People v. Blay

Full title: THE PEOPLE, Plaintiff and Respondent, v. DEANDRE MAURICE BLAY et al.…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Sep 16, 2019

No. A138380 (Cal. Ct. App. Sep. 16, 2019)

Opinion

A138380

09-16-2019

THE PEOPLE, Plaintiff and Respondent, v. DEANDRE MAURICE BLAY et al., Defendant and Appellant.

Richman, Acting P.J.

BY THE COURT:

The opinion filed herein on September 16, 2019 is modified as follows:

1. On page 3, the second line of footnote 3 is modified to read:

probationer, his residence, and his property, "with or without reasonable or probable cause"; it did not specifically cover cell phones or electronic devices.

2. The paragraph commencing with the final line of text on page 11, and concluding on line 8 of page 12, is modified to read:

downloading of information from the cell phone. However, as Deandre points out in his petition for rehearing, this reasoning cannot apply to the initial search of September 17 because he was not under arrest. This leads naturally to the other ground for Judge Boren's ruling—that the search was proper under Deandre's probation search condition. (See fn. 3, ante.) Prior to our Supreme Court's recent decision that even a juvenile probation condition which explicitly referenced electronic devices was constitutionally vulnerable unless shown to be reasonably related to preventing future criminality (In re Ricardo P. (2019) 7 Cal.5th 1113), the Courts of Appeal were split on the issue. (Cf. People v. Sandee (2017) 15 Cal.App.5th 294 [2015 search of cell phone data permitted by same probation condition as here] with In re I.V. (2017) 11 Cal.App.5th 249 262 ["[r]easonably construed," probation condition requiring minor to submit his "property" and "any property under [his] immediate custody or control" to search "applies only to tangible physical property, and not to electronic data"].) But all of these decisions involved a challenge to the condition on direct appeal after it was imposed. None involved what is presented here, what is in essence a collateral attack in a subsequent prosecution, where a challenge to the scope and/or validity of a probation condition has been deemed untimely and inappropriate. (E.g., People v. Howard (1997) 16 Cal.4th 1081, 1095; People v. Bowen (2004) 125 Cal.App.4th 101, 106; People v. Dixon (2003) 113 Cal.App.4th 146, 150.)

In any event, the search condition authorized searches "with or without reasonable or probable cause." Conditions with this broad language generally exclude only police action that qualifies as arbitrary or capricious. (E.g., In re Jaime P. (2006) 40 Cal.4th 128, 138; People v. Bravo (1987) 43 Cal.3d 600, 610.) Judge Boren concluded that the police action in seizing his cell phone(s) and downloading its contents was "clearly not" arbitrary, but was "proper and reasonable." We reach the same conclusion. 2. On page 26, the following sentence is added at the end of the third full paragraph:

Nor was it a denial of due process, because Blay has failed to demonstrate that the ensuing trial was actually infected with " 'gross unfairness.' " (People v. Mendoza (2000) 24 Cal.4th 130, 162.)

3. On page 30, the sixth line of the first full paragraph is modified to read:

(People v. Mendoza, supra, 24 Cal.4th 130, 158; accord, In re Scott (2003) 29 Cal.4th

4. On page 83, at the end of the first full paragraph, the following is added as a new footnote:

In his petition for rehearing, Johnson claims we did not address his argument that the instruction was also improper because it "violated" Evidence Code section 1101. The sole mention of this statute in Johnson's opening brief was that it was made part of an objection in the trial court. This fleeting citation was insufficient to require discussion. (See Cal. Rules of Court, rule 8.204(a)(1)(B).)

5. On page 84, the third line of the fifth full paragraph is modified to read:

or premeditation.

6. On page 99, lines 6 and 7 are modified to read:

on a valid ground," (Chiu, supra, 59 Cal.4th 155, 167; accord, People v. Aledamat (2019) 8 Cal.5th 1, 12-13.)

7. On page 100, the final line for footnote 31 is modified to read:

Aledamat, supra, 8 Cal.5th 1, 12-13.)

8. On page 108, line 3 of the third full paragraph is modified to read:

and headed towards Le. Abram was about to be intercepted by Johnson's father, but Johnson very loudly said

These modifications do not effect a change of the judgment.

The petitions for rehearing are denied. October 15, 2019

/s/_________

Richman, Acting P. J.

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. (Marin County Super. Ct. Nos. SC165001A, SC165001B, SC165001C, SC165001D)

Tong Van Le was the victim of a robbery at his convenience store in San Francisco. Larry Brian Blay, Jr. was identified as one of the robbers, and was in jail awaiting his preliminary examination. On September 13, 2008, Le was killed in his car as it entered the garage of his Novato home.

The prosecution's theory, accepted by the jury, was that Tong Van Le was killed at the direction of Larry Brian Blay, Jr. because Le was expected to testify against him. Sean Demetrius Washington drove the vehicle that followed the victim driving home from the San Francisco market that Larry was accused of robbing. Deandre Blay, Larry's brother, identified the victim ("There he is") getting into his car, and gave Washington the orders to follow and "Don't lose him." Le had just opened his garage door, and driven his car into the garage, when Kevin Abram jumped out of Washington's car, ran into Le's garage, and fired a bullet into Le's face, while Le was still seated in his vehicle. Deandre Blay then left the car, went into the garage, and returned with Abram, who was carrying a gun. When Washington inquired "are there any bullets [left] in the gun?", Abram replied, "No." C. Autis Johnson, Jr., who also initially identified the victim, told Washington to drive away from the scene.

Originally indicted with the others, Washington, after pleading guilty to involuntary manslaughter, testified for the prosecution. All of the defendants—Larry Blay, Deandre Blay, Kevin Abram, and C. Autis Johnson—were found guilty of first degree murder (Pen. Code,¹ § 187), preventing a witness from testifying (§ 136.1), and conspiring to commit those crimes (§ 182). The jury found true against all of the defendants the special circumstance allegation that the murder was committed to prevent Le from testifying (§ 190.2, subd. (10)); Abram, Johnson, and Deandre Blay were also found to have the additional special circumstance of committing the murder while lying in wait (id., subd. (15)). Johnson was also found guilty of being an accessory.² (§ 32.) A variety of sentence enhancement allegations were also found to be true. All defendants have appealed from their life sentences.

1 Statutory references are to this code unless otherwise indicated.

2 As was his mother, Anchulita Uribe, whose conviction has been affirmed in a separate opinion. (People v. Uribe (March 13, 2107, A136224) [nonpub. opn.].) The prosecution's theory was that she had disposed of the murder weapon.

The record, repeatedly augmented, is voluminous. The briefing, repeatedly supplemented, is extensive. The briefs commonly overlap on the issues. There is considerable joining in other arguments made by other defendants. (See fn. 5, post.) The briefs establish that the parties are familiar with the evidence presented at trial. The sufficiency of that evidence is challenged only for one crime—the murder—and then only on narrow points that differ from defendant to defendant. In short, there is considerable evidence that need not be summarized here in order to resolve the issues presented. Instead, in the hopes of reducing the length of this opinion, we will adopt a slightly novel structure of addressing challenges to evidence, to decide which evidence is proper to consider when addressing the sufficiency claims. Apart from this, the claims of error will be addressed in the order in which they allegedly occurred.

The murder occurred in 2008, the trial was in 2012, and sentencing was in 2013. The Honorable Terence Boren presided over every phase of the trial with exemplary dedication and conscientiousness, some of which will be reflected in various rulings that we will quote at length.

Ultimately, we conclude that the myriad attacks on the merits do not require reversal of any of the judgments of conviction. However, three of the four defendants, all except Larry Blay, were juveniles at the time of the murder. Since 2013, the law of juvenile punishment has been fundamentally transformed. This will require that the juvenile court be given the opportunity to decide whether those individuals should not have been tried as adults in criminal court. The judgment against Larry Blay will be affirmed.

DISCUSSION

The Suppression Motions

Defendants sought to remove a major part of the prosecution's evidence with three suppression motions, all of which were denied. We address them in the chronological order they were made.

I

Deandre Blay moved to suppress evidence and information obtained from the warrantless seizure and search (i.e., downloading the contents) of his cell phones. Abram filed his own motion for the same relief. The trial court ruled that Abram lacked standing to challenge the seizure of Blay's phone. After hearing testimony and extensive argument, the court denied the motion on its merits, concluding the searches were reasonable as incidental to his arrest, and as authorized by his probation search condition.³

3 The condition was the general one authoring a warrantless search of the probationer, his residence, and his property; it did not specifically cover cell phones.

Both motions were made under the authority of section 1538.5. Ordinarily, " '[t]he standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.' " (People v. Redd (2010) 48 Cal.4th 691, 719.) Here, because the underlying facts are undisputed, our review is entirely independent. (People v. Zaragoza (2016) 1 Cal.5th 21, 57.) The evidence received in connection with this motion is summarized with admirable brevity and clarity by the highly experienced appellate attorney representing Deandre Blay:

"On September 17, 2008, San Francisco Police Sergeant Kevin Knoble entered the Alemany Projects⁴ at 5:00 p.m. in an unmarked police car with three other officers, on a routine patrol.

4 The convenience store operated by the victim was located very near this area.

"Sergeant Knoble believed Deandre to be a member of the 'Alemany Projects gang,' although he acknowledged that no such gang was documented as a gang in police records on September 17, 2008. Moreover, he acknowledged that he knew Deandre was not listed with the probation department as a gang member, and that his probation did not have any gang conditions.

"As the officers entered Ellsworth Street, Sergeant Knoble saw Deandre with a group of other young men. The group took off running. Sergeant Knoble knew that Deandre had a probation search condition, and that he was a 'person of interest' in the shooting of Mr. Le. Therefore, when the young men ran, officers pursued them. Two of the officers followed Deandre to Jasmine Johnson's apartment at 948 Ellsworth Street. Deandre was in an upstairs bedroom, and there was a cell phone next to him on the bed. The phone had the number (415) 684-4775.

"Sergeant Knoble testified that in his opinion, the phone was 'part of him, his property,' and therefore, in his mind it was searchable pursuant to the probation search condition authorizing warrantless searches of Deandre's person, vehicle, or residence, even though the search condition did not specify that it applied to cell phones or other electronic devices.

"Sergeant Knoble immediately picked up the phone because he believed there would be incriminating evidence on it. He knew that a tremendous amount of information is often kept in cell phones. As he talked with Deandre, he began looking at pictures in the phone's memory. Knoble released Deandre to his mother, but he seized the phone. Sergeant Knoble did not have an arrest warrant or a search warrant for Deandre or for the cell phone at the time of this encounter.

"The next day, September 18, 2008, police conducted a Cellbrite download of all the information on the seized phone. The phone was locked, and the police had to unlock it in order to do the Cellebrite download. The data downloaded included numerous photographs, a list of incoming and outgoing calls, the text of numerous text messages, and a list of phone contacts. It also included the phone number of the phone and the name of the cell phone service provider, Metro PCS.

"Later that same day, September 18, 2008, Detective Jehad Amdjadi of the Novato Police Department composed an affidavit for a search warrant for the Metro PCS records for the phone.

"On September 29, 2008, Detective Sophia Winter of the Novato Police Department swore out an affidavit for an additional search warrant for service provider records for the same phone. Her affidavit was based on information obtained in the warrantless searches of that phone on September 17 and 18, 2008, including the September 18 Cellebrite download. The warrant was served on Metro PCS on September 29, 2008.

"On October 23, 2008, at 10:00 p.m., Sergeant Katherine Choy and other officers were on foot patrol on Ellsworth Street when they saw Deandre's grandmother in her car. She told them she was there to pick up Deandre at 936 Ellsworth Street. Sergeant Choy knew there was a warrant for Deandre's arrest. She and Officer Toomey went to 936 Ellsworth Avenue and arrested Deandre. Deandre's cell phone was seized. The seizure was done without a warrant. This phone had the number (650) 221-0227.

"The following day, Officer Kumli did a Cellebrite download on this second phone. Officer Kumli did not obtain a search warrant before doing the Cellbrite download.

"Detective Winter subsequently swore out an affidavit for a search warrant for the cell phone service provider records for the phone with the number (415) 684-4775 and for the newly-seized phone, which had the number (650) 221-0227. The affidavit was based primarily on information from the September 17 and 18 warrantless searches of the phone with number (415) 684-4775, and on information contained in the Metro PCS records that were obtained pursuant to the warrant served on Metro PCS in regard to that phone on September 29, 2008.

"On November 4, 2008, Detective Amdjadi swore out an affidavit for a search warrant for additional phone records pertaining to (415) 684-4775 and (650) 221-0227, and for various MySpace records pertaining to appellant."

Deandre Blay is correct in contending the seizures and searches cannot be justified as incidental to his arrest.⁵ In Riley v. California (2014) 573 U.S. 373 (134 S.Ct. 2473), the United States Supreme Court concluded that none of the justifications for the search incident exception—escape, officer safety, and preventing the destruction of evidence—applied to a cell phone (or more properly, the information it contains): "Our holding . . . is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest."⁶ (Id. at p. 401 .)

5 In their respective briefs, Abram, Larry Blay, and Johnson purport to join in this argument. "Instead of filing a brief, or as part of its brief, a party may join in or adopt by reference all or part of a brief in the same or a related appeal." (Cal. Rules of Court, rule 8.200(a)(5).) However, this is subject to a condition precedent: that party must have taken action at trial to preserve the issue for review by him. An appellant cannot challenge the ruling on a motion made by another party unless the appellant joined in the motion at trial. (People v. Mitcham (1992) 1 Cal.4th 1027, 1048; People v. Miranda (1987) 44 Cal.3d 57, 77-78.) "[F]ailure to join in the objection or motion of a codefendant constitutes a waiver of the issue on appeal." (People v. Wilson (2008) 44 Cal.4th 758, 793.) " 'On appeal, a defendant cannot take advantage of objections made by a codefendant.' " (People v. Jacobs (1987) 195 Cal.App.3d 1636, 1656.) Accordingly, unless their respective brief demonstrates the respective defendant did something at trial to preserve the issue, the purported joinder will not be recognized.
There is an additional dimension applicable to all of the suppression motions. "[A] defendant has no standing to complain of violations of another's Fourth Amendment rights." (People v. Badgett (1995) 10 Cal.4th 330, 343; see In re Lance W. (1985) 37 Cal.3d 873, 896.) As noted, the trial court rejected Abram's claim that he had standing to challenge the validity of the seizure and search of Deandre Blay's cellphones. Abram does not attack that ruling in his brief.

6 The court left open the possibility of a warrantless search of cell phone data passing constitutional muster: "[E]ven though the search incident exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. 'One well-recognized exception applies when " 'the exigencies of the situation' make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.' [Citations.] Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury." (Riley v. California, supra, 573 U.S. at pp. 401-402 .)

Our Supreme Court, in a recent decision examining Riley, noted: "Exclusion of evidence due to a Fourth Amendment violation is not automatic," and the United States Supreme Court "has recognized that the deterrent purpose of the [exclusionary] rule is not served by excluding evidence when an officer reasonably acts in objective good faith." (People v. Macabeo (2016) 1 Cal.5th 1206, 1219-1220.) The court listed several situations which have come within this good faith exception, one of which is that " 'searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule,' " even if that precedent is later overruled. (Id. at p. 1221, quoting Davis v. United States (2011) 564 U.S. 229, 232.)

The Attorney General invokes this exception, but with a slightly unusual twist. Because there was no "binding appellate precedent" squarely holding that police could download information from a cell phone seized in the course of search incident to a valid arrest, it sounds counterintuitive for the Attorney General to tell us "Binding Precedent Permitted the Search of Deandre's . . . Cell Phone's Contents Incident to Arrest." This initial impression is only reinforced by noting the Attorney General is basing his argument on two of the very same decisions—United States v. Robinson (1973) 414 U.S. 218 (Robinson), and United States v. Chadwick (1977) 433 U.S. 1 (Chadwick)—that the Riley Court declined to read as authorizing the downloading of cell phone data. Nevertheless, together with the addition of United States v. Edwards (1974) 415 U.S. 800 (Edwards), his reasoning is persuasive. The final element of unorthodoxy is that the soundness of the Attorney General's argument is conclusively demonstrated by our own Supreme Court.

In People v. Diaz (2011) 51 Cal.4th 84 (Diaz), decided the year after the trial court made the ruling under review, and three years prior to Riley, our Supreme Court squarely held that police could download information from a cell phone seized in the course of search incident to a valid arrest, and it did so under compulsion of "the United States Supreme Court's binding precedent." This is how Justice Chin, for the majority of six, framed the issue before the court:

"We granted review in this case to decide whether the Fourth Amendment to the United States Constitution permits law enforcement officers, approximately 90 minutes after lawfully arresting a suspect and transporting him to a detention facility, to conduct a warrantless search of the text message folder of a cell phone they take from his person after the arrest. We hold that, under the United States Supreme Court's binding precedent, such a search is valid as being incident to a lawful custodial arrest." (Diaz, supra, 51 Cal.4th 84, 88, italics added.)

Justice Chin began the court's analysis by setting forth the governing law of a search incident to arrest. The three authorities cited in the paragraph were Robinson, Edwards, and Chadwick. (Diaz, supra, 51 Cal.4th at p. 90.) After stating the parties' respective views of the accessing of cell phone information, the court stated, "Resolution of this issue depends principally on the high court's decisions in Robinson, Edwards, and Chadwick." (Id. at p. 91.) After examining those decisions, the court stated:

"Under these decisions, the key question in this case is whether defendant's cell phone was 'personal property . . . immediately associated with [his] person' (Chadwick, supra, 433 U.S. at p. 15) like the cigarette package in Robinson and the clothes in Edwards. If it was, then the delayed warrantless search was a valid search incident to defendant's lawful custodial arrest. If it was not, then the search, because it was ' "remote in time [and] place from the arrest," ' 'cannot be justified as incident to that arrest' unless an 'exigency exist[ed].' [Citation.]

"We hold that the cell phone was 'immediately associated with [defendant's] person' (Chadwick, supra, 433 U.S. at p. 15), and that the warrantless search of the cell phone therefore was valid. As the People explain, the cell phone 'was an item [of personal property] on [defendant's] person at the time of his arrest and during the administrative processing at the police station.' In this regard, it was like the clothing taken from the defendant in Edwards and the cigarette package taken from the defendant's coat pocket in Robinson, and it was unlike the footlocker in Chadwick, which was separate from the defendants' persons and was merely within the 'area' of their ' "immediate control." ' (Chadwick, supra, 433 U.S. at p. 15.) Because the cell phone was immediately associated with defendant's person, Fazio was 'entitled to inspect' its contents without a warrant (Robinson, supra, 414 U.S. at p. 236) at the sheriff's station 90 minutes after defendant's arrest, whether or not an exigency existed." (Diaz, supra, 51 Cal.4th at p. 93, fns. omitted.)

The court concluded with the same point on which its opinion began: "For the reasons discussed above, we hold that, under the United States Supreme Court's binding precedent, the warrantless search of defendant's cell phone was valid. If, as the dissent asserts, the wisdom of the high court's decisions 'must be newly evaluated' in light of modern technology (dis. opn. of Werdegar, J., post, at p. 104), then that reevaluation must be undertaken by the high court itself." (Diaz, supra, 51 Cal.4th 84, 101, italics added.)

Acting Chief Justice Kennard concurred, making the same point: "As the majority explains, three decisions of the United States Supreme Court compel the result in this case. Those decisions are United States v. Robinson . . . , United States v. Edwards . . . , and United States v. Chadwick . . . ." (Diaz, supra, 51 Cal.4th 84, 102, italics added (conc. opn. of Kennard, Acting C.J.).) "I join the majority rather than the dissent because the United States Supreme Court has cautioned that on issues of federal law all courts must follow its directly applicable precedents, even when there are reasons to anticipate that it might reconsider, or create an exception to, a rule of law that it has established. [Citation.] The high court has reserved to itself alone 'the prerogative of overruling its own decisions.' Under the compulsion of directly applicable United States Supreme Court precedent, I join the majority in affirming the Court of Appeal's judgment." (Id. at p. 103, italics added.)

Only Justice Werdegar thought otherwise: "United States Supreme Court authority does not compel this overly permissive rule, and I cannot agree to its adoption." (Diaz, supra, 51 Cal.4th 84, 112 (dis. opn. of Werdegar, J.).)

Ultimately, of course, the Riley Court did make a "reevaluation" of Robinson, Edwards, and Chadwick, and agreed with Justice Werdegar. However, what Diaz makes clear is that when the trial court denied Deandre's motion, it was acting with " 'objectively reasonable reliance' " on what was accepted as " 'binding appellate precedent.' " (People v. Macabeo, supra, 1 Cal.5th 1206, 1220-1221.) What settles the matter is that it was our Supreme Court that expressly and repeatedly designated Robinson, Edwards, and Chadwick as "binding precedent." Although counsel for Deandre Blay makes a spirited effort to demonstrate that "Robinson, Edwards, and Chadwick never authorized cell phone searches," he cannot convince us to disregard Diaz and our Supreme Court's considered analysis of the scope and application of those decisions. If our Supreme Court treated Robinson, Edwards, and Chadwick as dispositive authority in 2011, so must we for purposes of reviewing the trial court's decision on the basis of the law governing at the time that decision was made in 2012, two years before the United States Supreme Court decided Riley.

The United States Supreme Court has held that the "sole purpose" of the exclusionary rule "is to deter future Fourth Amendment violations. . . . Where suppression fails to yield 'appreciable deterrence,' exclusion is 'clearly unwarranted.' " (Davis v. United States, supra, 564 U.S. 229, 236-237.) "In a line of cases beginning with [United States v.] Leon, [1984] 468 U.S. 897, . . . we . . . recalibrated our cost- benefit analysis in exclusion cases to focus the inquiry on 'the flagrancy of the police misconduct' at issue. . . . [¶] The basic insight of the Leon line of cases is that the deterrence benefits of exclusion 'var[y] with the culpability of the law enforcement conduct' at issue. [Citation.] When the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. [Citation.] But when the police act with an objectively 'reasonable good-faith belief' that their conduct is lawful, [citation], or when their conduct involves only simple, 'isolated' negligence, [citation] the ' "deterrence rationale loses much of its force," ' and exclusion cannot 'pay its way.' " (Davis v. United States, supra at p. 238.) Law enforcement officers acting in accordance with binding appellate precedent are "not culpable in any way," and thus do not require deterrence and "the harsh sanction of exclusion." (Id. at p. 239-240.) Because "[a]n officer who conducts a search in reliance on binding appellate precedent does no more than ' "ac[t] as a reasonable officer would and should act" ' under the circumstances," we do not " ' "[p]enaliz[e] the officer for the [appellate judges'] error." ' " (Id. at p. 241.) Thus, "[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule."⁷ (Ibid.)

7 A recent shift in the law produced the wide-spread application of this principle by California courts.
The year before Riley, in Missouri v. McNeely (2013) 569 U.S. 141, the United States Supreme Court modified its long-standing decision in Schmerber v. California (1966) 384 U.S. 757 governing the involuntary withdrawal of a blood sample from someone suspected of driving while under the influence. The Courts of Appeal have uniformly concluded that the "binding precedent" exception did not require exclusion of blood samples taken prior to the new decision. (People v. Jimenez (2015) 242 Cal.App.4th 1337, 1365; People v. Harris (2015) 234 Cal.App.4th 671, 701-703; People v. Jones (2014) 231 Cal.App.4th 1257, 1265; People v. Rossetti (2014) 230 Cal.App.4th 1070, 1076-1077; People v. Youn (2014) 229 Cal.App.4th 571, 578-580.)

In short, although in retrospect the trial court's ruling was doctrinally incorrect, the state of the law at that time does not compel exclusion of the evidence obtained from the downloading of information from the cell phone. In light of this conclusion, there is no need to determine whether the probation search condition (see fn. 3, ante) allowed access to the cell phone information. (Cf. People v. Sandee (2017) 15 Cal.App.5th 294 [2015 search of cell phone data permitted by same probation search condition] with In re I.V. (2017) 11 Cal.App.5th 249, 262 ["[r]easonably construed," probation condition requiring minor to submit his "property" and "any property under [his] immediate custody or control" to search "applies only to tangible physical property, and not to electronic data"].) Nor will we take up the Attorney General's claim that the cell phone information would have been inevitably discovered via an independent avenue of investigation.

II

In People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs), our Supreme Court adopted procedures "designed to strike a fair balance between the People's privilege to refuse to disclose a confidential informant's identity and the defendant's limited discovery rights in connection with any challenge to [a] search warrant's validity" where the affidavit supporting the warrant was ordered sealed. (Id. at p. 964.) Hobbs directed that "[w]hen a defendant seeks to quash or traverse a warrant where a portion of the supporting affidavit has been sealed, the relevant materials are to be made available for in camera review by the trial court. [Citation.] The court should determine first whether there are sufficient grounds for maintaining the confidentiality of the informant's identity. If so, the court should then determine whether the sealing of the affidavit (or any portion thereof) 'is necessary to avoid revealing the informant's identity.' [Citations.] Once the affidavit is found to have been properly sealed, the court should proceed to determine 'whether, under the "totality of the circumstances" presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was "a fair probability" that contraband or evidence of a crime would be found in the place searched pursuant to the warrant' (if the defendant has moved to quash the warrant) or 'whether the defendant's general allegations of material misrepresentations or omissions are supported by the public and sealed portions of the search warrant affidavit, including any testimony offered at the in camera hearing' (if the defendant has moved to traverse the warrant)." (People v. Galland (2008) 45 Cal.4th 354, 364.)

Separate motions invoking Hobbs seeking disclosure of the several unnamed informants were filed by Deandre Blay, Abram, and Johnson. Here, too, the trial court over the course of two days received testimony, but in camera, and heard extensive argument. On September 24, 2010, it then denied the motions: "[I]t appeared to me it was proper and that, as to each of the search warrants as to which there was a sealed portion of the affidavit, it was properly sealed, and that the total circumstances of the information put in each of the affidavits was sufficient for the purpose of the issuance of the search warrant, in my opinion, based on the totality of circumstances. [¶] So I would deny the motions to unseal, quash, or traverse the warrants."

Deandre Blay does not challenge the denial of his motion in his opening or supplemental briefs. Abram and Johnson do. Given the nature of this issue, they naturally cannot get into the specifics of information that they have not seen. They can only ask this court to examine the sealed portions of the affidavit to determine if it was an abuse of its discretion for the trial court to withhold the sealed information from the defense.

Before we address those issues, we mention three preliminary points.

Concerning how the in camera hearing should be conducted, the Hobbs court stated: "The prosecutor may be present at the in camera hearing; defendant and his counsel are to be excluded unless the prosecutor elects to waive any objection to their presence. [Citation.] Defense counsel should be afforded the opportunity to submit written questions, reasonable in length, which shall be asked by the trial judge of any witness called to testify at the proceeding." (Hobbs, supra, 7 Cal.4th at p. 973.)

Abram states in his opening brief, under the subheading "Procedural Background," that "On November 19, 2010, the court denied the motions to quash and traverse; the court further denied defendants' requests for in camera examination/questions (notably going to probable cause/multiple hearsay issues arising from the informant's reports). (4 CT 758; 21 RT 1763-1778; see also 20 RT 1720, 1732.)" The italicized word gave us pause, because we would not want to overlook a point going to the fundamental fairness of the hearing. So we checked the record references cited.

The single page of the clerk's transcript is simply the minutes for that day, which recites the "Nature of Proceedings" as being "Mtn Set Aside Info PC 995." There is no mention of "questions" desired by a defendant being refused by the court. Pages 1720 and 1732 in the twentieth volume of the reporter's transcript are pages of testimony received on November 19, 2010, presumably in connection with the multiple motions filed to set aside the indictment as permitted by section 995.

The final source cited, volume 21 of the reporter's transcript, is for November 19. The court begins by addressing some scheduling matters, and then indicates the immediate business is taking up a motion, of which defendant Johnson is described as "the main moving party." Counsel for Johnson then makes remarks leading one to conclude that Johnson is making a Franks motion (Franks v. Delaware (1978) 438 U.S. 154) to traverse the search warrant affidavit for intentional or negligent misrepresentations.⁸

8 There is a single reference to Franks in Johnson's supporting papers.

Johnson's counsel stated: "So then, I think what Hobbs provides, since I would be excluded from that in camera, is to allow me to submit several questions for this court so that, in essence, the Court is, in my stead, asking those questions that I'm precluded from asking to determine the basis of knowledge and the verifiable and reliable information at each chain in the hearsay, which, undoubtedly, exists in this warrant and in those redacted portions."

Counsel for Abram interjected that "we already did this. . . . [¶] We already argued this at length at a previous hearing. The Court already . . . made a decision that . . . revealing the unredacted portions would reveal who the informant was." "So I thought we were completely done with the Hobbs argument." The court conceded, "I didn't remember that I had done that. There's a lot of time since then, apparently. But having reviewed it again, yesterday, I would come to the same conclusion, that the sealed portion of the September 18, search warrant affidavit should not be reviewed [sic: revealed] as it would tend to identify the informant, and . . . it did appear to me there was sufficient probable cause. [¶] But I did not believe, based on my review of that, that there were any appropriate questions that should be asked of the client regarding that sealed portion. "

Counsel for Deandre Blay pointed out that there was a measure of overlap: "I think they were the same issue, the same exact issue, the Hobbs issue." After some discussion, counsel for Johnson stated: "I would just like to, for the record, state that I have requested this court, under the authority of People v. Hobbs . . . . [¶] Be afforded the opportunity to submit written questions, reasonable in length, which shall be asked by the trial judge of any witness called to testify at the proceedings.

"So if I'm understanding the Court's ruling, it is denying that request that I'm making on behalf of Mr. Johnson?"

To which the court replied: "I don't believe that there are any questions that need to be asked that would further illuminate the issues. So you are correct that I'm not going to conduct that type of inquiry, as I don't believe it is appropriate or necessary." The court agreed with Abram's counsel that "the Court's rulings . . . about what the informants, . . . that they were not involved, that the Court has to take that into account in assessing probable cause": "I think you are right. It's kind of the same analysis . . . although it was for a different purpose and pursuant to a different motion."

The pages cited by Abram conclude with the court summing up: "I think that concludes the issues related to the search warrants. And if we have concluded, and I believe we have, any testimony that relates to the 995, I believe that the plan, if I understood what all counsel had indicated, would be to proceed to arguments on the 995."

It thus appears that Abram cannot be heard to complain about the decision not to allow defense written questions because (1) it was not made in connection with the true Hobbs motion (that is, the previously denied motion to reveal the CRI's identity and quash the search warrant), and (2) the motion was not made or joined by Abram. (See fn. 5, ante.) Moreover, this single passing reference is not sufficient to require further attention. (See People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5 ["reviewing court may disregard claims perfunctorily asserted without development and without clear indication they are intended to be discrete contentions"]; Cal. Rules of Court, rule 8.204(a)(1)(B) ["Each brief must . . . State each point under a separate heading or subheading summarizing the point, and support each point by argument, and . . . citation of authority"].) Finally, Abram was "afforded the opportunity to submit written questions, reasonable in length," which he did, and which would ordinarily be "asked by the trial judge of any witness called to testify at the proceeding." (Hobbs, 7 Cal.4th 948, 973.) However, the matter covered by Abram's questions had become moot by the time of the in camera hearing because the decision not to reveal the Confidential Reliable Informant's (CRI), identity had been made two months earlier.

Finally, we wish to commend Abram's counsel for drawing our attention to the fact that a number of pages in the affidavit clearly stamped "SEALED By Court Order" were inadvertently included in the clerk's transcript. Those pages will be removed.

We now proceed to the merits.

First, we address the propriety of the trial court's ruling on the motion to unseal the sealed portions of the detectives' affidavits. Abram and Johnson request that we review the sealed portions of the affidavit, and the transcript of the in camera hearing, "as they bear on the court's rulings." We have done so.

"It has long been the rule in California that the identity of an informant who has supplied probable cause for the issuance of a search warrant need not be disclosed where such disclosure is sought merely to aid in attacking probable cause." (Hobbs, supra, 7 Cal.4th 948, 959, italics omitted.) A corollary rule prohibits the disclosure of an informant's statements if it " 'would tend to disclose the identity of the informer.' " (Hobbs, at p. 962; accord, People v. Galland, supra, 45 Cal.4th 354, 364 [courts may order identifying details redacted or sealed].) Thus, the trial court should determine "whether the extent of the sealing is necessary to avoid revealing the informant's identity." (People v. Martinez (2005) 132 Cal.App.4th 233, 241.)

Our review of the entire affidavit and the transcript of the in camera hearing is sufficient to allow us to fully consider the issues raised by Abram and Johnson. And we conclude there are sufficient grounds for maintaining the confidentiality of the informant's identity. We also have determined that portions of the affidavit were properly sealed because the information contained therein would tend to reveal the identity of the confidential informant.

The in camera procedure is used, and disclosure required, if the informant "is a material witness on the issue of guilt" (Evid. Code, § 1042, subd. (d)), " 'essential to a fair determination,' " or "a potential material witness on the issue of guilt." (Hobbs, supra, 7 Cal.4th 948, 959.) The trial court concluded that none of the informants satisfied this standard of significance. Applying the very deferential abuse of discretion standard (id. at pp. 973, 976-977), so do we.

Abram and Johnson also contend that, with or without the redacted/sealed portions of the affidavit, it is insufficient to establish probable cause for issuance of the warrant. We do not agree.

Hobbs specifies that "if the affidavit is found to have been properly sealed and the defendant has moved to quash the search warrant [citation], the court should proceed to determine whether, under the 'totality of the circumstances' presented in the search warrant affidavit and the oral testimony, if any, presented to the magistrate, there was 'a fair probability' that contraband or evidence of a crime would be found in the place searched pursuant to the warrant. (Illinois v. Gates (1983) 462 U.S. 213, 238.) In reviewing the magistrate's determination to issue the warrant, it is settled that 'the warrant can be upset only if the affidavit fails as a matter of law [under the applicable standard announced in Illinois v. Gates, supra, 462 U.S. at p. 238] to set forth sufficient competent evidence supportive of the magistrate's finding of probable cause, since it is the function of the trier of fact, not the reviewing court, to appraise and weigh evidence when presented by affidavit as well as when presented by oral testimony. [Citations.]' [Citation.]" (Hobbs, supra, 7 Cal.4th 948, 975.) In other words, "[t]he magistrate's determination of probable cause is entitled to deferential review." (People v. Carrington (2009) 47 Cal.4th 145, 161.) "In reviewing a search conducted pursuant to a warrant, an appellate court inquires 'whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.' " (Ibid.)

Although they have been characterized by Abram and Johnson as "DNA warrants," the warrants were much broader in scope. The warrants authorized search of four premises and a vehicle for firearms and ammunition of a distinct caliber, "forensic evidence," and "articles or objects with apparent human tissue, bone, or hair on them." Officer Amdjadi's 16-page supporting affidavit details the extent and results of police investigations since the 2008 murder.

Not only does the affidavit have a presumption of validity (Franks v. Delaware, supra, 438 U.S. 154, 171), there are other factors working against Abram and Johnson. "A grudging or negative attitude by reviewing courts towards warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting," hence the principle that "[a]lthough in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." (United States v. Ventresca (1965) 380 U.S. 102, 108-109.) Finally, we note that because Abram and Johnson are now attacking probable cause, the redacted/sealed portions may be considered. (See Hobbs, supra, 7 Cal.4th 948, 959-960, 975.)

Our independent review of the record, including the sealed portions of the affidavit, confirms the trial court's determination that under the totality of the circumstances there was probable cause supporting issuance of the search warrant.

III

Believing that the recording of his jailhouse telephone calls "were obtained as a result of a warrantless seizure in violation of his rights under the Fourth Amendment to the United States Constitution as well as his rights under the California Constitution," Larry Blay made an in limine motion that "the recorded San Francisco jail phone calls . . . should be suppressed." The trial court received evidence in the form of certain grand jury testimony and, based on People v. Windham (2006) 145 Cal.App.4th 881, ruled that evidence of the calls "would be admissible." Defendant Larry Blay tells us it was reversible error not to "suppress warrantless recordings of his phone calls from jail to his parents, girlfriend, and brother." No, it was not.

Abundant authority holds that a detainee, whether held in jail or a police interview room, has no reasonable expectation that conversations will not be monitored or recorded. (Davis (2005) 36 Cal.4th 510, 528 [pretrial detainee had no reasonable expectation that conversations with other inmates could be private]; People v. Loyd (2002) 27 Cal.4th 997, 1010 ["Following the 1994 amendment to section 2600, California law now permits law enforcement officers to monitor and record unprivileged communications between inmates and their visitors to gather evidence of crime"]; People v. Riel (2000) 22 Cal.4th 1153, 1183-1184 [pretrial detainee had no reasonable expectation conversation with mother and sister in jail visiting room would not be recorded]; People v. Hines (1997) 15 Cal.4th 997, 1043 [recorded jailhouse conversation between inmate not violative of Fourth Amendment or federal Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520)]; Donaldson v. Superior Court (1983) 35 Cal.3d 24, 27 [defendant and his brother had no reasonable expectation of privacy with respect to a conversation they had in a police interview room because "under settled federal precedent . . . , the secret monitoring and recording of unprivileged conversations in prisons, jails, and police stations" does not constitute an unlawful search]; People v. Von Villas (1992) 11 Cal.App.4th 175, 212-216 [recording jailhouse conversation between inmate and wife not prohibited by Omnibus Crime Control and Safe Streets Act of 1968]; People v. Owens (1980) 112 Cal.App.3d 441, 444, 448 [recording of conversation between two suspects in an interview room at a police station did not violate the Fourth Amendment or state constitutional protection of privacy]; cf. Ahmad A. v. Superior Court (1989) 215 Cal.App.3d 528, 535-536 [juvenile had no reasonable expectation conversation with mother in an interrogation room with door closed would not be recorded].)

People v. Jackson (2005) 129 Cal.App.4th 129, which is the keystone of Blay's contention, stands in eccentric isolation from this line of decisions. Jackson involved an actual wiretap application pursuant to the Omnibus Crime Control and Safe Streets Act of 1968. Under federal and state law (§§ 629.50-629.98), the government is required to adopt reasonable measures to reduce the interception of conversations unrelated to suspected criminal activity. Jackson himself was not a target of the investigation, but the wiretap at a "detention facility" picked up a number of his telephone conversations. "[T]ape recordings of Jackson's telephone conversations were played at trial to show Jackson's consciousness of guilt and his attempts to intimidate witnesses and obtain perjured testimony in his defense." (People v. Jackson, supra, 129 Cal.App.4th at p. 143.) The Court of Appeal held that: (1) the conversations were improper as exceeding the scope of the authorized investigation; (2) the evidence therefore should not have been admitted at trial; (3) the good faith exception of United States v. Leon, supra, 468 U.S. 897 did not apply; but (4) the error was harmless beyond a reasonable doubt.

People v. Windham, supra, 145 Cal.App.4th 881 looks much more like our case. There was no wiretap. There were only jailhouse telephone conversations intercepted in accordance with a declared and universal policy. Building upon its previous decision in People v. Kelley (2002) 103 Cal.App.4th 853, Division Three of this District determined there was no federal statutory violation, reasoning as follows: "Every federal circuit court to address the issue has concluded that Title III [of the Omnibus Crime Control and Safe Streets Act of 1968] is not violated when a jail or prison routinely monitors and records outgoing calls placed by inmates on the institution's telephones and the inmates are put on notice of the recording policy. Most circuits have relied on the consent exception to Title III, which provides: '[i]t shall not be unlawful . . . for a person acting under color of law to intercept a wire, oral, or electronic communication, where . . . one of the parties to the communication has given prior consent to such interception.' (18 U.S.C. § 2511, subd. (2)(c).) Those courts have concluded that an inmate who uses jail or prison telephones with knowledge of a recording policy impliedly consents to the monitoring and recording of the calls. [Citations.]" (People v. Windham, supra, 145 Cal.App.4th 881, 886-887.) By reason of the inmate-defendant's implicit consent, there was likewise no violation of California Invasion of Privacy Act of 1967 (§§ 630-638.55). Division Three rested this conclusion in part on the "body of case law establish[ing] that the secret monitoring and recording of unprivileged conversations of jail inmates by law enforcement was not an unreasonable search or seizure or a violation of an inmate's right to privacy. (Windham at p. 890, citing, e.g., Donaldson v. Superior Court, supra, 35 Cal.3d 24.) It thus held that "[t]he recording of Windham's calls would have been lawful before the effective date of the Privacy Act because he impliedly consented to the recording and because they were the unprivileged calls of a jail inmate." (People v. Windham, supra, at p. 893.)

We believe Windham is far the sounder decision. Unlike Jackson, the Windham court took note of—and situated its decision within—the substantial and existing line of binding precedent that inmates have no reasonable expectation that incoming or outgoing telephone conversations. Windham is the more recent decision, and it is from this District.

In addition, as the Attorney General notes, the Jackson court did not consider a significant point of Windham, namely, the implied consent derived from warnings to inmates that their calls would be monitored. Moreover, there is uncontradicted evidence that inmates of the San Francisco jail, where Larry Blay was incarcerated, told inmates that telephone calls would be monitored.

The evidence, which was before the trial court, was in the form of the grand jury testimony of a deputy sheriff. He testified that "all of the jails have a posted sign saying that they're [the phone calls are] subject to being monitored by recording. And it's also announced on the telephone before they start dialing and after the number has been connected." This procedure also informs "somebody who is receiving a call from an inmate at the jail . . . that their call is being recorded." This was corroborated by a recording played for the grand jury reciting the steps for an inmate to make an outgoing call, during which each caller was told: "Calls may be subject to monitoring and recording, except as made to attorneys, physicians, and religious advisers." When the call went through, a computer-generated program told both parties "This call is subject to monitoring and recording."⁹ The deputy testified that use of the word "may" notwithstanding, "All calls are recorded."

9 As shown by a transcript of a recording included in the affidavit for the DNA warrant, the program also advised the parties of how much time remained for the call.

In short, here, the implied consent was by both parties to the call. This point is significant because the Privacy Act does not apply to recordings where both parties consent. (See §§ 631, subd. (a), 632, subd. (a), 635, subd. (a), 636, subd. (a). 637, subd. (a); People v. Windham, supra, 145 Cal.App.4th 881, 885, fn. 2.)

In light of the foregoing, we conclude there was no error attending the denial of defendant Larry Blay's motion to suppress.

Severance Denials

Six months before trial, all the accused—including Washington—filed motions to have their trial separated from the others. Because the arguments for severance were largely based on the allegedly prejudicial impact of evidence, the trial court denied the motions without prejudice to their renewal because the court could not anticipate what evidence would actually be presented. Three months later, after learning that Washington would plead guilty and testify for the prosecution, defendant Larry Blay made a "supplemental" motion to have his case tried alone. After hearing brief argument, the trial court denied the renewed motion.¹⁰

10 The court also denied a second motion by defendant Deandre Blay, but he does not now seek review of this ruling.

"Section 1098 expresses a legislative preference for joint trials. The statute provides in pertinent part: 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials.' [Citation.] Joint trials are favored because they 'promote [economy and] efficiency' and ' "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." ' [Citation.] When defendants are charged with having committed 'common crimes involving common events and victims,' . . . the court is presented with a ' "classic case" ' for a joint trial. [Citation.] [¶] The court's discretion in ruling on a severance motion is guided by the nonexclusive factors enumerated in People v. Massie (1967) 66 Cal.2d 899, 917, such that severance may be appropriate 'in the face of an incriminating confession, prejudicial association with codefendants, likely confusion resulting from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.) "We review the denial of a severance motion for abuse of discretion, based on the facts as they appeared at the time of the court's ruling." (People v. Winbush (2017) 2 Cal.5th 402, 456.)

" 'In determining whether a trial court's refusal to sever charges amounts to an abuse of discretion, we consider four factors: (1) whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether some charges are unusually likely to inflame the jury against the defendant; (3) whether a weak case has been joined with a stronger case so that the spillover effect of aggregate evidence might alter the outcome of some or all of the charges; and (4) whether any charge carries the death penalty or the joinder of charges converts the matter into a capital case.' [Citation.] 'We then balance the potential for prejudice to the defendant from a joint trial against the countervailing benefits to the state.' [Citation.] However, '[i]f the evidence underlying the joined charges would have been cross-admissible at hypothetical separate trials, "that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court's refusal to sever properly joined charges." [Citations.]' [Citation.]" (People v. Westerfield (2019) 6 Cal.5th 632, 689.)

It is not explicit in defendant Larry Blay's brief whether he is challenging the first or the second denials, or both. Given "the facts as they appeared at the time of the court's ruling" (People v. Winbush, supra, 2 Cal.5th 402, 456), it would be inconceivable that the first denial could be overturned as an abuse of the court's discretion because there was simply not enough information known for the court to make an informed ruling. Which is why the court made what in effect was a tentative decision, denying the defendants' motions but allowing that they could be renewed at a later time. For this reason, we will confine ourselves to the second ruling.

Of the four so-called "Massie factors," defendant Larry Blay relies on only one, the "prejudicial association with codefendants." (People v. Massie, supra, 66 Cal.2d 899, 917.) He asserts reversal is required because "the evidence presented at trial disclosed a prejudicial association between appellant and the codefendants that was likely to lead the jury to convict appellant based upon that association rather than upon the evidence separately implicating him." (Italics added.) As already shown, this post hoc ergo propter hoc approach cannot, relying on the subsequent trial record, establish the trial court abused its discretion at the time it denied defendant's "supplemental" motion. (People v. Winbush, supra, 2 Cal.5th 402, 456.)

To be fair, by relying on the subsequent trial record, defendant's argument may be shading into the harmless error analysis used when it has already been decided that it was an abuse of discretion to deny a severance motion. (See, e.g., People v. Massie, supra, 66 Cal.2d 899, 919-923.) However, that is putting the horse before the cart.

In light of Washington's decision to cooperate with the prosecution, this is what defendant Larry Blay argued in his moving papers: "Based on Sean Washington's testimony, the prosecution's case against those present at the scene of the murder has become significantly stronger. Sean Washington's testimony, combined with the cell phone records, text records, DNA and gunshot residue evidence overwhelmingly point to the co-defendants' guilt. [¶] On the contrary, the only evidence, against Larry Blay, Jr. is significantly weaker. He was in the San Francisco County Jail when the murder happened. Clearly, he was not present at the scene of the murder and no evidence will tie him to the planning or preparation of the murder. The only evidence against Larry Blay, Jr. is that he made phone calls from the jail that the prosecution has interpreted as instructions to his brother to kill Mr. Le. These jail phone calls can also be interpreted as Larry Blay, Jr. asking for his family and friends to gather alibi witnesses to prove that he did not commit the Nasser Market robbery."

"[T]he strength of the evidence against Larry Blay, Jr.s' co-defendants will be used to bolster the weak evidence against Larry Blay, Jr. . . . [¶] The jury will be so convinced of the co-defendants' guilt that they will allow this overwhelming evidence to spill over into Larry Blay, Jr.'s case. They will likely lump him together with his co-defendants and find him guilty."

The trial court found this unpersuasive: "The differences will be apparent to the jury, and . . . I think . . . your argument presupposes some speculation as to the mental work of the jurors in evaluating the evidence. And I don't agree that it would cause them to lose sight of the evidence that applies to your client, which is different in many respects, than as to the other defendants, but even in a separate trial, the evidence of the other defendants' involvement and their identities would still be . . . relevant and probative as to Mr. Larry Blay's involvement. [¶] So, I . . . don't believe that . . . the case as to your client is weaker than the case as to some of the other defendants."

The ruling cannot qualify as an abuse of discretion.

Although there was not a complete unanimity of charges that each defendant faced, the inescapable reality is the case was one of a single murder in which all of the defendants were alleged to be complicit. Whether the murder was instigated by Larry Blay, or if he was merely its beneficiary, he was still very much in the picture. Getting him out from under the Nasser Market robbery charge, and punishing Le for "snitching," were the unquestioned motives for the murder, so his name could not be kept from the jury.

The keystone of both motions, and of the present contention, is that the case against Larry Blay, Jr. was demonstrably less substantial than the evidence against his codefendants. This is true only in the sense that he was in jail at the time of the murder, while the others were in the car, on the scene, and thus more "directly" involved with the victim's death. But his absence has no significance to a charge of conspiracy to commit murder. The factor of his absence from the murder scene is even less important if, according to the prosecution's theory, he was the instigator of Le's murder and the immediate beneficiary of that crime (in that the robbery charge was subsequently dropped). The jury was going to hear evidence of his alleged involvement regardless of whether he was tried alone or together with the ones who did his bidding.

It has already been established that the jury was going to hear the taped jailhouse expressions whereby, according to the prosecution's theory, Larry Blay, Jr. ordered Le's execution. He does not claim that such evidence would not be cross-admissible. (See Evid. Code, § 1223.) That being so, his argument that he would be the victim of guilt by association loses much, if not all, of its force. So, too, his argument that he faced the "weaker" case. Even if he was tried alone, defendant Larry would not be able to disentangle himself from the "stronger" case of his co-conspirators and codefendants. Thus, it seems highly unlikely that a jury would be inflamed against him alone regardless of whether we was tried alone or with them.

" ' "[I]mportant concerns of public policy are served if a single jury is given a full and fair overview of the defendants' joint conduct and the assertions they make to defend against [the] ensuing charges." ' " (People v. Anderson (2018) 5 Cal.5th 372,386.) Those concerns were accomplished with the denial of the severance motion(s).

Moreover, because all of the defendants were charged with committing a single crime against a single victim, the matter presents a " 'classic case' for a joint trial." (People v. Coffman and Marlow, supra, 34 Cal.4th 1, 40; accord, People v. Mackey (2015) 233 Cal.App.4th 32, 99.) In light of the foregoing, neither of the denials of Blay's severance motions " 'exceeded the bounds of reason' " and thus did not amount to an abuse of the trial court's discretion. (See People v. Westerfield, supra, 6 Cal.5th 632, 689.)

Evidentiary Claims

I

The bullet that killed Le was fired by a rifle. Two other bullets, and two shell casings, were recovered from the garage where he was parking his car. The jury heard testimony that the bullets were .243 caliber that could be (and probably were) fired from a .308 caliber rifle. A search (pursuant to a warrant) of the vehicle used by Washington, Abram, Johnson, and Deandre Blay to get from San Francisco to Novato produced a glove which was tested for gunshot residue. And material found on Le's face during the autopsy was preserved on a "tape lift."

Criminalist Steven Dowell testified as an expert on gunshot residue.¹¹ The following occurred on direct examination:

11 The word "expert" should be used advisedly. Dowell was clearly accepted as one by the parties, and the jury heard the usual run-up to having a witness offered as an expert witness, and Dowell was questioned by Johnson's counsel concerning his qualifications. However, the jury was never expressly told that Dowell was accepted as an expert, or in what subject. (See fn. 14, post.)

"Q. Now, you, perhaps, can come to a con—an opinion, anyway, as to whether something—a particular gunshot residue that you've observed is more consistent with a—being in a long rifle as opposed to a pistol, but are you able to identify the type of weapon?

"MR. CASPER [counsel for Anchulita Uribe]: Your Honor, I would object, it's hearsay, it goes beyond the scope of the witness's expertise.

"THE COURT: No, overruled, this question can be answered yes or no.

"THE WITNESS: No, I cannot.

"MR. BERBERIAN: Q. Okay. So that the most, based upon your training and experience, and what you have also learned from talking to other experts in the areas you've described, you—you could, perhaps, come to an opinion as to whether what you observed was more consistent with a long rifle or a pistol, but you couldn't go much further than that, is that correct, as I understand the

"MR. CASPER: Same objection.

"THE COURT: What?

"MR. CASPER: Same objection, your Honor.

"THE COURT: No, overruled

"THE WITNESS: Correct. I—I could not make the distinction between whether it's for a long—long rifle or a pistol."

Later Dowell testified that, upon completing a spectrometer examination, "I found several characteristic particles of gunshot residue on the sample from the nitrile gloves."

The following exchange occurred near the conclusion of direct examination:

"Q. Now, in the course of your work that was requested by the Novato Police Department, did you, at some point, compare the gunshot residue, or what you believed to be gunshot residue, that you found on the blue nitrile tip gloves, with the lifts that were Exhibits 105 and 106?

"A. Yes.

"Q. Okay. What, if any, conclusions did you come to?

"A. This conclusion: The—on 105 and 106, that is, the tape lift and the material from the hands, that I examined microscopically, and I saw particles that—that were visually consistent with gunpowder, and in my conversation with the firearms experts at the L.A. County Sheriff's Lab, they said that the more—that the size and shape of the kinds of powder that I—that I saw on the—on the sample from the hands and face is consistent with powder that may be used in cartridges for rifles.

"Those cartridges have center fire primers. So, center fire primers are capable of producing characteristic particles, which I found on the samples on the—on the glove. So, those could have been used—those could have been—the origin of both of those samples—both of those particles, that is, the characteristic particles and the visually consistent gun—gunpowder particles, could have been from the same cartridge, could have been from the same event. They could have been.

"Mr. BERBERIAN: All right. I have no additional questions at this time."

Dowell was then briefly cross-examined by defense counsels.

Dowell's testimony is the subject of this wide-ranging argument by Abram: "The court erred in admitting 'expert' hearsay regarding distinctive gunpowder types, especially without a nontruth instruction, denying appellant due process, a fair trial, and the right to confront testimonial hearsay; if somehow counsel did not fully preserve the claims, which she did, this deprived appellant of the effective assistance of counsel." Johnson joins this claim.

It is not easy to ascertain the precise focus of Abram's argument. The Attorney General says, in effect, we needn't bother because whatever Abram's claim, it is forfeited because it is being raised here for the first time. It is true that Abram did file an in limine motion asking that Dowell not be allowed to testify until the trial court conducted "an Evidence Code section 402/403/720/801 hearing to determine this witness' area of expertise and what limits, if any, the court should impose on the witness' testimony." The trial court decided "I don't think I need to have . . . a separate hearing out of the presence of the jury to decide that issue," "I think a little more foundation would be necessary to express the opinion."

It is hard to see that Abram was worried about a hearsay problem. The word "confrontation" does not appear in his in limine motion. Crawford v. Washington (2004) 541 U.S. 36, (Crawford), was never invoked, or "testimonial hearsay" made the basis of a proper objection. Abram did not claim the testimony Dowell did provide lacked an adequate foundation. And apart from the bald conclusion "This was error," Abram does not address the decision not to have a foundational hearing before Dowell testified for the jury.

Abram does argue that Dowell was unqualified to testify that, in Abram's words, "the suspected GSR from Mr. Le (and the confirmed GSR particles on the glove) could be from center-fire primer rounds that may be used in rifles (or shotguns)," and that "It was acknowledged (including by him) he was not an expert in ballistics or ammunition." Still, as shown by the excerpts quoted above, when Dowell did so testify, Abram made no protest. We therefore conclude that the Attorney General is correct that the point—or at least most of it—was not preserved for review. (Evid. Code, § 353, subd. (a); People v. Gomez (2018) 6 Cal.5th 243, 297 [confrontation and Crawford claims forfeited]; People v. Redd (2010) 48 Cal.4th 691, 730 [same].)

As for Abram's "nontruth instruction," which he did not otherwise identify, we take this to be some type of limiting instruction. But "although a court should give a limiting instruction on request, it has no sua sponte duty to give one." (People v. Hernandez (2004) 33 Cal.4th 1040, 1051.) "With respect to defendant's claims of constitutional error, we note that '[t]he "routine application of state evidentiary law does not implicate [a] defendant's constitutional rights." [Citation.]' " (People v. Lewis (2009) 46 Cal.4th 1255, 1284.)

As for Abram's ineffective assistance of counsel claim, " 'deciding whether to object is inherently tactical, and the failure to object will rarely establish ineffective assistance.' " (People v. Harris (2008) 43 Cal.4th 1269, 1290.) A defendant challenging trial counsel's competence must overcome a strong presumption " 'that, under the circumstances, the challenged action "might be considered sound trial strategy.' " (People v. Mendoza (2000) 24 Cal.4th 130, 158; accord, In re Scott (2003) 29 Cal.4th 783, 811-812.) Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice.¹² (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260; People v. Ray (1996) 13 Cal.4th 313, 349.)

12 At the end of the trial, when denying the defense motions for a new trial, Judge Boren stated: "I think that the Defense Counsel . . . were very professional, they were thorough, they did an excellent job . . .all of them."

Here, assuming solely for the sake of argument that Dowell's testimony ought to have been excluded, we cannot see that testimony as having the damaging potential to cause a reversal. Dowell admitted he could not differentiate rifle GSR from handgun GSR, so he did not put a rifle in defendants' hands (so to speak). His testimony is tentative and subject to qualifications ("is consistent with," "could have been from the same cartridge, could have been from the same event"). The Attorney General accurately describes why Dowell's testimony was not essential to the jury drawing the most important inference: "There could be no doubt that the GSR particles on the victim's face were from a rifle because the bullets and shell casings were all rifle ammunition. So, if the GSR particles from the blue nitrile glove tip were similar to the GSR particles from the victim's face, then they must necessarily have been from the firing of a rifle. [Dowell's] conclusion that the GSR in both cases was from a rifle added nothing more than the obvious conclusion from the evidence already admitted." We see no reasonable probability of a more lenient result had Abram's counsel acted differently. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Lopez (2008) 42 Cal.4th 960, 966.)

II

In Crawford, 541 U.S. 36, the United States Supreme Court announced a new standard for determining when the confrontation clause of the Sixth Amendment prohibits the use of hearsay evidence—i.e., an out-of-court statement offered for its truth—against a criminal defendant. Crawford held that this clause protects an accused against hearsay uttered by one who spoke as a " 'witness[ ]' " " 'bear[ing] testimony' " (id. at p. 51) if the declarant neither takes the stand at trial nor was otherwise available for cross-examination by the accused. Crawford declined to provide a comprehensive assessment of what kinds of hearsay fall within "this core class of 'testimonial' statements." (Ibid.) However, the court was explicit that "[w]hatever else the term covers, it applies at a minimum to prior testimony . . . before a grand jury." (Id. at p. 68.)

Over Johnson's vehement objection, joined by Deandre Blay and Abram, the trial court informed the jury of the following stipulation between the prosecution and defendant Larry Blay: "Defendant Larry Blay, Jr. did not participate in nor plan the robbery of Mr. Le at the Nasser Market on August 21, 2008." As Johnson states in his opening brief: "The stipulation was based on the . . . testimony of Joseph Sullivan before the grand jury that Abram, Washington, and Larry Blay were not part of the robbery." Also over Johnson's objection, the court also granted the in limine motion of defendant Abram to allow the grand jury testimony to be heard at trial, with appropriate redactions, in accordance with Evidence Code sections 356 and 1291. In both rulings the trial court concluded there was no "Crawford issue."¹³

13 In his opening brief, Johnson makes it appear that these rulings were followed by the denial of his pending motion to sever his case for trial. In fact, the severance denial occurred in September 2011, while the stipulation and grand jury testimony rulings were made on February, 1, 2012, and neither the reporter's transcript for the latter date, or the minutes for that day, have any mention of a severance motion by Johnson. Although a severance ruling is mentioned in the relevant caption of his brief, and other points in the ensuing argument Johnson does not otherwise develop an argument that the severance ruling amounts to an independent basis for reversal.

Defendant Johnson now contends there was a Crawford violation. Based on a number of Federal Circuit Court decisions (e.g., Ocampo v. Vail (9th Cir. 2011) 649 F.3d 1098; United States v. Lombardozzi (2d Cir. 2007) 491 F.3d 61; United States v. Meises (1st Cir. 2011) 645 F.3d 5), Johnson claims he was the victim of "stealth testimonial hearsay," which he defines as "testimonial hearsay of an absent declarant which is channeled by a trial witness." "These cases demonstrate that the form taken to introduce stealth testimonial hearsay into the case is unimportant. What is key is that some critical substance about the out-of-court statements is conveyed to the jury and by logical inference it incriminates the defendant who is unable to cross-examine the declarant."

California does not follow this approach.

The issue of whether a statement is offered against a defendant for the purposes of the confrontation clause commonly arises in the situation addressed by the Aranda-Bruton line of cases (People v. Aranda (1965) 63 Cal.2d 518; Bruton v. United States (1968) 391 U.S. 123, 126-137), in which one defendant's confession or inculpatory statement that is offered in a joint trial as evidence against him by the prosecution also includes evidence that is inculpatory of a codefendant. If such a statement is properly redacted to remove reference to the codefendant and a limiting instruction is given, the statement may be admitted in a joint trial without violating the codefendant's right to confrontation, as it is not considered to be offered against the codefendant within the meaning of the confrontation clause. (Richardson v. Marsh (1987) 481 U.S. 200, 211; Gray v. Maryland (1998) 523 U.S. 185, 196.)

Although the stipulation does not involve a confession, or even an admission, it is the obvious analogy. And on this matter, our Supreme Court has spoken with unmistakable clarity, in People v. Stevens (2007) 41 Cal.4th 182, where the defendant contended admission of the redacted statement of a codefendant violated Crawford. The claim was unanimously rejected: "Crawford addressed the introduction of testimonial hearsay statements against a defendant. Clark's redacted statement contained no evidence against defendant. (Crawford, supra, 541 U.S. at pp. 39-40, 68.) Thus, it cannot implicate the confrontation clause. (Richardson v. Marsh (1987) 481 U.S. 200, 211; People v. Mitcham (1992) 1 Cal.4th 1027, 1046-1047.) The same redaction that 'prevents Bruton error also serves to prevent Crawford error.' " (People v. Stevens, supra, at p. 199.)

In Richardson v. Marsh, supra, 481 U.S. 200, the United States Supreme Court held that Bruton was satisfied if the nontestifying codefendant's statement is redacted to omit any reference to the defendant. In People v. Mitcham, supra, 1 Cal.4th 1027, the nontestifying codefendant Hammond made a statement incriminating Mitcham; witness Leonard provided testimony linking Mitcham and Hammond to the charged offenses. Based on Richardson, our Supreme Court rejected Mitcham's claim that admission of Hammond's redacted statement violated his confrontation rights under Bruton. More germane to the claim before us now, is the following:

"Defendant also argues [Hammond's] statement placed Hammond at the scene of the crimes and thereby 'ineluctably' placed defendant at the scene. It is true that when Hammond's statement is linked to Leonard's testimony, the statement implicates defendant. The statement facially, however, neither directly nor indirectly refers to or implicates defendant. It was therefore admissible with the giving of a limiting instruction. (Richardson v. Marsh, supra, 481 U.S. 200.)" (People v. Mitcham, supra, 1 Cal.4th 1027, 1047, italics added.)

The sentence we italicized would logically seem to defeat defendant Johnson's Crawford-based "stealth testimonial hearsay" argument. The stipulation does not mention anyone save Larry Blay in connection with a specific crime. Thus, it "contained no evidence against defendant [Johnson]." (People v. Stevens, supra, 41 Cal.4th 182, 199.) The possibility that when linked to other evidence, the stipulation may be partial support for an incriminating inference—which we take to be the gist of Johnson's argument and the federal decisions—cannot govern here, in light of Stevens and Mitcham.

As already noted, grand jury testimony was identified in Crawford as the epitome of testimonial statements. Johnson does not quote any of the redacted grand jury testimony that was heard by the jury, but for present purposes we will accept the summarization in his brief: "Sullivan's . . . grand jury testimony exculpated three of the original codefendants in this action from participation or planning the robbery—Larry Blay, Abram, and Washington." Johnson does not argue that the redactions were ineffective or that the testimony directly linked him to Le's murder. In short, it appears Johnson is simply extending his "stealth testimonial hearsay" argument from the stipulation to the grand jury testimony. Accordingly, it too is covered by the preceding analysis.

III

Every defendant urges prejudicial error in the gang expert testimony put before the jury.

For defendant Larry Blay, expert testimony about his supposed gang membership was "minimally relevant but very inflammatory." In addition, the trial court should not have "permitted the prosecution gang expert to testify to his improper opinion that a gang member may communicate his intentions in a recorded jail call by suggesting something without actually saying it." His brother joins these arguments, with some augmentation of the latter. Johnson also joins the latter.

For defendant Johnson, the gang expert evidence was "needless, irrelevant, and unduly prejudicial . . . in a non-gang case, especially expert testimony geared towards uncharged enhancement elements that was nothing short of irrelevant," thereby denying him "due process right to a fair trial."

Defendant Abram mounts the most comprehensive attack. He first argues the expert "lacked the understanding" of what satisfied the statutory definition of a criminal street gang. And because the witness's opinions "lacked a factual foundation," he should not have been qualified as an expert. By granting him that status, the court "violated its duties as a gatekeeper." Moreover, the witness was allowed to present an improper legal conclusion in the guise of expert testimony, as well as putting in "profile evidence."¹⁴ Like Johnson, Abram sees himself as denied "due process right to a fair trial."

14 Abram makes two references to being the victim of "disposition/profile" evidence. The first is in the argument against admitting Kumli's testimony, the second is in his attack on the limiting instruction for that testimony. Abram cites to no point in the record where he made a timely objection on this ground. (Evid. Code, § 353, subd (a),) In addition, these fleeting references in his brief are not sufficient to require further attention. (See People v. Crosswhite, supra, 101 Cal.App.4th 494, 502, fn. 5; Cal. Rules of Court, rule 8.204(a)(1)(B).) We do note that, even if the point was properly presented, it would fail.
" 'A profile ordinarily constitutes a set of circumstances—some innocuous—characteristic of certain crimes or criminals, said to comprise a typical pattern of behavior. In profile testimony, the expert compares the behavior of the defendant to the pattern or profile and concludes the defendant fits the profile. (See People v. Robbie (2001) 92 Cal.App.4th 1075, 1084 . . . .)' As explained in People v. Robbie, supra, at pages 1084-1085, '[p]rofile evidence is generally inadmissible to prove guilt' because it is premised on a false assumption: 'criminals act in a certain way; the defendant acted that way; therefore, the defendant is a criminal. Guilt flows ineluctably from the major premise through the minor one to the conclusion. The problem is the major premise is faulty. It implies that criminals, and only criminals, act in a given way. In fact, certain behavior may be consistent with both innocent and illegal behavior, as the People's expert conceded here.' " (People v. Jackson (2013) 221 Cal.App.4th 1222, 1237-1238.)

Finally, during the pendency of these appeals, our Supreme Court decided People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and we granted the parties permission to file supplemental briefs addressing the impact of that decision.

Because the issue of permitting gang expert testimony was hotly contested—three defendants moving to preclude it, and all defendants opposing the prosecution's motion to allow it—the trial court conducted an extensive foundational hearing in accordance with Evidence Code section 402. After hearing extended argument, and reviewing the parties' "briefs," the court made a ruling that was comprehensive indeed. We quote it at length:

"[T]he issues that . . . had been submitted on Friday, and as to which I will presently rule, can be characterized in three ways, and they are somewhat interdependent, obviously.

"The first issue is this: Is the proffered evidence relating to the existence and nature of an alleged, quote, criminal street gang, unquote, known as the, quote, AP, unquote, or quote, Alemany Projects, unquote, gang located in San Francisco admissible in this trial?

"Secondly, if that gang evidence is admissible, is also the testimony of Inspector Joshua Kumli, of the San Francisco Police Department, who was proffered as an expert in the field of gangs in general, and an expert specifically as to an alleged criminal street gang known as the AP, or Alemany Projects gang located in San Francisco, admissible in this trial?

"Thirdly, I believe each of the Defendants, through their Counsel, also asked the Court, if the gang evidence and the testimony of Inspector Kumli is admitted, to restrict the scope of that evidence in several respects.

"And, obviously, the Court need not address the second and third questions if it decides the first question in the negative, that is, if the proffered evidence is not properly put before the jury, then the inquiry on this subject is concluded.

"So, first, as to the admissibility of the gang evidence, the People urge that the evidence regarding gangs is, in this case, probative on the issues of motive, identity, and intent, and also they urged in their brief that it was also relevant and probative on the issue of the existence of a conspiracy and membership in an alleged conspiracy.

"The Defense, fairly uniformly and universally, disputes much of the People's contention, arguing that the motive to kill the victim in this case, and to thereby eliminate that person as a witness to an armed robbery that was allegedly committed the previous month, is obvious and that, therefore, the gang evidence is irrelevant, or, at best, insignificant.

"And while, from my limited perspective, which is less factually enriched, obviously, than counsel's, that analysis of the motive may well be essentially accurate, it seems to me that the issue of motive is not quite that simple in this case.

"I believe that the gang evidence may be properly considered by the jury on the issue of motive. Such evidence may assist the jury in determining, depending on their factual findings on related issues, as to whether and why these particular Defendants would either join in an alleged effort to silence or . . . eliminate a witness to an alleged robbery in San Francisco, and/or help conceal evidence related to that effort.

"And the law is clear that motive is not an element of any crime. And while motive is not an element, and, therefore, not required to be proven, and although in this case, motive appears to be a significant issue, the issues of identity and intent must be proven beyond a reasonable doubt by the People.

"Further, it appears to me that the proffered gang evidence may also be probative on the identity — in addition to motive, on the issue of identity of those involved in the alleged murder, and the efforts alleged to dispose of evidence, and the analysis in that respect is similar to that related to motive.

"Also, it appears to me that the gang evidence may also be circumstantial evidence relevant to and probative on the issue of intent.

"And further, as the People argued in their brief on the issue of the gang evidence, I agree that the gang evidence, I agree that the gang evidence may also be circumstantial evidence that is relevant to and probative on the issues of joinder in and the existence of a conspiracy.

"So, given the proffered gang evidence, and reviewing the related law, I do find that this evidence is probative on all of those issues, and, in other words, I conclude that gang evidence is relevant. However, as we have — or you have discussed in your arguments, that does not necessarily end the analysis or discussion about the evidence.

"The Court is aware that the law requires the Court — even where evidence of a Defendant's gang membership is relevant, that the Court must nevertheless carefully scrutinize the evidence before admitting it due to its potential for a prejudicial impact on the jury. This was . . . addressed in People v. Williams, a 1997 case, found at 16 Cal.4th 153, specifically at page 193.

"In another case, People v. Cox a 1991 case, found at 53 Cal.3d 618, specifically at page 660, the California Supreme Court warned against the admission of evidence of gang membership that is, quote, only tangentially relevant given its potential highly inflammatory impact, end of quote.

"And the case of People v. Albarran, . . . a 2007 case, found at 149 Cal.App.4th, page 214, specifically at pages 223 and 232, a case cited several times by the Defense.

"And as noted in People v. Hernandez, 2004 case, found at 33 Cal.4th 1040, specifically page 1047, this need for careful scrutiny is especially important and true in cases where there are no gang allegations pursuant to Penal Code section 188.22 and following. And that is the case here, there are no gang allegations under that Penal Code section, or that portion of the Penal Code.

"However, based on my understanding of the evidence in this case as set forth in the briefs, as well as the Grand Jury transcripts, I would not conclude at this time that the gang evidence is only tangentially relevant.

"In evaluating the significance of the evidence, I found it — that is, the gang evidence — to be significant and not insignificant in this case. I've also considered whether this evidence might be cumulative of other evidence that is to be introduced — or that may be introduced on the issues of identity, motive, or intent, the existence of or membership in a conspiracy, and I don't conclude that it is cumulative. Rather, it seems to me it is fairly unique evidence rather than simply duplicative of other evidence.

"And while all evidence has prejudicial potential in the largest sense of that word, I find that the probative value of the proffered gang evidence is not substantially outweighed by any prejudicial impact thereof within the meaning of Evidence Code section 352.

"The Court, obviously, and sua sponte, possibly, should consider at appropriate points in the trial, assuming evidence is presented, whether there is any prejudicial effect which can or should be mitigated by instructing the jury on the limited purposes for which the evidence is being admitted.

"So, accordingly, I do find that that evidence is properly put before the jury for the reasons I've just stated.

"Secondly, as I said at the outset, the next question is the admissibility of the testimony of Inspector Joshua Kumli regarding the gang evidence and the alleged AP or . . . Alemany Projects criminal street gang. And having addressed and previously analyzing and considering the gang evidence in general and . . . ruling on the first question, the second question actually is somewhat easier to resolve.

"Is the testimony of Inspector Kumli, . . . as an expert, specifically to . . . a criminal street gang known as the AP, or Alemany Projects, and gangs in general, is that testimony admissible in this trial?

"And, of course, the threshold issue is his qualifications as an expert. Without going into the detail that was provided during his examination by the People and voir dire or cross-examination, whichever one chooses to call it, by the Defense Counsel, I conclude that the evidence is fairly clear to me that his background, that is, his training, education, experience, and the special knowledge, and the skills gained thereby, is sufficient to qualify him as an expert in the field of gangs in general, and as an expert specifically as to an alleged criminal street gang known as the AP, or Alemany Projects gang located in San Francisco. That is the test that is required under Evidence Code section 720, and I do find that he meets that.

"Now, having said that, it is clear that the cross-examination or voir dire examination of the Inspector by Defense Counsel . . . during the Evidence Code section 402 hearing was thorough and revealing. I conclude that any deficiencies or shortcomings in his credentials go to the weight and not the admissibility of his testimony as an expert. It is for the jury ultimately to decide the worth and the weight of that testimony.

"Also, in that respect, . . . it has been held in several cases that the subject matter of the culture and habits of criminal street gangs is beyond the common experience of jurors, and thus is an appropriate matter for expert testimony as specified by Evidence Code section 801.

"The cases that have so held are three: People v. Gardeley, . . . a 1996 California Supreme Court case found at 14 Cal.4th page 605, specifically at 617; People v. Ochoa, a 2001 case found at 26 Cal.4th 398, at page 438; and People v. Gonzalez, a 2005 case, found at 126 Cal.App.4th page 1539, at page 1550.

"Lastly, on the issue of the competence of or the permissibility of the testimony of Inspector Kumli, the Defense cited in . . . some of their briefs, not all of them, but also was raised — this issue was raised during the argument, whether the cases of Daubert [v. Merrill Doro (1993) 509 U.S. 579] or the Kelly-Frye [People v. Kelly (1976) 17 Cal.3d 24; Frye v. U.S. (D.C. Cir. 1923) 293 F. 1813] rule should be applied. And the objection based on those cases is overruled.

"I think that it is clear, for instance, from People v. Hill, a 2011 case, found at 191 Cal.App.4th 1104, specifically at pages 1123 and 1124, that those rules, Daubert and the Kelly-Frye, have been held inapplicable to this type of evidence. There's also an older case, People v. Bui, . . . a 2001 Court of Appeal case found at 86 Cal.App.4th 1187 at page 1195.

"So, accordingly, I would admit the testimony of Inspector Kumli.

"Defense Counsel enumerated a number of subjects that they asked the Court to specifically exclude from the testimony of Inspector Kumli should he be permitted to testify. And in that respect, it is very difficult, experience teaches, and it is the same at this point in time, from my limited perspective, to be able to perceive and/or predict what the evidence specifically would be, but there are a couple of things that I think I should rule on as to those — some of those requested restrictions on the scope of gang testimony by Inspector Kumli.

"First of all, as to the use of the word, quote, gang, unquote, that requested exclusion is denied.

"If there is reference to Penal Code section 186.22, it would seem to me that that would not be inappropriate as it gives a frame of reference as to the definitions that a witness and/or that Counsel may wish to make, and so that requested exclusion is also denied.

"Reference to, quote, benefiting the gang, unquote. I would deny the requested exclusion, however, I can . . . conceive, I should say is probably the better word, of instances in which that may not be relevant in this case, but I can't say from my perspective, as I said, that it is clearly irrelevant under any circumstances.

"As to reference to other gangs, I would deny the requested blanket exclusion of that kind of reference, but I would entertain specific objections to specific questions as to that subject. I can't foresee precisely, obviously, whether that would be, in every instance, irrelevant, but as and if that comes up in a question by any Counsel, if there is an objection, I certainly would do my best to rule on it appropriately, but, again, from my perspective, at this point, I can't tell you how that should be ruled upon, nor would I grant a blanket exclusion of that."

Kumli's gang-related testimony¹⁵ is best summarized in defendant Larry Blay's brief:

15 As with criminalist Dowell (see fn. 11, ante), the jury was never expressly told that Sergeant Kumli was an expert witness, nor was it advised of subject and scope of his expertise. However, we assume the jury quickly figured out that Kumli, like Dowell, was not your average witness, but was testifying about a more rarified, specialized, subject.

"Sergeant Joshua Kumli testified as an expert that the Alemany Projects (AP) gang controlled the Alemany Housing Projects area. [Citation.] The projects provided roughly 175 units of housing for a few hundred people. [Citation.] Kumli opined that AP met the statutory criteria for a criminal street gang although it was not a highly formalized structured gang. [Citation.] AP had at least 15 core members. [Citation.]

"Kumli had investigated crimes involving the AP including shootings, robberies, assaults, narcotic sales, [and] illegal firearm possession. [Citation.] The gang's primary activities included narcotics sales and robberies. [Citation.] The gang interpreted the community's fear of its violent reputation as respect for the gang. [Citation.]

"Kumli explained that anyone who cooperated with police would be viewed unfavorably as a snitch by the AP gang. [Citation.] Anyone who reported a crime by AP members to police would be considered a snitch and subject to retaliation, which could include smashing [a person's] windows, shooting his house, beating him, or shooting and killing him. [Citation.]

"Kumli opined that AP gang members may communicate their intentions on jail phone calls through code or slang words or 'try to say things in different ways.' [Citation.] During a call in which 'there's a potential that law enforcement is listening,' an 'influential' AP member may suggest something without explicitly saying it, knowing that an AP member who is eager to prove himself will follow the suggestion. [Citation.] AP members who are more 'influential,' inasmuch as 'they are more violent, they have a more long standing history of doing things that benefit the gang,' are likely to command the attention of other AP members. [Citation.]

"Kumli explained that he would opine that a person was a gang member if he met just two of 11 criteria—whether he admitted membership, whether he had been arrested for gang crimes, whether he had been engaged in gang related activity, whether a confidential and reliable informant had identified him as a gang member, whether an informant of unproven reliability identified him a gang member and the information was corroborated, whether he had frequented a gang area, whether he had frequently associated with gang members, whether he had gang tattoos, whether he had worn gang clothing, whether he had been convicted and required to register as a gang member, and whether he had displayed gang hand signs. [Citation.]

"Kumli opined that appellant, Deandre [Blay], [Kevin] Abram, and [C. Autis] Johnson were active members of the AP gang and Sean Washington was a gang associate. [Citation.]

"A photo showed appellant, Deandre, Calin Hunter,¹⁶ and another person gesturing as if pointing guns at one person's hand sign representing a rival gang. [Citation.] Kumli noted that some Facebook photos showed AP members pointing guns. [Citation.]

16 Arrested with Larry Blay for the Nasser Street market robbery.

"Kumli opined that the deadly shooting of Tong Van Le was committed for the benefit of the AP gang because it bolstered the gang's reputation and intimidated the neighborhood, insofar as the crime demonstrated that the gang was willing to kill someone to help two AP members who were locked up." [Citation.]

A careful examination of the defendants' briefs reveals a number of common themes, which we address as follows:

The need for expert testimony on a criminal street gang. This is expressed in a number of ways. Defendant Larry Blay concedes the evidence was "minimally probative," but it was an abuse of discretion to admit it in the form of expert testimony because "the testimony was very prejudicial." Although this might suggest he is thinking of Evidence Code section 352, he is instead following this statement by our Supreme Court: " 'In cases not involving the gang enhancement, . . . evidence of gang membership is potentially prejudicial and should not be admitted if its probative value is minimal.' " (People v. Romero (2008) 44 Cal.4th 386, 412, fn. 2.) Abram takes essentially the same approach, although he finds it harder to concede that Kumli's testimony had any true relevance: "even if some evidence . . . were somehow relevant, the scope of testimony admitted via an expert here was indeed irrelevant to the point of implicating not just state law [Evidence Code] section 352 scrutiny for irrelevant details, but due process (and Chapman [v. California (1967) 38 U.S. 18] prejudice analysis) as well." He, too, emphasizes that there was no substantive gang charge or gang enhancement.

Johnson's approach is more elemental. He flatly contends Kumli's testimony was inadmissible because the officer didn't know what he was talking about: his opinions "lacked a factual foundation" and he "lacked the understanding" of how the criminal street gang statute—section 186.22—operates. Because Kumli's testimony had all these flaws, by letting the jury hear it "the trial court violated its duties as a gatekeeper."

The governing rules are well known. "Whether a particular subject is a proper one for expert opinion and whether a particular expert is qualified to give an opinion on that subject are closely related issues. An expert is permitted to offer an opinion on 'a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' (Evid. Code, § 801, subd. (a) . . . .) And a particular expert is sufficiently qualified if 'the witness has sufficient skill or experience in the field so that his [or her] testimony would be likely to assist the jury in the search for the truth.' [Citation.] A trial court's ruling permitting expert testimony is reviewed on appeal under the deferential abuse of discretion standard." (People v. Mayfield (1997) 14 Cal.4th 668, 766.)

No defendant makes a genuine effort to demonstrate that a Marin County jury would have enough knowledge of a particular San Francisco gang that it had no need for the assistance of an expert. Likewise, none of the defendants makes a serious effort to convince us that Kumli did not have sufficient experience or training to qualify as an expert on San Francisco street gangs, specifically, the AP gang. As shown by his ruling quoted above, Judge Boren was fully alive to the dangers of the topic. The first Supreme Court decision cited by Judge Boren—People v. Gardeley, supra, 14 Cal.4th at p. 617—stated "[t]he subject matter of the culture and habits of criminal street gangs" meets the "criterion" for expert testimony, and quoted People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 for the proposition that "The use of expert testimony in the area of gang sociology and psychology is well established," citing supporting decisions going back to 1980. Accordingly, no abuse of discretion attends the trial court's designation of Inspector Kumli as an expert witness. This conclusion also applies if Evidence Code section 352 is included.

We also reject Johnson's "gatekeeper" argument. "[T]he trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative. . . . [¶] . . . [T]he gatekeeper's focus 'must be solely on principles and methodology, not on the conclusions that they generate.' " (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772.) Given that more than two decades ago our Supreme Court characterized gang expertise as "well established," there can be no question of introducing a new bogus methodology. It is also utterly obvious that Johnson is indeed challenging " 'the conclusions . . . generate[d].' "

It is true that none of the defendants was charged with the stand-alone offense of active participation in a criminal street gang (§ 186.22, subd. (a)) or the gang enhancement (id., subd. (b)). Thus, the prosecution was not required to prove beyond a reasonable doubt that any charged offense " 'had been "committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members." (§186.22, subd. (b)(1) . . . .) In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a "pattern of criminal gang activity" by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called "predicate offenses") during the statutorily defined period. (§ 186.22, subds.(e) and (f).)' " (People v. Hernandez, supra, 33 Cal.4th 1040, 1047, fn. & original italics omitted.) However, "[t]he predicate offenses offered to establish a 'pattern of criminal gang activity (§186.22, subd. (e)) need not be related to the crime, or even the defendant." (Id. at p. 1049, italics added.)

This is key.

Defendant Larry Blay quotes our Supreme Court about the potential danger of gang-related evidence. But he does not quote the court's next sentence: " 'But evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.' " (People v. Romero, supra, 44 Cal.4th 386, 412, fn. 2.)

So it would be here. The jury would naturally wonder why a carful of young men would drive from San Francisco to Novato in order to kill a person who would appear to have been a complete stranger. In other words, the jury would focus on motive. Knowledge about the gang would inform the jury why the murder was not random. It would explain the conspiracy alleged against each and every defendant. Kumli's testimony would, in Judge Boren's words, provide a "frame of reference." Thus, as Judge Boren recognized, expert evidence about the gang the defendants belonged to would be "highly relevant to the prosecution's theory of how and why [the victim] was killed."¹⁷ (People v. Olguin, supra, 31 Cal.App.4th 1355, 1370; see People v. Riccardi (2012) 54 Cal.4th 758, 815 [" 'evidence of motive makes the crime understandable and renders the inferences regarding defendant's intent more reasonable' "]; People v. Samaniego (2009) 172 Cal.App.4th 1148, 1168 ["Gang evidence was essential to establishing the motive for these senseless murders and tying appellants, gang members, to them"].) Moreover, "evidence that defendants were members of the same gang as other persons involved in commission of the crimes . . . fortified the testimony of the persons who identified defendants as participants in the murder[]." (People v. Champion (1995) 9 Cal.4th 879, 922.) Thus, Judge Boren's conclusion that Kumli's testimony would be relevant to motive and identity was likewise "fortified" once Washington agreed to testify. In this light, the claim that Kumli's testimony was "minimally relevant" must be rejected.

17 As the jury was instructed: "CALCRIM 1403. You may consider evidence of gang activity only for the limited purpose of deciding whether or not any Defendant had a motive to commit the crimes charged, or whether or not any Defendant had an intent to commit the crimes charged, or the identity of the person or persons involved in the crimes charged, or whether or not any person intended to conspire as charged in Count One and/or Count Two, and if you find a conspiracy existed, whether or not any of the named Defendants agreed to or joined such conspiracy. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the Defendants are persons of bad character or that they have a disposition to commit crime. [¶] If you conclude that a Defendant was a member of a criminal street gang, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove a Defendant is guilty of any charged offense or that any special allegation has been proved. The People must still prove each charge and special allegation beyond a reasonable doubt." The claim made by Abram and Johnson against this "grossly overbroad" instruction will be considered later.

Whether Inspector Kumli usurped the jury's function. It is, of course, true that an expert witness cannot testify about the interpretation of a statute or legal conclusions. (People v. Jones (2013) 57 Cal.4th 899, 950; People v. Torres (1995) 33 Cal.App.4th 37, 46.) Defendant Johnson argues Kumli crossed this line with "his legal opinion that the AP qualified as a 'criminal street gang' within the legal definition of section 186.22."

Discussing gang expert testimony, People v. Olguin, supra, 31 Cal.App.4th 1355, said this: "[t]he requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.] Such evidence is admissible even though it encompasses the ultimate issue in the case." (Id. at p. 1371; accord, People v. Killebrew (2002) 103 Cal.App.4th 644, 651; see Evid. Code § 805.)

The prosecution in essence walked Kumli through the statutory elements of a criminal street gang. Again, left on their own, how would a Marin jury decide whether a group of San Francisco young men qualified as a criminal street gang according to the criteria of section 186.22?¹⁸ This seems eminently sensible: if a witness in a criminal trial begins testifying about a "criminal street gang," the natural response of lay persons would probably be "What's a criminal street gang?" Kumli was in effect telling the jury, "This is how I determine what is a criminal street gang." Although somewhat unorthodox, it still allowed the jury to draw its own parallel conclusions on the ultimate factual issues. (See People v. Vang (2011) 52 Cal.4th 1038, 1049-1050 [text & fn. 3]; People v. Gardeley, supra, 14 Cal.4th at p. 619; People v. Harvey (1991) 233 Cal.App.3d 1206, 1227.) Kumli did not testify about any defendant's intent. He did not testify regarding whether a crime had been proven or that a conspiracy existed. His testimony was, in effect, background testimony, which an expert may provide to enable the jury to "understand other evidence that does not address guilt or innocence." (People v. Lopez (1994) 21 Cal.App.4th 1551, 1556.)

18 " '[C]riminal street gang' means 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, (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." (§ 186.22, subd. (f).)

A common formulation is that "[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness." (People v. Torres (1995) 33 Cal.App.4th 37, 45.) Because expert testimony on gang culture, habits and psychology would "assist the trier of fact" (Evid. Code, § 801, subd. (a)), the jury's fact-finding function was not usurped. (E.g., People v. Valdez (1997) 58 Cal.App.4th 494, 506.) Moreover, Kumli told the jury, "you're the ones who determine . . . [i]f what I say" was credible. "You just take into consideration my experience, my training, the methodology, my rationale as to why." In effect, Kumli was telling the jury: "This is how the law defines a criminal street gang. These are the factors I considered in coming to my conclusion that the AP constituted a criminal street gang within that definition. But it is up to you to decide whether you agree with me."¹⁹

19 "The jury is not required to accept an expert's opinion. The final resolution of the facts at issue resides with the jury alone. The jury may conclude a fact necessary to support the opinion has not been adequately proven, even though there may be some evidence in the record tending to establish it. If an essential fact is not found proven, the jury may reject the opinion as lacking foundation. Even if all the necessary facts are found proven, the jury is free to reject the expert's opinion about them as unsound, based on faulty reasoning or analysis, or based on information the jury finds unreliable. The jury may also reject an opinion because it finds the expert lacks credibility as a witness." (Sanchez, supra, 63 Cal.4th 665, 675.)

Specific instances of Kumli's testimony. Judge Boren concluded his ruling by noting he was leaving open how he would rule on "specific objections to specific questions." Johnson points to Kumli's testimony about the statutory definition of criminal street gang. But there was no objection when Kumli testified to this effect, so the point was not preserved for review. (Evid. Code, § 353, subd. (a); People v. Abel (2012) 53 Cal.4th 891, 924.) The same is true for Kumli's testimony that Johnson was an active member of the gang. Johnson also cites an answer about the gang's criminal activities, but the only objection was not made by Johnson. Which is also true with respect to Kumli's testimony about police department procedures generating gang-related documentation.

Larry Blay claims he did object, unsuccessfully, to Kumli's opinion—as defendant characterizes it—"that a gang member may communicate his intentions in a recorded jail call by suggesting something without actually saying it." Judge Boren declined the requested "blanket exclusion" on this point. It would thus be covered by his reservation that he "would entertain specific objections to specific questions." But Blay made no objection when Kumli was asked about "a specific way that members of the AP criminal street gang communicate what their intentions are, what they want to have done." Had an objection been made and overruled, there would be no error because this subject would be comfortably within "the culture and habits of criminal street gangs" approved by our Supreme Court. (People v. Gardeley, supra, 14 Cal.4th 605, 617.) All of this also applies to defendant Deandre Blay's identical claim.

The nature of any error. Up to the point where Sanchez enters the picture, and contrary to the defendants' approach, any error attending the admission of Kumli's testimony would only constitute error under state law. Notwithstanding the obvious potential for prejudice (as recognized by our Supreme Court in People v. Romero, supra, 44 Cal.4th 386, 412, fn. 2, quoted ante), federal constitutional error appears only if the defendant is deprived of his or her due process right to a fundamentally fair trial. (E.g., People v. Partida (2005) 37 Cal.4th 428, 439 ["the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair"].) This occurs when there are no permissible inferences which the jury may draw from the disputed evidence. (People v. Steele (2002) 27 Cal.4th 1230, 1246.) Here, however, as already shown, there were legitimate uses to which Kumli's testimony could be put. Thus, any error—which, so far, we have not discovered in connection with admitting Kumli's testimony—would not be of federal magnitude.

Sanchez. This court recently summarized Sanchez and its impact:

"In Sanchez, which the Supreme Court decided . . . years after the trial of this case, the court created a new paradigm for the presentation of gang expert testimony. (Sanchez, supra, 63 Cal.4th at p. 679.) Before Sanchez, an expert was given the latitude to testify both about general background information and about case-specific out-of-court statements in order to explain the basis for his or her expert opinion, and the court typically would instruct the jury to consider the information for that purpose only, and not for its truth. (Id. at pp. 679, 683, citing People v. Gardeley, supra, 14 Cal.4th 605.) In Sanchez, the court eliminated this latitude with respect to case-specific facts, which it defined as facts 'relating to the particular events and participants alleged to have been involved in the case being tried.' (Id. at p. 676.) It reasoned that when no other and competent evidence of those facts is offered, 'there is no denying' that the hearsay statements relayed by the expert are being offered for their truth. (Id. at p. 684.) Indeed, the jury in Sanchez had been instructed that, in assessing the believability of the expert, it ' "must decide whether information on which the expert relied was true and accurate." ' (Ibid.; see CALCRIM No. 332.) While the jury had also been instructed that the hearsay statements on which the expert relied should not be considered ' "proof that the information contained in those statements was true," ' that instruction was in conflict with the first one and could not logically have been applied. '[The jury] cannot decide whether the information relied on by the expert "was true and accurate" without considering whether the specific evidence identified by the instruction, and upon which the expert based his opinion, was also true.' (Sanchez, at p. 684.) The state law evidentiary rule established in Sanchez, simply stated, is that out-of-court statements about case-specific facts may not be relayed by an expert witness unless they fall within an exception to the hearsay rule. Absent an exception, the case-specific facts must be established by competent (non hearsay) evidence presented by other witnesses and the expert's opinion may be based on a hypothetical question that assumes those facts. (Ibid.)

"In Sanchez, the court also addressed the Sixth Amendment's confrontation clause, as interpreted by the United States Supreme Court in Crawford and its progeny. (Sanchez, supra, 63 Cal.4th at pp. 685-686.) Admission through an expert of hearsay statements concerning case-specific facts, the court opined, not only would violate the Evidence Code but, if the hearsay statements were testimonial and Crawford 's exceptions did not apply, would also violate the Sixth Amendment. (Sanchez, at p. 685.) A 'testimonial' statement is one made when the circumstances objectively indicate there is no ongoing emergency, and the 'primary purpose' of the interrogation or other conversation ' "is to establish or prove past events potentially relevant to later criminal prosecution." ' (Ohio v. Clark (2015) 576 U.S. [135 S.Ct. 2173, 2179-2180.])²⁰

20 Ohio v. Clark was the latest of a number of United States Supreme Court decisions that were surveyed in Sanchez. (See Sanchez, supra, 63 Cal.4th 665, 687-694.) The Sanchez court concluded that what emerged from this survey was adoption of the "distinguishing principle of primary purpose. Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial." (Id. at p. 689, fn. omitted.) At a later point in the Sanchez opinion the court restated this point: "When the People offer statements about a completed crime, made to an investigating officer by a nontestifying witness, Crawford teaches those hearsay statements are generally testimonial unless they are made in the context of an ongoing emergency . . . or for some primary purpose other than preserving facts for use at trial." (Id. at p. 694.)

"The Sanchez court established a two-step analysis for determining the admissibility of out-of-court statements. 'The first step is a traditional hearsay inquiry: Is the statement one made out of court; is it offered to prove the truth of the facts it asserts; and does it fall under a hearsay exception? If a hearsay statement is being offered by the prosecution in a criminal case, and the Crawford limitations of unavailability, as well as cross-examination or forfeiture, are not satisfied, a second analytical step is required. Admission of such a statement violates the right to confrontation if the statement is testimonial hearsay, as the high court defines that term.' (Sanchez, supra, 63 Cal.4th at p. 680.)

"The Sanchez court's hearsay analysis focused on an expert's testimony about the truth of case-specific facts, and not on the expert's reliance on these facts to form his or her expert opinion. The court emphasized that an expert 'may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.' (Sanchez, supra, 63 Cal.4th at p. 685.) 'What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.' (Id. at p. 686.) The court also affirmed the long-standing rule that expert witnesses have greater latitude than lay witnesses to testify about 'generally accepted background information' (id. at p. 676), even when that information is based on hearsay: 'In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc.' (Id. at p. 675.) 'An expert may . . . testify about more generalized information to help jurors understand the significance of . . . case-specific facts.' (Id. at p. 676.)" (People v. Anthony (2019) 32 Cal.App.5th 1102, 1129-1131, fn. omitted (Anthony).)²¹

21 We implicitly accepted that Sanchez was retroactive to all cases not yet final on appeal, which appears to have become the settled approach in the Courts of Appeal. (See In re Thomas (2018) 30 Cal.App.5th 744 [Sanchez not applicable to case affirmed on appeal]; In re Ruedas (2018) 23 Cal.App.5th 777 [same]; People v. Jeffrey G. (2017) 13 Cal.App.5th 501, 507 ["the rule of Sanchez applies to this appeal"].) The Attorney General does not argue the Sanchez issue was not timely raised, or need not be addressed on its merits.

What does all this mean in practical application?

At issue in Sanchez were several types of information. First, there were police reports about his "five prior police contacts." The testimony of the relevant police witness "reveal[ed] that these reports were compiled during police investigation of those completed crimes." (Sanchez, supra, 63 Cal.4th 665 at p. 694.) Because Sanchez was charged with the substantive offense of active gang participation and an enhancement of committing a crime for the benefit of that gang, the reports (and the officer's testimony based on them) qualified as case-specific facts. (Id. at pp. 671, 694.)

Second, there was the "STEP notice" (California Street Terrorism Enforcement and Prevention), which was given to Sanchez and which "recorded [his] biographical information, whom he was with, and what statements he made. It cannot be said that the defendant's primary purpose in making the statements was to establish facts to be later used against him or his companions at trial. However, it seems clear the officer recorded the information for that purpose. If that were not the case, there would appear to be no need for the issuing officer to swear to its accuracy. It also appears that another purpose of the STEP notice is its later use to prove that the recipient had actually been made aware that he was associating with a criminal street gang and that he might receive an enhanced punishment should he commit a future crime with members of that gang." The notice was also testimonial. (Sanchez, supra, 63 Cal.4th 665 at p. 696.)

Third, there were the field identification (FI) cards, which "record an officer's contact with an individual" and "may record statements made at the time of the interaction." (Sanchez, supra, 63 Cal.4th 665 at p. 672.) Here, the Sanchez court could only conclude that the cards "may also be testimonial": "If the card was produced in the course of an ongoing criminal investigation, it would be more akin to a police report, rendering it testimonial. Because the parties did not focus on this issue, the point was not properly clarified, leaving the circumstances surrounding the preparation of the FI card unclear." (Id. at p. 697.)

The four defendants in Anthony were charged and convicted of first-degree murder in a gang-related crime, a special circumstance. (§§ 186.22, subd. (b)(4), 190.2, subd. (a)(22).) In the wake of Sanchez, we examined challenges to a number of topics addressed by the gang expert, Oakland Police Officer John Cunnie.

Initially, we concluded Officer Cunnie's testimony did not violate Sanchez in touching upon "the general history of the violent rivalry between [North Side Oakland] (NSO) and the Berkeley gang, including information Cunnie obtained from other officers, investigators and purported gang members." (Anthony, supra, 32 Cal.App.5th 1102, 1137.) Doing so, we noted the following:

"Since Sanchez, California appellate courts have held that expert testimony about 'the general attributes of the . . . gang, such as the gang's culture, the importance placed on reputation and guns, . . . the gang's rivals and claimed turf, the use of monikers and identifying symbols, and the like, [are] permissible as expert background testimony.' [Citations.] [¶] Here, given the nature of Cunnie's expertise, his training and experience were developed in the streets and in the police stations of North Oakland. Under Sanchez, he was not required to personally replicate all investigations dating back to the inception of the NSO-Berkeley gang rivalry in 2002 in order to relate general information about those two gangs and their rivalry. Under Sanchez, Cunnie's description of the two gangs' activities and their rivalry was admissible even though it was to a large extent derived from conversations with others or the review of police reports. Further, although not required, the fact of the rivalry is corroborated by other admissible evidence . . . ." (Anthony, supra, 32 Cal.App.5th 1102, 1138-1139.)

"Second, defendants contend that Cunnie testified about certain facts based on other inadmissible hearsay, including testimonial hearsay, such as his 'discussion of tattoos, writings and media pages.' Although vaguely stated, this appears to be an attack on Cunnie's extensive testimony about photographs of defendants' tattoos and gang signs. This argument fails because Cunnie did not rely on hearsay to testify that defendants had the tattoos or made the hand signs in question. Rather, he relied on other evidence that defendants do not contend was inadmissible. . . . Cunnie's testimony about the significance of these tattoos and gang signs was similar to that identified as admissible background information in Sanchez; he testified that particular tattoos and hand signs were used to convey allegiance to the NSO gang and its subsets." (Anthony, supra, 32 Cal.App.5th 1102, 1139.)

Next, "[co-defendant] Flowers contends Cunnie testified about the primary activities of NSO based on police reports, apparently contending these reports were inadmissible case-specific hearsay. We must presume all intendments and presumptions in favor of the judgment, and ' " 'on matters as to which the record is silent, . . . error must be affirmatively shown." ' " [Citations.] This particular argument fails because the record is silent on the source of Cunnie's information, since none of the defendants specifically objected to this portion of Cunnie's testimony. Cunnie was not asked about his sources, and [co-defendant] Flowers does not offer any citation to the record that establishes that Cunnie relied on police reports. Therefore, error has not been affirmatively shown" (Anthony, supra, 32 Cal.App.5th 1102, 1139-1140, fn. omitted.)

We then stated: "Defendants challenge various other aspects of Cunnie's testimony that come closer to, or undeniably were, based on case-specific and in some instances testimonial hearsay. This includes Cunnie's testimony of his understanding that defendants had certain contacts with legal authorities and committed certain criminal acts not shown by admissible evidence that indicated an affiliation with NSO; that Ngo was an NSO member who helped start ASAP, that certain other individuals were NSO members and committed NSO-related crimes, and that certain NSO members were killed in incidents that were a part of the NSO-Berkeley gang rivalry; that there had been a shooting attack on Charles and others earlier in May at a liquor store in the Berkeley Waterfront gang's territory and a shooting incident involving an NSO member in the early morning hours of May 8, 2009, in Oakland; and that Jermaine and other people Anthony identified in his May 18 statements to Oakland police were Berkeley gang members. Many of defendants' Sanchez and Crawford arguments to Cunnie's testimony about these matters have merit, at a minimum because this challenged testimony was not based on admissible evidence or personal experience and, therefore, was case-specific hearsay. Cunnie testified before Sanchez and, accordingly, was permitted to testify about this case-specific hearsay to explain the basis for some of his opinions under People v. Gardeley. In some instances, the hearsay was testimonial and its admission violated Crawford. [¶] However, we will not address defendants' contentions on the merits because, assuming it was error to admit all of this testimony, these errors were harmless beyond a reasonable doubt." (Anthony, supra, 32 Cal.App.5th 1102, 1140-1141, fn. omitted.)

Johnson, who filed the first supplemental brief based on Sanchez, goes after a single point of Kumli's testimony, namely, that he (Johnson) was an active member in the AP gang. Johnson argues this conclusion runs afoul of Sanchez because it "was based on police reports and field interview cards, plus memoranda and his expertise, training, and experience;" and the 11 criteria "developed by the San Francisco District Attorney and the San Francisco Police Department Gang Unit to establish gang membership."²² Johnson reiterates his "stealth testimonial hearsay" discussed earlier in this opinion. (See pp. 35-37, ante.)

22 Kumli ran through the criteria for the jury. He made it clear that the process of determining whether a person was a gang member was not simply a matter of checking boxes, but involved a personalized evaluation leading to "your opinion . . . [¶] that an individual is a gang member." (Italics added.)

Deandre Blay attacks on a wider front. He "submits that, under the law as announced in Sanchez, most of the opinion testimony of gang expert Sergeant Joshua Kumli was improperly admitted . . . . [¶] In particular, Sergeant Kumli opined that the AP . . . gang was a criminal street gang, that the primary activities of the AP gang were narcotic sales and robberies, that all four defendants were active members of the AP gang, that the charged crimes were committed by the defendants, as AP gang members, to benefit two of their fellow gang members who were locked up, and to enhance the reputation of the AP gang, and to instill fear in members of the community, and thus, that the crimes in this case were committed for the benefit of the AP gang.

"Further, he opined that gang members interpreted the community's fear of its violent reputation as respect for the gang, and that anyone who cooperated with police would be viewed as a snitch by the gang. Anyone who called police to report a crime by AP members would therefore be subject to retaliation, which could include killing him.

"Further, Sergeant Kumli opined that in jail phone calls, AP gang members might communicate their intentions through code or slang words. If an AP member making a jail call thinks police may be listening, he may suggest something without explicitly saying it, knowing that a listener who is a fellow AP member, and who is eager to prove himself, will follow the suggestion."

In addition to the hearsay sources identified by Johnson, Blay points to Kumli's use of "information [from] other police officers and sheriff's deputies, as well as probation officers, parole officers, and jail deputies," plus "information from unspecified persons who, in his opinion, were gang members residing in the Alemany area, and from unnamed confidential informants who, in his opinion, were reliable," plus "information from the internet, including posts on Myspace and Facebook."

Abram and Larry Blay join in Johnson's and Deandre Blay's arguments. Johnson joins in Deandre Blay's arguments.

Several preliminary observations are appropriate. First, this is not the usual Sanchez situation in that the obvious prosecutorial goalpost is missing: the gang expert was not called to provide testimony to sustain a gang-related offense or enhancement.

Second, this is not a situation like Sanchez, where the defendant points to a specific report or a writing or a document and says: "See! There it is—that's the forbidden case-specific testimonial hearsay." The defendant who comes closest to doing so is Johnson, who claims Kumli stealthily conveyed the "clearly implied message that the police reports and field interview cards showed [Johnson] was an active participant in the AP criminal street gang." However, Kumli didn't get into the particulars of information in those sources. He was, therefore, using those sources as background hearsay—and properly so. (Sanchez, supra, 63 Cal.4th 665, 685.)

Third, and most importantly, Sergeant Kumli was not the usual expert witness in that he did not provide opinions in response to hypothetical questions.²³ The heart of his testimony was his practice of going through the gang member criteria (see fn. 17 & accompanying text, ante) and then responding to questions about whether, in his opinion, the AP members satisfied the statutory definitions in section 186.22.

23 This flat statement requires a bit of qualification. There were no true hypothetical questions asked during direct examination. Not a single instance where Kumli was asked to assume certain facts that were " 'rooted in facts shown by the evidence' " (People v. Vang, supra, 52 Cal.4th 1038, 1045) and respond with an opinion answer. (See CALCRIM No. 332 ["A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts"].) The prosecution did ask one true hypothetical during redirect, and that hypothetical was then tweaked by counsel for defendant Johnson during her re-cross. Indeed, Johnson's counsel was the most prominent poser of hypothetical questions to Kumli.

However, it is clear from the record that Kumli's testimony was primarily—indeed, overwhelmingly—based on personal knowledge. He was testifying about a group of individuals that were not some abstract "gang," but persons with whom he had personal knowledge and actual dealings for approximately eight years. And he was explicit that his conclusion that the AP "met the definition" of a criminal street gang was "based on my experience."

Defendants have adopted an overly broad idea of what constitutes prohibited case-specific testimonial hearsay. It does not, as they appear to believe, prohibit use of any and all hearsay material relating to the gang itself and in general. As we noted in Anthony, Sanchez expressly allows as much. (See Sanchez, supra, 63 Cal.4th 665, 698 ["detective Stow's background testimony about general gang behavior or descriptions of the Dehli gang's conduct and its territory . . . was based on well-recognized sources in Stow's area of expertise. It was relevant and admissible evidence as to the Delhi gang's history and general operations"]; People v. Gardeley, supra, 14 Cal.4th at p. 617 ["[t]he subject matter of the culture and habits of criminal street gangs" appropriate for expert testimony]; People v. Olguin, supra, 31 Cal.App.4th at p. 1370 ["The use of expert testimony in the area of gang sociology and psychology is well established"].) By contrast, case-specific testimony is only that "relating to the particular events and participants alleged to have been involved in the case being tried. (Sanchez, supra, 63 Cal.4th at p. 676, italics added.)

Or, as we also said in Anthony: "The [Sanchez] court emphasized that an expert 'may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.' (Sanchez, supra, 63 Cal.4th at p. 685.) 'What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.' (Id. at p. 686.) The court also affirmed the long-standing rule that expert witnesses have greater latitude than lay witnesses to testify about 'generally accepted background information' (id. at p. 676), even when that information is based on hearsay: 'In addition to matters within their own personal knowledge, experts may relate information acquired through their training and experience, even though that information may have been derived from conversations with others, lectures, study of learned treatises, etc." (Id. at p. 675.) 'An expert may . . . testify about more generalized information to help jurors understand the significance of . . . case-specific facts.' " (Anthony, supra, 32 Cal.App.5th 1102, 1131.)

Kumli's testimony was not only proper on its face, it is also clear that it was not based on information out of a book, but on his own personal and extensive dealings with the APs. This includes topics such as the internal values of respect (in the gang and in the community), generating new members, seniority, and hostility towards "snitches" (which was not confined to gang members but also included civilians). Moreover, as for the gang's reputation for retributive violence, Kumli testified "personally, I've known for a long standing time of that reputation." His knowledge of how the gang "communicate[s] what their intentions are, what they want to have done" was acquired "though my investigations," from "[l]istening to a lot of jail calls as part of my investigations." It is also clear that when he identified the defendants in court as gang members he was speaking from personal knowledge.

Kumli's direct examination ended with the following:

"Q. . . . [B]ased on your training and experience, do you have an opinion as to whether, in this particular case, the shooting of Mr. Tong Van Le was for the benefit of the AP criminal street gang? . . . [¶ . . .

"A. Absolutely. . . . I think it's very clear that it benefits the gang. You have—ultimately his killing releases people from custody, so it would benefit the individuals in custody. It greatly enhances the reputation of the gang as a whole for committing this type of crime. It enhances the reputation of the individuals, it benefits them, it benefits the gang, it increases their status, and it just adds to this cycle of violence and intimidation and fear throughout the community."

However, unlike Sanchez, this conclusion was not based on "reciting facts from police reports" or Kumli's "recitation of testimonial hearsay." (Sanchez, supra, 63 Cal.4th 665, 699.) He was not "relaying" case-specific information that was being offered for its truth based on other undisclosed sources. (Id. at p. 684; Anthony, supra, 32 Cal.App.5th 1102, 1130.) The application of Sanchez to Sergeant Kumli's testimony, if any, is minimal. Any violation of Sanchez is so small as to be without consequence given that the overwhelming majority of Kumli's testimony was based on his personal knowledge and thus was not hearsay, still less case-specific testimonial hearsay. Experts may rely upon and convey information within their own knowledge without violating an accused's constitutional right of confrontation. (See Sanchez, supra, at pp. 675-676, 685; Anthony, supra, at p. 1131; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 413.) And, to the limited extent Kumli's testimony was based on hearsay, experts are permitted to rely on hearsay as background information so long as they do not relate the details of that hearsay to the jury (Sanchez, supra, at p. 685), which he did not do.

Certainly Kumli admitted getting information from others. But no defendant identifies a precise instance of case-specific testimonial hearsay that is not based on Sergeant Kumli's independent and personal knowledge. His testimony did not violate Sanchez.

The Mistrial Motions

During the course of the trial, there were three separate motions for a mistrial, two of which were based on claimed prosecutorial misconduct, the third on what amounted to willful negligence by the prosecutor. All of the motions were denied. We address them in the chronological order they were made, reviewing them under the abuse of discretion standard:

"A trial court should grant a motion for mistrial 'only when " 'a party's chances of receiving a fair trial have been irreparably damaged' " '[citation], that is, if it is 'apprised of prejudice that it judges incurable by admonition or instruction' [citation]. 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.] Accordingly, we review a trial court's ruling on a motion for mistrial for abuse of discretion." (People v. Avila (2006) 38 Cal.4th 491, 573.)

I

Abram contends, to quote the caption in his opening brief: "The [trial] court erred in denying a mistrial, and at least in refusing to conduct a better inquiry with jurors, following serious prosecutorial misconduct, or prosecutorial error . . . ; even independent of the mistrial motion, the errors denied appellant due process and a fair trial by twelve impartial jurors."

In his opening brief, Abram presents the relevant background details as follows:

"Due to the nature of the case alleging assassination of a Marin County witness, the parties agreed to conduct individual voir dire with jurors who mentioned concerns over safety or retaliation in their questionnaire (Question #110). On November 7, 2011, the same day 12 jurors were sworn, the parties conducted such sequestered voir dire with prospective juror Mr. P. based on his answer in the questionnaire; in court (without other jurors present), he said he could not be sure he could disregard his fears about serving, but the court tentatively denied a for cause challenge.

"Later that day during selection of alternates (with the 12 sworn jurors present), the prosecutor repeatedly (once again) asked Mr. P. about his safety concerns; Mr. P. noted I think I answered that question earlier this morning'; in response to more probing by the prosecutor about the fear issue, he explained in detail his fears about potential retaliation for anyone participating in the case. In relevant part, he stated:

" '. . . I'll answer the reprisal part again, and that was . . . this trial was about somebody who was going to testify in a trial and got killed . . . we discussed . . . being reprised by—by anyone connected with this trial, if the defendants were in fact guilty . . . then they might also, you know, do the same thing to other people as part of this trial . . .

" '. . . if the proceedings and the way things were run, then it wouldn't be a problem. If I felt threatened in some way . . . maybe I get home one day and I find a note in my mailbox because somebody found out where I lived, then that might have influenced my—I mean I don't think that's going to happen but—if I felt threatened, I think that could affect my . . . .'

"Whether he could be objective with these fears was 'hard to answer,' but he might be less concerned in a case like this as compared to an organized Mafia case.

"Now, while in [sic]still in front of the group (unlike that morning), he finally said he thought he could disregard any apprehensions.

"A conspicuous break and motions for mistrial followed.²⁴ The next day, the court denied motions for mistrial on grounds the misconduct was not an 'intentional' effort to taint the twelve jurors who had just been sworn; the court denied appellant's requests for immediate (and individual sequestered) curative voir dire with the sworn jurors.

24 The initial motion was made by counsel for defendant Johnson. Counsel for Abram and Deandre Blay joined in the motion. Counsel for Larry Blay initially joined the motion, but subsequently withdrew his joinder. Thus, Johnson and Deandre are entitled to join Abram's contention, but Larry Blay is not. (See fn. 5, ante.)

"On November 10, Mr. P. was now excused for cause, and the court apparently agreed to interview the 12 sworn jurors individually but denied appellant's request to do this now. On December 1, the court now denied appellant's request for separate voir dire (to ensure honest answers outside the pressure of a sworn group of 12 after extended voir dire); the court decided it was not a 'big concern' because none of the 12 had sent notes about it.

"On December 5, after swearing alternates, and now weeks after the incident, the court asked the first 12, as a group, two general questions: (1) 'On the day that you were sworn as jurors, was there anything that occurred that day that concerns or bothers you in any way?' and (2) 'if there is anything that's been in your mind, raise your hand.' None of the 12 responded." (Footnote & record citations omitted.)

Abram frames his contention as follows: "The court erred in denying a mistrial, and at least in refusing to conduct a better inquiry with jurors, following serious prosecutorial misconduct, or prosecutorial error, posing serious bias issues during voir dire; even independent of the mistrial motion, the errors denied appellant due process and a fair trial by twelve impartial jurors." Johnson and Deandre Blay join. (See fn. 5, ante.)

Judge Boren took great care in its reasons for denying the mistrial. His ruling deserves to be quoted at length:

"I want to make sure the record is clear, and so with the assistance of my court reporter, I have garnered what I think is the verbatim transcript of what was said yesterday, and I want to put that into my ruling, so . . . it's clear, or at least clearer, as it was to me, when I read through it exactly what was said—and how.

"And yesterday, near the end of the day's session, the Prosecutor made reference to the contents of the answer to question number 110 by current alternate juror number 34, Mr. P[.], and that was his questionnaire number was 158, and the question in the questionnaire to which his attention was drawn, and, was, I believe recited on the record, was, and I'm quoting from the questionnaire, 'What was your reaction, if any, when you learned you might become a juror in this case?'

"And the juror's answer that he wrote down in the questionnaire was, quote, 'A little fearful of reprisal, not sure I could handle the length of the trial,' end of quote.

"And then Mr. Berberian's question to that prospective alternate juror was, and I'm quoting again from the transcript, 'Mr. P[.], I want to come back to you. You, in question 110—obviously you know this is a murder trial, so you're going to have to make decisions as to whether people are guilty or not guilty of a murder that occurred, and you—your answer was to that question, quote, "A little fearful of reprisal, not sure I could handle the length of the trial." What did you mean by that?'

"And I want to digress for a moment on that issue. We had, in our pre-trial conferences, addressed several things, and one of them was that there was a consensus that on issues of fear, or concerns for personal safety, if we saw those raised on a juror's questionnaire, all of us agreed we would do a couple of things: One, that we would address those outside of the presence of the other jurors; and, secondly, the Defense Counsel, I'm not sure they brought it up, but it was addressed that they would ask their clients if they would be willing to waive their presence when those questions were asked, just so the juror affected by it, or who raised that issue would not have to do so—if they had that concern, and they related it to the Defendants, have to address that in front of the Defendants.

"And we did that at least once or twice, I believe, previously. I remember clearly, and I didn't go back into the record to see what days and times and who the juror was, but there was at least one occasion when the Defendants waived their right to be present, I think there were two, and they were escorted from the courtroom, or left the courtroom, outside of the presence of all of the jurors.

"And as I'm going to touch on a little later, I think it is of significance what we reached that consensus, it was all counsel and the Court. We thought it was an appropriate and good process, for, I think, obvious reasons. And the Defendants agreed, and I think that was to their credit that they did that.

"In any event, going on with the transcript of the discussion, the last question was—by Mr. Berberian before I interjected that interlude, was 'What—what did you mean by that?' having read the answer in the questionnaire.

"And the juror, Mr. P[.], said, 'I think I answered that question earlier this morning, but—so I'll answer the reprisal part again, and that was, you know, this trial was with somebody who was going to testify in a trial and got killed.'

" 'Mr. Berberian: Okay, I know, we discussed —'

" 'Prospective Alternate Juror P[.]: That what I was referring to.'

" 'Mr. Berberian: Okay.'

" 'Prospective Alternate Juror P[.]: Being reprised by — by anybody connected with this trial if—if the Defendants were in fact guilty, then I — then they might also, you know, do the same thing to other people as part of this trial.'

" 'Mr. Berberian: Well, I'm pointing more toward the second part of that that says quote , 'Not sure I could handle the length of trial,' end of quote within a quote.

"Prospective Alternate Juror P[.] then said: 'Oh, it's unrelated to the reprisal part, it just means that it's—you know, be able to be nine months long, and that would be disruptive to my personal life. It would be a long time to—you know, not to go to work and that kind of thing.'

" 'MR. BERBERIAN: But would you be thinking so much about what you couldn't be doing, or wouldn't be doing, that you find that you wouldn't be able to sit and listen to the evidence . . . and be fair to both sides in the case?'

" 'Prospective Alternate Juror P[.]: I don't think—' and then—or he says, 'I don't think so.'

"And I'm going to stop there in the transcript recited because I think that discussion, at least in my view, demonstrates that it was not Mr. Berberian's original intention to exhaust the area of the word 'reprisal,' but to look at the second part.

"Now, having said that, I think he could have, and in retrospect, should have read the second part of the juror's answer and left off the 'reprisal' part since we had, I think, exhausted that in the morning inquiry. But, unfortunately, as I said, that was brought up, the juror responded to it, and Mr. Berberian resumed his questions after that.

"And let me pause there again for the comment that Ms. Higgins [Johnson's counsel] made. I don't think that the fact that there wasn't an immediate objection was—is necessarily fatal or really that much of moment in dealing with this, because think most people would have the same reaction, trained in the law, and that is, you don't really know what's coming until it's already arrived as far as the next part of it.

"I think that was my thinking, that it would have called more attention to the issue by jumping up and objecting or for me even to interject myself.

"In any event, Mr. Berberian went on: 'And the fact of the identified potential fear issue, would that make you in a position that you would not automatically return a verdict of—or you would return a verdict just in reaction to that feeling?'

" 'The juror: Oh, I see what you're saying. I think if somehow, because of the proceedings and the way things were run, I felt safe, then it wouldn't be a problem. If I felt threatened in some way, you know, because of, you know, maybe I get home one day and I find a cryptic note in my mailbox because somebody found out where I live, then that might have influenced my—I mean, I don't think that's going to happen, but if I—if I felt threatened, I think then—I'm sorry, I think that that could affect my—'

" 'Mr. Berberian: Well, you—based on whatever your feelings are, do you feel you can be fair to all parties in this case, the Defendants and the People based on your personal feelings and belief? I really don't want to go into any more—'

" 'The juror: Okay.'

" 'Mr. Berberian: —detail, I guess—'

" 'The juror: Yeah.'

" 'Mr. Berberian: —as you've articulated your position, but I want to kind of go to the bottom line here. Do you feel, because of what you are now articulating, that you could — that you just could not be fair to the Defendants or to the—to the People?'

" 'The juror: Boy, I—that's—that's hard to answer 'cause I don't know. I—I think I could be because—I think this is, you know, United States of America, and I think, you know, everything—it's a pretty orderly society, so I think that I would not feel so afraid. I think if this was a trial, you know, against the Mafia or something like that, where there was a more organized, you know, a crime kind of a thing, I might feel a little bit more exposed, but not so much in this sort of a setting.'

" 'Mr. Berberian: Okay.'

" 'The juror: So I can't—it's hard for me to answer this question.'

" 'Mr. Berberian: Okay. Well, it brings me back to my base question, all of your personal feelings, your biases, your — your beliefs, whatever those are, would you be able, again, using the Court's instructions defining the law, listening to all the facts, at the very end of the case, after everyone has had an opportunity to present or to — for you to make—for you to receive what the evidence is going to be, would you then make your decision just on that law coming from the Court and the facts from this witness stand, and set your own personal beliefs and perhaps apprehensions aside and render whatever verdict is appropriate at that point, regardless of whether it establishes verdicts of not guilty or whether it establishes verdicts of guilty, you'd be able to do that and assure us that you could do that?'

" 'The juror: Yes, I—I could do that.'

"So that's what happened yesterday."

"And this instance yesterday, as I said, from my view of it, looking at the transcript, I don't believe the prosecutor intended to make more of this than simply inquire legitimately into the juror's thinking. I think it could have been done better, it could have been done without the reference to the reprisal part because we had addressed that, I felt, adequately earlier in the day.

"Also, I think it's important to point out that I think the discussion that we had informally, later put on the record, regarding when we would have a juror with fears of their safety, their personal safety, that we would do it in the fashion I described earlier, and I think it was wise and—and appropriate to do, and that we should continue to do that.

"Code of Civil Procedure section 223, as part of the direction for the impaneling of jurors in criminal cases, says that voir dire of any prospective juror shall, where practicable, occur in the presence of the other jurors in all criminal cases including death penalty cases.

"We have, in our trials from time to time, and this is one of those instances, departed from that general rule, finding, in effect, that it's not practicable in some instances, but the desire of the law is that we do that. And we separate ourselves from that general rule when we find that there are areas or issues that are more properly addressed out of the presence of others, whether it's the fear issues or, in some instances, concerns for privacy that the jurors have.

"So, we did that, I think appropriately so. It has been my experience over the . . . years that voir dire of trial jurors is often the most difficult phase of a trial, partly because it is essentially unscripted, mainly from the juror's side, not from the attorney's side, because the attorneys know what questions they want to ask or feel they need to ask, but we have jurors who are unschooled and—for the most part, and unfamiliar with the process of jury selection.

"I'm sort of surprised, I should say, that there are fewer people than I expected to be concerned in a murder case about either their own personal safety or just their reaction to it. But, our jurors are what we have.

"In my view, looking at the entire record of what happened yesterday, as well as of the conduct of the prosecutor prior to that time in this case, I don't believe or find that it was an intentional effort to somehow poison the jurors that had been sworn shortly before that, or to otherwise adversely affect the impartiality and fairness of any of the jurors.

" . . . [B]ecause of the things I've discussed so far, . . . I'm not convinced that a mistrial is the appropriate reaction . . . . [¶] . . . I do deny the motion for a mistrial."

It was more than two weeks later, while still questioning prospective alternates, that Judge Boren denied individual examination of the already-sworn jury as requested by defendants Abram and Deandre Blay (the prosecution took no position on individual versus group examination), ruling as follows:

"Well, if it were of bigger concern to me, I would do it individually. I just don't think it is a big concern. And part of my thinking in that way. . . is two-fold. One, not one of these jurors, to me or through the Clerk, or in any way, has indicated they have a concern about their safety, about reprisal, and so forth.

"And since that hasn't come up, that diminishes my concern about it, but I indicated I would inquire. So, what I'm going to do, once we get the six alternates, is to have the six alternates go to the other room, and if we have other prospective jurors , I'm going to have them step out of the courtroom.

"I'm going to ask all 12 that question, or that question in substance, that we've already discussed. And I'm going to say, 'If you have a response to that, . . . I do want to address it, but I want to address it individually. So, those of you who have that issue, raise your hand,' and I'm going to ask everybody except one to leave the room, go to the jury room, and then have the next one who raised his or her hand come in, and interview them individually if they have a response to the broad question. So, that's the way I will do that.

"Secondly, if we lose, as a result of that, one or two or three, then we will move in the of the alternates, and my thought would be, since we will still have people who are otherwise qualified, to replace the alternates because we haven't moved beyond that process."

Defendant Abram suggests the prosecutor was "insinuat[ing] matters not in evidence," specifically "visceral fears" of reprisal which "could give rise to express and implied bias showing a demonstrable inability to serve." But the subject of reprisal was not being interjected for the first time. As Judge Boren's remarks make clear, the subject had been anticipated and addressed in the jury questionnaire. There appears to have been an informal agreement that the subject would be handled in a certain manner, and the prosecutor apparently strayed from strict compliance with that understanding. But that departure does not by itself establish misconduct, still less intentional misconduct. So, when this vastly-experienced judge determines an action by the prosecutor was not intentional, and thus not misconduct, it should be afforded an extra measure of deference. And when that judge decides the prospect of a fair trial has not been "irreparably damaged," we are unable to treat it as an abuse of his "considerable discretion." (People v. Avila, supra, 38 Cal.4th 491, 573.)

With respect to the court not conducting "a better inquiry," it is important to remember Abram is not talking about the prospective alternates who were still being questioned, but about the jury that had already been sworn. Presumably he is obliquely raising the possibility that the topic of "reprisal" would justify the removal of one or more of those jurors. Such drastic action would be justified only if juror bias is established as "a demonstrable reality" (e.g., People v. Powell (2018) 6 Cal.5th 136, 155; People v. Maciel (2013) 57 Cal.4th 482, 547) after the trial court has investigated. The trial court has discretion to determine the manner in which the investigation is to be conducted. (See People v. Cleveland (2001) 25 Cal.4th 466, 477-480 and decisions cited.) And "[n]ot every incident warrants investigation." (People v. Bell (2019) 7 Cal.5th 70, 120.)

On this point, too, we cannot discern an abuse of that discretion. As already mentioned, the topic of "reprisal" was not new. The subject was broached on the jury questionnaire, and could be addressed prior to potential jurors being accepted and sworn. Once empaneled, it is hardly likely that hearing a prospective alternate being asked about the subject would create express or implied bias. The Attorney General accurately summarizes: "there was no indication . . . that the prosecutor's brief questioning of Mr. P. caused the jurors to think of anything they had not thought of already." As Judge Boren noted, no juror had come forward to admit to such a change of mind. He believed a question to the entire jury, with individualized follow-up if necessary, would be sufficient. That decision did not exceed the bounds of reason. (See People v. Westerfield, supra, 6 Cal.5th 632, 689.)

II

Inside the district San Francisco Police Officer Perez patrolled in 2008 was the Alemany Housing Development where the defendants lived. He also did "some follow-up work with regard to the . . . robbery at the Nasser Market," part of which was to show the victim a photo-array of possible suspects. Le identified a photograph of defendant Larry Blay. Perez also participated in the arrest of Blay when he stopped in a car with his brother and Johnson. As Perez continued:

"MR. BERBERIAN: Did you tell Mr. Blay—and by that I mean Larry Blay, Jr., the reason for his arrest?

"A. I initially told him at the scene, at the housing development, that he was under arrest. At Ingleside Station, later on, I told him he was under arrest for a robbery..

"Q. Okay. Did you obtain Mr. Blay—Larry Blay, Jr.'s date of birth?

"A. Yes. At the time from working that specific area for a number of months, I know that I had known his date of birth by heart, but it was also confirmed to me by his San Francisco Police Department record.

"Mr. BOSWORTH [Counsel for Larry Blay]: Objection, move to strike, nonresponsive.

"THE COURT: The last part about his record will go out as nonresponsive. The jury is admonished to disregard that part."

When the jury was sent out for lunch, counsel for Larry Blay addressed the court as follows:

"MS. BOSWORTH: I would like to move for a mistrial based on the Officer's statement that he was aware of Larry Blay's record, that he knew Larry Blay's address by heart. We've gone through extensive litigation

"(Whereupon there was a discussion between Mr. Morris and Ms. Bosworth off the record.)

"MS. BOSWORTH: I'm sorry, his birthdate by heart. There's been extensive litigation of what—what may or may not come in about past records, and this officer, on his own accord, volunteered that information. He's an experienced officer, and I think should not have done that, and I think he has substantially prejudiced Larry Blay.

"THE COURT: Anybody else for the Defense

"MR. GONSER [Counsel for Deandre Blay]: I would join that, and it also spills over and prejudices my client.

"MS. STEARNS [Counsel for Abram]: I would join and—as the Court recalls, this officer was probably the most egregious in the Grand Jury, and the People well know that the—he had the tendency to slip in prejudicial comments . . . .

"MR. CASPAR [Counsel for Uribe]: Join.

"MS. HIGGINS [Counsel for Johnson]: . . . I would also join to the extent of his identifying, you know, my client, and there was no basis for that, and it would call for overall speculation with this lumping affect that there was probably police contact, if you will, between my client as well, so I would join in that motion.

"THE COURT: Okay. Mr. Berberian?

"MR. BERBERIAN: Well, as to the characterization of the officer, I don't believe that is either demonstrated by this record or the record at the Grand Jury, so I take issue with Miss Stearns' comment.

"The officer responded in the way that he did, but it is clear from the totality of this case up to this point to what the jury has heard, I don't believe this rises, if it is a violation that the Court sees, that it rises to the level . . . of a mistrial. It was not expanded upon by—in any way by any follow-up questions at that point or anything else. So, . . . I'm prepared to submit it on that.

"THE COURT: Anything else, Ms. Bosworth?

"MS. BOSWORTH: If the Court does not grant the mistrial, we would ask that the statement that he knew Larry Blay's birthdate by heart also be stricken from the record.

"THE COURT: Okay.

"MR. CASPER: And I would just say one thing that wasn't mentioned. I think in addition to what Miss Bosworth mentioned, if I recall from memory there was a mention of recognition of the car, Miss—the Blay's grandmother's vehicle, and that they had recognized it before with regards to contacts and so forth.

"THE COURT: Anything else, Mr. Berberian?

"MR. BERBERIAN: No, no, your Honor.

"THE COURT: Well, as to the one comment that he made, that he knew his birthdate, I think he said from his record with the San Francisco Police Department, there was an objection, and a motion to strike, and I did immediately grant that motion and struck that portion that the sergeant made reference to. I think there's no reason to believe that the jury would simply disregard that. As a matter of fact, it is presumed that they will follow those instructions, and I assume that they did.

"I would deny the motion for a mistrial. I think that was—the Court's ruling and admonition was sufficient on that issue. I don't think it is improper for the officer to state that he knew Mr. Blay's birthdate by memory, he didn't go beyond that. And that, I suppose, was relevant to his age. I don't know that that was ever asked, but I assumed that was where it was going.

"So, I don't think that should be stricken or the jury admonished to disregard it. I don't think the officer should know that that's not something he could say.

"As to the—I think it was referred to as spill over, . . . I don't see any issue there as to the presence of the other Defendants with Mr. Larry Blay, Jr. on the date that was indicated. The earlier witness testified to that. I think there is some relevance to that, obviously, . . . that there is a relationship among those young men, they were traveling together even after the alleged robbery and perhaps before the alleged murder.

"I don't see anything improper about that, and there was evidence of that admitted before without objection. So I would deny that request as well as for a mistrial."

Defendant Larry Blay, joined by Abram, contends the denial was reversible error because the jury heard what in effect was other crimes evidence, thus exposing him to the danger that "the jury was likely to rely on the improper inference that [Blay] committed the charged crimes because he was a lawbreaker with a criminal record." We are not persuaded.

There is nothing in Officer Perez's words that was overtly damaging. Memorizing a birthdate is hardly an unusual mental accomplishment. True, the obvious inference from Officer Perez's words is that he had a history with Blay, dealings of sufficient number that he had committed Blay's birthdate to memory. And those dealings would almost certainly be of the criminal nature. The overt reference to Blay's "San Francisco Police Department record" was, as all agree, improper, and was immediately stricken. The remainder—"I know that I had known the date of his birth by heart"—was also very brief. Even accepting Blay's premise that Perez's words linked Blay to criminal activity, Perez's 13 words do not strike us as having much prejudicial potency in the context of a long and complex trial. Blay doubts the effectiveness of the admonition, but, as Judge Boren noted, we are required to presume it achieved its purpose (e.g., People v. Morris (1991) 53 Cal.3d 152, 194), so we cannot agree with Blay that Perez's comment was "incurably prejudicial to [his] chance of receiving a fair trial."

The Attorney General cogently summarizes matters at the time: "There was other testimony that officers had special patrol responsibilities for the various San Francisco public housing projects. The jurors were well aware that people living in the Alemany Housing Project were being scrutinized. Officers were talking to people daily. The jurors could not have been surprised that an officer would have talked to Larry on numerous occasions because he lived in the Alemany Housing Project. There was nothing in the record to suggest that officers spoke only to suspected criminals as opposed to victims, witnesses, family members, and ordinary people who happened to live there."

Although the prosecution's gang expert had not already testified, some mention of the defendant's criminal associations was going to be heard by the jury. In other words, the only question was the timing of the jury getting that information. So, even if even we were to conclude that discretion was abused, it would qualify as harmless according to any standard for prejudice.

III

During the course of his closing remarks, the prosecutor illustrated certain points with slides on a projector. This is what happened:

"MR. BERBERIAN: Okay. This is a three way conversation that's going on at this point.

"Okay. Call detail records, putting them up against the time of these visits [sic], Lanesha Robinson calls Deandre Blay on the 12th at about 1:27, hits voice mail. Briana Reed calls Lanesha Robinson on the 12th, about a minute later than that previous call. There's a 37 second connection. Lanesha Robinson sends text to Deandre Blay on the 12th. 'Your brother said make sure you do that'

"MR. MORRIS [counsel for defendant Larry Blay]: Your Honor, may we approach?

"THE COURT: Yes. Let's step out in the hallway.

"MR. MORRIS: If you would

"(Whereupon, Mr. Berberian turned off the screen.)

"(Whereupon, Mr. Berberian, Mr. Morris, Ms. Stearns, Mr. Gonser, Ms. Higgins, Mr. Casper, and the Court left the courtroom and had a discussion off the record in the corridor.)

"(Whereupon, everyone returned to the courtroom.)

"THE BAILIFF: Please come to order, Court is back in session.

"THE COURT: Ladies and gentlemen, that last slide that you saw was inaccurate and in error, and you should disregard that display that you saw.

"Go ahead, Mr. Berberian, when you're ready. "

When counsel for defendants Larry and Deandre Blay advised they "would like to discuss that further," the trial court responded, "We'll defer that discussion to . . . when the jury leaves."

When the day's session ended, and the jury was sent home, it was quickly established that the prosecution's slide had language ("Your brother said") that had been ordered redacted. The prosecutor told the court that use of the unredacted language was inadvertent, "not an intentional attempt to circumvent the Court's order." Counsel for the Blays argued the violation of the court's order was sufficiently egregious to justify a mistrial. Counsel for Abram and Johnson joined in that request.

Mistrial was denied as follows:

"I would deny the motion for mistrial, . . . and I would explain my reasons for that. First of all, I don't think it was a deliberate attempt to circumvent the Court's rulings. . . .

"It . . . was a mistake, and it certainly was an error, but . . . I'm aware we spent many weeks doing motions in limine, long before the trial started, long before jury selection, and this is a case that I think at this moment has something like 800 exhibits marked, and within those 800 exhibits, probably in many of them, 200 subcategories within them in terms of text messages, call detail, subscriber information and so forth.

"And, so, there's going to be, and there have been very few, but there have been a couple of errors by Counsel. I only recall one other by the D.A., and I did not think that was deliberate either.

"But, also, I think in the course of argument, it's clear Mr. Berberian has detailed to the jury his interpretation that he asks them to adopt as to what, so far, he has discussed means, which is essentially what we saw on the screen. And, so, it's not as though it's a new concept that he's urging that Larry Blay is telling his brother Deandre to take care of something, to have—in effect, as he has argued, to have Mr. Le killed.

"So, . . . the topic in that text message that was shown is not something that's foreign to their thinking, but it was improper to have it shown, there is no question about that, it was a mistake, but . . . I don't think, as I said a moment ago, that it was deliberate.

"Now, coupled with that, it was fairly immediate that Mr. Morris initially just asked to step outside, and then later expressed on the record his objection to it, and that was proper, that's what a good lawyer should do. But, also, I think sometimes Counsel underestimate the ability of jurors to follow directions from the Court about what they should or should not consider.

"And the Court did, immediately after our very brief recess, tell them that they should disregard that slide that they saw. . . .

"I would further admonish them, if you ask me to, to disregard the reference, that might not help, frankly, but I think the quick admonition to them that that was something they should not accept, they should disregard it, that it was, I think I said, inaccurate and in error, and . . . I think they can follow and would follow that admonition.

"So, at this point, . . . I do not think a mistrial is warranted. I am willing to consider some further admonition, and if you want to give that some more thought . . . over the weekend, let me know first thing Monday morning . . . ." The court denied a request from defendant Larry Blay—joined by his brother—that evidence of the text should be excluded.

When matters resumed the following Monday, counsel for Larry Blay advised the court that "I don't want an admonition," but he did want to "make a record" that the prosecutor's action should not be treated as inadvertent. "I don't know if he did it on purpose," but he had enough opportunity to prevent it so that his action was at least negligent ("he should have seen that the wrong text was there"). Accordingly, "I have to make a motion on prosecutorial misconduct and renew the mistrial." Counsel for Deandre Blay joined in the renewed motion.

The trial court essentially repeated the previous ruling—that "it was a careless thing to do," but not intentional, and "I don't think he gained a whole lot by having this one message shown when the jury is told immediately that it was inaccurate and in error." "[T]here have been probably hundreds of rulings limiting evidence and redacting some, so it doesn't surprise me that, here and there, there are lapses in what is remembered." "So, the motion for mistrial, or any further action by the Court, is denied."

Larry Blay again views this as prejudicial to him because the harm "was incurable by admonition because the jury was likely to rely on the hearsay in the text to conclude that appellant told his girlfriend to tell his brother to do something, namely kill the victim." Defendant Abram, although lacking the blood connection, argues the same. Defendant Deandre Blay asserts that the text, "sent the day before the Le shooting, suggested a clear, recent, and urgent hit order from Larry," created " a reasonable possibility that one or more jurors may have relied on this evidence to find that [he] had a strong motive to participate in the crime, and that he acted in accordance with that motive."

Although Larry Blay and Abram make an earnest effort to persuade us that the prosecutor acted intentionally, we start by accepting Judge Boren's assessment that the disclosure to the jury was an innocent mistake or accident. We further accept that the jury heeded the admonition to disregard. (People v. Morris, supra, 53 Cal.3d 152, 194.) And, again, the jury's exposure to the impropriety was fleeting.

That exposure did not reveal unique information. The record supports the Attorney General when he summarizes: "The hearsay statement was made by Larry's girlfriend, Lanesha Robinson, to Deandre. She told Deandre words to the effect, 'Your brother said make sure you do that.' The evidence during trial indicated that the 'that' was to make sure the store man did not come to court. But the jury already knew that Larry had emphasized to Robinson that she should tell Deandre to handle 'that' fast before his next court date. (Exh. 291A, Tab 17, at pp. 5-6, 8, played at 72RT 9144.) The jury also already knew that Larry's mother, Briana Reed, told Larry in a jail phone call that she already told Deandre about the store man. (94RT 12684-12685; Exh. 291A, Tab 15, at p. 17, played at 72RT 9141.) The jury had already heard that when Larry asked his mother if she had called Deandre, she said Deandre told her to ' "stop callin' him, buggin' him." ' He already know." (73RT 9291-9293; ACT 4986-4987 [Exh. 291A, Tab 20].) With all this evidence already before the jury, the hearsay statement during the prosecutor's argument added little and did not cause appellants' trial to be unfair."

Finally, the mistrial motion was made in the closing stage of the trial, where a reviewing court's deference is at its zenith because the trial court enjoys the maximum ability to evaluate impact to the case as a whole. (Cf. People v. Guillebeau (1980) 107 Cal.App.3d 531, 548 ["it has been said that where the motion is made at the early stages of the trial, it is more likely to be granted since the judge, having heard little of the evidence, cannot evaluate its prejudicial effect on the case as a whole"].) In light of the foregoing, we cannot conclude Judge Boren abused that discretion. (People v. Avila, supra, 38 Cal.4th 491, 573.)

Instructions

I

As previously mentioned, the jury was instructed with a modified version of CALCRIM No. 1403 on the use it could make of Officer Kumli's gang expert testimony: "You may consider evidence of gang activity only for the limited purpose of deciding whether or not any Defendant had a motive to commit the crimes charged, or whether or not any Defendant had an intent to commit the crimes charged, or the identity of the person or persons involved in the crimes charged, or whether or not any person intended to conspire as charged in Count One and/or Count Two, and if you find a conspiracy existed, whether or not any of the named Defendants agreed to or joined such conspiracy. [¶] You may not consider this evidence for any other purpose. You may not conclude from this evidence that the Defendants are persons of bad character or that they have a disposition to commit crime. [¶] If you conclude that a Defendant was a member of a criminal street gang, that conclusion is only one factor to consider, along with all the other evidence. It is not sufficient by itself to prove a Defendant is guilty of any charged offense or that any special allegation has been proved. The People must still prove each charge and special allegation beyond a reasonable doubt."²⁵

25 The jury was also instructed with CALCRIM No. 332 on expert testimony: "Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but you are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. [¶] In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert's knowledge, skill, experience, training and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. [¶] You must decide whether information on which the expert relied was true and accurate. You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an assumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert's reliance on that fact in evaluating the expert's opinion. [¶] If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examine the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts' qualifications."

Abram and Johnson objected to the instruction on the ground that it would reduce the prosecution's burden of proof: "Penal Code section 186.22 is not an allegation in this case and therefore, the preponderance of the evidence standard to evaluate gang evidence should not be substituted for the beyond a reasonable doubt standard. . . . The prosecution is relying on this [gang] membership as a fact to prove a crime with which Defendant is charged. Therefore [the prosecution's proposed] Instruction 375/1403 unconstitutionally allows the prosecution to lower its burden of proof to preponderance of the evidence for the element intent, existence of a conspiracy to murder Tog Van Lee [sic] and the defendants' membership in a conspiracy to murder Tong Van Lee [sic], if the jury bases the finding on defendants' membership in a gang." "In asking for this instruction, the prosecution would be asking the jury to find that a conspiracy existed based on a preponderance of evidence that defendant was a member of a criminal street gang."

Much of this was directed at these parts of the proposed instruction, which the jury did not hear:

"The People presented evidence that defendants LARRY BRIAN BLAY, JR., DEANDRE MAURICE BLAY, KEVIN ABRAM, and C. AUTIS JOHNSON, JR., are active participating members of the AP criminal street gang. The said defendants are not charged in this proceeding with acts related to active participation in a criminal street gang.

"You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendants LARRY BRIAN BLAY, JR., DEANDRE MAURICE BLAY, KEVIN ABRAM, and C. AUTIS JOHNSON, JR., were members of the AP criminal street gang. Proof by a preponderance of the evidence is a different burden of proof than proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude it is more likely than not that the fact is true.

"If the People have not met this burden, you must disregard this evidence entirely."

Abram contends use of the instruction was "serious error" of federal constitutional magnitude because it "allowed jurors to consider evidence of 'gang activity' (not just 'membership') to decide: [¶] (1) whether 'any defendant had a motive to commit the crimes charged'; [¶] (2) whether 'any defendant had an intent to commit the crimes charged'; [¶] (3) 'the identity of the person(s) involved in the crimes charged'; [¶] (4)'whether or not any person intended to conspire as charged in Count I and/or Count II'; and [¶] (5) 'if you find a conspiracy existed, whether or not any of the named defendants agreed to or joined such conspiracy.' [¶] Finally, as noted, no nontruth expert basis-of-opinion instruction was given either." According to Abram, the instruction "grossly overstated the purposes for which gang evidence could properly be considered, failed to provide minimal specification of what gang evidence applied to what issue, failed to specify the foundational burden of proof, and improperly permitted substantive consideration of testimonial hearsay."

Johnson joins this argument, and argues that "where no gang charge or enhancement was alleged," the instruction "permitted the jury to impute . . . intent, motive and guilt of conspiracy based solely on the prior conduct of others," and thus amounted to a "profile instruction [that] violated appellant's right to due process and trial by jury."²⁶

26 The only contribution made by defendant Larry Blay is the flat statement that this instruction "was incapable of preventing the jury from being improperly influenced by the unduly prejudicial gang evidence."

This seems an awful catalogue of defects for a single instruction. Although the prosecution has the burden of proving beyond a reasonable doubt the elements of every charged offense, penalty enhancement, or special circumstance (see People v. Kobrin (1995) 11 Cal.4th 416, 423, fn. 4 and decisions cited), not every fact the prosecution may undertake to prove has to satisfy that most demanding standard. Although Abram and Johnson proceed on the implicit premise that federal constitutional error has occurred, it has already been established in our discussion about the admissibility of the gang testimony that this premise is unfounded, and that only state law error might be at issue—and even that is not present. If there was no federal constitutional violation in admitting the gang expert evidence, it follows that there would be no federal constitutional error in instructing on how that evidence could be used. Another incorrect premise is the assumed error of a "nontruth" instruction.

In any event, the sole reported decision concluded that CALCRIM No. 1403 "is neither contrary to law nor misleading." (People v. Samaniego, supra, 172 Cal.App.4th 1148, 1168.) We agree with that conclusion. The instruction did not, as Johnson argues, leave the jury with "no option but the accept Sgt. Kumli's opinion that the AP was the criminal street gang Kumli said it was," because the instruction expressly left it to the jury to determine whether "a Defendant was a member of a criminal street gang." Moreover, as already noted, the jury was instructed with CALCRIM No. 332 (quoted at fn. 24, ante) that it was "not required to accept" expert testimony, but was "for you to decide" and the jury could "disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence."

Abram tells us the instruction should have expressly specified the uses for which gang evidence could not be used. But this was effectively established by the instruction advising the jury as to the "only" "limited" uses for which the evidence could be considered, and by admonishing the jury "You may not consider this evidence for any other purpose."

Nor do we agree with Johnson that the instruction opened the door to the jury "profiling" a defendant against a hypothetical gang member (see fn. 13, ante) because Kumli was testifying from personal knowledge of how members of the AP gang would act and react.

Abram also interprets the instruction as allowing the jury to draw incriminating inferences from nothing more than "bare gang membership." We think this an unreasonable reading of the instruction.²⁷ We cannot conceive that any reasonable jury would believe the instruction, contrary to its plain language, absolved each juror of the duty to decide whether the prosecution had "prove[d] each charge and special allegation beyond a reasonable doubt." Moreover, the instruction clearly directed the jury's attention to "gang activity," saying nothing about mere membership in the APs. Indeed, Johnson concedes "gang activity" could include "retribution," which was a major point of Kumli's testimony, and which clearly amounts to "motive" as used in the instruction.

27 It certainly was the opinion of the prosecutor, who told the jury in his closing argument: 'Being a member of a gang, and you were told in the instructions, does not mean you're a bad person in and of yourself, just because you're in a gang . . . necessarily means you're going to commit bad acts. There—there's instructional material in there that directs you to that point specifically." And again: "[Y]ou're going to be given an instruction in this case about exactly what you can do with evidence relating to the gang connection. And it's—it's a connection in this case, but it has limited purpose in the case. [¶] And there's going to be an instruction that directs you as to the limitations of that, and it's going to be directing you to the fact that you can consider the gang membership of these individuals , and by this I'm talking about the men who are here in the courtroom, . . . and how that gang membership reflects upon the motive to commit the crime here, the intent of these individuals to commit the crime here, their connection to a conspiracy to commit the crime here, and their involvement in that conspiracy. [¶] So, . . . those are limitations. You're going to be told, just because there is an AP gang, . . . doesn't in and of itself mean that they've done something bad."

CALCRIM No. 1403 clearly delineated the uses for which the testimony could, and could not, be used. There is nothing in the record suggesting that the jury disregarded it. (See, e.g., People v. Jablonski (2006) 37 Cal.4th 774, 834; People v. Williams (1997) 16 Cal.4th 153, 197).

II

The jury was instructed on the special circumstances allegations as follows:

"If you find a defendant guilty of first degree murder, you must also decide if the People have proved that one or more of the special circumstances is true. [¶] The People have the burden of proving each special circumstance beyond a reasonable doubt. If the People have not met this burden, you must find the special circumstance has not been proved. You must return a verdict form stating true or not true for each special circumstance on which you all agree.

"In order for you to return a finding that a special circumstance is or is not true, all 12 of you must agree. [¶] You must consider each special circumstance separately and you must consider each special circumstance separately for each defendant." (CALCRIM No. 700.)

"In order to prove these special circumstances for a defendant who is not the actual killer but who is guilty of first degree murder as an aider and abettor or a member of a conspiracy, the People must prove that the defendant acted with the intent to kill. [¶] The People do not have to prove that the actual killer acted with the intent to kill in order for these special circumstances to be true.

"If you decide that the defendant is guilty of first degree murder, but you cannot agree whether the defendant was the actual killer, then, in order to find these special circumstances true, you must find that the defendant acted with the intent to kill." (CALCRIM No. 702)

"This instruction applies to each defendant the jury finds to be guilty of murder in the first degree. [¶] Such defendant or defendants is or are charged with the special circumstance of murder of a witness, in violation of Penal Code section 190.2(a)(10).

"To prove that this special circumstance is true, the People must prove that: One, the defendant intended to kill Tong Van Le; and two, Tong Van Le was a witness to a crime; three the killing was not committed during the commission of the crime to which Tong Van Le was a witness; and, four, the defendant intended that Tong Van Le be killed to prevent him from testifying in a criminal or juvenile proceeding." (CALCRIM No. 725.)

"This instruction applies to each defendant the jury finds to be guilty of murder in the first degree. Such defendant or defendants is or are charged with the special circumstance of murder committed by means of lying in wait, in violation of Penal Code section 190.2(a)(15).

"To prove that this special circumstance is true, the People must prove that: One, the defendant intentionally killed Tong Van Le, and two, the defendant committed the murder by means of lying in wait.

"A person commits a murder by means of lying in wait if: One, he concealed his purpose from the person killed; two, he waited and watched for an opportunity to act; three, then he made a surprise attack on the person killed from a position of advantage, and four, he intended to kill the person by taking the person by surprise.

"The lying in wait does not need to continue for any particular period of time, but its duration must be substantial and must show a state of mind equivalent to deliberation and premeditation.

"The defendant acted deliberately if he carefully weighed the considerations for and against his choice, and, knowing the consequences, decided to kill. "The defendant acted with premeditation if he decided to kill before committing the act that caused death.

"A person can conceal his or her purpose even if the person killed is aware of the other person's physical presence. [¶] The concealment can be accomplished by ambush or some other secret plan." (CALCRIM No. 728)

Abram, joined by Larry Blay, contends that because the prosecution identified him as the actual killer, it was error to instruct with CALCRIM No. 702, which in effect allowed the jury to believe he was the actual killer but could be convicted even if the jury concluded he had no intent to kill. The Attorney General responds that "CALCRIM No. 702 should not have been given, but the error was harmless beyond a reasonable doubt because no rational juror could have found the actual killer acted without the intent to kill under the circumstances of this case and the jury found that the actual killer killed with premeditation and deliberation or its equivalent." We agree with the Attorney General.

This situation demonstrates the wisdom of not reading an instruction, or part of an instruction, in isolation, but to look at all of the instructions to determine whether there is a reasonable likelihood the challenged instruction was used improperly. (E.g., Middleton v. McNeil (2004) 541 U.S. 433, 437; People v. Huggins (2006) 38 Cal.4th 175, 192.) Certainly the words "The People do not have to prove that the actual killer acted with the intent to kill in order for these special circumstances to be true," if taken literally, makes no sense. However, the instruction is plainly directed to a defendant who is not accused of being the actual killer, but who faces liability as an aider and abettor ("for a defendant who is not the actual killer") which required the jury to find that Abram "intentionally killed Tong Van Le," and "intended to kill the person by taking the person by surprise." The instruction, covering a special circumstance, would not be considered unless the jury had already concluded that Abram, as the actual killer, had acted with malice, deliberation, and premeditation.

A reasonable jury would quickly realize that CALCRIM No. 702 simply did not apply to Abram. Abram, as the actual killer, would be covered by CALCRIM No. 728. Put another way, it defies belief that the jury, having already concluded that Abram had acted intentionally and thus was guilty of first degree murder, could then conclude, for purposes of the special circumstance, that Abram personally committed the murder without again concluding he possessed the intent to kill with respect to that same murder. We think it plain that the reasonable juror would read the instruction as applying to a defendant who was not the actual killer, that it would apply to every defendant except Abram. In these circumstances, where "the jury necessarily found an intent to kill under other properly given instructions, . . . and the jury ' "could have had no reasonable doubt" that the defendant had the intent to kill,' " the error is harmless. (People v. Covarrubias (2016) 1 Cal.5th 838, 929.)

As for Larry Blay, who was never accused of being the actual killer, CALCRIM No. 702 would apply and was properly given.

III

As mentioned at the beginning of this opinion, each of the defendants challenge the sufficiency of the evidence for their murder conviction. However, two of those challenges, from the Blays, are predicated upon the existence of claimed prejudicial instructional error concerning what is known as an invalid "legally incorrect" theory.

The first pertains to the conspiracy to commit murder charge, as to which the jury was instructed with CALCRIM No. 563, as modified, as follows:

"The defendants Larry Brian Blay, Jr., Deandre Maurice Blay, Kevin Abram, and C. Autis Johnson, Jr. are charged in Count One with conspiracy to commit murder, in violation of Penal Code section 182.

"To prove that a defendant is guilty of this crime, the People must prove that: One, the defendant intended to agree and did agree with one or more of the other named defendants to intentionally and unlawfully kill; two, at the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would intentionally and unlawfully kill; three, one of the named defendants or all of them committed at least one of the overt acts alleged to accomplish the killing:

"[Overt act allegations omitted.]

"And, number four: At least one of these overt acts was committed in California.

"To decide whether a defendant committed these overt acts, consider all of the evidence presented about the overt acts.

"To decide whether a defendant and one or more of the other alleged members of the conspiracy intended to commit murder, please refer to instructions for murder which define that crime.

"The People must prove that the members of the alleged conspiracy had an agreement and intent to commit murder. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit the crime. "An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime.

"An overt act is an act done by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.

"You must all agree that at least one alleged overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts.

"You must make a separate decision as to whether each defendant was a member of the alleged conspiracy. [¶] A member of a conspiracy does not have to personally know the identity or roles of all the other members. [¶] Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy.

"Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy."

Citing People v. Swain (1996) 12 Cal.4th 593 (Swain), Johnson, joined by Abram and Larry Blay, contends the form in which CALCRIM No. 563 was given to the jury was error that "reduced the prosecutor's burden [of proof] and permitted the jury to base its conspiracy to murder Verdict on a legally incorrect implied malice theory of guilt, violated appellant's right to jury trial and due process." The Attorney General apparently concedes error but argues it was harmless.

Swain involved two defendants who were convicted of conspiracy to commit murder and second degree murder. The Supreme Court reversed the conspiracy conviction. The heart of the Swain analysis went as follows:

"[C]onspiracy is a specific intent crime requiring an intent to agree or conspire, and a further intent to commit the target crime, here murder, the object of the conspiracy. Since murder committed with intent to kill is the functional equivalent of express malice murder, conceptually speaking, no conflict arises between the specific intent element of conspiracy and the specific intent requirement for such category of murders. Simply put, where the conspirators agree or conspire with specific intent to kill and commit an overt act in furtherance of such agreement, they are guilty of conspiracy to commit express malice murder. The conceptual difficulty arises when the target offense of murder is founded on a theory of implied malice, which requires no intent to kill.

"Implied malice murder, in contrast to express malice, requires instead an intent to do some act, the natural consequences of which are dangerous to human life. "When the killing is the direct result of such an act," the requisite mental state for murder—malice aforethought—is implied. [Citation.] In such circumstances, '. . . it is not necessary to establish that the defendant intended that his act would result in the death of a human being.' [Citation.] Hence, under an implied malice theory of second degree murder, the requisite mental state for murder—malice aforethought—is by definition 'implied,' as a matter of law, from the specific intent to do some act dangerous to human life together with the circumstance that a killing has resulted from the doing of such act.

"Stated otherwise, all murders require, at the core of the corpus delicti of the offense, a 'killing.' [Citations.] 'Murder is the unlawful killing of a human being . . . with malice aforethought.' (Pen. Code, § 187, subd. (a).) But only in the case of implied malice murder is the requisite mental state—malice aforethought—implied from the specific intent to do some act other than an intentional killing and the resulting circumstance: a killing that has in fact occurred as the direct result of such an act.' [Citation.]

"The element of malice aforethought in implied malice murder cases is therefore derived or 'implied,' in part through hindsight so to speak, from (i) proof of the specific intent to do some act dangerous to human life and (ii) the circumstance that a killing has resulted therefrom. It is precisely due to this nature of implied malice murder that it would be illogical to conclude one can be found guilty of conspiring to commit murder where the requisite element of malice is implied. Such a construction would be at odds with the very nature of the crime of conspiracy—an 'inchoate' crime that 'fixes the point of legal intervention at [the time of] agreement to commit a crime,' and indeed 'reaches further back into preparatory conduct than [the crime of] attempt' [citation]—precisely because commission of the crime could never be established, or be deemed complete, unless and until a killing actually occurred." (Swain, supra, 12 Cal.4th at pp. 602-603.)

The bottom line?: "a conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice." (Swain, supra, 12 Cal.4th at p. 607; see People v. Cortez (1998) 18 Cal.4th 1223, 1237 [conspiracies to commit murder are not divisible into degrees; "all conspiracy to commit murder is necessarily conspiracy to commit premeditated and deliberated first degree murder"].)

The court was compelled to reverse: "The jury was instructed on theories of both express and implied malice. They returned general verdicts, which do not inform us on what theory they found the requisite element of malice necessary to convict on the charges of conspiracy to commit murder. Under the implied malice instructions, the jury could have found malice without finding intent to kill. (Pen. Code, § 188.) The prosecutor repeatedly referred to implied malice in the closing arguments, stating at one point that '. . . this could very easily be an implied malice case.'

"On this record, under the harmless error test traditionally applied to misinstruction on the elements of an offense, namely, whether it appears 'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained' [citations], reversal is required, for it cannot be determined beyond a reasonable doubt that the erroneous implied malice murder instructions did not contribute to the convictions on the conspiracy counts. Nor is there anything else discoverable from the verdicts that would enable us to conclude that the jury necessarily found the defendants guilty of conspiracy to commit murder on a proper theory, i.e., based on express malice or intent to kill. [Citation.] Defendant Chatman was convicted of second degree murder, which conviction itself could have been based on a theory of implied malice; defendant Swain was found not guilty of murder and its lesser offenses." (Swain, supra, 12 Cal.4th at p. 607.)

Johnson says he is the victim of indirect, incorporation-by-reference Swain error. He argues it occurred this way: "The Bench Notes to CALCRIM 563 (Conspiracy to Commit Murder (Pen. Code §182) state: 'Do not cross-reference the murder instructions unless they have been modified to delete references to implied malice. Otherwise, a reference to implied malice could confuse jurors, because conspiracy to commit murder may not be based on a theory of implied malice. (People v. Swain[, supra,] 12 Cal.4th [at pp.] 602-603 ["Swain"].)' (CALCRIM 563, Spring 2012 Ed.) That error occurred in this trial." In other words, Johnson points only to the single sentence in CALCRIM No. 563 which advised the jury "To decide whether a defendant and one or more of the other alleged members of the conspiracy intended to commit murder, please refer to the instructions for murder which define that crime."

We do not read Swain as prohibiting or precluding a conspiracy to murder charge from being tried together with an actual murder charge that was being prosecuted exclusively as a first degree murder. The jury is not prohibited from having conspiracy and implied malice in the same room. All Swain commands is that some care be taken to keep separate the concept of second degree implied malice murder from the express intent required for conspiracy to murder. If failure to delete the single "refer to" sentence amounts to error under Swain—which is how the Attorney General reads Swain—we are able to conclude it nevertheless qualifies as harmless.

Intent to kill was the common element of the jury's verdicts for first degree murder, and for the special circumstance of lying in wait. The verdict forms have additional illumination. Each of the verdicts expressly shows that the jury fixed the murder as first degree. For each of the defendants, there was a separate special circumstance form which opens by reciting that the jury "having found the defendant [Name] GUILTY of the offense alleged in Count 3, Murder in the First Degree," went on to "make the following finding:"

"The allegation that in the commission of the offense charged in Count 3, Murder in the First Degree, . . . the said defendant, [Name], committed, aided, and abetted, counseled and assisted in the murder of victim TONG VAN LE, and the defendant intentionally killed victim TONG VAN LE and . . . and said defendant, [Name], intended that TONG VAN LE be killed to prevent him from testifying . . . is: True." (Italics added.)

For each defendant except Larry Blay, the jury also returned verdicts finding true the other special circumstance allegation, to wit: "The allegation that in the commission of the offense charged in Count 3, Murder in the First Degree, . . . the said defendant, [Name], committed, aided, and abetted, counseled and assisted in the murder of victim TONG VAN LE, and the defendant intentionally killed victim TONG VAN LE while lying in wait."²⁸ (Italics added.)

28 The special circumstance findings are especially important because the jury was instructed that such findings required the prosecution to prove that "the defendant acted with the intent to kill" (CALCRIM No. 702) and "the defendant intentionally killed TONG VAN LE" (CALCRIM No.728) and "the defendant intended to kill TONG VAN LE." (CALCRIM No.725)

For the prosecution, Le's death was no accident, no misadventure, but a planned, cold-blooded "execution," a first degree killing saturated in purposeful intent and express malice. Indeed, the prosecutor did not embrace implied malice or second degree murder: the few references in his lengthy closing argument were undeveloped and close to perfunctory.²⁹ And at no point did he argue that implied malice was the way/a proper basis to find defendants guilty of conspiring to commit Le's murder.

29 In truth, the vast majority of the prosecutor's arguments were devoted to discussing the mountain of evidence (particularly recorded jailhouse telephone calls, cell phone records, and text messages), not analyzing legal theories of culpability.

Unlike the general verdicts used in Swain, the verdicts used here "do . . . inform us on what theory [the jury] found the requisite element of malice necessary to convict on the charges of conspiracy to commit murder." (Swain, supra, 12 Cal.4th at p. 607.) That theory was unquestionably first degree murder accompanied by premeditation and deliberation. And that conclusion is fundamentally inconsistent with the concept of implied malice, which assumes that the defendants did not intend for their actions to result in death. Given the language and structure of the verdicts used here, we cannot perceive how a reasonable jury "could have found malice without finding intent to kill." (Ibid.) And here, unlike Swain, the prosecutor's closing argument never came close to claiming that this was " 'an implied malice case.' " (Ibid.) In light of these circumstances, we conclude any error was harmless beyond any reasonable doubt.

IV

The second "legally incorrect" theory was the "natural and probable consequences" language condemned by our Supreme Court—after our trial was concluded—in People v. Chiu (2014) 59 Cal.4th 155 (Chiu).

Using a modified version of CALCRIM No. 415, the trial court instructed on conspiracy to prevent or dissuade a witness from testifying, as follows:

"The defendants Larry Brian Blay, Jr., Deandre Maurice Blay, Kevin Abram, and C. Autis Johnson, Jr. are charged in Count Two with conspiracy to commit the crime of preventing or dissuading a witness by force or threat, in violation of Penal Code section 182.

"To prove that a defendant is guilty of this crime, the People must prove that: One, the defendant intended to agree and did agree with one or more of the other named defendants to commit the crime of preventing or dissuading a witness by force or threat; two, at the time of the agreement, the defendant and one or more of the other alleged members of the conspiracy intended that one or more of them would commit the crime of preventing or dissuading a witness by force or threat; three, one of the defendants committed at least one of the following alleged overt acts to accomplish the crime of preventing or dissuading a witness by force or threat.

"[Overt act allegations omitted.]

"And, number four: At least one of these overt acts was committed in California.

"To decide whether a defendant committed one of these overt acts, consider all of the evidence presented about the acts to decide whether a defendant and one or more of the other alleged members of the conspiracy intended to commit the crime of preventing or dissuading a witness by force or threat, please refer to the separate instructions that I will give you on that crime.

"The People must prove that the members of the alleged conspiracy had an agreement and intent to commit the crime of preventing or dissuading a witness by force or threat. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit one or more of these crimes.

"An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit one or more of these crimes.

"An overt act is an act done by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.

"You must all agree that at least one alleged overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts.

"You must make a separate decision as to whether each defendant was a member of the alleged conspiracy. [¶] A member of a conspiracy does not have to personally know the identity or roles of all the other members. [¶] Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy.

"Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy."

Over the objections of all the defendants, Judge Boren modified CALCRIM Nos. 402 and 403 and instructed as follows:

"To apply the natural and probable consequences doctrine, you must first decide whether a Defendant is guilty of dissuading a witness or of preventing or dissuading a witness by force or threat. If you find a Defendant is guilty of one of these crimes, you must then decide whether a Defendant is guilty of murder, involuntary manslaughter, or assault with a deadly weapon, or by force likely to cause great bodily injury.

"Under certain circumstances, a person who is guilty of one crime may also be guilty of another crime that was committed at the same time. [¶] To prove that a Defendant is guilty of such other crime, the People must prove that: One, the Defendant is guilty of preventing or dissuading a witness or preventing or dissuading a witness by force or threat.

"Two, it was a natural and probable consequence that during the commission of preventing or dissuading a witness or preventing or dissuading a witness by force or threat, a co-participant would commit one of the following other crimes: Assault with a deadly weapon or by force likely to cause great bodily injury, see CALCRIM 875, murder, see CALCRIM 520 and 521, involuntary manslaughter, see CALCRIM 580.

"To decide whether the other crimes listed were committed, please refer to the separate CALCRIM instructions referenced above.

"And three, under all of the circumstances, a reasonable person in the Defendant's position would have known that the commission of murder, involuntary manslaughter, or assault with a deadly weapon, or by force likely to cause great bodily injury, was a natural and probable consequence of the commission of the crime of preventing or dissuading a witness or of preventing or dissuading a witness by force or threat.

"A co-participant in a crime is the perpetrator or anyone who aided and abetted the perpetrator. It does not include a victim or innocent bystander.

"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.

"If the murder, involuntary manslaughter, or assault with a deadly weapon or by force likely to cause great bodily injury was committed for a reason independent of the common plan to commit the crime of preventing or dissuading a witness, or of preventing or dissuading a witness by force or threat, then the commission of murder, involuntary manslaughter, or assault with a deadly weapon or by force likely to cause great bodily injury was not a natural and probable consequence of the crime of preventing or dissuading a witness, or preventing or dissuading a witness by force or threat.

"The People allege that the Defendant originally intended to aid and abet the commission of either preventing or dissuading a witness or of preventing or dissuading a witness by force or threat.

"The Defendant is guilty of murder, involuntary manslaughter, or assault with a deadly weapon or by force likely to cause great bodily injury if the People have proved that the Defendant aided and abetted the commission of, preventing or dissuading a witness, or preventing or dissuading a witness by force or threat, and that murder, involuntary manslaughter, or assault with a deadly weapon or by force likely to cause great bodily injury was the natural and probable consequence of either preventing or dissuading a witness or by preventing or dissuading a witness by force or threat. However, you do not need to agree on which of these two crimes the Defendant aided and abetted."

This was followed by CALCRIM No. 417:

"A member of a conspiracy is criminally responsible for the crimes that he or she conspires to commit, no matter which member of the conspiracy commits the crime.

"A member of a conspiracy is also criminally responsible for any act of any member of the conspiracy if that act is a natural and probable consequence of the common plan or design of the conspiracy. This rule applies even if the act was not intended as part of the original plan. Under this rule, a defendant who is a member of the conspiracy does not need to be present at the time of the act.

"A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.

"In deciding whether a consequence is natural and probable, consider all the circumstances established by the evidence.

"A member of a conspiracy is not criminally responsible for the act of another member if that act does not further the common plan or is not a natural and probable consequence of the common plan.

"To prove that the defendant is guilty of the crime charged in Count Three, murder, or any of the lesser offenses of involuntary manslaughter, or assault with a deadly weapon, or by force likely to cause great bodily injury, the People must prove that: One, the defendant conspired to commit the following crime of preventing or dissuading a witness by force or threat; two, Tong Van Le was killed by a member of the conspiracy using a firearm; and three, murder, involuntary manslaughter, or assault with a deadly weapon, or by force likely to cause great bodily injury was a natural and probable consequence of the common plan or design of the crime that the defendant conspired to commit.

"The defendant is not responsible for the acts of another person who is not a member of the conspiracy even if the acts of the other person helped accomplish the goal of the conspiracy."

The Supreme Court briefly gave the history in Chiu: "[A] jury found defendant, Bobby Chiu, guilty of first degree willful, deliberate and premeditated murder . . . on the theory that either he directly aided and abetted the murder or he aided and abetted the 'target offense' of assault or of disturbing the peace, the natural and probable consequence of which was murder." (Chiu, supra, 59 Cal.4th at p. 158.) The holding was "We now hold that an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine. Rather, his or her liability for that crime must be based on direct aiding and abetting principles." (Id. at pp. 158-159.)

The court explained:

"The natural and probable consequences doctrine is based on the principle that liability extends to reach 'the actual, rather than the planned or "intended" crime, committed on the policy [that] . . . aiders and abettors should be responsible for the criminal harms they have naturally, probably, and foreseeably put in motion.' We have never held that the application of the natural and probable consequences doctrine depends on the foreseeability of every element of the nontarget offense. Rather, in the context of murder under the natural and probable consequences doctrine, cases have focused on the reasonable foreseeability of the actual resulting harm or the criminal act that caused that harm. [Citations.]

"In the context of murder, the natural and probable consequences doctrine serves the legitimate public policy concern of deterring aiders and abettors from aiding or encouraging the commission of offenses that would naturally, probably, and foreseeably result in an unlawful killing. A primary rationale for punishing such aiders and abettors—to deter them from aiding or encouraging the commission of offenses—is served by holding them culpable for the perpetrator's commission of the nontarget offense of second degree murder. [Citation.] It is also consistent with reasonable concepts of culpability. Aider and abettor liability under the natural and probable consequences doctrine does not require assistance with or actual knowledge and intent relating to the nontarget offense, nor subjective foreseeability of either that offense or the perpetrator's state of mind in committing it. [Citation.] It only requires that under all of the circumstances presented, a reasonable person in the defendant's position would have or should have known that the nontarget offense was a reasonably foreseeable consequence of the act aided and abetted by the defendant. [Citation.]

"However, this same public policy concern loses its force in the context of a defendant's liability as an aider and abettor of a first degree premeditated murder. First degree murder, like second degree murder, is the unlawful killing of a human being with malice aforethought, but has the additional elements of willfulness, premeditation, and deliberation which trigger a heightened penalty. [Citation.] That mental state is uniquely subjective and personal. It requires more than a showing of intent to kill; the killer must act deliberately, carefully weighing the considerations for and against a choice to kill before he or she completes the acts that caused the death. [Citations.] Additionally, whether a direct perpetrator commits a nontarget offense of murder with or without premeditation and deliberation has no effect on the resultant harm. The victim has been killed regardless of the perpetrator's premeditative mental state. Although we have stated that an aider and abettor's 'punishment need not be finely calibrated to the criminal's mens rea' [citation], the connection between the defendant's culpability and the perpetrator's premeditative state is too attenuated to impose aider and abettor liability for first degree murder under the natural and probable consequences doctrine, especially in light of the severe penalty involved and the above-stated public policy concern of deterrence.

"Accordingly, we hold that punishment for second degree murder is commensurate with a defendant's culpability for aiding and abetting a target crime that would naturally, probably, and foreseeably result in a murder under the natural and probable consequences doctrine. We further hold that where the direct perpetrator is guilty of first degree premeditated murder, the legitimate public policy considerations of deterrence and culpability would not be served by allowing a defendant to be convicted of that greater offense under the natural and probable consequences doctrine. An aider and abettor's liability for murder under the natural and probable consequences doctrine operates independently of the felony-murder rule. . . .

"Aiders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles. Under those principles, the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission. [Citation.] Because the mental state component—consisting of intent and knowledge—extends to the entire crime, it preserves the distinction between assisting the predicate crime of second degree murder and assisting the greater offense of first degree premeditated murder. [Citations.] An aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent. Such an aider and abettor, then, acts with the mens rea required for first degree murder." (Chiu, supra, 59 Cal.4th 155, 164-167, fn. omitted.)

The standard for reversal is the same as in Swain: "When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground." (Chiu, supra, 59 Cal.4th 155, 167; accord, People v. Aledamat (Aug. 26, 2019, S2148195) ___ Cal.5th ___.

All of the defendants objected to the jury being instructed on natural and probable consequences, and their contentions against it adopt a fairly uniform approach. The argument of defendant Larry Blay is representative: his "conviction of first degree murder must be reversed or reduced³⁰ because the jury may have based its verdict on the natural and probable consequences theory of aiding and abetting liability, which is invalid for a conviction of first degree murder." The Attorney General concedes Chiu error, but again urges us to conclude it was harmless.

30 This is a reference to the Chiu court agreeing that the remedy for reversible error is to "allow[] the People to accept a reduction . . . to second degree murder or to retry the greater offense." (Chiu, supra, 59 Cal.4th 155, 168.)

Again, it is instructive to consult our opinion in Anthony. Like our case, it had one actual shooter, Flowers, and three accomplices, Anthony, Price, and Campbell. As relevant here, the jury found each guilty of one count of first degree murder, two counts of second degree murder, and a multiple murders special circumstance. (Anthony, supra, 32 Cal.App.5th 1102, 1106, 1113) We concluded that instructing on natural and probable consequences for first degree murder as to Anthony, Price, and Campbell was error, but not prejudicial. Our reasoning ran as follows:

" 'When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground.' (Chiu, supra, 59 Cal.4th at p. 167, italics added.) Thus, we affirm a first degree murder verdict when the record demonstrates 'beyond a reasonable doubt that the jury based its verdict on the legally valid theory.' (Ibid.)³¹

31 In a follow-up to Chiu, our Supreme Court recently held that instructing on an invalid legal theory may be harmless when " 'other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary' " to convict under a different, valid legal theory. (In re Martinez (2017) 3 Cal.5th 1216, 1226.) After oral argument on these appeals, our Supreme Court reaffirmed this standard. (People v. Aledamat (Aug. 26, 2019, S2148195) ___ Cal.5th ___.)

"The jury was presented with the legally correct theory that Anthony, Price and Campbell directly aided and abetted or conspired in Flowers's first degree murder of Charles. 'Aiders and abettors may still be convicted of first degree premeditated murder based on direct aiding and abetting principles. [Citation.] Under those principles, the prosecution must show that the defendant aided or encouraged the commission of the murder with knowledge of the unlawful purpose of the perpetrator and with the intent or purpose of committing, encouraging, or facilitating its commission.' (Chiu, supra, 59 Cal.4th at pp. 166-167.) As for conspirators, one who conspires to commit a murder is guilty of first degree murder when a co-conspirator commits the murder.

"The jury's verdicts indicate beyond a reasonable doubt that the jury relied on this legally correct theory. First, for each of these three defendants, the jury found true the special circumstance allegation that he committed multiple murders. The jury was instructed under CALCRIM No. 702 to consider this special circumstance, as well as the special circumstance of murder while an active participant in a criminal street gang, if it found defendant was an aider and abettor or conspirator in the first degree murder, and not the actual killer. The People had to show beyond a reasonable doubt that such a defendant 'acted with the intent to kill' for the jury to find these special circumstances true. The jury's findings that Anthony, Price and Campbell, none of whom was proven to be the actual killer, intended to kill Charles strongly suggests that its first degree murder verdicts for each of them were based on its conclusion that each aided and abetted or conspired to murder Charles, not merely to assault him.

"Anthony, Price and Campbell argue these jury findings do not necessarily mean the jury found they committed first degree murder. They contend the jury's findings that they each acted with an intent to kill establish only an intent to commit second degree murder and, further, that the jury could have found the natural and foreseeable consequence of an intent to commit this more limited crime was the first degree murder of Charles. We disagree for three reasons.

"First, as we have already discussed, murder conspirators are necessarily guilty of first degree murder. [Citation.]

"Second, while a person may aid and abet in a second degree murder, the jury was not presented with circumstances that could reasonably support such a conclusion for the three defendants. Every aspect of their conduct indicates they acted with willfulness, deliberation and premeditation to murder Charles. . . . Their actions show planning, motive and a preexisting intent to kill, rather than unconsidered, impulsive actions. Accordingly, the prosecutor emphasized a first degree murder theory in his closing argument to the jury, such as when he asserted, 'This was an ambush and an execution. Plain and simple.'

"Third, the jury's finding that Flowers acted with the intent to kill and its verdict that his killing of Charles was murder in the first degree are powerful indications that its 'intent to kill' findings regarding Anthony, Price and Campbell were based on its conclusion that they joined with him to commit first degree murder. On this record, it would have been nonsensical for the jury to conclude that, while Flowers acted with premeditation and deliberation in committing the murder, he was aided and abetted, or in a conspiracy, with three defendants who did not form the intent to kill until the murder occurred. The jury would have had to conclude that Flowers concealed his own murderous intent from Anthony, Price and Campbell . . . until the moment Flowers killed Charles, and that each of the three decided on the spur of the moment to aid and abet, or conspire, with Flowers to murder Charles. . . .

"Finally, Campbell argues that it cannot be determined from the jury's special circumstance findings whether the jury improperly relied on the natural and probable consequence of assault theory because, although the special circumstance instructions include that the jury must find an 'intent to kill,' they also state that '[t]he People do not have to prove that the actual killer acted with the intent to kill in order for this special circumstance to be true.' (CALCRIM No. 702.) Further, although the jurors were instructed only to consider the special circumstance allegations if they had already found the defendant guilty of first degree murder, they could have done so under the improper natural and probable consequence of assault theory. These arguments lack merit in light of the jury's special circumstance findings that each defendant, including Flowers, who the evidence plainly indicated was the shooter, did act with the intent to kill. This finding shows that the jury concluded that in firing . . . at Charles, Flowers acted to murder him and not merely to assault him.

"In short, we conclude the court's instructional error under Chiu was harmless beyond a reasonable doubt." (Anthony, supra, 32 Cal.App.5th 1102, 1144-1146, fns. omitted.)

If the names used in the first sentence of the second quoted paragraph are changed to fit this case—"The jury was presented with the legally correct theory that Larry Blay, Deandre Blay, and Johnson directly aided and abetted or conspired in Abram's first degree murder of Le"³²—most if not all of our Anthony analysis is equally applicable here.

32 In his final argument, the prosecutor argued to the jury: "The evidence presented establishes that Kevin Abram . . . is [the] principal, and the actual killer of Tong Van Le. [¶] . . . When we talk about aiders and abettors, we move from Mr. Abram to the other three men . . . Larry Blay, Jr., Deandre Blay, and C. Autis Johnson, Jr. Their responsibility for the murder of Mr. Le is under the theory . . . of being an aider and abettor in that killing."

The natural and probable consequences approach is a type of aider and abettor liability. (See Chiu, supra, 59 Cal.4th 155, 161.) What we concluded with respect to the Swain error in the conspiracy instructions is equally applicable here. As already established, the verdicts leave no doubt that liability was attached to the defendants' deliberate and premeditated intent to kill. Chiu did not involve a conspiracy charge, whereas, like Anthony, this case did. We also believe the object of that conspiracy is certainly not irrelevant to our analysis.

It is a public offense to knowingly and maliciously "prevent" or "dissuade" "any witness . . . from attending or giving testimony at any trial." (§ 136.1, subd. (a)(1).) The offense becomes a felony "[w]here the act is accompanied by force or by an express or implied threat of force or violence" or "is in furtherance of a conspiracy." (Id., subd. (c)(1)-(c)(2).)

The fustian term "dissuade" being inadequate to express the essence of the prohibited behavior, this measure is commonly known as the "witness intimidation" statute. (E.g., People v. Prieto (2003) 30 Cal.4th 226, 267; People v. Wahidi (2013) 222 Cal.App.4th 802, 808.) Of course, the ultimate form of intimidation is to murder the witness. (See People v. Pettie (2017) 16 Cal.App.5th 23, 71 ["Murder is one way to prevent a witness from" testifying].) "Dissuasion" that reaches this extreme is deemed sufficiently odious that it is a special circumstance. (§ 190.2, subd. (10).) Which is what happened, and how it was treated, here.

This was not a case of a witness being asked, "You know, we'd really appreciate it if you could be somewhere else that day." While it may not be legally correct to state Le's death was the natural and probable consequence of the conspiracy to "dissuade" him from testifying, it is certainly correct that his death was indeed the inevitable consequence of the conspiracy to murder him, a conspiracy with no other object. Le's death was not the result of a random or accidental discharge of a firearm. There was no plan to rob or steal. Deandre Blay, C. Autis Johnson, and Kevin Abram drove from San Francisco to Novato for the sole purpose of putting a bullet into Le's skull. As the prosecution argued to the jury, Le was simply "the target." In this sense, the concept of natural and probable consequences verged on the superfluous or irrelevant. Moreover, the prosecutor went close to repudiating its application: "There was a determination made that Mr. Le was going to die. And a gun was brought to that location for the sole purpose of killing him."

In light of the foregoing, we reach the same conclusion we did in Anthony, namely because " the record demonstrates 'beyond a reasonable doubt that the jury based its verdict on the legally valid theory,' " "we conclude the court's instructional error under Chiu was harmless beyond a reasonable doubt." (Anthony, supra, 32 Cal.App.5th at pp. 1144-1146.)

V

Finally, Johnson contends that "because evidence of murder by lying in wait was insufficient, it was error to instruct on that theory of first degree murder." This is more a sufficiency of evidence issue than an instructional point, and will be addressed as such in the next section of our opinion.

The Verdicts Are Supported By Substantial Evidence

All of the defendants challenge, in one form or another, the sufficiency of the evidence to support either the murder verdict or the special circumstance findings. The challenges are to be reviewed according to well-established principles:

"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. . . . In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the [trier of fact] could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. . . .' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the [trier of fact's decision.] [Citation.] [¶] The same standard governs in cases where the prosecution relies primarily on circumstantial evidence. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.)

I

"[M]urder which is perpetrated by . . . lying in wait . . . is murder of the first degree." (§ 189.) "The penalty for a defendant who is found guilty of murder in the first degree is death or imprisonment in the state prison for life without the possibility of parole if one or more of the following special circumstances has been found . . . to be true: The defendant intentionally killed the victim by means of lying in wait." (190.2, subd. (a)(15).)

" 'Lying-in-wait murder consists of three elements: ' " '(1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . .' [Citations.]" ' " (People v. Russell (2010) 50 Cal.4th 1228, 1244, fn. omitted.) Lying in wait is " ' "the functional equivalent of proof of premeditation, deliberation and intent to kill." ' " (Id. at p. 1257.)

Abram and Deandre Blay (joined by Johnson) argue that evidence of concealment of purpose, needed for the lying in wait special circumstance, is lacking. As previously mentioned, Johnson argues that "evidence of murder by lying in wait was [so] insufficient, it was error to instruct on that theory of first degree murder." By this he means the prosecution's "scenario . . . does not contain the elements of waiting, watching, and concealment required to prove lying in wait." It appears from this argument that Johnson goes beyond Abram and Deandre Blay in that he does not confine his attack to the special circumstance, but is also challenging the underlying conviction for first degree murder.

"The concealment required for lying in wait 'is that which puts the defendant in a position of advantage, from which the factfinder can infer that lying-in-wait was part of the defendant's plan to take the victim by surprise. [Citation.] It is sufficient that a defendant's true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim. [Citations.]' " (People v. Webster (1991) 54 Cal.3d 411, 448.)

" '[T]he lying-in-wait special-circumstance requires no fixed, quantitative minimum time, but the lying in wait must continue for long enough to premeditate and deliberate, conceal one's purpose, and wait and watch for an opportune moment to attack.' " (People v. Clark (2016) 63 Cal.4th 522, 629.) In other words, the period of time must be "substantial in the sense that it shows a state of mind equivalent to premeditation or deliberation." (People v. Cage (2015) 62 Cal.4th 256, 279.) On this point, as the jury was instructed: "The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (CALCRIM No. 521.) And the claim of insufficient evidence fails.

We begin with several preliminary observations.

First, the precise nature of the claim removes many issues from dispute. Thus, there is no dispute that a killing did occur, and that it was an intentional killing. There is likewise no reason not to accept that the killing was the result of a concerted effort by the four occupants of the vehicle that Washington drove from San Francisco to Novato, and that concerted effort followed a plan or design formulated at some point prior to the killing. Accordingly, we accept the existence of a conspiracy to kill Le that existed before any individual entered the car that eventually went from San Francisco to Novato on the night of September 13, 2008.

Second, none of the defendants testified, so the only version the jury heard from a percipient witness, that is, an occupant of the car, was from Washington. He was clearly an accomplice, and treated as such by all, but no one suggests his testimony lacked the corroboration required by section 1111. According to the rules governing our review, Washington's testimony, together with the corroborating and other evidence, is sufficient for a reasonable jury to conclude that Le was the victim of a lying-in-wait murder.

Third, it must be kept in mind that all of the defendants were convicted of conspiring to murder Le. Because none of the principals to the conspiracy testified, the existence and nature of their agreement are the subject of well-established principles. "It is true that there is no direct evidence of an express agreement between the parties . . . . [but] direct evidence is rarely obtainable in conspiracy cases as knowledge of an express agreement to commit a crime is usually locked within the minds of the conspirators." (People v. Little (1940) 41 Cal.App.2d 797, 804.) Our Supreme Court has been more blunt: "A conspiracy can generally be established only by circumstantial evidence." (People v. Robinson (1954) 43 Cal.2d 132, 136, italics added; cf. Siemon v. Finkle (1923) 190 Cal. 611, 615 ["A conspiracy is almost always of necessity provable only by circumstantial evidence"].)

Hence, the rule developed that "the unlawful agreement among conspirators may be inferred from the conduct of defendants in mutually carrying out a common illegal purpose, the nature of the act done, the relationship of the parties, the interests of the alleged conspirators, and other circumstances." (People v. Remiro (1979) 89 Cal.App.3d 809, 843.) More than 140 years ago, it was truly said: " 'If it be proved that the defendants pursued by their acts the same object, often by the same means, one performing one part and another part of the same so as to complete it, with a view to the attainment of the same object, the jury will be justified in the conclusion that they were engaged in a conspiracy to effect that object.' " (People v. Bentley (1888) 75 Cal. 407, 409.)

This was indeed a case "where the prosecution relie[d] primarily on circumstantial evidence." (People v. Zamudio, supra, 43 Cal.4th 327, 357.) The only direct evidence, the testimony from Washington, was summarized at the beginning of this opinion. It is now time to examine it in more detail.

According to Washington, the car belonged to his girlfriend, and was pretty much his to use whenever he wished. This was particularly so at night, when she worked. None of defendants owned a vehicle, and only Johnson had access to one, i.e., his mother's. According to Washington, the defendants knew each other because "they grew up together."

On the evening of September 13, the day of Le's murder, Washington was driving his girlfriend's car when he saw Deandre, Johnson, and Abram. One of them asked Washington if he would drive them to "the store," which everyone understood to mean the Nasser Market. Washington agreed. Abram sat behind Washington, Johnson in the front passenger seat, and Deandre behind Johnson.

Abram asked Washington to stop at his, Abram's, house. Abram went inside and, after several minutes, returned carrying a black hooded sweater or "hoodie." Abram was carrying this object in a peculiar manner ("As in if he was to rock a baby, but he wasn't rocking what he was carrying"). At the time Abram was wearing blue jeans and white T-shirt.

Washington drove to the store, arriving there at the time Le (known as "the store guy") was turning off the lights and closing his store for the night. From inside Washington's car, either Deandre or Johnson said "There he is." Abram got out of car and headed towards Le. He was intercepted by Johnson's father, who very loudly said "No," whereupon Abram returned to car.

A man who, as recalled by Washington, "looked like he [could] possibly be Asian," entered a Lexus, which was parked directly ahead of Washington's car. According to Washington, "The guy in the Lexus pulls off, and I pulled off" two or three minutes later. No one inside the car spoke a word as Washington followed. After a few blocks, Washington intended to "drop them off," but "I was told by Deandre Blay to follow him." As Washington did so, he heard sounds he associated with the cocking of a firearm ("a loading kind of sound," "a clicking, a cocking"). The sounds came from "directly behind me," where Abram was seated.

Washington followed the Lexus out of San Francisco and north across the Golden Gate Bridge. At some point on the freeway, Deandre Blay told Washington "Don't lose him." The Lexus left the freeway at the Hamilton Field offramp.

Washington testified that he followed the Lexus into a residential neighborhood, where he saw it "make a left and drive into a driveway." The Lexus entered the garage as the garage door "was rising." Washington stopped his car, and "that's when Kevin Abram hopped out of the car." Abram, who had put on the dark sweater with the hoodie, started "running with something in his hands," something "he needed two hands to hold it up," and something Washington knew was a gun but "it wasn't a handgun." Abram ran into the garage, because "he thought the garage door was gonna close." Washington saw Abram pointing the gun at the person seated in the driver's seat of the Lexus. Washington heard shots.

At this point Deandre, who was also wearing a black hoodie as well as a knit skullcap, left Washington's car, went to the garage, and returned with Abram. Abram was carrying "the gun."

Deandre Blay and Abram entered the car. Washington asked "Are there any bullets in the gun?" Abram answered, "No." Johnson told Washington to "Drive off," and Washington drove out of the area. Shortly thereafter, on some unidentified street, Abram left the car with the gun wrapped in the black sweater, and returned to the car without either item. The car left Marin when Washington drove across the Richmond-San Rafael Bridge.

At some point on the drive back, Deandre "realized he didn't have his skull cap," his "beanie." Washington asked Deandre "if he wanted to go back." Deandre's answer was "No."³³ Back across the Golden Gate Bridge, Johnson told Washington to stop at his (Johnson's) home. Johnson's mother was waiting with her car, which Deandre, Johnson, and Abram entered, before it was driven away.

33 The beanie was found in the street in front of Le's house. Analysis revealed the presence of genetic material (i.e., DNA) most likely from Deandre on this garment.

So, what could the jury legitimately make of this and other evidence?

We previously noted that "the relationship of the parties" (People v. Remiro, supra, 89 Cal.App.3d 809, 843) can be relevant. In this particular context, " 'common gang membership may be part of circumstantial evidence supporting the inference of a conspiracy.' " (People v. Burnell (2005) 132 Cal.App.4th 938, 947.) The jury could recall Sergeant Kumli's testimony that Deandre Blay, Abram, and Johnson were active members of the AP gang and Sean Washington was an associate of the gang. The jury could then discount the innocent likelihood that Washington just happened to meet the three active gang members who just happened to be together. The jury could further conclude that this meeting, and what transpired thereafter, was according to a pre-existing plan. In short, the jury could conclude that a conspiracy to kill Le existed before any individual entered the car that eventually went from San Francisco to Novato on the night of September 13, 2008.

Thus, the jury could conclude that it was by pre-arrangement that Washington procured his girlfriend's vehicle for use. That it was by pre-arrangement that he met Deandre Blay, Johnson, and Abram, who were congregated together, awaiting pickup by Washington. And that it was by pre-arrangement that Abram armed himself.

During the drive from San Francisco to Novato, little was said because, the jury could deduce, little needed to be said because the occupants of the car knew what was planned. The few words actually uttered ("There he is," "Don't lose him") corroborate that the focus of that plan was Le. The jury could infer that Abram, the designated shooter, at some point during the drive donned the black sweater/hoodie to cover up the more visible white T-shirt he was wearing, and readied the weapon brought along to be used on Le.

It was dark when Le drove into his garage. While still in his car, his seat and shoulder belt still buckled, the engine still running and the driver's side window up, Le's attention would be focused on what was in front of him. Le would be looking at turning off the headlights and engine, removing the ignition key, unbuckling his seatbelt. He would not be looking over his shoulder. He was not aware that he had been followed from his place of work. He would be unaware of one of his trackers coming up behind him, out of the darkness, at this moment of immobilized vulnerability. Abram had taken measures to reduce the chance he would be detected as he came up behind Le, armed and with homicidal intent. And the evidence was undisputed that Le was shot at very-close range.

Defendants appear to accept that the record establishes an adequate basis from which the jury could conclude that there was clearly both " 'a substantial period of watching and waiting for an opportune time to act' " and " 'a surprise attack on an unsuspecting victim.' " (People v. Russell, supra, 50 Cal.4th 1228, 1244.)

Abram and Deandre Blay focus on the third and final element of lying-in-wait. They argue, in Abram's words: "Evidence of any concealment of purpose is particularly lacking here. This was a fast brazen walk-up attack on first opportunity after renewed pursuit in a vehicle. [Citation.] Concealment of identity (if this was even really shown) is not concealment of purpose. Neither the pursuing car nor the assailants were hidden (including from a driver looking in a rear or side mirror); neighbors had no problem seeing any of this (a car, a man with a stick, a man in the lit [sic] garage, even the man's complexion, etc.). Not every brazen attack that happens to occur from slightly behind the victim due to some pursuit means the attack comes from a hidden position showing a concealment of purpose. (Bench Notes, CALCRIM No. 728³⁴: cf. People v. Edwards (1991) 54 Cal.3d 787, 825 [driving up to pedestrians and shooting from inside car after calling out to ensure better targets].)"

34 This appears to refer to the following: "Give the bracketed paragraph [which the trial court did] stating that concealment may be accomplished by ambush if the evidence shows an attack from a hidden position."

We are not entirely comfortable with Abram's use of the words "pursuit" and "pursuing" as synonymous with merely "following," when the words can just as easily mean a "chase" or "chasing," which are commonly understood to mean that a person being "chased" is aware that he or she is being "pursued."³⁵ There is nothing to suggest that Le had such an awareness. Indeed, the entirety of the record shows he did not. Moreover, knowing that one is the object of a pursuit is completely incompatible with being the victim of a "surprise attack." In short, lying-in-wait presumes a victim taken "unawares." (E.g., People v. Moon (2005) 37 Cal.4th 1, 23; People v. Morales (1989) 48 Cal.3d 527, 554.) There is no reason to believe that, even had the victim become aware that he was being followed, nothing perceivable to his senses would have alerted him to their purpose. In fact, while they were in the moving car, their "true intent and purpose were concealed by [their] actions or conduct." (People v. Webster, supra, 54 Cal.3d 411, 448.)

35 Cf. 12 Oxford English Dict. (2d ed. 1989) p. 888 [pursuit—"The action of pursuing, chasing, or following, with intent to overtake and catch or kill, a fleeing object" (italics added)].

This reasoning also requires us to reject Abram's depiction of Washington's car and its occupants as not "hidden . . .from a driver looking in a rear[view] mirror." Deandre Blay makes essentially the same point. This may be literally true, in that Washington's vehicle was not invisible, but what was in their mind clearly was hidden from observation. That was certainly concealment of purpose.

A lying-in-wait murder cannot be a killing where the defendant " 'acts out of rash impulse.' " (People v. Mendoza (2011) 52 Cal.4th 1056, 1073.) Le's killing was anything but a rash impulse. " 'The factors of concealing murderous intent, and striking from a position of advantage and surprise, "are the hallmark of a murder by lying in wait." [Citation.]' " (Ibid.) "A concealment of purpose suffices if it is combined with a surprise attack on an unsuspecting victim from a position of advantage." (People v. Edwards, supra, 54 Cal.3d 787, 825.) This is a perfect description of how the victim's life ended.

In light of the foregoing, we conclude there is substantial evidence from which the jury could find lying-in-wait for both first degree murder and the special circumstance.

And because there was substantial evidence, this disposes of Johnson's argument that the jury should not have been instructed on the lying in wait theory.

II

The trial strategy of defendant Larry Blay was that he was in jail because he had been wrongly identified as one of the robbers of Le's market. While in jail, he tried to organize efforts by friends and relatives to produce alibi witnesses that would prove his innocence and secure his release, or persuade the actual robbers to turn themselves in. Because he knew he was innocent, and could prove it, Larry had no reason to order Le killed. Two of the real robbers, Calin Hunter and James (aka Joe) Sullivan (see pp. 37 & 46, ante), had far better reason to want Le dead. So did the robbers who had not yet been identified. Alternatively, the four occupants of Washington's car may have killed Le for reasons of their own, of which he, sitting in jail, had no inkling. At worst, his counsel argued, "the only thing that you could find him guilty of is dissuading a witness. Certainly not murder, or certainly not anything in between."

These arguments were in large measure dependent upon context and, to a certain extent, hindsight. Appellant counsel for Larry Blay adopts a different tack, going after the words alone: instead of arguing that his client's jailhouse remarks should not be construed as inculpatory, he contends "[t]he evidence concerning [Larry Blay's] statements to his parents, girlfriend, and brother while he was in jail is insufficient to prove that he intended to order or authorize anyone to kill or even intimidate the victim to prevent him from testifying." In other words, the recorded remarks cannot, as a matter of law, be construed as inculpatory.

The transcripts of the recorded jailhouse calls and conversations, including some duplication, number approximately 150 pages. The calls date from September 8, to September 19, 2008, 6 days after Le's murder.

The amount of raw material is certainly not abundant. Both Larry Blay and the Attorney General implicitly agree that the issue boils down to a handful of comments made during the course of three telephone calls Larry Blay initiated in the three days prior to the murder. Although there is no real dispute about the contents of the calls, for present purposes we adopt the summary of the Attorney General (with certain additions):

During a call on September 10, 2008, at 8:17 p.m., after talking about arranging for witnesses from the Alemany Project to the fact that he was there when the store was robbed, Larry told his mother, Briana Reed, to "tell B-Ray [brother Deandre Blay] what's goin' on about the store man." She said, "I already did."

During a call on September 11, 2008, at 8:51 a.m., after talking about arranging for witnesses from the Alemany Project to the fact that he was here when the store was robbed, Larry told his father, Larry Blay, Sr., to "talk to B-, I, I don't wanna talk like that on the phone but you know what I'm talking about. . . . So tell, tell B-Ray to feel me." Later in that same call, Larry told his girlfriend, Lanesha Robinson: "I need you to talk to B-Ray, right? And tell him I need him to handle that cause I can't. Listen. You, you understand what I'm sayin' when I say handle that right? . . . I need that done fast. I can't have that, I can't, he can't come to court. So tell, when you callin' B-Ray today? He gonna answer when he probably, he probably asleep, but tell him to handle that as fast be-, before my next court date, alright."

During a call on September 12, 2008, at 8:14 a.m., Larry told his girlfriend, Lanesha Robinson, that "I need you to call B-Ray an' aks [sic] him did he do that?' . . . This is important. . . . If you think you miss me I'll be sittin' in this motherfucker for a long time. . . . Yes it is [that important]. You want me in here?" Larry also asked her to ask his daddy if he got the people's names. Later, Larry said, "And tell B-Ray as soon as possible. Tell him as soon as possible. . . . Tell him, don't lag on me."³⁶

36 In between these remarks, defendant Larry Blay stated: "It's like do, do you want me in here or on the street? You're the only one I'm callin' and talkin' to 'cause you the only one that's gonna listen. You the only one that's gonna do somethin'. Everybody else is gonna lag. I don't need nobody lagging. That's why I'm calling you and talkin' to you and askin' you to do it but you actin' like you don't give a fuck. Come on man. I'm already stressin' that I'm in here for nothin.'. I'm really in here for nothin'. That's why I'm callin' you and telling you, could you handle this? You on the streets. I can't do nothin' in here. I can, can't do a damn thing in here. I can't call around people I ain't, I can't do nothing. You feel me? That's why I'm asking you. It shouldn't even be a problem with you doin' it if you loved me that much and you want me out."
About 15 minutes later, Blay ends another call to his girlfriend with "Make sure as soon as we hang up just, not as soon as we hang up but just make sure you call my Daddy and my Brother okay?"

During a call on September 12, 2008, at 1:40 p.m., Larry asked his mother, Briana Reed, if she called B-Ray, and she said B-Ray told her to "stop callin' him, buggin' him. He already know."

The transcriptions do indeed provide a solid basis for trial counsel's arguments to the jury. For example, they show a Larry Blay who vehemently insists on his innocence. Apparently frustrated at the inability to raise bail, he tells his girlfriend, "I need to get the fuck outta here." On the other hand, anger at his wrongful arrest could easily be directed at the man who erroneously identified and thus could be seen as responsible for Blay's incarceration. But these are not matters for our review.

Our review can only imperfectly reach the intangibles of interpreting words. The jury had not only the written word, but the actual recordings. Those recordings are part of the record on appeal, but whereas this court can read the words, we cannot truly listen to them with an independent ear. We can only hear with the jury's ears, looking to what supports the jury's verdicts. We are not allowed to evaluate intonations, hesitations, or certainties, all the intangibles that factor into determinations of credibility. (See People v. Jackson (1992) 10 Cal.App.4th 13, 20-21 [The cold record " 'cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration. A witness may convince all who hear him testify that he is disingenuous and untruthful, and yet his testimony, when read, may convey a most favorable impression' "].) And credibility is a matter excluded from our review in all but the most extraordinary circumstances.

This is not to say that the contention is categorically foreclosed, only that it is almost certainly bound to fail when the language is reasonably susceptible to more than one interpretation. The odds against success lengthen still further if, as here, there is no defense evidence supporting a non-incriminating interpretation. Here, Sergeant Kumli gave the jury a prism through which defendant's words could be considered. It was a world in which defendant's girlfriend could use the word "snitch" in ordinary conversation. It was a world where "snitches" were not tolerated. A world where a person speaking on a recorded line could hardly be expected to speak with explicit words or unguarded language.

Larry Blay does not claim the incriminating interpretation is legally impossible or inherently incredible, that is, the construction urged by the prosecution—and accepted by the jury— is " 'so contrary to the teachings of basic human experience, so completely at odds with ordinary common sense, that no reasonable person would believe it[.]' " (People v. Hovarter (2008) 44 Cal.4th 983, 996; see People v. Elliott (2012) 53 Cal.4th 535, 585 ["Unless it describes facts or events that are physically impossible or inherently improbable, the testimony of a single witness is sufficient to support a conviction"]; People v. Fleming (1961) 191 Cal.App.2d 163 ["An appellate court may set aside the verdict of a jury only when . . . the evidence relied upon by the prosecution is so inherently improbable or false as to be incredible"].) He is, in short, arguing that the prosecution's interpretation was too implausible, too much of a strained inference, and is, in plain effect, unbelievable as a matter of law.

It is an argument that cannot be won. " ' "[W]hen two or more inferences can reasonably be deduced from the facts," either deduction will be supported by substantial evidence, and "a reviewing court is without power to substitute its deductions for those of the trial court." ' " (In re Eric J. (1979) 25 Cal.3d 522, 527; accord, e.g., People v. Martinez (2017) 10 Cal.App.5th 686, 706.) In short, the trier of fact's "choices among conflicting inferences" cannot be overturned by a reviewing court. (E.g., People v. Richardson (2008) 43 Cal.4th 959, 993; People v. Coffman and Marlow, supra, 34 Cal.4th 1, 55.) So it is here.

The New Trial/Brady Motions

Background

Following receipt of the verdicts, the prosecution filed a motion to disclose information pursuant to Evidence Code sections 1043-1046, Pitchess v. Superior Court (1974) 11 Cal.3d 531, and Brady v. Maryland (1963) 373 U.S. 83 (Brady), and to order the Novato Police Department to disclose to the Marin County District Attorney personnel records of Officer Jehan Amdjadi. Abram filed a Pitchess motion, in which Deandre Blay joined, and both filed Brady motions. The prosecution then filed its own Pitchess motion, and the court approved a stipulation and protective order. After further hearings, Judge Boren filed a written ruling on discovery issues, including the Pitchess and Brady issues.

Deandre Blay, Johnson, and Abram filed motions for new trial. Judge Boren conducted a lengthy evidentiary hearing and heard extensive arguments, before denying the motions orally and later in a written order.

The Rulings

The ruling on discovery issues is a six-page order filed on December 3, 2012. Judge Boren noted the "specific discovery requests . . . [¶] deal not with pre-trial discovery, but with discovery regarding conduct by Officer [Amdjadi] that apparently occurred during, or shortly after, the trial." There was "a contention . . . presented by the defense that the court deems of sufficient importance to address directly. Defense counsel appear to contend that at the moment the district attorney first heard anything (regardless of whether the communication received consisted of mere suspicions, rumors, or speculation) regarding possible drug use by Officer [Amdjadi], that the prosecutor had a duty to immediately advise court and counsel, and to request an adjournment of the trial proceedings while investigation of such information took place."

"This court is unaware of any authority—and none has been cited to the court—that holds that disclosure, even pre-trial, of mere speculative information not grounded in arguably reasonably reliable sources is required of a prosecutor. In People v. Jordan (2003) 108 Cal.App.4th 349, 353, the appellate court rejected a criminal defendant's contention that 'the People have a constitutional obligation to disclose complaints about police officer misconduct where the only evidence of such misconduct in defense testimony at an unrelated criminal trial.' One could conclude from that holding that accusations alone, even if made under oath, create no disclosure duty upon a prosecutor.

"In this case, similarly, the uncertain hearsay and conjectural suspicions that were reported on April 9, 2012 could not, reasonably and under the law, place such a duty on a prosecutor.

"Also, although some defense counsel in this case have suggested that the district attorney has not been forthcoming, or worse, as to post-trial discovery regarding Officer [Amdjadi], the court has seen no evidence to support such contention. Moreover, the record of the district attorney, regarding discovery in general, before and during the trial in this case seems to portray a prosecutor's faithful accord with California discovery law in deed and spirit."

After stating a chronology of the investigation about Officer [Amdjadi], Judge Boren moved to the next point: "[G]iven the trial estimate given to prospective jurors, to adjourn the trial for the time needed to conclude the investigation regarding Officer [Amdjadi] (assuming the court would have acceded to that notion), there is no reason to conclude that such investigation would not have taken the same length of time—seven (7) months, and more—as is being consumed at present. Accordingly, even if the district attorney, or any other counsel, had requested an adjournment of the trial, it is unlikely, in the extreme, that this or any other, court would have granted such request."

Moreover, "it is important to note that these issues relate not to witnesses to be called at a trial, and the appropriate and attendant need for proper defense preparation to confront and cross-examine such witnesses, but rather relates to an assessment and evaluation of possible mid-trial or post-trial drug-related misconduct by a police-officer-witness for the People." Each of the defense discovery requests were then denied because "good cause has not been demonstrated."

Defendants do not frontally attack this order, or present an argument based on its contents. Their ostensible attack is aimed at the second order, which addressed their substantive claims. The attack fails.

As noted, the denial was initially delivered orally from the bench, but then reduced to a written order. Because the latter is longer and more detailed, it will be treated as Judge Boren's decisive word on the subject—and a conscientious word indeed. The relevant portions of Judge Boren's reasoning (with minor editorial modifications added) were as follows:

"Was Amdjadi a 'crucial', 'main', 'star', or 'linchpin' witness, or the like, in this case? The defense contends that he was. This court finds that he was not.

"Amdjadi was mentioned only three (3) times in the prosecutor's opening argument—once referring to Amdjadi's arrival at the scene and twice referring to the handoff of the lead investigator/case agent role from Amdjadi to Detective Winter. Similarly, in their initial cross-examination of Amdjadi, defense counsel spent little time cross-examining Amdjadi.

"Parenthetically, Amdjadi's total testimony in the trial is recorded in 469 pages of the trial transcript. These pages are allocated among the six (6) Parties who examined him at trial as follows: "By prosecution: 306 pages, 65% "By Ms. Higgins (defendant Johnson): 43 pages—9% "By Ms. Stearns (defendant Abram): 36 pages—8% "By Mr. Gonser (defendant Deandre Blay): 15 pages—3% "By Mr. Casper (defendant Uribe): 69 pages—15% (fn. omitted) "By Mr. Morris (defendant Larry Blay): —0% (fn. omitted)

"The point of this brief accounting is that it suggests that relatively little cross-examination was invested by defense on witness Amdjadi, although counsel for the moving defendants now claim that he was a vital, pivotal part of the People's case. This analysis seems to speak otherwise, but is a soft voice, and is certainly not dispositive of the issue.

"More importantly, Amdjadi did not provide any direct evidence of any defendant's guilt. Amdjadi was not a witness to any charged crimes, nor to any other actions of any defendant. Amdjadi did not assist in taking any incriminating statements from any defendant. Moreover, most, if not all, of Amdjadi's testimony and/or investigative tasks were corroborated by other evidence or involved other witnesses.

"The defense has not pointed to any truly significant, pivotal, dispositive or specific evidence that had its genesis, authentication, or discovery solely at the hands of Amdjadi, and the court is aware of none.

"The California Supreme Court, in the case of People v. Salazar (2005) 35 Cal.4th 1031 at 1050, observed that '[i]n general, impeachment evidence has been found to be material where the witness at issue "supplied the only evidence linking the defendant(s) to the crime . . . " or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case.'

"The court in Salazar went on to explain that 'In contrast, a new trial is generally not required when the testimony of the witness is "corroborated by other testimony." ' The Salazar court also cited with approval the United States Supreme Court case of Giglio v. United States [(1972)] 405 U.S. [150] at 154, noting that a new trial was not required where newly discovered evidence is merely 'possibly useful to the defense but not likely to have changed the verdict.'

"Defendant Deandre Blay contends in his motion that: 'Given his [Amdjadi's] critical role in the investigation, the integrity of the prosecution's case depended on Detective Amdjadi's integrity.' While such description is clever phraseology, it fails to accurately reflect the truth of the matter. The court does not find that Amdjadi had a 'critical role' in this case, nor was he a witness who 'supplied the only evidence linking the defendant(s) to the crime' or an attack on whose 'credibility would have undermined a critical element of the prosecution's case.' Moreover, this 'newly discovered evidence' is in reality merely 'possibly useful to the defense but not likely to have changed the verdict.'

"It was evidence other than Amdjadi's efforts as an investigator and his testimony as a witness which convincingly demonstrated defendants' guilt.

"In the court's view, the following items of evidence are far more deserving of such appellations as critical, crucial, key, or linchpin than Amdjadi's testimony:

"1) Former defendant and trial witness Sean Washington's testimony, who was a companion with the four defendants the night of the murder of Mr. Le, and an eyewitness to Mr. Le's murder;

"2) The evidence regarding cell phone records of cell phones associated with three of these defendants and others (both call detail records and captured text messages). This testimony, together with evidence regarding the functions and locations [of] cell phone towers. That evidence, together with attendant testimony from witnesses (not including Amdjadi) placed those cell phones, and by reasonable inference, three of these defendants, as the users thereof, on their travel to and from the scene—and close in time to—the murder of Mr. Le. This evidence clearly recorded the path of three defendants (Defendants Abram, Deandre Blay and Johnson) as they followed, stalked, and murdered Mr. Le, and then headed back to their homes in San Francisco;

"3) The surveillance video footage and toll records from the Golden Gate Bridge the night of the murder;

"4) The surveillance video footage from the Alemany Housing Development the night of the murder;

"5) The statements of defendant Larry Blay, Jr—monitored and recorded conversations in the San Francisco jail—and the circumstances of his being charged as one of the perpetrators of an armed robbery in which the homicide victim Mr. Le, was also the victim;

"6) The DNA evidence, including the knit cap found at the scene;

"7) Gunshot residue evidence.

"These items of evidence, together with other items and witnesses, played the 'critical roles' in this case, not the testimony of Amdjadi.

"Moreover, all of this evidence just listed is entirely independent of, and unconnected to Amdjadi.

"As with the witness in the Salazar case, Amdjadi did not supply 'the only evidence linking the defendant(s) to the crime', nor would the late-arriving evidence as to Amdjadi's drug use be likely to 'undermine a critical element of the prosecution's case.'

"Amdjadi's credibility was not critical to the trial's outcome. He did not testify to a significantly important and disputed issue at trial. He did not provide unique testimony that no one else could have provided.

"In the Salazar case, the issue was the testimony of an autopsy surgeon, and the alleged Brady material related to instances in other cases in which the prosecutor had called the witness, where that witness had changed or equivocated on his opinions regarding the timelines of death of victims of violent crimes. The court found that evidence to not be 'material' and/or that the witness was not material, and that there was no violation of the prosecutor's Brady obligation.

"Given the totality of the evidence in this case, summarized briefly above, the absence of evidence of Amdjadi's drug use in the trial could not properly be found by this court to be truly 'prejudicial' to defendants, i.e., it is not 'material' evidence.

"Moreover, it is not even certain—in fact, it may even be unlikely—that the evidence regarding Amdjadi's cocaine use would be admissible before the jury. First, the only clear evidence shown to this court in the hearing and related briefing is that Amdjadi used cocaine within 60 days before the taking of hair samples from him on June 29, 2012. The use of controlled substances is not a crime of moral turpitude. Second, despite speculation as to where Amdjadi may have gotten cocaine, there is no clear or irrefutable evidence that he stole it from the Task Force seized evidence locker or from anywhere else.³⁷

37 A footnote at this point read: "Moreover, '[t]he probative value of of [sic]the ambiguous evidence as to where Amdjadi may have gotten cocaine, and whether he shared or furnished it to others, would likely be 'substantially outweighed by the probability that its admission' would '(a) necessitate undue consumption of time or (b) create substantial danger . . . of confusing the issues . . . .' See Evidence Code [section] 352. This court spent three (3) court days of testimony and argument regarding the potential materiality of this evidence, and as noted above, does not find that evidence to be material."

"Other cases cited by the defense in support of their motion for new trial are very clearly distinguishable from the case before this court. For instance, in Kyles v. Whitely (1995) 514 U.S. 419, 441 the prosecution suppressed pretrial statements of several eyewitnesses to the crime for which defendant was tried. The appellate court, logically and reasonably, found this to be a clear Brady violation, saying that '[i]n this case, disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.' 'As the District Court put it, 'the essence of the State's case' was the testimony of eyewitnesses, who identified Kyles as the killer. [Citation.] 'Disclosure of their statements would have resulted in a markedly weaker case for the prosecution and a markedly stronger one for the defense. To begin with, the value of two of those witnesses would have been substantially reduced or destroyed.'

"Witness Amdjadi was nowhere near the status of such an eyewitness.

"Further, in U.S. v. Price [(9th Cir. 2009) 566 F.3d 900], a witness (Antionette Phillips), one of the main witnesses against defendant who was charged with possession of a firearm as a felon, testified that she (Phillips) saw defendant in possession of a firearm. That court [] observed that 'Price's defense attorney vigorously attacked other aspects of the government's case at trial, but he could not overcome this direct evidence of Prices' guilt.' Price was convicted and sentenced to nearly eight years in prison. 'What Price and his attorney did not know is that Antoinette Phillips has a lengthy history of run-ins with the Portland police that suggests that she has little regard for truth and honesty.' [Citation.] 'In determining whether the failure to disclose Brady material undermines our confidence in the outcome of the trial, we must weigh the withheld evidence 'in the context of the entire record.' 'Here the prosecution presented only three items of evidence in support of the felon-in-possession charge: [1] testimony by the arresting officers that Price bent over as the car came to a stop, [2] testimony regarding the location of the gun recovered from the vehicle, and [3] Phillips' testimony that she saw the gun in Price's waistband approximately fifteen minutes before his arrest.' . . . Phillips' testimony provided direct evidence of Price's guilt and defense counsel was unable to seriously challenge it on cross-examination. Phillips was indisputably 'the prosecution's star_witness.' [Citation.]

"This court has 'weighed the [alleged] withheld evidence 'in the context of the entire record' and finds that Amdjadi was not—unlike Antoinette Phillips in the Price case, supra—the 'prosecution's star witness.'

"Similarly, in Giglio v. U.S. (1972) 405 U.S. 150, 151, 154-155, the U.S. Supreme Court was presented with a factual scenario wherein '[w]hile appeal was pending in the Court of Appeals, defense counsel discovered new evidence including that the Government had failed to disclose an alleged promise made to its key witness [Taliento] that he would not be prosecuted if he testified for the Government.' [Citation.] That court observed that '[h]ere the Government's case depended almost entirely on Taliento's testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento's credibility as a witness was therefore an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.' [Citation.]

"Unlike Giglio, here 'the Government's case' did not depend 'almost entirely on [Amdjadi's] testimony.'

"This court has also considered the case of People v. Williams (1962) 57 Cal.2d 263, 274-275, in which the California Supreme Court observed '[a]s stated in People v. Greenwood [1957] 47 Cal.2d 819 at page 821, the claim of newly discovered evidence as a ground for a new trial is uniformly "looked upon with disfavor," for there must be an end to litigation. However, where the "newly discovered evidence" contradicts the "strongest evidence introduced against" defendant . . . , it would appear proper that defendant should have the opportunity of trying to present such evidence for the consideration of the trier of the facts. Here there is every reason to believe that defendant did not have a "fair trial on the merits, and that by reason of the newly discovered evidence the result could reasonably and probably be different on retrial." '

"Amdjadi did not provide 'the strongest evidence' in this trial, and there is no reason to believe that defendants did not have a 'fair trial on the merits', nor is there cause 'to conclude by reason of the newly discovered evidence [that] the result could reasonably and probably be different on retrial.'

"This court concludes that there is not 'a reasonable probability of a different result' if the jury in this case had been provided the undisclosed but potentially impeaching evidence. 'A reasonable probability of a different result is shown when the government's failure to disclose "undermines confidence in the outcome of the trial." ' U.S. v. Spinelli (2008) 551 F.3d 159. That court held that 'undisclosed information is deemed material so as to justify a retrial only "if there is a reasonable probability that, had [it] been disclosed to the defense, the result of the proceeding would have been different." "A reasonable probability of a different result is shown when the government's failure to disclose 'undermines confidence in the outcome of the trial." [Citation.]

"There is no question, in this court's mind, that the failure to earlier produce the late-disclosed evidence at issue does not 'undermine confidence in the outcome of the trial.'

"In People v. Huskins (1966) 245 Cal.App.2d 859, 862-863, the court observed that '[o]rdinarily evidence which merely impeaches a witness is not significant enough to make a different result probable, and respondent relies on the rule that ". . . newly-discovered evidence which would tend merely to impeach a witness is not of itself sufficient ground for granting a new trial." [Citation.] "But the new evidence in this case does more than merely impeach the main prosecution witness—it tends to destroy her testimony by raising grave doubts about her veracity and credibility. Since Mrs. White was the sole adult witness connecting the defendant with the charged acts, her credibility is central to the proof of the crime." '

"Amdjadi was not the 'main prosecution witness' in this case, the recently attained evidence does not 'tend to destroy his testimony', and moreover, his 'credibility [was not] central to the proof of the crime.'

"Following the reasoning in Huskins, supra, the appellate court in People v. Green (1982) 130 Cal.App.3d 1, 11, observed that '[a]s a general rule, "evidence which merely impeaches a witness is not significant enough to make a different result probable" ' (citing Huskins). 'Defendants, however, point to cases in which impeachment of the main prosecution witness was considered sufficient to warrant a new trial. The cases are distinguishable.' 'Here, the testimony of Agent Edwards was not the sole evidence of guilt. Defendant Danny Green concedes that the informant, Berry, partially corroborated Edwards' testimony; and further, the prosecution was able to produce physical evidence of guilt—the heroin sold and the prerecorded funds found in Danny's possession. Moreover, the evidence does not point to either defendant's innocence. Further, in the case before us, the alleged newly discovered evidence does not remotely approach the damaging level of that which was involved in Huskins.' [Citation.]

"Again, Amdjadi was not the 'main prosecution witness' in this case, and his testimony was not 'the sole evidence of guilt' as to any defendant. As in Green 'the [impeaching] evidence does not point to [any] defendant's innocence. Further, in the case before us, the alleged newly discovered evidence does not remotely approach the damaging level of that which was involved in Huskins.'

"In a recent decision by the United States Supreme Court, Smith v. Cain (2012) 565 U.S. 73, the nation's high court dealt with a case involving the post-trial revelation of investigators' notes regarding the single eyewitness who identified the defendant at trial as the murderer of five people. The investigators' notes disclosed that the eyewitness initially said he could not identify anyone. That witness's testimony was the only evidence linking the defendant to the crime. In holding that this was clear Brady error the court understandably ordered the conviction reversed. Clearly, such egregious conduct is nowhere near the factual underpinnings of the issue before this court.

"Similarly, in the case of In re Brown (1998) 17 Cal.4th 873, 889, the California Supreme Court dealt with a murder trial in which the defendant's claim was that, at the time of the fatal shooting of another man by the accused, the defendant was under the influence of methamphetamine. The prosecution disclosed and put on evidence that defendant's blood test near the time of the killing was negative for methamphetamine. But another test—known to the prosecution but not disclosed to the defense—indicated that defendant had PCP in his system. The Supreme Court held this was clearly Brady error because of the non-disclosure of this evidence, even if the non-disclosure was unintentional. The appellate court noted that the evidence at issue went to the very heart of Brown's defense—that he was under the influence of a controlled substance at the time of the shooting. The court found that '[t]he positive RIA [PCP] test would have been more than simply the linchpin of this defense. As independent scientific evidence of PCP in petitioner's blood at the time of the crimes, it would have enhanced the credibility of the other evidence of PCP intoxication it tended to corroborate.'

"In the case before this court, evidence of Amdjadi's cocaine use and speculation regarding the source and use of such drugs is certainly not 'the linchpin of [any defendant's] defense.'

"This court concludes that the 'newly discovered evidence . . . if presented in a new jury trial,' would not raise 'a reasonable probable likelihood of a different result.' As to all defendants [this court denies] the motion as to this ground, because although the evidence was newly discovered, it is not material.

"Although this court has determined that the 'newly discovered' evidence was not 'material', the defense nevertheless has argued that it was material and that the prosecutor knew of this alleged evidence several months before it was disclosed to the defense.

"All four defendants contend that the prosecution should have disclosed the evidence within days, if not hours, of its learning of the allegations, while the matter was still in trial. The defense argues that the DA's failure to so disclose the information in a timely fashion was deliberate prosecutorial misconduct, thus violating the rules laid down in Brady v. Maryland (1963) 373 U.S. 83 and its progeny. The defense argument contends that the DA's conduct thus also denied due process.

"Although this court has determined that the evidence at issue was not material—and that therefore the court need not address whether or not disclosure was timely—the court will nevertheless address that issue.

" Alleged 'Prosecutorial Misconduct' resulting in denial of due process, per Brady v. Maryland

"A number of cases are instructive in addressing the issue of whether the delay in disclosure by the prosecution—assuming the materiality of the information—was 'prosecutorial misconduct' resulting in denial of due process, per Brady v. Maryland, supra.

"In Smith v. Stewart (9th Cir. 1998) 140 F.3d 1263, 1273, the appellate court was presented with a situation in which a defendant (Smith) argued 'that his Brady rights were violated because counsel had not been informed that the police had heard about a rumor in the community to the effect that Smith's brother was in the car with him, but that Smith himself had gone into the store to commit the robbery.'

"The court went on to comment that '[n]o doubt under Brady the state had the obligation to disclose favorable evidence to Smith. [Citation.] However, it is pretty difficult to see how the information was favorable. If it were, it was so weak, so remote, and so inconclusive that it is highly unlikely that it would have had any effect whatsoever upon the verdict, much less would it "undermine confidence in the outcome" of the trial.'

"Similarly, the initial information received by the DA in this case, also assuming its admissibility for the moment, was 'so weak, so remote, and so inconclusive that it is highly unlikely that it would have had any effect what[soever] upon the verdict, much less would it "undermine confidence in the outcome" of the trial.'

"Other cases are also helpful in this analysis.

"In U.S. v. Diaz (2d Cir. 1990) 922 F.2d 998, 1006, the court dealt with this factual scenario: 'Shortly after the end of trial, the government learned that Mario Pena, employed by the government as a full-time informant, had stolen approximately $18,000 from the government during his work in another case. Upon being informed of this fact, defendants moved for a new trial . . . contending that the government had known of Pena's theft before the end of the trial, that its failure to make that disclosure during trial violated their rights under Brady v. Maryland, and that they were entitled to a new trial at which they could use the new information to impeach Mario's testimony. . . . [T]he [trial] court denied the motion. It found that, though the government may have had suspicions, it did not have knowledge that Mario had stolen the $18,000 until after the trial had concluded. The court noted . . . that the government has no Brady obligation to ' "communicate preliminary, challenged, or speculative information," ' and concluded that there therefore had been no Brady violation here. The court also concluded that the new evidence did not warrant a new trial. . . . We find no error in these rulings.

"Similarly, here the district attorney's suspicions in early April 2012 did not warrant disclosure. Once evidence (shortly after June 29, 2012) came to his attention, the DA took steps to disclose what he then knew. What the district attorney may have suspected in April is not the same as what he knew in June.

"See also U.S. v. Erickson (10th Cir. 2009) 561 F.3d 1150, 1163: 'To establish a Brady violation, the defendant must prove that the prosecution suppressed evidence, the evidence was favorable to the defense, and the evidence was material. A Brady claim fails if the existence of favorable evidence is merely suspected. That the evidence exists must be established by the defendant.'

Similarly, in U.S. v. Amiel (2d Cir. 1996) 95 F.3d 135, 145: 'The government has no Brady obligation to " 'communicate preliminary, challenged, or speculative information.' " After investigating possible wrongdoing by Wallace, the Amiel prosecution found no evidence to support Mongelli's accusations. Pursuant to Diaz, [U.S. v. Diaz (2d Cir. 1990) 922 F.2d 998, 1006] it had no obligation to inform the defense.'

"Clearly, the law, and common sense, expects and commends the notion that it is appropriate to investigate and thus determine what, if any, evidence favorable to defendants may exist.

"The results of that investigation obviously disclosed enough information/evidence to cause Amdjadi to decide to resign from law enforcement—not surprisingly. But it is also no surprise, given the evidence of which the court is aware, that—to date—there is apparently insufficient evidence to warrant criminal prosecution of Amdjadi, despite a seemingly careful, thoughtful, and thorough investigation.

"This court, of course, does not possess all of the information that was made available to the DA and defense counsel as a result of Pitchess motion disclosures as well as the results of the DA's Penal Code section 832.7 investigation.

"However, the only clear and compelling evidence of wrongdoing by Amdjadi, of which the court has been apprised, is the result of a test of Amdjadi's hair which apparently disclosed his use of cocaine within sixty (60) days prior to June 29, 2012.

"The defense has criticized the DA and by inference, [law enforcement agencies], for not conducting the investigation regarding Amdjadi with greater thoroughness and speed.

"However, as stated by the Sheriff of Marin County in his testimony during the hearing on this motion, it was his expectation—as a long-standing member of law enforcement—that this, like most investigations by law enforcement, would be, and was, conducted as thoroughly and quickly as was reasonably possible. The court finds no reason to disagree with this assessment.

"Moreover, the lead investigator of the IA [Internal Affairs] investigation of Amdjadi was Dennis Finnegan, as to whom the testimony revealed to be a thirty-year veteran of law enforcement, and former Undersheriff of Marin County [(fn. omitted)]. The evidence presented to the court is that when Finnegan undertook the IA investigation of Amdjadi, Finnegan was then—and remains—a highly-respected and skilled independent private investigator.

"As to the defense contention of a deliberate manipulation of the scope and/or speed of the investigation of Amdjadi, this court has neither heard nor seen any evidence that any law enforcement agency. . . or the DA . . . deliberately paced the investigation in any way to benefit the district attorney or to impair the defendants' trial or due process rights.³⁸

38 In his oral ruling, Judge Boren stated: "I don't find that the District Attorney's referral of this information . . . to Novato P.D. to be nefarious, or improper, or an effort to avoid his responsibility."

"Moreover, as noted above, there is no evidence that the investigation's outcome, regardless of speed, was of any material significance at all to defendants." [¶] . . . [¶]

"This court perceives that even if the information at that time was—or later became—material, no obligation for disclosure to the defense attached to the district attorney until something beyond the initial hearsay, speculation, suspicion, and conjecture was developed from that investigation. The vantage point—hard evidence, not mere speculation—was not achieved until the results of the test of Amdjadi's hair were disclosed to [law enforcement authorities] and then shortly thereafter to the DA on or about June 29, 2012."

There followed the brief rejection of two claims made by Johnson. Judge Boren concluded his order with these words:

"This court recognizes that it has broad discretion to order a new trial whenever such a trial court is persuaded that a defendant is denied a fair and impartial trial. [Citations.] [¶] But just as clearly, a trial court cannot properly, and therefore should not, grant a motion for a new trial where such unfairness did not occur, and where granting of such motion would be unfair and anathema to the very concept of justice. It is this latter situation in which this court finds itself. [¶] As a participant in numerous trials for over forty-four (44) years as a trial lawyer and judge, this judicial officer has seen very few, if any, 'perfect' trials. The trial in this case was no different . . . it was not perfect—but it was fair, to all parties. [¶] Furthermore, in the opinion of this court, the evidence presented by the People warranted the verdicts returned by the jury. The court finds the defendants received a fair trial. This trial resulted in verdicts worthy of confidence."

Review

None of the defendants frames an argument against the first order, the one dealing with the Pitchess and discovery issues.

With respect to the ensuing substantive order, Johnson does not contest the two points he alone made. Indeed, he, and both Blays, forego advancing an independent attack, choosing instead to join the argument made by Abram. Abram's argument is essentially a point-by-point disagreement with almost the entirety of Judge Boren's order. As he states it, "[t]he key issues here are failure to make an earlier Brady disclosure during trial, as well as materiality and prejudice," and "even if Brady were not triggered during trial, the court erred in determining lack of prejudice or materiality based on the newly discovered evidence claims alone."

At the risk of repeating Judge Boren, we set out the standards for our review.

" '[T]he term "Brady violation" is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence . . . although, strictly speaking, there is never a real "Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' " . . . A defendant . . . " 'must show a "reasonable probability of a different result." ' " (People v. Salazar, supra, 35 Cal.4th 1031, 1042-1043.) " 'A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.' " (People v. Hoyos (2007) 41 Cal.4th 872, 918.)

Denials of new trial motions based on asserted Brady violations are reviewed according to the deferential abuse of discretion standard. (People v. Hoyos, supra, 41 Cal.4th 872, 917, fn. 27.) "[T]here is a strong presumption that [the trial court] properly exercised that discretion." (People v. Davis (1995) 10 Cal.4th 463, 524.) "We independently review the question whether a Brady violation has occurred, but give great weight to any trial court findings of fact that are supported by substantial evidence." (People v. Letner (2010) 50 Cal.4th 99, 176.) If the trial court makes credibility determinations, they are conclusive. (See, e.g., People v. Merriman (2014) 60 Cal.4th 1, 95 [" ' " [w]e accept the trial court's credibility determinations" ' "]; People v. Stanley (2006) 39 Cal.4th 913, 951 ["We may not substitute our reading of the 'cold transcript' . . . for the credibility determinations reached by the trial court"].)

Although the defendants' new trial motion asserted a Brady violation, it stated that it was being made pursuant to section 1181, subdivision 8, which applies "[w]hen a motion for a new trial is made upon the ground of newly discovered evidence." "In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: ' "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ' " (People v. Delgado (1993) 5 Cal.4th 312, 328.) " ' "The determination of a motion for a new trial rests so completely within the [trial] court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears." ' " (Ibid.)

Judge Boren's order(s) defeat Abram's rather conclusory attack because the orders have an interlocking and impregnable logic.

First, Judge Boren clearly believed the testimony of the prosecutor and the law enforcement officers (the Sheriff and Mr. Finnegan) in concluding that the investigation of Amdjadi's drug-related issues was "careful, thoughtful, and thorough." This in turn causes us to reject Abram's characterization that "shunting off an investigation to local police on grounds this was mere rumor or not moral turpitude conduct was no basis for delaying disclosure." And Abram has no answer to Judge Boren's reasoning against the undesirability and unfeasibility of putting the trial on hold for up to seven months while the investigation progressed.

Second, Abram has no answer to Judge Boren's conclusion that, whatever the timing, the Amdjadi investigation did not result in what was unambiguously admissible evidence.

Third, without admissible evidence there could be no impeachment of Amdjadi's credibility before the jury.

Fourth, without admissible impeaching evidence, there could be no showing of materiality.

Fifth, without admissible impeaching evidence, there could be no showing of prejudice.

All of these points were addressed by Judge Boren and resolved adversely to the defense.

Abram states "it is recognized ' "[i]mpeachment of a witness can make the difference between acquittal and conviction." ' (Abbati v. Superior Court (2003) 112 Cal.App.4th 39, 52.)" But this truism is subject to the important qualification noted by Judge Boren, namely, " 'impeachment evidence has been found to be material where the witness at issue "supplied the only evidence linking the defendant(s) to the crime" . . . .' " (People v. Salazar, supra, 35 Cal.4th 1031, 1050, italics added.)

Abram also states: "The [trial] court's view [that] this lead detective was not connected to any key evidence in the case is incorrect. Aside from early approaches to Mr. Washington, logging scene evidence, and writing search warrants [sic: search warrant applications], [Amdjadi] was intimately involved in taking appellant's DNA and (along with others) in turning up and documenting a small glove tip (the same color as police gloves) assertedly found underneath a seat cover (after the car had been left outside the impound garage for a few days)."

This appears to smack of what Judge Boren dismissed as "clever phraseology." Judge Boren said no such thing, for denying that Amdjadi was "connected" or "involved" with the prosecution's case would have been impossible and palpably incorrect. What Judge Boren concluded was that Amdjadi did not qualify as a "material" witness for Brady purposes.

Even taking Abram's argument at face value does not disprove Judge Boren's reasoning that "Amdjadi did not provide any direct evidence of any defendant's guilt. Amdjadi was not a witness to any charged crimes, nor to any other actions of any defendant. Amdjadi did not assist in taking any incriminating statements from any defendant. Moreover, most, if not all, of Amdjadi's testimony and/or investigative tasks were corroborated by other evidence or involved other witnesses. [¶] The defense has not pointed to any truly significant, pivotal, dispositive or specific evidence that had its genesis, authentication, or discovery solely at the hands of Amdjadi, and the court is aware of none." Nor does it overturn Judge Boren's cognate conclusion that defendants had failed to establish prejudice as required for a Brady violation.

In short, Abram presents no refutation of Judge Boren's conclusion that the seven types of evidence he painstakingly enumerated, "together with other items and witnesses"—which were "entirely independent of, and unconnected to Amdjadi"—"played the 'critical roles' in this case, not the testimony of Amdjadi." Our independent review (People v. Letner, supra, 50 Cal.4th 99, 176; People v. Salazar, supra, 35 Cal.4th 1031, 1042) leads us to concur with Judge Boren that Amdjadi was not "a 'critical', 'main', 'star', or 'linchpin' witness." That independent review leads us to further agree with Judge Boren that defendants did not establish that either the timing or the substance of the potentially impeaching information about Amdjadi resulted in prejudice—as that term is defined for Brady purposes—to defendants.

In light of the foregoing, we cannot conclude Judge Boren either erred in finding no Brady violation or abused his discretion in denying the new trial motions.

Cumulative Error

Defendant Larry Blay, joined by his brother, Johnson, and Abram, argues we "must reverse based on cumulative prejudice from trial errors" identified in his opening brief. We have found only two instances of error, both involving instructions on a similar point, and both of which we have determined to be harmless beyond a reasonable doubt. The cumulative error claim thus fails.

Sentencing And Remand Issues

I

Following the decision by the United States Supreme Court that the Eighth Amendment to the Federal Constitution prohibits a mandatory life without parole sentence for juvenile who commits murder (Miller v. Alabama (2012) 567 U.S. 460 (Miller)), the California Supreme Court held that the juvenile is entitled at the time of sentencing "to make a record of mitigating evidence tied to his youth," that record to be considered at the youth offender parole hearing for which the juvenile is statutorily eligible after 25 years of confinement. (People v. Franklin (2016) 63 Cal.4th 261, 269 (Franklin); see § 3051, subd. (b)(4), quoted in part V, post.)

Deandre Blay, who was 17 years old at the time of Le's murder, contends he is entitled to a limited remand for the purpose of determining whether he had "sufficient opportunity to present evidence relating to the mitigating factors of youth, as delineated in Miller and in Penal Code sections 3051 and 4801." Johnson, who was also 17, asks for the same. So does Abram, likewise 17.³⁹ The Attorney General does not oppose a remand limited to that purpose.

39 Abram and Johnson each submitted a "statement in mitigation" against imposition of an LWOP sentence.

II

Abram was the only one of the three juveniles who received a term of life without the possibility of parole. At the time he was given that sentence, "section 190.5(b) ha[d] been construed by our Courts of Appeal . . . as creating a presumption in favor of life without parole as the appropriate penalty for juveniles convicted of special circumstance murder." (People v. Gutierrez (2014) 58 Cal.4th 1354. 1360.) Our Supreme Court disapproved that presumption:

"[W]e hold that section 190.5(b), properly construed, confers discretion on a trial court to sentence a 16- or 17-year-old juvenile convicted of special circumstance murder to life without parole or to 25 years to life, with no presumption in favor of life without parole. We further hold that Miller requires a trial court, in exercising its sentencing discretion, to consider the 'distinctive attributes of youth' and how those attributes 'diminish the penological justifications of imposing the harshest sentences on juvenile offenders' before imposing life without parole on a juvenile offender. [Citation.] Because the sentencing regime created by section 190.5(b) authorizes and indeed requires consideration of the distinctive attributes of youth highlighted in Miller, we find no constitutional infirmity with section 190.5(b) once it is understood not to impose a presumption in favor of life without parole." (People v. Gutierrez, supra, 58 Cal.4th 1354. 1360-1361.)

Abram argues remand is also appropriate for this purpose. Again, the Attorney General agrees, stating, "[T]he court here probably exercised its full discretion rather than applying the disapproved presumption because it sentenced appellants Deandre Blay and Johnson to the lesser sentence and only appellant Abram to the greater sentence. But, as the Supreme Court determined in Gutierrez, appellant Abram's case should be remanded for a further sentencing hearing regarding punishment so the court can affirm or change its sentencing choice of life without the possibility of parole." This would also be our reading. We note at a later point in this opinion that the juvenile LWOP sentence has effectively been abolished, this change making the present question virtually moot. However, out of an abundance of caution, and because remand is being ordered for other reasons, the trial court should be given an opportunity to resolve this issue, explicitly on the record.

III

The following is on pages 192 and 193 of the Attorney General's brief:

"Appellants Larry Blay and Abram contend their abstracts of judgment should be corrected to indicate the sentence that was pronounced of life without possibility of parole plus one year, without an additional term of 25 years to life. (Larry AOB 121; Abram AOB 136.) Respondent agrees and notes below that the abstracts of judgment should also be corrected for appellants Deandre Blay and Johnson.

"The abstracts of judgment for appellants Larry Blay (19CT 3707) and Abram (19CT 3711) indicate they received sentences for count three of life without possibility of parole, 25 years to life, and one year for a firearm enhancement. The sentences as actually pronounced for appellants Larry Blay (110RT 15529-15533) and Abram (110RT 15533-15537) were life without possibility of parole plus one year for the enhancement. The abstracts of judgment should, accordingly, be corrected to accurately reflect the sentences orally pronounced. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)

"The abstracts of judgment for appellants Deandre Blay (19CT 3709) and Johnson (19CT (19CT 3713) also indicate they received sentences for count three of life without possibility of parole, 25 years to life, and one year for a firearm enhancement. The sentences as actually pronounced for appellants Deandre Blay (110RT 15540-15542) and Johnson (110RT 15537-15540, 15543) were 25 years to life plus one year for the firearm enhancement. Johnson also received a concurrent sentence of three years for count five (110RT 15543) that is reflected on the abstract of judgment only as 'x' (19CT 3713) and not as three years. The abstracts of judgment should, accordingly, be corrected to accurately reflect the sentences orally pronounced. (Ibid.)"

It will be so ordered.

IV

The Attorney General sets the stage for the next issue as follows: "Appellants Deandre Blay (Deandre-Supp-AOB 27-30), Abram (Abram-Second-Joinder 2), and Johnson (Johnson-Joinder 1-3) contend their cases should be remanded for determinations of their fitness to be prosecuted in juvenile court due to the passage of Proposition 57. Proposition 57 does not require a retroactive fitness determination in juvenile court. (People v. Marquez (2017) [11] Cal.App.5th [816]; People v. Mendoza (2017) 10 Cal.App.5th 327; but see People v. Vela (2017) [11] Cal.App.5th [68]; People v. Cervantes (2017) 9 Cal.App.5th 569, review granted May 17, 2017, S241323.)" The Supreme Court has now resolved the issue.

Prior to passage of Proposition 57 in November 2016, the prosecutor was allowed to file charges to have a juvenile tried as an adult, without judicial input or oversight. The Supreme Court explained the change made by Proposition 57: "Proposition 57 prohibits prosecutors from charging juveniles with crimes directly in adult court. Instead, they must commence the action in juvenile court. If the prosecution wishes to try the juvenile as an adult, the juvenile court must conduct . . . a 'transfer hearing' to determine whether the matter should . . . be transferred to adult court. Only if the juvenile court transfers the matter to adult court can the juvenile be tried and sentenced as an adult" (People v. Superior Court (Lara) 4 Cal. 5th 299, 303 (Lara).) The court held that "this part of Proposition 57 applies to all juveniles charged directly in adult court whose judgment was not final at the time it was enacted." (Id. at p. 304.) So the Attorney General is mistaken: Proposition 57 is retroactive and it does apply to the three juvenile defendants.

In Lara, after determining that Proposition 57 applied retroactively, the Supreme Court then went on to endorse a remand procedure described by this court in People v. Vela (2018) 21 Cal.App.5th 1099. (Lara, supra, 4 Cal.5th 299, ['we believe remedies like those provided in Vela . . . are readily understandable, and the courts involved can implement them without undue difficulty'].)

The remand procedure was outlined in Vela was as follows: "Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is 'not a fit and proper subject to be dealt with under the juvenile court law,' then Vela's convictions are to be reinstated. [Citation.] The court is to resentence Vela consistent within the bounds of its discretion as discussed within the following section of this opinion. On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction, then it shall treat Vela's convictions as juvenile adjudications and impose an appropriate 'disposition' within its discretion." (People v. Vela, supra, 21 Cal.App.5th 1099, 1113.)

This has become the accepted procedure, and we adopt it here.

V

As already noted, Abram was the only one of the juvenile defendants to be sentenced to a term of life without the possibility of parole. He contends this sentence, even with the youth offender parole hearing which will be held when he has served 25 years of confinement under Franklin and a recent amendment of section 3051, will still constitute "cruel and unusual punishment under Miller and the Eighth Amendment." The Attorney General responds in his supplemental brief that Franklin and the codification of youthful offender hearings moots this constitutional claim. We agree.

The Franklin court concluded a juvenile cruel and/or unusual punishment claim was mooted by statutory changes providing for "a meaningful opportunity for release during his 25th year of incarceration," but it was not an LWOP sentence. (Franklin, 63 Cal.4th 261, 279-280.) However, recent legislation has in essence abolished juvenile LWOP sentences: "A person who was convicted of a controlling offense that was committed before the person has attained 18 years of age and for which the sentence is life without the possibility of parole shall be eligible for release on parole . . . on his or her 25th year of incarceration at a youth offender parole hearing . . . ." (§ 3051, subd. (b)(4), added by Stats, 2017, ch. 684, § 1.) Abram's eligibility provides him "a meaningful opportunity for release during his 25th year of incarceration," thus making him the same as the juvenile whose cruel and unusual claim was dismissed as moot in Franklin. We note that our Supreme Court reiterated this conclusion last year. (People v. Rodriguez (2018) 4 Cal.5th 1123, 1125-1126.)

DISPOSITION

The judgments of conviction for Deandre Maurice Blay, Kevin Abram, and Sean Johnson are conditionally reversed. The causes are remanded to the Marin Juvenile Court with directions to conduct a transfer hearing in accordance with Penal Code section 707, Franklin, supra, 63 Cal.4th at pp. 283-284, and Lara, supra, 4 Cal.5th at p. 299. If, at the conclusion of the transfer hearing, the juvenile court determines that it would have transferred the respective juvenile to a court of criminal jurisdiction, the respective judgments of conviction shall be instated as of that date.

The criminal court shall determine whether each defendant had sufficient opportunity to present information relevant to his eventual offender parole hearing. (Franklin, supra, 63 Cal.4th 261, 283-284.) "If the trial court determines that [defendant] did not have sufficient opportunity, then the court may receive submissions and, if appropriate, testimony pursuant to procedures set forth in section 1204 and rule 4.437 of the California Rules of Court, and subject to the rules of evidence. [Each defendant] may place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Id.at p. 284.) The criminal court shall then conduct the resentencing for the purposes discussed in this opinion. The clerk of the criminal court is directed to prepare amended abstracts of judgment and to forward certified copies to the Department of Corrections and Rehabilitation.

If, at the transfer hearing, the juvenile court determines that it would not have transferred the respective juvenile to a court of criminal jurisdiction, the juvenile court will conduct a dispositional hearing at which it will consider the issues specified for remand or correction in this opinion. The criminal convictions and enhancements of each respective juvenile will be deemed juvenile adjudications as of that date.

The judgment of conviction for Larry Brian Blay, Jr. is affirmed. The clerk of the criminal court is directed to prepare an amended abstract of judgment in conformity with this opinion, and to forward certified copies to the Department of Corrections and Rehabilitation.

/s/_________

Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.