Filed 8/29/13 P. v. Banks CA2/2
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B236152

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA347305)
         v.

LEON BANKS et al.,

         Defendants and Appellants.




         APPEAL from judgments of the Superior Court of Los Angeles County. Gail
Ruderman Feuer, Judge. Affirmed with modifications.
         Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and
Appellant Leon Banks.
         Law Offices of Pritz & Associates and Danalynn Pritz, under appointment by the
Court of Appeal, for Defendant and Appellant Lovie Troy Matthews.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Marc A. Kohm and Peggy Z.
Huang, Deputy Attorneys General, for Plaintiff and Respondent.




                                                       ******
       Appellants Leon Banks and Lovie Troy Matthews appeal from judgments entered
against them following their convictions by jury of first-degree murder (Pen. Code,
§ 187, subd. (a), count 1),1 attempted second-degree robbery (§§ 664, 211, count 2), and
second-degree commercial burglary (§ 459, count 3). As to the murder charge, the jury
found to be true the special circumstance allegation that it was committed in the course of
committing an attempted robbery (§ 190.2, subd. (a)(17)). As to all counts, the jury also
found to be true the allegation that the offenses were committed for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)), and
the allegation that a principal personally and intentionally discharged a firearm causing
great bodily injury and death (§ 12022.53, subds. (d) and (e)). As to Banks, the jury also
found to be true the allegation that he personally used a firearm (§ 12022.53, subd. (b)).
       Appellants were sentenced to life without the possibility of parole on count 1. The
trial court imposed and stayed imposition of sentence for counts 2 and 3 pursuant to
section 654.
       Both appellants contend that the trial court erred in denying their motion to
bifurcate the trial of the gang allegations. Matthews contends there was insufficient
evidence to support his convictions for the offenses and the gang enhancement.
Matthews further contends the court erred in failing to instruct the jury on the duration of
the attempted robbery for purposes of assessing aider and abettor liability. Banks
contends the trial court erred in failing to appoint new counsel to represent him, and he
received ineffective assistance of counsel. Both appellants raise arguments about errors
in the abstracts of judgment, which the People concede.
       We agree that modifications must be made to the abstracts of judgment. Finding
no merit to appellants’ other contentions, we affirm.




1      All further statutory references are to the Penal Code unless otherwise indicated.
                                               2
                 FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
       Robbery and Homicide
       Daniel Sosa, Martin Chavero,2 Matthew Salinsky, and Noe Campos Gonzalez
worked at La Brea Collective, a medical marijuana dispensary located at 812 South
La Brea Avenue in Los Angeles. The dispensary had a metal security door that provided
access from the sidewalk. Behind the security door was a sally port, which was a secured
room separated from the lobby. When patients knocked on the door they were allowed
entry into the sally port where they were met by Gonzalez, the unarmed security guard.
On proof of proper identification and a verified medical marijuana authorization, the
patients were permitted to enter the dispensary through the lobby. Security cameras
monitored the front door, the sally port, and the lobby.
       In the afternoon of October 1, 2008, Chavero was standing by a display case on
the ground floor of the dispensary when the doorbell rang. Sosa walked towards Chavero
and pointed to the back of the dispensary. Chavero looked at the monitor and saw
Gonzalez being escorted into the lobby by two African-American males armed with
semiautomatic handguns. When Chavero heard Gonzalez say “Trucha,” which he
understood to mean “heads up,” he followed Sosa and closed the safe which was located
at the back of the dispensary.
       Salinsky was assisting a patient in the upstairs loft area when he saw a man jump
over the counter in the lobby area. Salinsky grabbed the patient and attempted to leave
but threw himself to the ground when the gunman ran up the stairs and pointed a gun at
him. The gunman was approximately six feet tall, average build, having short buzzed
hair, and wearing a white shirt and blue pants. The gunman asked “Where’s the shit at?”
Salinsky told him it was behind the counter and to take whatever he wanted.




2     Chavero was known as Martin Garcia at the time of the incident and subsequently
changed his name. We refer to him throughout as Chavero.
                                         3
       Appellant Banks grabbed Chavero by the shoulder and pulled him and Sosa to the
front area of the dispensary. Chavero turned and looked at Banks. Banks was
approximately six feet tall and had a clean-cut beard. He wore glasses and one black
glove. Banks told Chavero “If you look at me, I’ll kill you.” Banks forced Chavero and
Sosa to the ground, placed his knee on Chavero’s back, and attempted to put a zip-tie on
Chavero’s wrist. Chavero heard two gunshots and Banks said “Shit, we got to go. We
got to go.” Banks ran to the lobby.
       Chavero looked at the monitor and saw Banks and two other men3 in the sally port
struggling to push their way out the front door. There was a glass window to the side of
the sally port and Banks came back inside the lobby area and fired some shots through
the window. Banks and the two other men were able to push their way outside and
Chavero heard six or seven additional gunshots.
       James Hustead was at a coffee shop on South La Brea Avenue located diagonally
across the street from the dispensary when the shooting occurred. He saw Gonzalez
standing outside pushing the metal security door closed, while it was being pushed open
from the inside. Gonzalez reached his hand around the door to the inside. Banks reached
his left hand outside and fired a shot at Gonzalez. As Gonzalez fell backwards, Banks
stepped from behind the door and fired three or four shots at Gonzalez. The last shot
fired by Banks hit Gonzalez in the head. Banks, David Gardiner, and Brandon Daniels,
ran northbound on La Brea Avenue and then eastbound on 8th Street. Hustead described
Banks as the tallest of the three men. He wore a brown shirt, a baseball cap and had
facial hair.
       At approximately 3:45 p.m., Robert Simmons was driving southbound on La Brea
Avenue just south of 8th Street when he heard some popping sounds. Simmons slowed
down and looked to his left where he saw two men pushing back and forth on a door.
Both men had guns and were trying to reach around the door to shoot at each other.


3      Banks’s companions were later identified as David Gardiner, arrested in July
2009, and Brandon Daniels, arrested in March 2010. They are not parties to this appeal.
                                           4
Simmons saw Banks’s profile when he was directly across from him. Banks was wearing
a jacket, jeans, and some form of head wrap. Simmons pulled over to the side. He
looked back and saw Gonzalez lying on the sidewalk.
      Petar Todorovic was in his apartment on South Sycamore Avenue, which was one
block east of and parallel to La Brea Avenue, when he heard gunshots. He saw Banks
and Gardiner run into a driveway by his building where they stopped briefly and spoke to
each other. Todorovic described Banks as having a beard, wearing a hat and a brown
shirt. Gardiner was short and wore cornrows. Banks then jumped over a fence and
continued to run eastbound. Gardiner waited a few seconds and then ran southbound on
South Sycamore Avenue.
      Dominic Agbabiaka was standing on the sidewalk on South Sycamore Avenue
about the middle of the block between 8th and 9th Streets. Daniels, who was running
southbound on South Sycamore Avenue, crossed the street and asked Agbabiaka if he
could use the restroom inside the house. Daniels appeared excited and nervous.
Agbabiaka refused and Daniels stayed there for a moment “looking blank like he was
confused.” A gray Ford Expedition (SUV) came around the corner from 9th Street. The
SUV had paper license plates that had the word “Power” on them, and was travelling fast
for a residential street. As the SUV approached, Daniels screamed “Troy, Troy.” The
SUV slowed down but did not completely stop. Gardiner ran across the street and he and
Daniels jumped inside the SUV. The SUV sped off and turned eastbound on 8th Street.
      Police Investigation
      At approximately 3:50 p.m., Los Angeles Police Department (LAPD) Sergeant
Elizabeth Ellis and Officer Gregory Whorton responded separately to a robbery in
progress call at La Brea Collective. Gonzalez was lying on the sidewalk. Officer Ellis
recovered a revolver with the hammer cocked that was on the ground near Gonzalez’s
outstretched arm.
      Police officers set up a perimeter around the area within minutes of the shooting
and Officer Whorton was directed to a location near 8th Street and South Orange Drive,

                                           5
less than two blocks from the dispensary. Banks was walking northbound on South
Orange Drive and was detained by Officer Whorton. He had a beard and was wearing a
tan shirt and a baseball cap. Later that afternoon, LAPD Officer Keith Gonzales and his
partner were at South Mansfield Avenue and 8th Street, one block east of South Orange
Drive, when an SUV with “Power” license plates drove by. Officer Gonzales followed
the SUV and made a traffic stop a few blocks away. Matthews was the only occupant of
the vehicle and was taken into custody. The SUV was registered to Banks and another
person, and clothing belonging to Banks was found inside.
       LAPD Detective John Shafia arrived after Sergeant Ellis and found a single black
glove and bullet casings on the sidewalk. There were bullet holes in the walls, windows,
and doorjamb. Inside the lobby, Detective Shafia found two zip ties connected together,
and 10 shell casings ejected from a nine-millimeter automatic weapon. A bullet fragment
was recovered from inside the dispensary, and additional bullet fragments were recovered
from a store next door and from a business located across the street. There were
surveillance cameras throughout the building but the recording equipment was unable to
play any video depicting the incident.
       Later that day, Chavero identified Banks at a field show up as one of the robbers
who had a gun. He told the police that Banks had worn either one glove or a pair of
gloves. Chavero also identified Banks in court as one of the assailants at the dispensary.
Chavero did not see the face of the other robbers but said one of them had cornrows.
Both Simmons and Hustead identified Banks at a field show up and in court as the person
who fired shots at Gonzalez. Agbabiaka identified Daniels as the individual who asked
to use the restroom, and he also identified the SUV as the vehicle Daniels and Gardiner
got into on South Sycamore Avenue.
       Gonzalez sustained a fatal gunshot wound to his left temple and a second
potentially fatal gunshot wound to his left shoulder. A bullet fragment was removed
from Gonzalez’s shoulder during the autopsy and booked into evidence.



                                             6
       On October 2, 2008, LAPD Officer Javier Hernandez found a photocopy of a
physician’s statement and recommendation form for medical marijuana use. The
document was by the door of the lobby area of the dispensary. The bottom of the
statement contained a photocopy of a driver’s license with a photograph of Banks.
       Over the next couple of days Detective Shafia went through the area near the
dispensary believed to be the escape route. He interviewed neighbors and went through
the yards. On October 7, 2008, LAPD Detective Kurt Wong and a team of police officers
searched the area near the dispensary. Detective Wong found some black plastic zip ties,
a semiautomatic handgun, a gun holster, and gloves in the bushes near the front porch of
a house on South Orange Drive.
       Forensic Evidence
              DNA
       Detective Shafia obtained DNA samples from Banks, Matthews, Gardiner, and
Daniels and sent them to the DNA laboratory for analysis. Lindsey Murray, a DNA
analyst with Bode Technology, testified that Banks’s DNA profile matched the DNA
from the pair of gloves recovered from the bushes on South Orange Drive. The statistical
analysis of the likelihood that Banks was a major contributor was one in 83 quintillion in
the African-American population. The DNA from the two zip ties found at the
dispensary matched Gardiner. Gardiner was also the major contributor to the DNA
sample taken from the glove found at the dispensary.
              Fingerprints
       Larry Peelen, a forensic print specialist with the LAPD, examined latent
fingerprints that were obtained from the physician’s statement found inside the
dispensary. Peelen testified that one of the prints lifted from the back of the physician’s
statement was Banks’s print. A print taken from the inside of the front metal security
door matched a left palm print obtained from Daniels.




                                             7
              Ballistics
       LAPD criminalist Fadil Biraimah conducted testing on the revolver, the expended
casings found at the crime scene, and the semiautomatic handgun recovered from the
bushes near the dispensary. The semiautomatic handgun was a nine-millimeter Glock,
and Biraimah testified it was the weapon that fired the casings found at the dispensary.
       Cell Phone and Global Positioning Satellite (GPS)
       Detective Shafia recovered a black Motorola cell phone from Banks and a red
T-Mobile cell phone from Matthews. Cell phone records pertaining to the date of the
offense were obtained for both cell phones. Eric Tyrell, a custodian of records working
for Sprint Nextel, provided testimony regarding the records for the cell phone recovered
from Matthews. On October 1, 2008, Matthews made six outbound calls to the phone
recovered from appellant Banks. The first call was at 2:53 p.m. and lasted 24 seconds.
The second call was at 3:46 p.m. and lasted 32 seconds. The third call was at 3:49 p.m.
and lasted 49 seconds. The fourth call was at 3:51 p.m. and lasted 48 seconds. The fifth
was made at 3:53 p.m. and lasted 31 seconds, and the sixth and last call was made at
3:56 p.m. and lasted 37 seconds. Matthews received three incoming calls from Banks.
The first call was at 1:49 p.m. and lasted 19 seconds. The second call was at 3:44 p.m.
and lasted 20 seconds, and the third call was at 3:58 p.m. and lasted 20 seconds. None of
the incoming calls to Matthews’s cell phone were sent to a voice mail.
       The parties stipulated that Matthews was wearing a GPS device on the date of the
incident which was unique to him and tracked his movement. The device captured his
location by latitude and longitude within 15 meters of the exact location. Daniel
Ramirez, an expert in GPS systems, testified as to Matthews’s movements. On
October 1, 2008, at approximately 2:51 p.m., Matthews was at the intersection of La Brea
and 8th Street (near the dispensary). At 3:00 p.m., the GPS showed Matthews at South
Mansfield Avenue, three blocks from the dispensary, where he remained for
approximately 45 minutes. At 3:46 p.m., Matthews traveled from South Mansfield
Avenue to 9th Street, then proceeded north on South Sycamore Avenue, and onto

                                             8
8th Street. The GPS showed Matthews made a number of other stops at various locations
within a few blocks of the dispensary.
       Gang Evidence
       LAPD Officer James Moon testified as a gang expert. He received general gang
training at the academy. He worked patrol where he came in contact with gang members
and was familiar with “gang dress, gang paraphernalia, gang tattoos, their territories,
. . . their rivals, who they get along with, graffiti, the specific type of gang crimes, gang
motives.” He was familiar with the Rollin 30’s Harlem Crips (Rollin 30’s) and provided
training for the Los Angeles County Sheriff’s Department regarding that particular gang.
There were approximately 750 members of the Rollin 30’s gang. Their primary criminal
activities included narcotics sales, burglaries, robberies, shootings, attempted murders,
murders, and gun possession. Officer Moon testified to the commission of two predicate
crimes committed by members of the Rollin 30’s. Yuhri Duddly was convicted of
possession of a firearm by a felon in 2007, and Jerry Tyronne Phillips was convicted of
possession of a concealed weapon in 2007. Officer Moon was personally familiar with
both Duddly and Phillips and both admitted to him that they were members of the Rollin
30’s gang.
       Members of the Rollin 30’s wore blue or brown clothing because they were
members of the Crips. They also had common tattoos on their bodies consisting of the
numbers three and zero, the word “Harlem,” and the letters “DG,” which stand for Dirt
Gang, a nickname for the Rollin 30’s gang.
       Officer Moon opined that Matthews was a member of the Rollin 30’s based on
several factors. First, Matthews had the word “Harlem” tattooed on his chest. Second,
LAPD Officer Severns informed Officer Moon that he stopped Matthews on
December 15, 2004. During that stop, Matthews, who used the moniker “Big Boy,”4


4      Matthews was also known by the moniker “Troy,” which was his middle name.
Officer Moon testified that it was common for gang members to claim one moniker when
talking to police and another when talking to fellow gang members.
                                             9
self-admitted his gang affiliation with the Rollin 30’s. Third, Matthews self-admitted
being a member of the Rollin 30’s on two separate occasions in 2004 and 2007 to Officer
Moon’s former partner, LAPD Officer Zavala. Finally, Matthews lived within the
territory claimed by the Rollin 30’s.
       Officer Moon opined that Gardiner was also a member of the Rollin 30’s and
belonged to the 37th Street clique, with the moniker “Little Bronx.” His opinion was
based on Gardiner’s gang tattoos, which included a “DGCC” tattoo on his neck
signifying the “Dirt Gang Crip,” a “Rich Rollin 30’s” tattoo on his forearm, and a
“37th Street” tattoo under his right eye. Officer Moon also testified that he saw
photographs of Gardiner flashing gang signs affiliated with the Rollin 30’s.
       Officer Moon based his opinion that Daniels was a member of the Rollin 30’s on a
number of factors. Daniels admitted to being a member of the Rollin 30’s during
numerous contacts with LAPD officers Gingras, Marshall, and Zavala. He sported a
number of tattoos including a “Harlem Love” tattoo on his chest and a “37” on his left
arm, which indicated his particular clique within the Rollin 30’s. He also had an “OHC”
tattoo on his abdomen, which Officer Moon testified stood for Original Harlem Crips.
Daniels went by the moniker “Big Bronx” and a 2006 police report indicated that Daniels
etched the Rollin 30’s name and his moniker on a metal door.
       Responding to a hypothetical question based on the facts of this case, Officer
Moon opined that the crimes were committed in association with the Rollin 30’s criminal
street gang because there were several individuals from the same gang working together
in the commission of the crime, and a Rollin 30’s gang member would not have
committed the crime with a nongang member. Money gained from the robbery would be
distributed among the gang members and also used within the community to recruit new
gang members. Each gang member was expected to put in work for the gang, and the
robbery also benefitted the gang and instilled fear in the community by showing the gang
was active and willing to commit violent crimes. Officer Moon described how the gang
culture involved respect and how gangs achieved their power through fear and

                                            10
intimidation. The dispensary was not within the Rollin 30’s territory but it was common
for gang members to go into other areas to commit assaults and shootings to claim new
territory.
Banks’s Defense Case5
       Banks challenged the prosecution’s identification evidence by presenting
testimony by an eyewitness identification expert. Robert Shomer, Ph.D., described the
various factors that reduce the accuracy of an identification, including life-threatening,
unexpected and traumatic circumstances, age and racial differences between the
eyewitness and the perpetrator, the manner in which the identification procedure is
conducted, and the precision of the eyewitness’s initial description. According to
Dr. Shomer, the more stressors present the more difficult it is to later identify a person.
He opined that a field show up was inherently suggestive and witnesses often believed
they were confirming the police officer’s choice.
       Banks also presented testimony from an eyewitness to the shooting. On October
1, 2008, Juan Renteria was working at the Firestone Tire Center adjacent to the
dispensary. He heard a sound that resembled a backfire and walked towards the
sidewalk. He saw a gunman, who was approximately 5 feet 4 inches tall with curly hair,
shoot Gonzales. He did not get a good look at the other two men. He stated that Banks
was not one of the men he saw that day.
                                      DISCUSSION6
I.     Bifurcation of Gang Enhancement
       Appellants contend the trial court abused its discretion by refusing to bifurcate the
gang enhancement from the trial of the substantive offenses.



5      Matthews did not present any evidence on his own behalf.

6       Both Banks and Matthews join arguments of the other to the extent they may inure
to their benefit (Cal. Rules of Court, rule 8.200(a)(5)). We discuss each argument in
reference to the appellant asserting it.
                                              11
       A.     Background
       At the preliminary hearing, LAPD Officer Brian Zavala testified as a gang expert.
Officer Zavala testified that Matthews, along with Daniels and Gardiner, belonged to the
Rollin 30’s gang and that Banks belonged to the Rollin 60’s gang. Prior to trial, Banks
moved to bifurcate the trial on the gang allegation. Matthews joined. Appellants argued
the introduction of gang evidence was prejudicial and had no relevance to guilt on the
underlying charges and served only to sway the jury to convict. The prosecutor argued
the gang evidence was relevant to show that the primary activities of appellants’ gangs
established motive, and that gang members committed crimes with each other. It was
also relevant to show that Matthews had knowledge of the plan to commit the robbery
because he belonged to the same gang as Daniels and Gardiner. The court stated it had
read the entire preliminary hearing transcript and noted the prosecution intended to use a
different gang expert at trial. The prosecution stated it anticipated Officer Moon’s
testimony would be “very similar” to Officer Zavala’s and would “coincide with [the
prosecution’s] theory of the case that was presented at the preliminary hearing as to the
gang allegation.”
       The court denied the motion. While acknowledging the crime did not have the
indicia of gang involvement common to other gang cases, the court believed the gang
evidence was probative as circumstantial evidence that Matthews and two of the other
perpetrators were members of the same gang. The court also found the gang evidence
was probative on the issue of motive which the prosecution was allowed to show.
Referring to Officer Zavala’s testimony at the preliminary hearing, the court stated “there
was testimony that there is a relationship between the Rollin 30’s and the Rollin 60’s and
that they are friendly to each other, that one of the crimes that they carry out is a robbery,
. . . how gangs often use crews, people who work together well, to carry out a robbery.
So with respect to motives to carry out the robbery, it would be relevant as well as to both
Mr. Matthews and Mr. Banks.”



                                              12
       The trial court noted that evidence that a defendant is a gang member can be
prejudicial, but indicated it would give an instruction limiting the jury’s consideration of
the evidence. Unlike a drug case where gang evidence is particularly inflammatory, the
court stated that the gang evidence here would not be much more inflammatory than the
testimony connecting appellants to a murder committed during a robbery.
       In its opening statement the prosecution told the jury that a gang expert would
testify that one of the primary activities of the Rollin 30’s was robbery; that Matthews,
Daniels, and Gardiner were members of the Rollin 30’s gang; that Banks was not a
member of the Rollin 30’s gang but a member of the Rollin 60’s gang; and, that both
gangs “hung out” together and “got along.”
       Before the gang expert testified, the court held an Evidence Code section 402
hearing regarding Officer Moon’s testimony as a gang expert. The court issued a number
of rulings with regard to the scope of Officer Moon’s testimony. The court found that
Officer Moon had “sufficient background, training and expertise and experience with
respect to the Rollin 30’s to testify as a gang expert.” While the court found that Officer
Moon had the necessary experience to testify regarding the relationship between the
Rollin 30’s and the Rollin 60’s, he could not testify as an expert on the Rollin 60’s, nor
could he opine that Banks was a member of the Rollin 60’s.
       B.     Standard of Review
       The denial of a motion to bifurcate the trial of a gang enhancement is reviewed for
abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1050.) In a case with
allegations pursuant to the gang benefit enhancement statute, a unitary trial is permitted
even if the evidence offered to prove the enhancement might be ruled inadmissible at trial
of the substantive crime itself, for example, if some of it might be excluded under
Evidence Code section 352 as unduly prejudicial. (People v. Hernandez, supra, at
p. 1050.) In this context, a trial court abuses discretion when the denial of bifurcation
“would pose a substantial risk of undue prejudice to the defendant.” (See People v.



                                             13
Calderon (1994) 9 Cal.4th 69, 77, 78 [prior conviction allegations]; People v. Hernandez,
supra, at pp. 1048–1050.)
       C.     Analysis
       In this case, the gang evidence was intertwined with the substantive offenses. The
gang evidence was relevant to show motive for the substantive crime of robbery during
which the murder occurred. Moreover, the concept of “undue prejudice” within the
meaning of Evidence Code section 352 is not so sweeping as to include any evidence the
opponent finds inconvenient. Evidence is not prejudicial under section 352 merely
because it undermines the opponent’s position or shores up that of the proponent.
(People v. Branch (2001) 91 Cal.App.4th 274, 286.)
       Evidence that criminal street gangs, such as the Rollin 30’s, benefit from robberies
committed by gang members so they could recruit other gang members and work
together for the benefit of the gang, was highly probative on the issue of motive and not
unduly prejudicial. With respect to Matthews, the evidence was also probative on the
issue of identity to show Matthews was participating in a crime with two fellow gang
members; explained why he was driving Banks’s SUV; and why he picked up Daniels
and Gardiner at the scene of the crime.
       As to Banks, based on the record before the court at the time the motion was
made, the court was entitled to credit the prosecution’s position that evidence would be
presented to show that Banks was a member of the Rollin 60’s, a gang that was known to
work together with the Rollin 30’s, thereby establishing Bank’s identity and intent as a
participant in the underlying offenses. It is not determinative that evidence was not
presented to the jury as to Banks’s gang membership. (People v. Romo (1975) 47
Cal.App.3d 976, 984–985, disapproved on another point in People v. Bolton (1979) 23
Cal.3d 208, 213–214 [the existence of abuse of discretion in denying a motion to sever
must be determined as of the showing when the motion is made, and not by later revealed
circumstances].)



                                            14
       The court denied a pretrial motion for separate trials, ruling the trial of appellants
Banks and Matthews was appropriately joined. As the evidence was properly admitted to
establish Matthews’s guilt of the charged crimes, it was, therefore, appropriate to
introduce it during the joint trial. The evidence showed that Banks associated with
dangerous and violent men because Matthews was driving a vehicle registered to Banks.
Therefore, the evidence that the three other participants in the robbery and murder were
gang members did not have a strong tendency to bias the jury against Banks.
Furthermore, prior to Officer Moon’s testimony, the jury was instructed that the gang
evidence could be considered only for the limited purpose of determining whether the
defendants acted with the intent, purpose, and knowledge that was required to prove the
charged gang enhancement. We see nothing in the record to suggest that the jury
considered the gang evidence for an improper purpose, and we presume the jury followed
the limiting instruction. (See People v. Waidla (2000) 22 Cal.4th 690, 725.)
       We reject Banks’s contention that the “sheer volume of gang evidence was grossly
disproportionate to its relevance and purpose.” Officer Moon’s testimony regarding gang
culture was necessary to provide the jury with information explaining why gang members
commit crimes together and outside their gang territory. According to our review of the
transcripts, the prosecution’s questions were direct and Officer Moon’s responses were
factual and succinct.7 Again we note that Officer Moon followed the court’s rulings
regarding the scope of his testimony and focused solely on the Rollin 30’s and the
involvement of Matthews, Daniels, and Gardiner. There was no testimony regarding the
activities of the Rollin 60’s or Banks’s gang membership.
II.    Substantial Evidence Supports Appellant Matthews’s Convictions
       Appellant Matthews contends the evidence was insufficient to sustain the
convictions. Specifically, he argues that he did not know Banks, Gardiner, and Daniels


7      Banks points out that Officer Moon’s testimony comprised over 100 pages of
reporter’s transcript. Officer Moon’s direct testimony consumed less pages of transcript
than the cross-examination by defense counsel.
                                            15
were going to commit a robbery and that the evidence establishes that he was an
accessory after the fact. We disagree.
       When an appellant challenges the sufficiency of the evidence to support a
conviction, “we review the entire record in the light most favorable to the judgment to
determine whether it discloses evidence that is reasonable, credible, and of solid value
such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We “‘“presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the
evidence.””’ (People v. Davis (1995) 10 Cal.4th 463, 509.) We draw all reasonable
inferences in support of the judgment. (People v. Pensinger (1991) 52 Cal.3d 1210,
1237.) “An inference is not reasonable if it is based only on speculation.” (People v.
Holt (1997) 15 Cal.4th 619, 669.)
       The same standard applies when the conviction rests primarily on circumstantial
evidence. (People v. Perez (1992) 2 Cal.4th 1117, 1124.) Although it is the jury’s duty
to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable
interpretations, one of which suggests guilt and the other innocence, it is the jury, not the
appellate court that must be convinced of the defendant’s guilt beyond a reasonable
doubt. (Ibid.) ‘“If the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment. [Citation.]’”
(People v. Thomas (1992) 2 Cal.4th 489, 514.) Applying this standard, appellant
Matthews’s argument fails to persuade us that reversal of the convictions is warranted.
       A.     Attempted Robbery and Burglary Under Aiding and Abetting Theory
              1.     Relevant Authority
       A person aids and abets a crime when he or she commits, encourages or facilitates
its commission with knowledge of the unlawful purpose of the perpetrator and the intent
or purpose of committing, encouraging, or facilitating the offense. (People v. Beeman
(1984) 35 Cal.3d 547, 560–561.) No particular factor is dispositive in establishing

                                             16
knowledge and intent; the court must look at the totality of the circumstances. (People v.
Medina (2009) 46 Cal.4th 913, 922.) “Among the factors which may be considered
. . . are: presence at the scene of the crime, companionship, and conduct before and after
the offense.” (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094; see also In re Juan G.
(2003) 112 Cal.App.4th 1, 5.)
       “Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.) An attempted robbery requires the specific intent to commit
robbery and a direct yet ineffectual act that went beyond mere preparation toward its
commission. (People v. Lindberg (2008) 45 Cal.4th 1, 24.) A defendant’s intent is rarely
susceptible of direct proof and may be inferred from the facts and circumstances
surrounding the offense. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1207–1208.)
       Section 459 provides that, “[e]very person who enters any house, room, apartment,
tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent,
vessel, . . . with intent to commit grand or petit larceny or any felony is guilty of
burglary.” Thus, “the substantive crime of burglary is defined by its elements as:
(1) entry into a structure, (2) with the intent to commit theft or any felony.” (People v.
Anderson (2009) 47 Cal.4th 92, 101.) The crime is complete when the defendant enters
one of the statutorily specified premises with the intent to steal something or commit any
felony; a burglary can be committed without an actual taking of property. (People v.
Magallanes (2009) 173 Cal.App.4th 529, 535–536.)
       If a defendant’s liability for an offense is predicated upon the theory that he or she
aided and abetted the perpetrator, the defendant’s intent to encourage or facilitate the
actions of the perpetrator “must be formed prior to or during ‘commission’ of that
offense.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
              2.      Analysis
       We reject Matthews’s contention that the evidence supports a conviction only for
accessory after the fact. Matthews minimizes his involvement and argues that the

                                              17
individual acts of driving Banks, Daniels and Gardiner to the dispensary and then waiting
approximately 45 minutes, is not evidence that Matthews shared their criminal intent, and
the attempted robbery and burglary were complete by the time he helped Daniels and
Gardiner escape.
       But, substantial evidence permitted a reasonable inference that Matthews acted
with the intent to facilitate the actions of Banks, Gardiner, and Daniels, prior to, during,
and after the commission of the attempted robbery and burglary of the dispensary.
Matthews’s theory requires us to ignore the significance of the following facts. Matthews
received a call on his cell phone from Banks at 1:49 p.m. on the day in question. At
2:51 p.m., while driving an SUV registered to Banks, a GPS tracking device placed him
at the intersection of 8th Street and La Brea, in the immediate vicinity of the dispensary.
Matthews then drove three blocks and parked on South Mansfield Avenue. At 2:53 p.m.
he placed a call to Banks’s cell phone. Matthews remained parked three blocks from the
dispensary for approximately 45 minutes. Around the same time witnesses reported the
shooting at the dispensary,8 two more cell phone calls occurred between Matthews and
Banks. Matthews then drove the SUV to South Sycamore Avenue, one block from the
dispensary, where Gardiner and Daniels were waiting for him. Daniels yelled “Troy,
Troy,” which was Matthews’s moniker and also his middle name. Matthews slowed
down allowing Daniels and Gardiner to get into the SUV before he sped off. Five more
calls in rapid succession took place between Matthews and Banks prior to Banks being
arrested within blocks of the dispensary. When Matthews was arrested later that same
day, he was still driving the SUV registered to Banks.
       The jury was instructed that if two reasonable conclusions arise from
circumstantial evidence, it must accept the conclusion that points to innocence. But the
jury was also instructed that it must accept only reasonable conclusions and reject any


8     Todorovic, who lived one block from the dispensary, heard gunshots; Simmons
saw Banks shoot Gonzalez at approximately 3:45 p.m.; and, police officers responded at
approximately 3:50 p.m. to the crime scene.
                                           18
that are unreasonable. While we may speculate about any number of scenarios that may
have occurred on the day in question, a finding of fact must be based on an inference
drawn from the evidence. (People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on
other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543–544, fn. 5.)
       Based on the foregoing evidence, a jury could reasonably conclude that Matthews
discussed the robbery and burglary prior to driving to the dispensary and acted as the
getaway driver. Therefore, Matthews formed the intent to help Banks, Daniels, and
Gardiner get away before cessation of the acts constituting the felonies, which constituted
aiding and abetting. (In re Malcom M. (2007) 147 Cal.App.4th 157, 171.)
       B.     First Degree Felony Murder
              1.       Relevant Authority
       “In California, the first degree felony-murder rule ‘is a creature of statute.’
[Citation.] When the prosecution establishes that a defendant killed while committing
one of the felonies section 189 lists, ‘by operation of the statute the killing is deemed to
be first degree murder as a matter of law.’” (People v. Mendoza (2000) 23 Cal.4th 896,
908.) Pursuant to Section 189, the list of felonies includes attempted robbery and
burglary. “With respect to any homicide resulting from the commission of or attempt to
commit one of the felonies listed in the statute, our decisions generally hold section 189
to be not only a degree-fixing device but also a codification of the felony-murder rule: no
independent proof of malice is required in such cases, and by operation of the statute the
killing is deemed to be first degree murder as a matter of law.” (People v. Dillon (1983)
34 Cal.3d 441, 465.)
       ‘“All persons concerned in the commission of a crime, . . . whether they directly
commit the act constituting the offense, or aid and abet in its commission, . . . are
principals in any crime so committed.’ (§ 31.) Accordingly, an aider and abettor ‘shares
the guilt of the actual perpetrator.’” (People v. Mendoza (1998) 18 Cal.4th 1114, 1122.)
As such, all persons aiding and abetting the commission of an attempted robbery are
guilty of first degree murder “when one of them kills while acting in furtherance of the

                                             19
common design.” (People v. Washington (1965) 62 Cal.2d 777, 782; §§ 31, 189; People
v. Dillon, supra, 34 Cal.3d at p. 465.)
        Conviction as an aider and abettor requires a showing that the defendant acted
with “knowledge of the perpetrator’s criminal purpose and the intent or purpose of
committing, encouraging, or facilitating the commission of the target offense.” (People
v. Mendoza, supra, 18 Cal.4th at pp. 1118, 1123.) ‘“The logical basis for conviction as
an aider and abettor is that with knowledge of the unlawfulness of the act, one renders
some independent contribution to the commission of the crime or otherwise makes it
more probable that the crime will be successfully completed than would be the case
absent such participation. [Citation.]’” (People v. Markus (1978) 82 Cal.App.3d 477,
481.)
              2.      Analysis
        Matthews contends the evidence was legally insufficient to prove he aided and
abetted the commission of felony murder. However, as discussed above, the record
contained reasonable, credible and solid evidence to support the jury’s finding that
Matthews knowingly aided and abetted Banks, Gardiner, and Daniels before the
attempted robbery and burglary of the dispensary began, and that an accomplice of
Matthews killed Gonzalez in the commission of the attempted robbery.
        Additionally, under the escape rule, the crimes of attempted robbery and homicide
were ongoing because Daniels and Gardiner were “in flight” and had not reached a “place
of temporary safety” when they ran to the next block and waited for Matthews to pick
them up. (People v. Cavitt (2004) 33 Cal.4th 187, 208.) The police were on the scene
and setting up a perimeter within moments of the shooting, therefore Daniels and
Gardiner had not effected an escape until assisted by Matthews.
        C.    Special Circumstance Finding
              1.      Relevant Authority
        A felony-murder special circumstance is applicable to a defendant who is not the
actual killer if the defendant, either with the “intent to kill” (§ 190.2, subd. (c)), or “with

                                               20
reckless indifference to human life and as a major participant, aids, abets, counsels,
commands, induces, solicits, requests, or assists in the commission of a felony
enumerated in paragraph (17) of subdivision (a) which results in the death of some person
or persons.” (§ 190.2, subd. (d).) “‘[R]eckless indifference to human life,’” as used in
this context, means “subjective awareness of the grave risk to human life created by his
or her participation in the underlying felony.” (People v. Estrada (1995) 11 Cal.4th 568,
578.)
              2.     Analysis
        Matthews argues that he was not a major participant and did not act with the
requisite reckless indifference to human life. As established in part II.A., ante, we
believe the evidence was sufficient to show that the jury found that Matthews aided and
abetted the attempted robbery and burglary prior to Gonzalez’s death to sustain his first
degree murder conviction. Matthews did not play a “minor role,” as he asserts, but was a
major participant in the crimes. Matthews drove Banks’s car to the location, parked a
few blocks away and waited for the signal to pick up his fellow perpetrators. He had a
“‘notable or conspicuous’” role in the commission of the underlying felonies. (People v.
Proby (1998) 60 Cal.App.4th 922, 930–931.)
        With advance knowledge of the planned robbery and burglary, Matthews had to be
aware of the risk of resistance and the extreme likelihood that death could result. Banks,
Daniels, and Gardiner anticipated as much because they were armed. Evidence was
introduced at trial that Matthews belonged to the Rollin 30’s—as did Daniels and
Gardiner. This was a gang with a history of violence and was known for possessing guns
and committing robberies, shootings, and murders.
        Contrary to Matthews’s assertion, the prosecution did not have to show that
Matthews acted with an intent to kill. In Tapia v. Superior Court (1991) 53 Cal.3d 282,
the Supreme Court explained that subdivision (d) of section 190.2 is the result of
Proposition 115, the “Crime Victims Justice Reform Act,” effective June 6, 1990. (Tapia
v. Superior Court, supra, at pp. 286, 297–298.) Prior to the adoption of this provision, in

                                             21
order for a felony-murder special-circumstance allegation to be found true as to a
defendant who was “an aider and abetter rather than the actual killer, intent [to kill] must
be proved.” (People v. Anderson (1987) 43 Cal.3d 1104, 1147.) Proposition 115
eliminated the requirement of intent to kill as an element of the felony-murder special
circumstance with respect to an aider and abettor. As a result, a defendant found guilty of
felony murder but who is not the actual killer may be subjected to capital punishment or
life in prison without possibility of parole in accordance with subdivision (d) of
section 190.2 “which provides that an accomplice, for a felony-murder special
circumstance to be found true, must have been a major participant [in the underlying
felony] and have acted with reckless indifference to human life . . . .” (Tapia v. Superior
Court, supra, at p. 298.) Subdivision (d) of section 190.2 “brings state law into
conformity with Tison v. Arizona (1987) 481 U.S. 137, 158, and, thus, changes state law
to the detriment of defendants.” (Tapia v. Superior Court, supra, at p. 298, fn. 16.)
       Matthews analogizes his situation to that of the defendant in Enmund v. Florida
(1982) 458 U.S. 782 (Enmund), but his reliance is misplaced. In that case, two persons
robbed and killed an elderly couple at their farmhouse. Enmund was the getaway driver
and, at the time of the crimes, was sitting in a car some 200 yards away. (Id. at pp. 783–
786.) In reversing Enmund’s death sentence, the United States Supreme Court stated:
“The question before us is not the disproportionality of death as a penalty for murder, but
rather the validity of capital punishment for Enmund’s own conduct. The focus must be
on his culpability, not on that of those who committed the robbery and shot the victims,
for we insist on ‘individualized consideration as a constitutional requirement in imposing
the death sentence,’ [citation], which means that we must focus on ‘relevant facets of the
character and record of the individual offender.’ [Citation.]” (Id. at p. 798.)
       Enmund does not assist Matthews. First, it concerns the proportionality of a
sentence of death. Matthews received a sentence of life without the possibility of parole.
Moreover, Enmund predates the United States Supreme Court’s decision in Tison v.
Arizona (1987) 481 U.S. 137, in which the high court concluded Enmund did not

                                             22
preclude imposition of the death penalty on those who, while not the actual killers, were
found to have been major participants and to have acted with reckless indifference to
human life. (Tison, supra, at p. 158.)
       D.     Gang Enhancement
              1.     Contentions
       Matthews contends the gang enhancement was not supported by substantial
evidence. He argues that there was no evidence the crimes were “gang-related,” or that
he committed them “with the specific intent to aid gang members, as opposed to
committing the crimes for personal reasons unrelated to a gang.”
              2.     Relevant Authority
       A gang enhancement finding is reviewed under the substantial evidence standard.
(People v. Ochoa (2009) 179 Cal.App.4th 650, 657 (Ochoa).) To establish a gang
enhancement, the prosecution must prove two elements: (1) that the crime was
“committed for the benefit of, at the direction of, or in association with any criminal
street gang,” and (2) that the defendant had “the specific intent to promote, further, or
assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).) The
crime must be “‘gang related.’” (People v. Gardeley (1996) 14 Cal.4th 605, 622, 625,
fn. 12; People v. Castaneda (2000) 23 Cal.4th 743, 745 [gang enhancement statute
“increases the punishment for some gang-related crimes”]; People v. Mendez (2010) 188
Cal.App.4th 47, 56 [gang enhancement statute “applies when a crime is gang related”].)
A defendant’s mere membership in the gang does not suffice to establish the gang
enhancement. (People v. Gardeley, supra, at pp. 623–624.) Rather, ‘“[t]he crime itself
must have some connection with the activities of a gang.’” (In re Frank S. (2006) 141
Cal.App.4th 1192, 1199.) “[T]o prove the elements of the criminal street gang
enhancement, the prosecution may, as in this case, present expert testimony on criminal
street gangs. [Citation.]” (People v. Hernandez, supra, 33 Cal.4th at pp. 1047–1048.)




                                             23
               3.    Analysis
       The first element of the gang enhancement may be satisfied by showing any one of
the following––the crime was committed for the benefit of, at the direction of, or in
association with a criminal street gang. (§ 186.22, subd. (b)(1).) In this case, there was
sufficient evidence to show these crimes were committed in association with a criminal
street gang.
       Active participation is defined as “involvement with a criminal street gang that is
more than nominal or passive.” (People v. Castaneda, supra, 23 Cal.4th at p. 747.) It
does not require that “a person devot[e] ‘all, or a substantial part of his time and efforts’
to the gang. [Citation.]” (Id. at p. 752.) Evidence establishing that the crime was
committed with another gang member will support a finding that it was committed in
association with a gang. (Ochoa, supra, 179 Cal.App.4th at p. 661.)
       The facts are undisputed that both Daniels and Gardiner, along with Matthews, are
self-admitted members of the Rollin 30’s gang and sport tattoos signifying their loyalty to
the gang. Matthews was known as “Big Boy” or “Troy.” Daniels’s moniker was “Big
Bronx,” and he and Gardiner, who went by the moniker “Little Bronx,” were seen
together and stopped by police officers on two separate occasions. Gardiner’s DNA was
found on the zip ties inside the dispensary and Daniels’s prints were found on the metal
security door. Eyewitnesses identified the SUV driven by Matthews as the vehicle that
picked up Daniels and Gardiner on South Orange Drive, within moments of the robbery
and shooting. Here, the jury could reasonably infer the requisite association from the
very fact that Matthews committed the charged crimes in association with Daniels and
Gardiner. (People v. Morales (2003) 112 Cal.App.4th 1176, 1198.)
       With respect to the second element, sufficient evidence established that appellants
acted with “the specific intent to promote, further, or assist in any criminal conduct by
gang members . . . .” (§ 186.22, subd.(b)(1).) Because substantial evidence supports a
finding that the crimes benefitted the gang, reversal cannot be justified by the possibility



                                              24
that the evidence might have been reconciled with a finding that appellants acted only for
personal reasons. (See People v. Albillar (2010) 51 Cal.4th 47, 60.)
       Robbery was one of Rollin 30’s primary activities and Officer Moon testified that
the crime would benefit the gang in a number of ways. The community in which the
gang members lived and where the crimes took place would be intimidated because it
would show the gang was active. The money gained from the robbery would be
distributed among the gang and also used to recruit new gang members. We reject
Matthews’s contention that Officer Moon’s testimony does not constitute substantial
evidence. Before Officer Moon testified, the court held an Evidence Code section 402
hearing and found that Officer Moon had “sufficient background, training and expertise
and experience with respect to the Rollin 30’s to testify as a gang expert.” A jury may
rely on expert testimony to reach a verdict on a gang-related offense or a finding on a
gang allegation. (People v. Ferraez (2003) 112 Cal.App.4th 925, 930 [expert testimony
that drug offense was gang-related plus evidence that defendant received permission to
sell drugs at a mall from a gang and admission of gang membership constituted
circumstantial evidence that defendant intended to benefit the gang].)
III.   Instructional Error—CALCRIM No. 1603
       Matthews contends the trial court committed prejudicial instructional error
requiring reversal. The court instructed the jury with CALCRIM No. 1603—the jury
instruction on aiding and abetting a robbery. He argues the court should have instructed
the jury on the duration of an attempted robbery for purposes of assessing aider and
abettor liability. He contends the error violated his due process rights because it reduced
the prosecution’s burden of proof. The People argue that even if we assume the
instruction was erroneous such that the trial court erred in its instruction to the jury, such
error was harmless when viewing the jury instructions as a whole.
       The trial court read jury instructions on aiding and abetting, including CALCRIM
No. 1603, which states: “To be guilty of robbery as an aider and abettor, the defendant
must have formed the intent to aid and abet the commission of the robbery before or

                                              25
while a perpetrator carried away the property to a place of temporary safety. [¶] A
perpetrator has reached a place of temporary safety with the property if he or she has
successfully escaped from the scene, is no longer being pursued, and has unchallenged
possession of the property.”
       We do not view CALCRIM No. 1603 in isolation. “We consider the instructions
as a whole and assume the jurors are intelligent persons capable of understanding and
correlating all the instructions. [Citation.]” (People v. Hernandez (2010) 183
Cal.App.4th 1327, 1332.) Here, the court instructed the jury on aiding and abetting
(CALCRIM No. 401), attempt (CALCRIM No. 460), first degree murder under a theory
of felony murder (CALCRIM No. 540A), and nonkiller liability under a theory of felony
murder (CALCRIM No. 540B). In addition, the jury was given CALCRIM No. 730,
while specifically directed to the attempted robbery-murder special circumstance
allegation, contained the following modified language: “The defendant must have
intended to commit or aided and abetted the felonies of burglary or attempted robbery
before or at the time of the act causing the death.” (Italics added.) The italicized passage
from modified CALCRIM No. 730 was in substance, if not in precise terms, the pinpoint
instruction that Matthews argues should have been given to the jury.
       Matthews argues the error in giving CALCRIM No. 1603 is reviewed under the
Chapman v. California (1967) 386 U.S. 18 “beyond a reasonable doubt” prejudicial error
standard because that instruction “underscored the prosecution’s theory of complicity”
and contributed to the verdict obtained in the case.
       We will assume, for purposes of argument, that Matthews is correct. When the
jury is “misinstructed on an element of the offense . . . reversal . . . is required unless we
are able to conclude that the error was harmless beyond a reasonable doubt.” (People v.
Hayes (1990) 52 Cal.3d 577, 628.) “In deciding whether a trial court’s misinstruction on
an element of an offense is prejudicial to the defendant, we ask whether it appears
“‘“‘beyond a reasonable doubt that the error complained of did not contribute to the



                                              26
verdict obtained.’”’” (People v. Hudson (2006) 38 Cal.4th 1002, 1013, quoting People v.
Hagen (1998) 19 Cal.4th 652, 671.)
       Matthews argues the escape rule does not apply to attempted robbery and because
the prosecution relied “most heavily on the fact that Matthews helped Gardiner and
Daniels escape” from the attempted robbery, the jury never considered whether the
prosecution “met its burden of proving Matthews’s knowledge of the crimes, or specific
intent to aid and abet the crimes, before or during the commission of the offenses.”
While the prosecution’s argument at trial did address Matthews’s role in the escape, it
also helped to clarify the law for the jury and the burden the prosecution had to meet.
Addressing the issue of Matthews’s participation as an aider and abettor, the prosecution
argued: “Did Mr. Matthews know when he dropped off these three people they were
going to rob the place, three people who went in with guns, the gloves, with zip ties, did
he know that. Before or during the commission of the crime, Mr. Matthews intended to
aid and abet the perpetrator in committing the crime. That’s what—That’s where you
look at his actions, look at what he did in this case, did Mr. Matthews drop off these
people, did Mr. Matthews wait around for these people, did Mr. Matthews stay in touch
with the people, did he stay in touch with Mr. Banks during the commission of this
crime.” Trial counsel for Matthews also clarified for the jury what the prosecution had to
prove and stated: “Basically what the prosecution has to prove . . . as to Mr. Matthews is
that at some point during the commission of this offense or before the commission of this
offense, the robbery, the murder, Mr. Matthews knew what was going to happen, and he
also joined in the specific intent, he was of agreement with those who went in that we’re
gonna do a robbery and we’re gonna get proceeds or whatever. Okay? He has to join in
that specific intent.” “When you look at the items of preparation to try to find support of
their theory that Mr. Matthews joined in the intent and knows what was going on, it
comes back in his favor. . . . prosecution’s theory is that he gets everybody, drives them
there, he drops them off.” “That’s their theory, that he dropped them off with their
weapons and their everything.”

                                            27
       Even if the trial court erred in failing to instruct on this issue, the inquiry we make
is whether the guilty verdict actually rendered was “surely unattributable” to the error.
(People v. Esquivel (1994) 28 Cal.App.4th 1386, 1399, 1400.) Based on the instructions
the jury did receive, the arguments of counsel, and the record before us, the verdict was
“surely unattributable” to the error in the instructions. Thus, we conclude the error was
not prejudicial under the Chapman standard, and reversal is unwarranted.
IV.    Denial of Banks’s Motion for New Counsel
       Banks contends the trial court abused its discretion by refusing to appoint new
counsel to investigate his claims regarding ineffective assistance of counsel. Banks
contends that he was not given an adequate opportunity to present his claims and the
court did not adequately inquire into those complaints. He asserts the trial court “failed
to conduct a proper inquiry.” Banks is not contending the trial court erred in denying his
motion for new trial but requests remand for the purpose of appointing new counsel to
investigate and argue his motion for a new trial on the grounds of ineffective assistance
of counsel. The basis for Banks’s assertion is that the trial court created a conflict of
interest by requiring trial counsel to argue he was competent at the Marsden9 hearing and
then argue his ineffectiveness in the motion for new trial. Banks’s contentions are
without merit.
       A.     Procedural Background
       The jury deliberated over four days and on the afternoon of Friday, March 25,
2011, reached a verdict on all counts as to Matthews but indicated it was hung on all
counts as to Banks. At a sidebar conference, the trial court informed counsel that it could
declare a mistrial as to Banks or send the jury back to deliberate further. Banks’s trial
counsel suggested the jury be brought back on the following Monday to continue
deliberations. The prosecution agreed with the court that further deliberations should




9      People v. Marsden (1970) 2 Cal.3d 118.
                                             28
resume that afternoon. The trial court read the Moore10 instruction to the jury that
required them to continue their deliberations to see if they could reach a verdict.
Following the guilty verdict as to Banks, Banks’s trial counsel filed a motion for a new
trial which raised among other arguments, a claim of ineffective assistance of counsel
based on his failure to object to the trial court’s Moore instruction.
       On July 28, 2011, approximately four months after the verdicts were returned,
Banks submitted to the court a handwritten declaration/motion. The court stated that it
did not read the letter because Banks was represented by counsel. The letter was filed
under seal with the court. On September 16, 2011, the bailiff cleared the courtroom
leaving only Banks and his trial counsel to discuss the letter with the court. The court
read the letter and interpreted it as a Marsden motion. The court conducted the Marsden
hearing prior to proceeding on the motion for new trial.
       The court informed Banks that it was not uncommon for a defendant to disagree
with his attorney’s trial strategy and noted that most of Banks’s concerns fell into that
category. Banks agreed with the court’s characterization of his arguments. Banks’s trial
counsel then responded to the court’s inquiries into specific issues raised by Banks
concerning his alleged failure to provide effective assistance of counsel. Counsel stated
he visited Banks at the county jail, had conversations with him in lockup, and spoke with
him on the telephone. He filed several pretrial motions and had spent more than one
hundred hours preparing the case. He did not order gunshot residue tests for Banks
because gunshot residue dissipates in approximately one hour and he was appointed to
the case several weeks after the crime occurred. There was testimony that the
surveillance cameras did not record the incident and counsel did not pursue that issue.
He personally reviewed the DNA envelopes and receipts and consulted with a DNA


10     The charge is referred to in the record as the “depth charge,” or “dynamite
charge.” It is based on the charge given to the jury under similar circumstances and
approved by the appellate court in People v. Moore (2002) 96 Cal.App.4th 1105. In
Banks’s motion for new trial, counsel refers to the same charge as an “Allen charge.”
(Allen v. United States (1896) 164 U.S. 492.)
                                             29
expert before deciding there was no arguable issue with respect to chain of custody.
Counsel stated he made a strategic decision on the issue of the jury resuming
deliberations because he thought the jury would not convict Banks. Counsel inquired
whether the ineffective assistance of counsel claims raised by Banks established a
conflict of interest and asked to be relieved.
       After listening to counsel’s explanations regarding the issues raised by Banks, the
trial court asked Banks if there was anything he wanted to add. Banks stated that his
communication with counsel was “pretty good overall” but he did not like the decisions
counsel made pertaining to the case. The court first addressed the issues that formed the
basis for the Marsden motion and stated that counsel had vigorously defended Banks.
The trial court cited the exclusion of all evidence that Banks was a gang member as one
of the significant rulings counsel obtained. The court found no issues related to the DNA
chain of custody or counsel’s efforts to locate witnesses. The court commented on
counsel’s aggressive cross-examination of all witnesses but especially of the
eyewitnesses, and the effective closing argument with respect to eyewitness testimony.
The fact that the jury did not find true that Banks was the one who personally shot
Gonzalez, was the result of counsel’s vigorous argument and cross-examination of the
witnesses. No one knew when the jury indicated it was deadlocked that the split was in
favor of guilty and the court found it was a tactical decision by counsel to have the jury
continue deliberations. Finding no breakdown in the relationship between Banks and his
counsel, and that counsel had provided Banks with a good defense, the court denied the
Marsden motion.
       The trial court then addressed the specific issue of whether a new attorney should
represent Banks to argue the ineffective assistance of counsel in the motion for new trial.
The court found that there was either a specific factual reason for counsel’s actions or it
was a trial strategy he employed, but it did not rise to the level of ineffective assistance of
counsel. The court found that counsel could fully and effectively represent Banks and
argue the motion for new trial.

                                              30
       B.     Applicable Law
       When a defendant requests a substitution of appointed counsel, the trial court is
required to permit the defendant to explain his reasons and to give specific instances of
counsel’s misconduct. (Marsden, supra, 2 Cal.3d at p. 124.) Substitution is required
only if counsel is not providing adequate assistance or if an irreconcilable conflict exists
which is likely to result in ineffective assistance. (People v. Welch (1999) 20 Cal.4th 701
728; People v. Smith (1993) 6 Cal.4th 684, 696.) The trial court’s ruling on a Marsden
motion is reviewed for an abuse of discretion. (People v. Welch, supra, at p. 728.)
“Denial [of a Marsden motion] ‘is not an abuse of discretion unless the defendant has
shown that a failure to replace the appointed attorney would “substantially impair” the
defendant’s right to assistance of counsel. [Citations.]’” (People v. Barnett (1998) 17
Cal.4th 1044, 1085.)
       C.     Analysis
       Banks’s first contention that the trial court did not conduct a proper inquiry and
that he was not given an opportunity to present his claims of ineffective assistance of
counsel is not borne out by the record before us. Initially, the court did not review
Banks’s handwritten declaration because he was represented by counsel. The court read
the letter after Banks conferred with counsel and then specifically asked the court to read
it. This triggered the court’s duty to conduct a Marsden inquiry. (People v. Mendez
(2008) 161 Cal.App.4th 1362, 1366.) Marsden imposes four requirements on a court.
(People v. Mendez, supra, at p. 1367.) First, the trial court had a duty to allow Banks to
articulate why he was dissatisfied with counsel’s representation. Finding that Banks
stated facts sufficient to raise a question about his counsel’s representation, the court then
had a duty to make inquiries of counsel. Next, the court had a duty to make a record of
Banks’s grievances and the court’s responses to those grievances. Finally, the trial court
was required to make a record of counsel’s response to any complaints raised by Banks
about his representation. The record before us clearly shows that the trial court adhered



                                             31
to the established procedure and standards for inquiring into his posttrial claims of
ineffective assistance of counsel.
       Banks also contends the trial court should have appointed new counsel to
investigate his claims because requiring trial counsel to first argue that he provided Banks
with competent counsel at the Marsden hearing, while later permitting him to argue
ineffective assistance of counsel in the motion for new trial, “created an inherent conflict
of interest between [Banks] and his trial counsel.” Banks’s contention misunderstands a
court’s Marsden obligation to fully investigate complaints raised by a defendant before
appointing new counsel. When a defendant requests substitution of counsel, “the
standard expressed in Marsden and its progeny applies equally preconviction and
postconviction. . . . A defendant has no greater right to substitute counsel at the later
stage than the earlier.” (People v. Smith, supra, 6 Cal.4th 684, 694 (Smith).) Whatever
stage a Marsden motion is made, the trial court must determine whether counsel has been
providing competent representation. The inquiry is by nature forward-looking with a
view to determine whether counsel can provide effective assistance in the future, but the
decision is always based on what happened in the past. (Smith, supra, at pp. 694–695.)
Here, Banks raised a number of specific claims which dealt primarily with his counsel’s
trial strategy, including the decision to have the jury continue deliberations. Counsel
provided responses to all the court’s questions and the court found he performed his
duties with reasonable diligence under the circumstances. The court did not “abandon its
own constitutional and statutory obligations to make the ultimate determination itself
based upon the relevant facts and law” of which it was aware. (People v. Eastman (2007)
146 Cal.App.4th 688, 697.)
       Banks’s conflict of interest claim is also based on a mischaracterization of
counsel’s arguments. In the written motion for new trial the claim of ineffective
assistance of counsel was based on counsel’s failure to object to the trial court’s “depth
charge” instruction. Counsel argued that a competent attorney would have moved to
exclude it. During the Marsden hearing, counsel explained that he thought the jury

                                             32
should continue deliberations because he was “optimistic” that Banks could get an
acquittal. The trial court determined that to be a tactical decision based on counsel’s
belief “he was going to get [Banks] a not guilty verdict” because no one knew at the time
the jury was split 11-1 in favor of guilty.11 We do not agree with Banks’s contention that
his counsel’s “shift in position” is “inexplicable.” Trial counsel’s belief at the time of
trial that he might secure an acquittal for Banks if the jury were to deliberate further was
not contrary or inconsistent with a decision made in hindsight that he should have
objected to a further jury instruction.
       The California Supreme Court recognized in Smith, supra, 6 Cal.4th at p. 694, a
defense attorney is placed in an awkward position and “the potential for conflict is
obvious” when a defendant claims after trial that counsel was ineffective. However,
while noting that “it is difficult for counsel to argue his or her own incompetence” (ibid.),
the California Supreme Court did not suggest it was impossible for counsel to do so.
(People v. Sanchez (2011) 53 Cal.4th 80, 89.) We are also cognizant of the undesirable
consequences resulting from the appointment of counsel without an adequate showing,
for the purpose of arguing that previous counsel was incompetent. In People v. Makabali
(1993) 14 Cal.App.4th 847, the trial court appointed second counsel to investigate a
possible motion to withdraw a guilty plea on the basis of ineffective assistance of
counsel. New counsel did not make the motion. On appeal, appointed appellate counsel,
defendant’s third attorney, claimed that the second was incompetent for not claiming the
first was incompetent. Addressing those types of situations, the court in Smith, supra, at
p. 695, stated: “The spectacle of a series of attorneys appointed at public expense whose
sole job, or at least a major portion of whose job, is to claim the previous attorney was, or
previous attorneys were, incompetent discredits the legal profession and judicial system,
often with little benefit in protecting a defendant’s legitimate interests.”




11    Banks’s claim of ineffective assistance of counsel contains an analysis of the
reasonableness of trial counsel’s decision to request further deliberations.
                                             33
       We find the trial court made the appropriate inquiries in this case and did not
abuse its discretion by denying Banks’s motion to replace his attorney and appoint new
counsel.
V.     Ineffective Assistance of Counsel
       Banks contends he received ineffective assistance of counsel because trial counsel
(1) failed to contest the chain of custody of the DNA swabs, and (2) requested further
deliberations after the jury had announced they were deadlocked.
       A claim of ineffective assistance of counsel presents a mixed question of law and
fact, which we review do novo. (In re Alcox (2006) 137 Cal.App.4th 657, 664.) Pursuant
to Strickland v. Washington (1984) 466 U.S. 668 (Strickland), a defendant making a
claim that his trial counsel was ineffective must show that (1) counsel’s representation
fell below an objective standard of reasonableness under prevailing professional norms,
and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the
result would have been different. (Id. at pp. 668, 687–688, 693–694.) A claim of
ineffective assistance of counsel on direct appeal places a heavy burden on appellant.
(People v. Lucas (1995) 12 Cal.4th 415, 437.)
       As to the first prong of Strickland, counsel’s performance is objectively deficient
if it falls below an objective standard of reasonableness under prevailing professional
norms. (People v. Ledesma (2006) 39 Cal.4th 641, 745–746.) ‘“Reviewing courts defer
to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance
of counsel [citation], and there is a “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”’ [Citations.] ‘[W]e accord
great deference to counsel’s tactical decisions’ [citation], and we have explained that
‘courts should not second-guess reasonable, if difficult, tactical decisions in the harsh
light of hindsight’ [citation].” (People v. Weaver (2001) 26 Cal.4th 876, 925–926;
accord, People v. Jones (2003) 29 Cal.4th 1229, 1254.) “If the record ‘sheds no light on
why counsel acted or failed to act in the manner challenged,’ an appellate claim of
ineffective assistance of counsel must be rejected ‘unless counsel was asked for an

                                             34
explanation and failed to provide one, or unless there simply could be no satisfactory
explanation.’ [Citations.]” (People v. Ledesma, supra, at p. 746; accord, People v.
Weaver, supra, at p. 926; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266; People v.
Fosselman (1983) 33 Cal.3d 572, 581.) With regard to Strickland’s second prong,
prejudice is established by showing there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different. (Strickland,
supra, 466 U.S. at p. 694.)
       A.     Chain of Custody of DNA Evidence
       Detective Wong recovered a pair of gloves from the bushes near a house on South
Orange Drive. He gave the gloves and other items he recovered to Detective Shafia, the
lead detective on the case. Shafia observed Detective Mark Holguin document and book
the gloves into evidence.12 Lindsey Murray, a DNA analyst, received the DNA samples
in heat sealed packages placed in manila envelopes. The seal was intact and Murray
would have made a note had the packages arrived with a broken seal.
       “In a chain of custody claim, ‘“[t]he burden on the party offering the evidence is to
show to the satisfaction of the trial court that, taking all the circumstances into account
including the ease or difficulty with which the particular evidence could have been
altered, it is reasonably certain that there was no alteration. [¶] The requirement of
reasonable certainty is not met when some vital link in the chain of possession is not
accounted for, because then it is as likely as not that the evidence analyzed was not the
evidence originally received. Left to such speculation the court must exclude the
evidence. [Citations.] Conversely, when it is the barest speculation that there was
tampering, it is proper to admit the evidence and let what doubt remains go to its weight.”
[Citations.]’” (People v. Catlin (2001) 26 Cal.4th 81, 134.) ‘“While a perfect chain of
custody is desirable, gaps will not result in the exclusion of the evidence, so long as the

12     In his reply brief, Banks disputes that Shafia observed Holguin book the gloves
into evidence and argues there was no specific reference to gloves. Shafia was asked
about the “items” that Detective Wong recovered from the bushes. Those “items”
included the gloves.
                                             35
links offered connect the evidence with the case and raise no serious questions of
tampering’ . . . .” (Ibid.) “[I]t is not the case, that anyone whose testimony may be
relevant in establishing the chain of custody, authenticity of the sample, or accuracy of
the testing device, must appear in person as part of the prosecution’s case. . . . [Not]
everyone who laid hands on the evidence must be called. . . . ‘[G]aps in the chain [of
custody] normally go to the weight of the evidence rather than its admissibility.’”
(Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 311, fn. 1.)
       Banks contends the chain of custody of the DNA swabs from the gloves recovered
by Detective Wong was never established. He first argues there was “no evidence of
when, where, who, or even whether anyone actually swabbed the gloves for DNA,” or
“how the DNA swabs were packaged and subsequently transmitted to the DNA lab.” He
further argues he was denied a meritorious defense by trial counsel’s failure to challenge
the deficiency in the evidence and argue the DNA evidence was unreliable. Banks relies
on People v. Jimenez (2008) 165 Cal.App.4th 75 (Jimenez) to support his argument that
the chain of custody is inadequate.
       The defendant in Jimenez was convicted of robbing a bank, and the issue was
whether the trial court erred in admitting a DNA sample and a criminalist’s testimony.
After robbing the bank, a man fled on a bicycle and abandoned it nearby. (Jimenez,
supra, 165 Cal.App.4th at pp. 77–78.) A criminalist compared the DNA found on the
handlebars of the bicycle with a reference sample supposedly taken from the defendant,
and gave testimony indicating the probability that anyone but the defendant left the DNA
on the bicycle was extremely low. (Id. at pp. 79–80.) At trial, a police sergeant testified
“conclusorily” that he made arrangements with a technician to take DNA swabs from the
defendant and then either he or the chief investigating officer instructed someone to send
the swabs to the criminalist. (Ibid.) The criminalist testified that he received the swabs
and also the probability that a random person would have the same profile. (Id. at p. 79.)
On appeal, the Jimenez court found the chain of custody to be “woefully inadequate”
which raised serious questions as to whether the reference sample had anything to do

                                             36
with the defendant. (Id. at p. 81.) One of the questions the Jimenez court wanted to
know was whether the swabs were still sealed on arrival at the crime lab. (Id. at p. 80.)
       Although it is unclear who labeled, sealed, and transported the DNA swabs in this
case, it is proper to presume that an official duty has been regularly performed unless
there is some evidence to the contrary. (People v. Lugo (1962) 203 Cal.App.2d 772, 775;
Evid. Code, § 664.) Here, the record contained testimony by the DNA analyst that she
received a heat-sealed package containing a swab labeled as “left glove” and another
swab labeled as “right glove.” The analyst testified that she conducted individual tests on
each swab and compared it to a known reference sample of Banks’s DNA. Most
importantly, the analyst testified the seal on the envelopes was not broken and the
packages had not been tampered with.
       This case is more like People v. Riser (1956) 47 Cal.2d 566 (Riser), disapproved
on other grounds in People v. Chapman (1959) 52 Cal.2d 95, 98, and People v. Morse
(1964) 60 Cal.2d 631, 648. In Riser, the defendant did not point to any indication of
actual tampering, did not show how the evidence could have been forged, and did not
establish that anyone who might have been interested in tampering with the evidence
knew where the evidence was located. (Riser, supra, at p. 581.) The Riser court
concluded that the prosecution is not required to negate all possibility of tampering and
upheld the trial court’s ruling. (Id. at p. 580.) Like the defendant in Riser, Banks fails to
show the police officers, or the crime lab officials, failed to perform their duties and his
allegations raise only the “barest speculation” that the DNA swabs were tampered with
while in the custody of law enforcement. (See People v. Lucas, supra, 12 Cal.4th at
p. 446 (Lucas).)
       Banks’s claim of ineffective assistance of counsel fails because, as demonstrated
above, the prosecution had met its burden of establishing chain of custody and, therefore,
trial counsel’s failure to interpose a chain-of-custody objection to the DNA swabs was
not objectively unreasonable. For the same reason, it is not reasonably likely that the trial



                                             37
court would have sustained such an objection and, therefore, Banks has not made the
necessary showing of prejudice.
       Furthermore, this case is not one in which there simply could be no satisfactory
explanation for trial counsel’s failure to object because, as the court in Lucas stated, in
rejecting a claim that counsel was ineffective for failing to object to the chain of custody
of a piece of physical evidence, “an objection on chain of custody grounds may be less
productive for defendant than a decision to permit the prosecutor to establish a shoddy
chain of custody that can be pointed out to the jury in the hope of giving rise to a
reasonable doubt.” (Lucas, supra, 12 Cal.4th at p. 446.) Counsel could have chosen, as
Banks now suggests, to object on the ground that some links in the chain of custody were
not accounted for. But, as counsel explained during the Marsden hearing, he had
personally reviewed the DNA envelopes and receipts and consulted with a DNA expert
before deciding there was no arguable issue with respect to chain of custody. However, it
was also well within the range of competent advocacy for counsel to question the work of
the police by making the argument to the jury rather than the trial court. “The decision
whether to object to evidence at trial is a matter of tactics and, because of the deference
accorded such decisions on appeal, will seldom establish that counsel was incompetent.”
(Lucas, supra, at p. 444.) We conclude Banks has failed to show trial counsel was
incompetent for not objecting to the chain of custody of the DNA swabs.
       B.     Decision to Request Further Deliberations
       After three days of deliberations, the jury announced on a Friday afternoon that
they were “hopelessly deadlocked” on all counts in regard to Banks’s verdict. The jury
had taken three votes and was split 11 to one. Outside the presence of the jury, the trial
court proposed that the court either (1) declare a mistrial with respect to Banks, or
(2) give the instruction approved by People v. Moore, supra, 96 Cal.App.4th 1105, and
order the jury to continue deliberations. Banks’s trial counsel asked the court to give the
instruction and bring the jury back on the following Monday. The trial court stated it
would give the instruction and have the jury deliberate for the remainder of the afternoon.

                                              38
If the jury did not reach a verdict by the end of the day, the court stated it would declare a
mistrial. The jury returned before the end of the day with guilty verdicts on all counts.
       Given the circumstances of this case, Banks contends his counsel’s tactical
decision to request further deliberations is not immune from a claim of ineffective
assistance of counsel. Banks points to the positive identification by the eyewitnesses, the
DNA evidence, and the link to the getaway car, and argues, in essence, the evidence of
guilt was so overwhelming that it was not reasonable for trial counsel to believe that the
jury was split in favor of acquittal.
       “‘“Tactical errors are generally not deemed reversible, and counsel’s decision-
making must be evaluated in the context of the available facts.” [Citation.]’” (People v.
Jones, supra, 29 Cal.4th at p. 1254.) Here, the record indicates the reasons for counsel’s
tactical decision to ask for further deliberations. First, the jury heard no evidence of
Banks’s gang membership because trial counsel succeeded in excluding that evidence in
a pretrial motion. Next, the prosecution presented a number of percipient witnesses
whose description of Banks varied to some degree. Simmons testified the shooter did not
have glasses and was not wearing gloves. He stated the shooter wore a loose type of head
wrap that was tan in color. Chavero said the shooter was approximately six feet tall and
said Banks wore glasses and one black glove. Renteria testified the shooter was either 5
feet 4 or 5 feet 5 inches tall. Hustead testified that Banks wore glasses and a baseball
cap. Our review of the record shows that trial counsel vigorously cross-examined the
eyewitnesses in terms of the inconsistencies. The trial court commented on counsel’s
effectiveness during the Marsden hearing. On the second day of jury deliberations the
jury requested a readback of Simmons’s testimony. On the third day of jury deliberations
the jury requested a readback of Hustead’s testimony. Given that the jury requested those
readbacks, it was reasonable for counsel to believe the jury questioned Banks’s
identification.
       Trial counsel questioned Shafia about the gloves that were recovered near a house
on South Orange Drive. Banks’s DNA was found on those gloves but was not found

                                             39
inside the dispensary or on the glove recovered at the scene. The jury asked for a
readback of Shafia’s testimony concerning the placement of a camera on South Orange
Drive and also requested the entire testimony of Lindsey Murray, the DNA technician.
Given trial counsel’s attack on the integrity of the DNA evidence in cross-examination
and closing statement, and the jury’s requests for readback of testimony, it was
reasonable for trial counsel to believe the jury had questions on this issue also.
       During the Marsden hearing, trial counsel stated that he believed further
deliberations would be to Banks’s benefit and he was optimistic he could get an acquittal.
Evaluating trial counsel’s tactical decision “‘in the context of the available facts’” as we
must, and not “‘in the harsh light of hindsight,’” we conclude trial counsel’s decision to
request further jury deliberations was a reasonable tactical decision. (People v. Weaver,
supra, 26 Cal.4th at pp. 925, 926.)
VI.    Abstracts of Judgment
       Banks
       The jury found the firearm allegation under section 12022.53, subdivisions (d) and
(e) to be true, that a principal personally and intentionally discharged a firearm. The trial
court imposed a sentence of 25 years to life under section 12022.53, subdivision (e), but
the abstract of judgment designated section 12022.53, subdivision (d). The People
concede the error. Accordingly, the abstract of judgment should be amended to reflect
the trial court’s oral pronouncement.13 (People v. Jones (2012) 54 Cal.4th 1, 89.)
       Matthews
       The trial court imposed a $200 parole revocation fine (Pen. Code, § 1202.45),
which was stayed pending successful completion of parole. The People concede, and we
agree, that because Matthews was sentenced to a life term without the possibility of
parole, no parole revocation fine could be imposed. (People v. Petznick (2003) 114




13   The same error occurred in Matthews’s abstract of judgment and it must also be
amended.
                                       40
Cal.App.4th 663, 687.) Accordingly, that portion of the court’s judgment imposing a
parole revocation fine shall be stricken.14
       Matthews also contends the determinate term of 32 years and 8 months on
counts 2 and 3 was incorrectly computed. The trial court sentenced Matthews to the low
term of 16 months doubled for the prior strike conviction, plus five years for the prior
serious felony, plus 25 years for the firearm enhancement. The sentence was correctly
computed by the trial court.




14   The same error occurred with respect to Banks and that portion of the court’s
judgment imposing a parole revocation fine shall be stricken.
                                          41
                                    DISPOSITION
       The judgment as to Leon Banks is affirmed. The abstract of judgment should be
amended to reflect that Banks was sentenced pursuant to section 12022.53,
subdivision (e), and the parole revocation fine imposed pursuant to section 1202.45, must
be stricken.
       The judgment as to Lovie Troy Matthews is affirmed. The abstract of judgment
should be amended to reflect that Matthews was sentenced pursuant to section 12022.53,
subdivision (e), and the parole revocation fine imposed pursuant to section 1202.45, must
be stricken.
       The clerk of the Superior Court is directed to prepare an amended abstract of
judgment reflecting these modifications and to forward a certified copy of the amended
abstract to the Department of Corrections and Rehabilitation.
       The judgments are affirmed as modified.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                   FERNS
We concur:




____________________________, Acting P. J.
       ASHMANN-GERST


____________________________, J.
       CHAVEZ




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
                                              42
