7, 2018 when the murders took place. As a juvenile, he was within the jurisdiction of the juvenile court. Sometime in 2019, the prosecutor moved, pursuant to Welfare and Institutions Code former section 707, to transfer Ochoa from juvenile court to a court of criminal jurisdiction. The motion was granted and on March 27, 2019, Ochoa was charged as an adult with the murders and attempted murder.
At the time Ochoa was transferred, the determination of whether a juvenile could be transferred to a court of criminal jurisdiction was determined using the following five criteria: (1) the minor's degree of criminal sophistication; (2) whether the minor could be rehabilitated before the end of the juvenile court's jurisdiction; (3) any previous delinquent history; (4) success of any previous attempts by the juvenile court to rehabilitate the minor; and (5) the circumstances and gravity of the offense allegedly committed by the minor. (Welf. & Inst. Code, former § 707, subds. (a)(3)(A)(i), (B)(i), (C)(i), (D)(i), (E)(i).) Each of the criteria included specific factors that could be considered at the discretion of the court. (Welf. & Inst. Code, former § 707, subds. (a)(3)(A)(ii), (B)(ii), (C)(ii), (D)(ii), (E)(ii).) The prosecution had the burden of proving a minor should be transferred by a preponderance of the evidence. (Welf. & Inst. Code, former § 707, subd. (a)(3); In re S.S. (2023) 89 Cal.App.5th 1277, 1284.)
Stats. 2018, ch. 1012, § 1, effective January 1, 2019.
Ochoa was convicted on July 6, 2022. Effective January 1, 2023- after Ochoa's conviction but before the judgment was final-Welfare and Institutions Code section 707 was amended in three significant ways: (1) the prosecution's burden of proof was raised from preponderance of the evidence to clear and convincing evidence; (2) amenability to rehabilitation became the primary issue to be decided by the juvenile court, not just one of five equal factors; and (3) the juvenile court must state in any transfer order the reasons why the juvenile is not amenable to rehabilitation. (Id., former § 707, subd. (a)(3), as amended by Stats. 2022, ch. 330, § 1; In re E.P. (2023) 89 Cal.App.5th 409, 416.)
Ochoa argues, and the Attorney General agrees, the amendments are ameliorative and, therefore, retroactive. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 304.) Hoping to benefit from the retroactive statute, Ochoa asks us to "conditionally reverse the juvenile court's transfer order and remand the matter for further proceedings under the standard set forth in [the amendments to Welfare and Institutions Code section 707]." In response, the Attorney General argues we have no jurisdiction to reverse the juvenile court's transfer order. The Attorney General is correct.
Effective January 1, 2024, Senate Bill No. 545 (2023-2024 Reg. Sess.) further amended Welfare and Institutions Code section 707. That amendment does not impact this opinion.
In 2019, when Ochoa was transferred, the only way to challenge a transfer order was by a writ filed "no later than 20 days" (Cal. Rules of Court, former rule 5.770(g)) after the juvenile's first arraignment in criminal court. (Cal. Rules of Court, former rule 5.770(d)(3) ["appellate review of the order must be by petition for extraordinary writ" (italics added)] and former rule 5.770(g) ["An order granting or denying a motion to transfer jurisdiction of a child to the criminal court is not an appealable order. Appellate review of the order is by petition for extraordinary writ"].)
California Rules of Court, rule 5.770, as amended May 22, 2017.
Effective January 1, 2022-more than two years after Ochoa's transfer hearing, but while he was still awaiting trial-the Legislature enacted Welfare and Institutions Code section 801, which made transfer orders subject to direct appeal within 30 days of the order and prohibited consideration of such orders on appeal from a conviction. (Welf. & Inst. Code, § 801, subd. (a), added by Stats. 2021, ch. 195, § 1 ["[a]n order transferring the minor from the juvenile court to a court of criminal jurisdiction may not be heard on appeal from the judgment of conviction"].)
The following year, effective January 1, 2023, California Rules of Court, rule 5.770 was amended to comport with Welfare and Institutions Code section 707 and mandate that any challenge to a transfer order must be by an appeal filed within 30 days of the order. (Cal. Rules of Court, rule 5.770(d)(3), (g)(1).)
Ochoa's request that we reverse the juvenile court's transfer order did not come to us on either a writ or an appeal from the transfer order. It came to us on an appeal from a conviction. "It is settled that the right of appeal is statutory and that an order is not appealable unless expressly made so by statute." (People v. Diaz (2015) 235 Cal.App.4th 1239, 1244.) We do not have the jurisdiction to reverse the transfer order.
Ochoa asks that we consider the recently-decided case, In re J.M. (2024) 103 Cal.App.5th 745, in which the court found a juvenile was entitled to a new transfer hearing under the retroactive benefits of Welfare and Institutions Code section 707. Unlike this case, the appeal in In re J.M. was taken directly from the transfer order (In re J.M., supra, at p. 751), thus giving the court jurisdiction to reverse the order. Even if we had jurisdiction to reverse the transfer order, Ochoa offers no record of the transfer order. "'An appellate court's review is limited to consideration of the matters contained in the appellate record.'" (Sannmann v. Department of Justice (2020) 47 Cal.App.5th 676, 684.)
B. Instructional Error
J.C., the shooter, was 15 years old at the time of the murders. He was arrested before Ochoa and Barnett and admitted two counts of first degree murder and other allegations in juvenile court before Ochoa and Barnett were tried. J.C. testified at Ochoa and Barnett's trial. During cross- examination by Ochoa's counsel, J.C. testified Ochoa was not the driver of the Dodge Caliber.
Ochoa did not testify on his own behalf.
In instructing the jury, the trial court gave a modified version of CALCRIM No. 301 specifically referencing J.C.'s testimony. The modified instruction read, in pertinent part: "Except for the testimony of [J.C.], which requires supporting evidence the testimony of only one witness can prove any fact." (Modified portion in italics.)
Ochoa's counsel did not object to the modified instruction, but the Attorney General concedes the issue may be raised on appeal. (People v. Tran (2022) 13 Cal.5th 1169, 1199 [if there is no objection in the trial court, instructional error may still be raised on appeal where the defendant "'argues that the trial court erred in instructing the jury in a way that affected his substantial rights'"].)
We apply a de novo standard of review in evaluating whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) Individual instructions are not judged in isolation but are viewed in the context of all instructions given (People v. Huggins (2006) 38 Cal.4th 175, 192) under the assumption that jurors are intelligent persons, capable of understanding the instructions given (People v. Richardson (2008) 43 Cal.4th 959, 1028). "'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.'" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
The modified version of CALCRIM No. 301 is an incorrect statement of law. Although inculpatory testimony of an accomplice requires corroboration to convict a defendant (§ 1111; People v. Smith (2017) 12 Cal.App.5th 766, 779 (Smith)), the same is not true of exculpatory testimony, which is sufficient to exonerate a defendant without any corroboration. (Smith, supra, at p. 778 ["[t]here is no corroboration requirement with respect to exculpatory accomplice testimony"].) The jury should have been allowed to consider J.C.'s testimony that Ochoa was not the driver, even without corroboration.
The Attorney General argues any error was corrected by the trial court's inclusion of CALCRIM No. 335, which instructed the jury they could not convict Ochoa of murder based on uncorroborated accomplice testimony. The Attorney General argues if CALCRIM No. 335 and CALCRIM No. 301 are read together, they correctly inform the jury that accomplice testimony requires corroboration only to convict, not to exonerate. CALCRIM No. 335, however, does not address exoneration in any fashion and did nothing to correct the error perpetrated by the modified version of CALCRIM No. 301. The only question remaining is whether the error was prejudicial.
The parties do not agree on which standard should be used to determine that issue. Ochoa argues the error is subject to review under Chapman v. California (1967) 386 U.S. 18 (Chapman), which requires reversal unless the reviewing court can conclude beyond a reasonable doubt that the error did not contribute to the verdict. (Id. at p. 24.) The Attorney General argues the error is subject to review under People v. Watson (1956) 46 Cal.2d 818 (Watson), which allows reversal only where "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Id. at p. 836.) Under Watson, reasonably probable "'"'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.'"'" (Smith, supra, 12 Cal.App.5th at p. 781.) Like the court in Smith, we need not decide which standard applies because the error was not harmless under either standard.
The Attorney General argues any error was harmless because J.C.'s testimony was "corroborated" by J.W.'s testimony at trial that everything J.W. told the investigating officers, including his identification of Ochoa as the driver of the Dodge Caliber, was a lie. Corroboration is "[c]onfirmation or support by additional evidence or authority." (Black's Law Dict. (11th ed. 2019) p. 435.) J.W.'s trial testimony that he did not remember seeing Ochoa drive off in the Dodge Caliber and did not know if Ochoa was the driver is not corroboration of J.C.'s testimony that Ochoa was not the driver.
"In assessing prejudice, we consider both the magnitude of the error and the closeness of the case." (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1041.) The case against Ochoa was relatively close. J.W. initially identified Ochoa as the driver but, during trial, recanted that testimony and testified he did not see Ochoa leave in the Dodge Caliber and did not know if Ochoa was the driver. An investigating officer identified Ochoa as the driver based on his build and hair, as shown in a grainy, extremely indistinct video. Another investigating officer, however, testified that at least one other Sex Cash/Lavish Goons member had similar hair and build. Although DNA evidence provided strong support for Ochoa's presence in the Dodge Caliber, witnesses testified he was in the car smoking marijuana before it left the Apartments for the murders. Social media evidence shows Ochoa was angry with B.S. and tried to set up a fight with B.S. and other Wild Flax members in February 2018, but those conversations stop at the end of February and no evidence was presented of any similar conversation in the days leading up to the murders. Not only was the case against Ochoa relatively close, but the error was substantial. J.C. testified Ochoa was not the driver. The erroneous instruction told the jury they could not consider that testimony without corroboration.
Under either the Chapman standard or the Watson standard, the error was prejudicial, and Ochoa's convictions are reversed and remanded for retrial.
C. Abstracts of Judgment
Ochoa was born on April 21, 2001. His abstracts of judgment incorrectly reflect a birthdate of May 9, 2000. Because we reverse the judgment against Ochoa, there is no need to correct the current abstracts of judgment. If Ochoa is retried and convicted, however, any resulting abstracts of judgment should reflect Ochoa's correct birthdate of April 21, 2001.
III.
Ochoa joined in all of Barnett's arguments except the claim of insufficient evidence. Because we reverse the judgment against Ochoa based on instructional error, we do not address Ochoa's joinder in Barnett's arguments.
A. Bifurcation
Before trial, Barnett moved to bifurcate the "charged gang enhancements" pursuant to section 1109. Section 1109 (added by Stats. 2021, ch. 699, § 5, eff. January 1, 2022), mandates bifurcation, upon a defendant's request, of gang enhancements charged under section 186.22. Pursuant to Barnett's requests, the trial court bifurcated the gang enhancements but denied bifurcation of the gang-murder special circumstances and gang- related firearm enhancements. Barnett argues the court erred in not bifurcating all gang-related enhancements and special circumstances.
In enacting section 1109, the Legislature made certain findings and declarations, including a declaration that "'[s]tudies suggest that allowing a jury to hear the kind of evidence that supports a gang enhancement before it has decided whether the defendant is guilty or not may lead to wrongful convictions.'" (People v. Burgos (2024) 16 Cal.5th 1, 10; see Stats. 2021, ch. 699, § 2, subd. (e).) Barnett argues this declaration shows the Legislature intended all gang-related enhancements and special circumstances to be bifurcated, no matter what section they were charged under, and any other result would be absurd.
Statutory interpretation is a question of law subject to de novo review. (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.) "'It is well settled that the proper goal of statutory construction "is to ascertain and effectuate legislative intent, giving the words of the statute their usual and ordinary meaning. When the statutory language is clear, we need go no further."'" (Satele v. Superior Court (2019) 7 Cal.5th 852, 858.)
Section 1109 requires bifurcation of gang enhancements charged under section 186.22 (§ 1109, subds. (a) ["If requested by the defense, a case in which a gang enhancement is charged under subdivisions (b) or (d) of Section 186.22 shall be tried in separate phases"] & (b) ["If a defendant is charged with a violation of subdivision (a) or Section 186.22, this count shall be tried separately"].) Section 1109 makes no mention of sections 190.2 or 12022.53. "'"The Legislature is presumed to be aware of all laws in existence when it passes or amends a statute."'" (Haggerty v. Thornton (2024) 15 Cal.5th 729, 741.) If the Legislature had intended to include sections 190.2 or 12022.53 within the scope of section 186.22, it could have. It did not. "'We may not rewrite [a] statute to conform to an assumed intention that does not appear in its language'" (Niedermeier v. FCA U.S. LLC (2024) 15 Cal.5th 792, 807), and "[w]e cannot add words to a clear and unequivocal statute" (Figueroa v. FCA US, LLC (2022) 84 Cal.App.5th 708, 712). Section 1109 is clear on its face. It does not require, or even support, bifurcation of the charged gang-murder special circumstances or gang-related firearm allegations. (See People v. Montano (2022) 80 Cal.App.5th 82, 111-114.)
B. Third Party Culpability
During trial, evidence was presented possibly connecting J.W. to the murders, specifically, that J.W. was involved in a physical altercation with the victims the day before the murders and was identified by B.S., the survivor, as the shooter within hours of the murders. Evidence also was presented possibly connecting Jo.W. to the murders, specifically, that he had a stocky build and afro like the driver of the Dodge Caliber as shown on the gas station video and DNA evidence suggested he may have contributed to the DNA found on the Dodge Caliber's steering wheel.
After the foregoing evidence was introduced, the prosecutor moved to exclude all evidence of third party culpability, including evidence regarding J.W. or Jo.W.'s possible involvement in the murders. The trial court granted the motion and directed defense counsel not to ask any further questions or present argument regarding third party culpability, including J.W. and Jo.W.'s possible involvement.
Despite the court's ruling, Ochoa's counsel argued in closing that either J.W. or Jo.W. was the driver of the Dodge Caliber at the time of the murders. The prosecutor made no objection during Ochoa's closing but asked the court for further instruction once Ochoa's closing concluded. In response, the court instructed Barnett's counsel: "You can argue your clients didn't . . . do it, but you can't pin it on an individual being involved in-as an alternative. So there's a fine line there. [¶] But-I don't know what you're planning on arguing, . . . but that would be inappropriate."
Barnett argues the trial court erred in giving the instruction because it denied Barnett the right to argue that J.W. or Jo.W. was involved in the murders, which he asserts could raise a reasonable doubt as to Barnett's involvement. At best, the evidence presented at trial could have been argued to support a claim that Jo.W. was the driver of the Dodge Caliber and J.W. was either the driver or the shooter.
The prosecutor's theory of Barnett's involvement in the murders was that Barnett encouraged J.C. to commit the murders, obtained the gun and car used in the murders, was riding in the back seat of the Dodge Caliber when the murders were committed, and helped clean up the evidence. No one ever argued-or even suggested-that Barnett was the shooter or the driver. The evidence suggesting J.W. or Jo.W.'s possible involvement in the murders could not create a reasonable doubt as to Barnett's involvement. Accordingly, even if the trial court's instruction was erroneous, there was no prejudice. (Watson, supra, 46 Cal.2d at p. 836.)
C. Propensity Evidence
Barnett argues he was deprived of a fair trial because jurors "almost certainly used" certain evidence as propensity evidence in violation of Evidence Code section 1101. He identifies five categories/pieces of allegedly improper propensity evidence: (1) the predicate acts introduced in connection with the gang allegations; (2) the photograph Barnett posted on March 3, 2018, of himself holding a revolver; (3) a photograph Barnett posted of himself festooned with captions ending in the letter "k," which an investigating officer testified stood for killer; (4) "gang monikers;" and (5) "rap music."
We review a trial court's rulings under Evidence Code section 1101 for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.) "Under the abuse of discretion standard, 'a trial court's ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Hovarter (2008) 44 Cal.4th 983, 1004.)
Pursuant to Evidence Code section 1101, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Id., subd. (a).) Such evidence is admissible, however, to prove an issue other than the person's propensity, including motive, opportunity, intent, preparation, or planning. (Id., subd. (b).)
The prosecutor introduced evidence of five predicate acts to show the pattern of gang activity necessary to establish Sex Cash/Lavish Goons were criminal street gangs within the meaning of the charged gang-murder special circumstances and gang-related firearm enhancements. All of the predicate acts predated the murders. None involved Barnett. "'The People are generally entitled to introduce evidence of a defendant's gang affiliation and activity if it is relevant to the charged offense.'" (People v. Pineda (2022) 13 Cal.5th 186, 233.) The People here were entitled to present evidence of the predicate acts.
The photograph of Barnett holding a revolver was used as evidence of opportunity, intent, and preparation and not as propensity evidence. It was posted on March 3, 2018-just four days before the murders. The gun Barnett was holding in the photograph was the type of gun likely used in the murders. (People v. Sanchez (2019) 7 Cal.5th 14, 55-56 [evidence that a defendant owned a gun that could have been the murder weapon is "'relevant and admissible as circumstantial evidence that he committed the charged offenses'"].)
Similarly, the photograph Barnett posted of himself with various captions was used as evidence of motive. One of the captions on the photograph was WFK, which an investigating officer testified meant Wild Flax Killer. The murders took place in territory claimed by the Wild Flax gang and B.S., the survivor, was a Wild Flax member.
Barnett also claims evidence of gang monikers and rap music was improperly-admitted propensity evidence. He does not, however, identify what he means by gang monikers or specify what rap music was improperly admitted or how it was improperly used. "If a party's briefs do not provide legal argument and citation to authority on each point raised, '"the court may treat it as waived, and pass it without consideration."'" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363.)
We note Barnett does not make any claim under Evidence Code section 352.2 (added by Stats. 2022, ch. 973, § 2, eff. Jan. 1, 2023), which specifically addresses the introduction of rap lyrics into evidence and the retroactive application of which is currently pending before the California Supreme Court. (People v. Venable (2023) 88 Cal.App.5th 445, review granted May 17, 2023, S279081.) Because Barnett does not raise any issue regarding section 352.2, we do not address that statute.
The trial court did not abuse its discretion in allowing introduction of the specified evidence.
Barnett also argues the trial court aggravated a possible misuse of the evidence as propensity evidence by failing to give CALCRIM No. 1403, which guides the jury in the permissible and impermissible uses of evidence of gang activity. However, Barnett cites to no place in the record where he requested CALCRIM No. 1403. Accordingly, this claim is forfeited. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052; People v. Kaihea (2021) 70 Cal.App.5th 257, 265.) He argues the matter can still be reviewed on appeal, however, because the failure to request CALCRIM No. 1403 constituted ineffective assistance of counsel.
"'To establish ineffective assistance, defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him.' [Citation.] 'If the record does not shed light on why counsel acted or failed to act in the challenged manner, we must reject the claim on appeal unless counsel was asked for and failed to provide a satisfactory explanation, or there simply can be no satisfactory explanation.' [Citation.] On this record, we cannot say that counsel [was] deficient for not requesting a limiting instruction. 'A reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide.'" (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) Here, it reasonably appears a limiting instruction (such as CALCRIM No. 1403) may only have drawn attention to evidence establishing Barnett's gang membership as well as his motive, intent, opportunity, and preparation for the murders. (People v. Freeman (1994) 8 Cal.4th 450, 495 [no ineffective assistance where "[c]ounsel may well not have desired the court to emphasize the evidence, especially since it was obvious for what purpose it was being admitted"].) We find no ineffective assistance of counsel.
D. Prosecutorial Error
Barnett argues the prosecutor committed numerous errors, the individual and collective effect of which was to deprive him of a fair trial. Barnett acknowledges his trial counsel did not object to most of the claimed errors. A defendant does not have to make a timely objection, however, if the objection would have been futile or an admonition would not have cured the harm. (People v. Johnsen (2021) 10 Cal.5th 1116, 1164.) Barnett argues any objection would have been futile because an admonition would only have emphasized the prosecutor's allegedly objectionable statements. Further, Barnett argues his trial counsel's failure to object violated his constitutional right to the effective assistance of counsel. Such an argument is sufficient to raise the issue on appeal. (People v. Centeno (2014) 60 Cal.4th 659, 674 ["'[a] defendant whose counsel did not object at trial to alleged prosecutorial misconduct can argue on appeal that counsel's inaction violated the defendant's constitutional right to the effective assistance of counsel'"].) Accordingly, we address the claim that prosecutorial error violated Barnett's right to a fair trial.
"A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) "When the issue 'focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'" (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) Any allegedly objectionable statement must be viewed "in the context of the argument as a whole." (Id. at p. 1203.) "'A defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.'" (People v. Flores (2020) 9 Cal.5th 371, 403.)
Barnett argues the prosecutor committed error by: (1) misleading the jurors about certain evidence; (2) repeatedly referring to Barnett as a killer; (3) urging that Barnett be convicted to protect the community; and (4) urging the jury to convict Barnett because J.C. (the shooter) did not receive significant punishment.
1. Misstating the Evidence
In her opening, the prosecutor told the jury J.W. would testify Barnett was in the back seat of the Dodge Caliber during the murders, and Jo.W. would testify and corroborate Barnett's participation in the murders. Neither statement proved to be correct. J.W. did not testify Barnett was in the back seat during the murders, and Jo.W. did not testify at all. Statements made in an opening regarding evidence do not constitute prosecutorial error unless the evidence referred to is "'"'"so patently inadmissible as to charge the prosecutor with knowledge that it could never be admitted."'"'" (People v. Flores, supra, 9 Cal.5th at p. 404.) Here, the statements were not patently inadmissible and we find no error.
In her closing, the prosecutor erroneously stated that J.W. had testified Barnett participated in the murders. "'"'[S]tatements of facts not in evidence [that are asserted] by the prosecuting attorney in his argument to the jury constitute misconduct.'"'" (People v. Johnson (2022) 12 Cal.5th 544, 628.) The prosecutor's assertions that J.W. had identified Barnett as being involved in the murders were prosecutorial error. However, the error did not infect the trial with unfairness so as to deny Barnett his due process and did not appear to involve the use of deceptive or reprehensible methods. (People v. Morales, supra, 25 Cal.4th at p. 44.) The error does not require reversal.
Barnett also argues prosecutorial error based on the prosecutor's statement in closing that Barnett told one of his fellow gang members he was going to try to get a .357. At trial, evidence was introduced that Barnett sent a text message stating: "I'm finna get the 357." The investigating officer testified the statement meant Barnett was going to retrieve a .357 that was already in his possession, not that Barnett was going to try to get a .357. Even if the prosecutor's statement was error, there was no harm. The interpretation that Barnett already had a .357 is more harmful to Barnett than the prosecutor's statement that Barnett was going to try to get a .357.
2. Statements Identifying Barnett as a Violent Killer
Barnett argues the prosecutor engaged in prosecutorial error by making allegedly improper character arguments in opening and closing. The claimed improper remarks in opening were: (1) "They lived that lifestyle with everything in them; violence, taking from people, making murder a sport" and (2) "Their sport, their allegiance, is to killing." The claimed improper remarks in closing were: (1) "They chose a life of violence....It is who they are at the core of their being"; (2) "Their identity isn't Kamyron Barnett, the name his mama gave him. That's not what it is. He chose to make his identity Sex Cash, Lavish Goons. Killer. Wild Flax killer"; and (3) "Barnett says, [Flax] Killer. Because, remember, that is his identity now. It has been for some time. [Flax] Killer. That means more than his birth name."
Barnett argues those statements encouraged the jury to find Barnett guilty based on his propensity for violence rather than the evidence specific to the murders. Read in context, the prosecutor's statements argue motive, i.e., that Barnett's membership in Sex Cash/Lavish Goons was the reason he chose to participate in the murders. There was no error. Further, even had there been error, any objection to the statements might only have highlighted evidence Barnett may well not have wanted to emphasize, so the failure to object did not constitute ineffective assistance of counsel. (People v. Freeman, supra, 8 Cal.4th at p. 495.)
3. Appeals to the Jurors' Fears and Emotions
Barnett argues the prosecutor committed error in her opening and closing statements by repeatedly suggesting Barnett lived in a "gang world" that posed a threat to the jurors and their community. He specifically complains of the following statements made in the opening: (1) the murders were a societal norm for "some of us"; (2) Sex Cash/Lavish Goons' "allegiance is to breaking into your homes and violently stealing your vehicles. Killing you. That is where their allegiance is"; and (3) Sex Cash/Lavish Goons "take what they want to further the activity of the gang, further the participation, further the crimes and the violence that they do in our community." Barnett also objects to the following statements from the prosecutor's closing statement: (1) "When worlds collide, one is going to win"; (2) "And when those worlds collide, and when they collided in this case, it seems that the gang won. But they didn't. They didn't because it's up to each and every one of you to bring justice for [Jeremiah] and [Elijah]"; and (3) "This is a legitimate gang the community should fear with the legitimate crimes that they commit and they've been convicted of, that they're in prison for; attempt[ed] murders; robbing people's houses, breaking into your home, stealing your cars, using guns to assault members of our community."
Barnett argues the prosecutor's comments improperly appealed to the jurors' fears and emotions and urged them to convict Barnett to protect themselves and preserve social stability. Comments that suggest a jury should "decide the case based on this emotion rather than a critical and neutral evaluation of the evidence" are improper. (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 789.) Comments that ask a jury to be the conscience of the community are not improper. (Ibid. ["the prosecutor's comments were tantamount to comparing the jury to '"the conscience of the community,"' a practice we have routinely upheld as proper"]; People v. Gamache (2010) 48 Cal.4th 347, 388-389 [a prosecutor's comments to the jury that they were the conscience of the community found proper; "[j]urors are the conscience of the community"].)
The prosecutor's comments here went well beyond suggesting to the jurors that they act as the conscience of the community. They were scare tactics designed to encourage the jury to decide the case based on emotion and fear-including fear that defendants' gang members would break into their homes, "violently" steal their cars, or kill them-rather than on an objective assessment of the evidence. We conclude they crossed the line into prosecutorial error. Given the evidence against Barnett, however, we cannot say it is reasonably probable the jury would have found Barnett not guilty in the absence of the prosecutor's appeals to the juror's fears and emotions. (People v. Flores, supra, 9 Cal.5th at p. 403.) Accordingly, even though the comments were prosecutorial error, we do not reverse on this basis.
4. Statements Invoking J.C.'s Punishment
During J.C.'s testimony, the prosecutor established that J.C., the shooter, admitted his crimes as a juvenile and would be released from custody in five years. During closing argument, the prosecutor made the following comments regarding J.C.'s sentence: "He's getting out in five years. He's going to go right back to that lifestyle. He told us. And he is the hero of the day because not only did he [kill Jeremiah and Elijah] at the age of 15, and not only did he get off scot-free because of the Supreme Court, he came in here and lied for his big homies. He's gonna get out and be a Sex Cash hero, if you let him. [¶] But if you bring justice and you find these men guilty of everything charged, that tells [J.C.], We know you're lying. We know the truth, and we're not going to engage in street justice. We're going to engage in truth. As hard as it was, as graphic as it was, that's what we're standing for."
These comments by Ms. Degonia were prosecutorial error in multiple respects. It is clearly improper to suggest that the jury should convict Barnett and Ochoa in order to send a message to the juvenile shooter, J.C., and to somehow prevent him from being a "Sex Cash hero." It is doubly improper to suggest the jury should convict Barnett and Ochoa because the 15-year-old shooter was tried as a juvenile and therefore did not, in the prosecutor's opinion, receive a severe enough punishment. Finally, the prosecutor's none-too-subtle criticism of our highest court-by suggesting that the reason the juvenile shooter had gotten off "scot-free" with a five-year sentence is "because of the Supreme Court"-is also prosecutorial error. We hold prosecutors to a high standard of ethics and honesty. At a minimum, we can and must expect prosecutors to uphold and respect the law and to encourage jurors to do the same; that necessarily includes not denigrating the Supreme Court or suggesting to jurors that they should disrespect the Supreme Court because it is soft on juvenile murderers by letting them go "scot-free" with a five-year slap on the wrist.
As troubling and improper as all this conduct by Ms. Degonia is, we cannot say it is reasonably probable the jury would have found Barnett not guilty in the absence of the comments, so the prosecutorial error is not reversible. (People v. Flores, supra, 9 Cal.5th at p. 403.) We can say, however, that conduct such as this must not be repeated.
E. Cumulative Error
Barnett argues the cumulative effect of all the claimed errors requires reversal. "'Under the cumulative error doctrine, the reviewing court must "review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence."'" (People v. Mireles (2018) 21 Cal.App.5th 237, 249.) "'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial."'" (Ibid.)
We found three areas of error: (1) prosecutorial error in misstating the expected evidence in the opening (as to J.W. and J.Wo.) and the actual evidence in closing (as to J.W. and, possibly, as to the status of Barnett's possession of a .357); (2) prosecutorial error in invoking fear tactics in the opening and closing; and (3) prosecutorial error in statements invoking J.C.'s punishment and denigrating the Supreme Court in the closing. As explained above, none of these errors, considered individually, was prejudicial and we reach the same conclusion when considering the errors together: "'"their cumulative effect does not warrant reversal of the judgment."'" (People v. Pineda, supra, 13 Cal.5th at p. 260.)
F. Sufficiency of the Evidence
Barnett argues the evidence presented at trial was insufficient to establish he was a principal in the murders because: (1) no witness placed him in the car at the time of the murders; (2) the surveillance videos did not show him (or, indeed, anyone) in the back seat of the Dodge Caliber during the murders; (3) his DNA could have been left in the Dodge Caliber before the murders; and (4) there was no evidence he encouraged J.C. to commit these particular murders.
In reviewing a claim of insufficient evidence, we view the record in the light most favorable to the judgment and presume every fact the jury could reasonably deduce from the evidence presented. (People v. Lee (2011) 51 Cal.4th 620, 632.) We also accept any logical inferences that could have been drawn from circumstantial evidence. (People v. Flores, supra, 9 Cal.5th at p. 411.) We do not reweigh evidence or determine credibility. (People v. Albillar (2010) 51 Cal.4th 47, 60.) A conviction will stand "'unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]."'" (People v. Cravens (2012) 53 Cal.4th 500, 508.)
Barnett was found guilty as a principal in the first degree murders of Jeremiah and Elijah and the premeditated attempted murder of B.S. Principals to a crime are "[a]ll persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission." (§ 31.) "'A "person aids and abets the commission of a crime when he or she, acting with: (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime."'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.) "'Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.'" (Ibid.)
Reviewing the evidence in the light most favorable to the judgment and presuming every fact the jury could reasonably deduce from the evidence presented, we conclude sufficient evidence supported Barnett's convictions. Barnett encouraged J.C., the shooter, to fight or kill a member of the rival Wild Flax gang. Throughout February 2018, Barnett repeatedly threatened B.S., the surviving victim of the attempted murder, and attempted to arrange a gang fight between himself and J.C. against B.S. and other Wild Flax members. In the days leading up to the murders, Barnett stole a gun, posted a picture of himself with a revolver (the type of gun likely used in the crime) and told a fellow member of Sex Cash/Lavish Goons he intended to shoot someone. On the day before the murders, Barnett had access to two stolen cars (the murders were committed in a stolen car). Barnett was in the stolen Dodge Caliber just before it left the Apartments on the way to the murders. Minutes after the murders, Barnett reached out to a senior gang member to report the murders, including naming B.S. as a victim. When Barnett learned other Sex Cash/Lavish Goons members had been arrested for the murders, he asked if they had said anything about him. Finally, in the weeks following the murders, Barnett got rid of the gun he had been bragging about just before the murders.
There is sufficient evidence to support the finding that Barnett was a participant in the murders. He knew J.C. intended to shoot Wild Flax members. He intended to encourage and facilitate the murders. And he provided the gun and car that made the murders possible.
DISPOSITION
The judgment against Ochoa is reversed and the matter is remanded for retrial. The judgment against Barnett is affirmed.
WE CONCUR: GOETHALS, ACTING P. J., DELANEY, J.