Filed 3/30/17
                      CERTIFIED FOR PARTIAL PUBLICATION*

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SIXTH APPELLATE DISTRICT

THE PEOPLE,                                         H039705
                                                   (Santa Clara County
        Plaintiff and Respondent,                   Super. Ct. Nos. 212506, C1114503)

        v.

MARCOS MENDOZA et al.,

        Defendants and Appellants.

        Maurillo Garcia died in August 2011 after receiving multiple stab wounds.
Defendants Marcos Mendoza, David Martell, and Juan Javier Ramirez (collectively,
defendants) appeal their convictions, following a joint trial, for second degree murder
(Pen. Code, §§ 187, 189)1 with gang enhancements (§ 186.22, subd. (b)) for killing
Garcia.
        On appeal, defendants briefed the case separately but many of their arguments
overlap. All defendants argue the trial court erred by: (1) excluding statements of Javier
Barragan, a co-perpetrator; (2) allowing the prosecutor to commit misconduct during the
opening statement; (3) admitting unduly prejudicial evidence of gang-related
intimidation; and (4) failing to properly instruct the jury regarding (a) voluntary
intoxication, (b) the required mental state for guilt as an aider and abettor, and (c) the
evidence necessary to prove the gang enhancement. All defendants argue that the
prosecution presented insufficient evidence to support their gang enhancements.


        *
           Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion
is certified for publication with the exception of part II.
        1
           Unspecified statutory references are to the Penal Code.
       Mendoza and Ramirez argue that the trial court erred by: (1) allowing the
prosecution to commit misconduct during its examination of John Deleone, a witness for
the prosecution; (2) admitting unduly prejudicial out-of-court statements by Mendoza and
Ramirez; (3) admitting unduly prejudicial evidence of prior convictions to prove a
“ ‘pattern of criminal gang activity’ ” (§ 186.22, subd. (e)); and (4) allowing the gang
expert to show unduly prejudicial slides in the slideshow that accompanied his expert
testimony.
       Mendoza argues that the prosecution provided insufficient evidence to corroborate
accomplice Tommy Gonzalez’s testimony about Mendoza’s involvement in the
homicide.
       Martell argues that the prosecution presented insufficient evidence to support his
guilt and contends that his trial counsel provided ineffective assistance by failing to
present a plausible theory of Martell’s innocence and by failing to properly cross-
examine a witness.
       All defendants argue the foregoing errors were cumulatively prejudicial.
       In our original unpublished opinion, we found no prejudicial error, modified the
judgments to specify a 15-year minimum parole eligibility (§ 186.22, subd. (b)(5)), and
affirmed the judgments as modified.2
       All defendants petitioned for rehearing. Ramirez argues, among other things, that
Proposition 57, the Public Safety and Rehabilitation Act of 2016, should be applied
retroactively to his case because he was 16 years old at the time of the offense and his
judgment was not final when voters approved Proposition 57 at the November 2016
general election. We granted rehearing to determine whether Ramirez was entitled to
relief under Proposition 57.

       2
          The same day we filed the original opinion, we denied a petition for writ of
habeas corpus filed by Martell’s appellate counsel that alleged ineffective assistance of
trial counsel. (See Cal. Rules of Court, rule 8.387(b)(2)(B).)
                                              2
          In the published portion of this opinion, we conclude that Proposition 57 does not
apply retroactively to Ramirez’s case. In the unpublished portion (part II), we adhere to
our original analysis and again find no prejudicial error, however we will direct that a
new abstract of judgment be prepared for each defendant to note a 15-year minimum
parole eligibility date based on Penal Code section 186.22, subdivision (b)(5).
                            I.   TRIAL COURT PROCEEDINGS
    A. THE HOMICIDE
          The jury heard two accounts of Maurillo Garcia’s death. Tommy Gonzalez, an
accomplice, provided one account. Tommy testified that he was drinking with fellow
Norteño gang members in the front yard of his house when a suspected Sureño gang
member started spray-painting on the street by the house, leading Tommy and several
others to chase down and assault the Sureño.3 Salvador Rivas, an eyewitness, provided a
second account. He testified that he was at a party at his father’s house when he saw a
group of five to seven men run toward and assault a man who was spray-painting in the
street.
              1. Co-Perpetrator Tommy Gonzalez’s Account
          Tommy Gonzalez testified for the prosecution as part of a plea agreement whereby
the prosecutor agreed to reduce his murder charge related to Maurillo Garcia’s death to
voluntary manslaughter in return for his truthful testimony at defendants’ trial. Tommy
lived at 436 Ezie St. with his mother, his brother Raymond Gonzalez, Jr. (Raymond Jr.),
his nephew Raymond Gonzalez III (Raymond III), and others. Tommy had been a
Norteño gang member since he was nine years old. His nickname was Beast because he
fought frequently when he was incarcerated for a juvenile offense.
          Tommy’s friend Javier Barragan called him in the afternoon on August 27, 2011
and asked if he could come “kick back” at Tommy’s house. Barragan arrived around
          3
         Meaning no disrespect, we refer to members of the Gonzalez family by their
first names because multiple members of the Gonzalez family were involved in this case.
                                               3
6:00 or 7:00 p.m. with defendants Mendoza and Ramirez. Tommy knew Mendoza by the
nickname Travieso and Ramirez by the nickname Smiley. Tommy testified that
Barragan, Mendoza, and Ramirez were all part of a Norteño subset called San Jose
Unidos. They all drank beers in the front yard and were eventually joined around
8:00 p.m. by defendant Martell, known to Tommy as Guerro. Tommy had not met
Martell before, but Barragan assured him that Martell was “ ‘good people.’ ” At trial,
Tommy identified all three defendants as the people who came to his house on
August 27.
       Around 10:00 p.m., Tommy saw a person (later identified as Maurillo Garcia) who
looked like a Sureño gang member walk past the house twice within two minutes. Garcia
walked to a stop sign where Richdale Avenue dead-ends into Ezie Street and spray-
painted something on the ground while saying “Sur Trece Putos Calle.” Tommy
perceived Garcia’s actions as a challenge. Tommy ran toward Garcia, followed closely
by Martell and then more distantly by Mendoza, Ramirez, and Barragan. Tommy swung
at Garcia but missed; Garcia cut Tommy’s stomach with a screwdriver. Tommy backed
up and “everybody jump[ed] on” Garcia. Mendoza and Ramirez were punching Garcia.
Tommy did not see Martell or Barragan do any punching or kicking. Tommy and the
others ran back to his mother’s Cadillac that was parked in front of 436 Ezie St. and
drove away.
          2. Witness Salvador Rivas’s Account
       Salvador Rivas testified that on the night of the homicide he was attending a party
at his father’s house on Ezie Street, which faces the intersection of Richdale Avenue and
Ezie Street. Rivas was in the garage and the garage door facing the street was open. Jose
Garcia (Maurillo Garcia’s brother, whom we refer to as Jose for clarity) walked by the
house and Rivas’s father invited Jose to have a beer. Rivas noticed Maurillo Garcia
spray-painting on the street near a stop sign. Five to seven men came from the direction


                                            4
of 436 Ezie St. and chased Garcia.4 Rivas heard someone yell “ ‘Get him’ ” and
“ ‘Norte.’ ”
       Rivas testified that Garcia ran but was tripped and fell, at which point all of the
men who chased him started beating him. Rivas stated that everyone participated in the
assault. Garcia managed to get up for a moment but the men knocked him down again
and continued to beat him. Rivas testified that the men mostly kicked Garcia but some
punches were also thrown. He could not clearly see any weapons. He saw something
shiny but acknowledged it could have been a belt buckle. Rivas also could not see any of
the attackers well enough to identify them in court. The attack lasted about 30 seconds.
The men went back toward 436 Ezie St. and left in a Cadillac. One of the men might
have left separately in a van.
       Rivas described the assailants as Hispanic males between 20 and 30 years old. He
acknowledged that it was not very light outside the night of the homicide, that there were
no streetlights in the area of Richdale where the homicide took place, and that there were
some cars and trucks parked in the driveway of his father’s house. He estimated his
vantage point in the garage was 60 yards from the victim.
   B. DEFENDANTS CHARGED WITH MURDER
       Defendants were each charged in a single felony information with murder (§ 187),
with a special allegation that each committed the murder for the benefit of, at the
direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)(C)).5
Ramirez, who was 16 on August 27, 2011, was charged as an adult. (Former Welf. &


       4
          As relevant to one of Martell’s appellate arguments, Rivas’s testimony at trial
regarding the chase was somewhat inconsistent. On direct examination, Rivas testified
that one male led the chase and was followed by the remaining people. On cross-
examination, Rivas testified that two men led the chase but that one of them was slightly
in front of the second, with the rest further behind the second man.
       5
          Ramirez and Martell were held to answer following a joint preliminary hearing.
Mendoza was indicted by a grand jury. Defendants’ cases were eventually consolidated.
                                              5
Inst. Code, § 707, subds. (b), (d)(1); Stats. 2008, ch. 179, § 236, pp. 653–656.) The
information alleged that Martell had a prior juvenile adjudication that qualified as a
strike. (§ 667, subds. (b)–(i); Former Welf. & Inst. Code, § 707, subd. (b); Stats. 2008,
ch. 179, § 236, pp. 653–656.)
   C. TRIAL
       Trial commenced in February 2013. Defendants moved for a mistrial after the
prosecutor’s opening statement, alleging that he argued facts that would not be
introduced into evidence, vouched for prosecution witnesses, denigrated defendants, and
committed Griffin error through improper reference to Ramirez’s silence when
interrogated after his arrest. (Griffin v. California (1965) 380 U.S. 609 (Griffin).) The
court denied the motion.
           1. Additional Testimony About the Homicide
       Raymond Gonzalez, Jr. testified that Barragan, Martell, and Ramirez were
drinking with Tommy in the front yard of 436 Ezie St. on the evening of the homicide.
When the prosecutor pointed to Mendoza in the courtroom and asked if he was also there,
Raymond Jr. responded, “I think so.” Tommy dropped Raymond Jr. off at a clubhouse in
San Jose around 7:00 or 8:00 p.m. on August 27 and Raymond Jr. did not return home
until after 2:00 a.m. On cross-examination, Raymond Jr. acknowledged that he was a
Norteño when he was younger but said he “grew up out of it.” He also acknowledged
that the district attorney’s office had paid to relocate his family in return for his
cooperation and that he had never told the police that Tommy was at the house on the
night of the homicide.
       Raymond Jr.’s son, Raymond III, also testified. Raymond III testified that he
stayed inside the house at 436 Ezie St. the whole night on August 27. Raymond III was
on juvenile probation when the homicide occurred. He did not want to testify. He denied
that any of the defendants were at 436 Ezie St. the night of the homicide. He claimed that
he lied to the police over the course of several interviews, telling them multiple versions
                                               6
of what happened that night and providing fictitious descriptions of suspects. He
acknowledged testifying at Martell and Ramirez’s preliminary hearing that five men
came over to the house the night of the homicide, that he had seen those men before, and
that they eventually left in his grandmother’s Cadillac. He denied that his uncle Tommy
was at the house the night of the homicide, and said his father Raymond Jr. had been
there but had left at some point.
       San Jose Police Detective Merlin Newton testified about Raymond III’s statements
to him in the early morning the night of the homicide and during subsequent interviews.
The night of the homicide, Raymond III described three suspects to Newton: a man with
the nickname Big Tone; a man with “S.J.” tattooed on his chest; and a 16-year-old.
Newton testified that Raymond III made different statements at different interviews but
that at some point he told Newton that he had been in the front yard of the house the night
of the homicide and saw five Norteño men run after a person who was spray-painting on
Richdale Avenue. Raymond III reportedly told Newton that the men ran out of Raymond
III’s view and eventually returned to the house before driving away in his grandmother’s
Cadillac.
       Newton testified that, over the course of four interviews, Newton showed
Raymond III pictures of individuals (including the defendants) and asked Raymond III if
any of them were at the house the night of the homicide. Raymond III was inconsistent
regarding whether Martell had been there the night of the homicide but at some point he
identified a picture of Martell as a suspect during one of the interviews. Raymond III
identified a picture of Ramirez as the 16-year-old he had described as being present the
night of the homicide. He also identified pictures of three people who were never
charged. Raymond III never identified pictures of Tommy or Mendoza.




                                            7
           2. Defendants’ Flight the Night of the Homicide
              a. Tommy’s Testimony
       Tommy testified that he drove the Cadillac away from 436 Ezie St. with Mendoza,
Ramirez, Martell, and Barragan. While they were driving, Mendoza reportedly stated,
“ ‘I got that nigga,’ ” and also stated that he “ ‘booked him’ ” 14 or 15 times. Ramirez
said “I was carving that fool’s face,” and then complained to Mendoza that “you fucking
cut me, bitch.” Mendoza responded that Ramirez “shouldn’t be getting in my way when
I’m handling my business.” Ramirez had a deep cut on his hand.
       Tommy testified that Barragan told him to drive to Peckerwood’s (later identified
as John Deleone’s) apartment in the Thornbridge Apartments, which were near Ezie
Street. Barragan asked for the weapons and Tommy reportedly saw a kitchen knife that
had been used by Mendoza as well as a screwdriver.6 At some point, Martell said that he
had dropped his phone somewhere. Tommy parked, they wiped down the car, and he and
Barragan went upstairs to Deleone’s apartment. Tommy or Barragan handed the
weapons to Deleone, Deleone’s girlfriend took them into the bathroom, and then “you
hear the water running.”
       Tommy testified that Barragan’s brother Junior picked the group up from
Deleone’s apartment about ten minutes after they arrived and drove them to Barragan’s
mother’s house near the Oakridge Mall. The group stayed at Barragan’s mother’s house
for a short time. Martell left separately before the others. Tommy, Barragan, Mendoza,
and Ramirez were picked up by someone with the nickname Creeper and driven to
Milpitas. When they arrived in Milpitas, a “cop car pulled in right behind us, and we got
off and took off running.”




       6
         Tommy acknowledged on cross-examination that he had told the police during
previous interviews that he never saw the weapons.
                                             8
              b. John Deleone’s Testimony
       John Deleone testified in return for use immunity and an agreement that the
prosecutor would resolve pending drug charges against Deleone with drug rehabilitation
and a county jail sentence. Deleone testified that in August 2011 he was a heavy
methamphetamine user, using up to one-eighth ounce per day. His girlfriend was also a
heavy methamphetamine user. He acknowledged at trial that he had a poor memory due
to his prior drug use. He knew Barragan and also knew Mendoza, but only by the
nickname Travi. He knew Ramirez by the nickname Smiley and claimed to be like a big
brother to him. Based on refreshed recollection from Deleone’s testimony at Mendoza’s
grand jury proceedings, Deleone testified that Barragan was a Norteño who was affiliated
with San Jose Unidos. Deleone acknowledged that he identified Ramirez at the grand
jury hearing as a member of San Jose Unidos but testified at trial that “I might have
misspoke when you asked me that question.”
       Deleone testified that Barragan and Smiley came to his apartment on August 27
around 11:00 p.m. with a third person whose identity Deleone could not remember. The
prosecutor purported to refresh Deleone’s recollection by reading the following out loud
from the grand jury transcript: “ ‘What happens on this occasion? Who came over on
this occasion?’ [¶] Your answer was: [¶] ‘I remember Javi, Javier, Juan, and somebody
else. I don’t remember who the other person -- I think it was Travi, but I couldn’t be
certain.’ ”7 Deleone acknowledged at trial that he had also told investigating officers that
the third person could have been Beast (Tommy’s nickname). Deleone did not see
Martell that night.
       Deleone testified that the people who came to his apartment that night were
agitated. Ramirez reportedly told Deleone that he hit a guy with a Phillips-head
screwdriver five to ten times and demonstrated by making stabbing motions on a couch
       7
        The court overruled defense objections to the prosecutor’s method of refreshing
Deleone’s recollection.
                                             9
or a pillow. When asked whether the people who came to his house brought weapons,
Deleone stated that they brought a knife, a box cutter, and a Phillips-head screwdriver.
The court later struck that testimony when Deleone clarified that he never saw weapons
that night and instead only saw a black sweatshirt wrapped around certain items that
Barragan brought to the apartment. Deleone’s girlfriend took the black sweatshirt to a
sink and turned on the water, at which point Deleone “could hear all the stuff rattling
around in the sink.”8 Deleone testified that it seemed like the others were trying to shift
the blame for the stabbing to Ramirez.
            3. Tommy Flees, Is Arrested in Texas, and Cooperates with Police
       Tommy testified that he moved to Texas after the homicide, where he was arrested
in March 2012 for resisting arrest. San Jose police detectives came to Texas and
interrogated Tommy regarding the Garcia homicide. Tommy testified that the officers
played a short portion of a videotaped interview between Barragan and the police, during
which Barragan appeared to be trying to blame everything on Tommy. 9 Faced with that
interview, Tommy decided to cooperate with the police and tell them his version of the
homicide.
       On cross-examination, Tommy acknowledged that he had an extensive criminal
history and that he cooperated with the police to avoid a possible life sentence. He also
acknowledged that he might not have positively identified Martell during the initial Texas




       8
         After the court struck the testimony about weapons, the prosecutor referred to
the items in the sweatshirt as weapons two more times and the trial court sustained
defense objections each time. The court later denied a defense mistrial motion based on
the prosecutor’s conduct.
       9
         The court denied a defense motion to admit statements from the Barragan
interview.
                                             10
interview and might have stated more generally that a picture of Martell looked
familiar.10
              4. Cell Phone, DNA, and Fingerprint Evidence
       A San Jose police officer testified that police found a cellular phone on Richdale
Avenue near the intersection of Richdale and Ezie Street the night of the homicide. The
phone was registered to Martell’s mother and contained a photograph of Martell that
looked like it was taken by Martell “holding out his cell phone and taking a photo of
himself.” The clip on the phone’s case that would secure it to a pocket was loose.
       The prosecution introduced information about the general locations of various
cellular phones based on call activity on the night of the killing. San Jose Police
Detective Juan Vallejo testified that cellular phone calls generally connect through the
nearest cellular tower to the phone’s location. The San Jose Police Department employee
who created a trial exhibit mapping cellular phone activity testified that a phone’s
location cannot be precisely identified based on its connection with a cellular tower and
that if a tower is busy a phone can connect through a different tower.
       Detective Vallejo testified that on August 27, calls from Martell’s phone
connected through a cellular tower in the San Francisco area before 8:00 p.m. and
through towers in San Jose between 8:20 p.m. and 8:23 p.m. No further calls were made
from that phone after 8:23 p.m. that night. Data for a phone number associated with
Tommy showed that the phone connected with a tower near the crime scene from
6:22 p.m. until 10:02 p.m., through a tower south of the crime scene and closer to
Deleone’s apartment at 10:41 p.m., through a tower southwest of the crime scene near
Barragan’s mother’s house at 10:58 p.m., and through a tower in Milpitas between 2:51
and 4:03 a.m. on August 28. Data for a phone number associated with Mendoza were

       10
          Merlin Newton, one of the San Jose detectives who interviewed Tommy in
Texas, testified at trial that Tommy identified Martell during the Texas interrogation as
the person who lost his phone the night of the homicide.
                                             11
generally consistent with Tommy’s in both time and location on August 27 and the early
morning of August 28. A phone number associated with Ramirez showed phone calls
made through a tower in Milpitas around the same time as some of Tommy’s calls.
       The jury also heard testimony regarding fingerprint and DNA evidence. A
fingerprint on a beer can found in the back yard at 436 Ezie St. matched Martell.
Martell’s DNA was found on a cigarette located in the front yard of 436 Ezie St. A
fingerprint on a different beer can found in the back yard of 436 Ezie St. matched
Mendoza. One of Mendoza’s fingerprints matched a fingerprint found on a beer can in
the front driveway of 436 Ezie St. Mendoza’s DNA was found on a swab collected from
that same beer can. Ramirez’s DNA was present in dried blood taken from the exterior
rear passenger side door of a gray Cadillac the police found on August 31 at the
Thornbridge Apartments.
           5. Victim Information and Autopsy Results
       A crime scene investigator testified that Garcia had “S.U.R.” tattooed in capital
letters on his left arm as well as a tattoo of a man’s head wearing a bandana with
“V.S.T.” and “13” written on it. He also had a star to the left of his left eye and three
dots to the right of his right eye.
       Dr. Joseph O’Hara testified as an expert in pathology and cause of death about the
autopsy he performed in the case. Garcia suffered 15 stab wounds to his face, chest,
abdomen, thighs, arms, right foot, and lower back. Among the most severe stab wounds
were a four- and one-half-inch deep wound to the chest; a four-inch deep wound to the
abdomen that perforated his liver; a three-inch deep wound to the chest that collapsed a
lung; and a five-inch deep wound to the armpit. Each of those four stab wounds could
have been independently fatal without medical treatment. Though he could not be
certain, Dr. O’Hara testified that the structure of the stab wounds indicated the possibility
that two weapons were used: one with a single-edged blade and another with a double-
edged blade. There were no round puncture wounds, as would be expected if a Phillips-
                                             12
head screwdriver was used as a weapon. Garcia suffered three incised wounds (wounds
that are longer than they are deep) and multiple blunt-force injuries, including contusions,
abrasions, and lacerations. Dr. O’Hara opined that the cause of death was multiple stab
wounds of the head, trunk, and extremities.
            6. Statements by Defendants
       Detective Vallejo testified about interrogating Martell on August 31 with
Detective Newton.11 Martell was read his Miranda12 rights and asked about the night of
the homicide. Martell claimed he had been in San Francisco watching a football game
that day and returned to the San Jose area around 7:30 or 8:00 p.m. Martell claimed he
was dropped off at a grocery store near Ezie Street, walked to the house of his cousin
(who was not home), and then walked to his aunt’s house where he stayed the rest of the
night. Martell said he lost his phone that day and thought he dropped it while walking
from the grocery store to his cousin’s house. The prosecutor asked Vallejo whether
Martell admitted being a Norteño when he was younger, and Vallejo testified that Martell
“said back when he was a juvenile, he was involved with gangs.” Martell repeatedly
denied being on Ezie Street on August 27 and told the police he did not know anything
about the homicide. Detective Vallejo testified that at the time of the interview Martell
had scratches and abrasions on his hands and a large “S.J.” tattooed on his stomach.
       Detective Newton testified about interrogating Ramirez in September 2011 after
arresting him and reading him his Miranda rights. Ramirez had what Newton described
as a healing wound on his right ring finger. Ramirez said he was familiar with Ezie
Street and had been there on one afternoon about two months earlier. He identified a
picture of Barragan as a friend but claimed not to know his name. Ramirez denied being
a Norteño, stating “No, I just hang out with,” before trailing off. He steadfastly denied

       11
         The video recording of the interrogation and a transcript were admitted into
evidence at trial after certain information was redacted.
      12
         Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
                                              13
being on Ezie Street on August 27 and also denied participating in any sort of assault that
might have occurred there.
         The jury heard statements made by Mendoza from three sources: a non-custodial
interview; a booking interview; and text messages from Mendoza’s cellular phone.
Detective Newton conducted a non-custodial interview with Mendoza at Mendoza’s
workplace in March 2012.13 At the non-custodial interview, Mendoza stated that he had
heard of Ezie Street but had never been there. He denied being in a gang. When asked if
he “claimed Northern,” Mendoza responded “[j]ust Northern, yeah.” Newton showed
Mendoza pictures of Martell, Barragan, and possibly other suspects; Mendoza denied
knowing any of them. Mendoza had a large “U” tattoo that extended from the top of his
chest down to his belly button. He also had “Unidos” tattooed across his stomach.
Newton testified that Mendoza told him those tattoos were in support of a college team
he liked, the Utah Utes.
         When Mendoza was booked into the county jail after his arrest, correctional
officer Gilbert Rios conducted a classification interview with Mendoza. Rios testified
that all inmates are asked if they associate with a gang when they are booked into the
county jail. Inmates were told that the gang association question was for their safety and
that their response would remain confidential. Rios testified that if an individual
indicated they would rather be housed with members of a certain gang, that would be
treated as an admission. Rios’s notes indicated that Mendoza “admitted Northerner.”
         The trial court also admitted text messages from Mendoza’s phone relating to drug
sales.
              7. Gang Expert
         San Jose Police Detective Chris Gridley testified as an expert regarding gang
crimes. Gridley testified about Norteños generally, described prior convictions offered to
         13
          After minor redactions, the audio recording of Mendoza’s non-custodial
interview was admitted into evidence over his relevance objection.
                                             14
prove a pattern of criminal gang activity, offered opinions about defendants’ gang
affiliations, and opined that the murder was gang-related. As Gridley’s testimony is
relevant to several issues on appeal, we will discuss it in greater detail in Part II.D.1.
            8. Evidence of Intimidation
       Evidence suggesting intimidation of witnesses was admitted over defendants’
objections. Deleone testified that he was punched in the mouth by an inmate while in
custody in the Santa Clara County Jail in May 2012. Deleone was told that the attack had
been ordered by “the Nortenos” because Deleone had made statements to the police
related to defendants’ case.14 He was “[s]omewhat” fearful for his life afterward and was
moved into protective custody. Deleone asked the district attorney’s office to relocate
him and also asked for an escort to and from testifying at defendants’ trial because he
feared for his life.
       Tommy testified that at some point between the homicide and his arrest in Texas,
Barragan’s brother Junior told Tommy that his nephew and his brother (presumably
meaning Raymond Jr. and Raymond III) “are snitching on me and on everybody” and
asked Tommy if he knew where they were.15 Tommy withheld the information because
he feared for both his and his family’s safety.
       Salvador Rivas testified that his home was vandalized in October 2011 when
someone spray-painted graffiti on his garage and his car. Among the graffiti was “XIV.”
Rivas feared for his family’s safety and believed the graffiti was related to him talking to
the police because the graffiti occurred within two hours after he received a subpoena to
testify in defendants’ case. He remained fearful at trial.




       14
           The hearsay statement was admitted for the limited purpose of showing
Deleone’s state of mind.
       15
           The hearsay statement was admitted for the limited purpose of showing the
effect on the listener (Tommy).
                                              15
            9. Defense Case
       Though technically called by the prosecution, Martell’s attorney sought favorable
testimony from Randy Carrasco, whose grandmother was Martell’s grandmother’s
partner. Carrasco worked with Martell as a furniture mover and testified that it was
common for employees to get scratches while at work.
       Defense investigator James O’Keefe testified based on a site visit that the
approximate distance between where Garcia was stabbed and the garage at 452 Ezie
Street was 198 feet, or 66 yards. He also testified, based on an Internet search, that there
would have been almost no light from the moon on the night of the homicide.
   D. JURY INSTRUCTIONS, VERDICT, AND SENTENCING
       Among other instructions, the court read versions of CALCRIM Nos. 252 (general
v. specific intent), 400 (aiding/abetting generally), 401 (aiding/abetting intent),
403 (natural and probable consequences), 520 (murder), 875 (assault with a deadly
weapon), 915 (simple assault), 1401 (gang enhancement) and 3426 (voluntary
intoxication).
       The jury deliberated for several days, and ultimately found all defendants guilty of
the lesser included offense of second degree murder and found the gang allegations true.
Martell waived jury on the strike allegation, which the court found true after a hearing.
       The trial court sentenced each defendant to an indeterminate term of 15 years to
life for murder. The court purported to stay the sentence for the gang enhancements.
(See § 186.22, subd. (b)(1)(C).)16 The court granted Martell’s Romero17 motion to strike
the true finding on the strike allegation.

       16
           The minute order states the stay was “purs. to Johnson case,” presumably
meaning People v. Johnson (2003) 109 Cal.App.4th 1230, 1237, 1239 (Johnson) [finding
§ 186.22, subd. (b)(1)(C) inapplicable to second-degree murder indeterminate sentence
because § 186.22, subd. (b)(5) applies to “ ‘a felony punishable by imprisonment in the
state prison for life’ ” and “requires that the defendant serve a minimum of 15 calendar
years before being considered for parole”].
                                              16
                 II.   ISSUES RAISED IN THE ORIGINAL APPEALS
[The portion of this opinion that follows (part II) is deleted from publication.]
       In this unpublished portion of the opinion, we address defendants’ appellate
arguments in the following order: (1) exclusion of Barragan’s statements; (2) claimed
prosecutorial misconduct in the opening statement; (3) claimed prosecutorial misconduct
during Deleone’s testimony; (4) sufficiency of the evidence to support the gang
enhancement; (5) admission of predicate offenses; (6) admission of certain slides in
Gridley’s PowerPoint presentation; (7) admission of defendants’ statements;
(8) sufficiency of the evidence corroborating Tommy’s testimony about Mendoza;
(9) admission of intimidation evidence; (10) claimed instructional error; (11) sufficiency
of the evidence to convict Martell; (12) effectiveness of Martell’s trial counsel; (13) the
purported stay of the gang enhancements; and (14) cumulative error.
   A. EXCLUSION OF BARRAGAN’S STATEMENTS
       Defendants argue that the trial court erred by excluding statements Barragan had
made to the police under a use immunity agreement, arguing they were admissible as
declarations against interest. (Evid. Code, § 1230.) We review a trial court’s evidentiary
decisions for abuse of discretion. (People v. Grimes (2016) 1 Cal.5th 698, 711 (Grimes).)
            1. Background
       During trial, outside the jury’s presence, defendants moved to introduce statements
Javier Barragan had made to the police while under a grant of use immunity. The district
attorney’s office had apparently agreed to consider entering into a plea agreement with
Barragan in exchange for his complete and truthful answers to police officers’ questions.
The agreement stated: “Should the prosecution decide not to extend such [plea] offer to
Javier Barragan, the prosecution agrees: [¶] (1) not to use any statement ... against Javier



       17
            People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
                                             17
Barragan in the prosecution’s case-in-chief in ... any criminal matter ... regarding which
he has provided information.” (Capitalization omitted.)
       After signing the immunity agreement, Barragan (accompanied by an attorney)
spoke at length with Detectives Newton and Vallejo about the homicide. As relevant
here, Barragan admitted actively participating in killing Garcia. Barragan stated that
Mendoza came to 436 Ezie Street only briefly to buy “bud” and “dope” and that
Mendoza left before the homicide occurred. Barragan appeared to suggest that Martell
was minimally involved in the killing, stating that after assaulting Garcia, Barragan
“looked back, like ‘ ... where’s Martell,’ you know, what the fuck? And I look, and he’s
in there, like, looking around, and I’m like, ‘What the fuck’s he looking for?’ ” Barragan
also stated that Martell was “nowhere near there” after the assault and that Martell did not
leave the scene of the homicide with the others.
       Barragan’s statements were inconsistent regarding Ramirez. He stated that
Ramirez was one of the first people to run after Garcia and that “Ramirez pulled out his
knife and used it against” Garcia. But later in the interview Barragan stated that Tommy
and an unidentified teenager were the only two people who stabbed Garcia and that
Ramirez was merely kicking Garcia.
       Defendants argued the statements were admissible as statements against penal
interest (Evid. Code, § 1230). The court denied defendants’ motion.
           2. Analysis
       Out-of-court statements like Barragan’s statements to the police are generally
inadmissible to prove the truth of the matters asserted therein. (Evid. Code, § 1200.) A
statement that would otherwise be hearsay is admissible if: the declarant had “sufficient
knowledge of the subject”; the declarant is unavailable as a witness; and “the statement,
when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so
far subjected him to the risk of civil or criminal liability, or so far tended to render invalid
a claim by [the declarant] against another, or created such a risk of making [the declarant]
                                              18
an object of hatred, ridicule, or social disgrace in the community, that a reasonable
[person] in [the declarant’s] position would not have made the statement unless [the
declarant] believed it to be true.” (Evid. Code, § 1230.) The “ ‘heart of this
exception ... is ... the basic trustworthiness of the declaration.’ ” (People v. Gordon
(1990) 50 Cal.3d 1223, 1251 (Gordon), disapproved on another ground by People v.
Edwards (1991) 54 Cal.3d 787, 835.) Whether “trustworthiness is present requires the
[trial] court to apply to the peculiar facts of the individual case a broad and deep
acquaintance with the ways human beings actually conduct themselves in the
circumstances material under the exception.” (Gordon, at p. 1251.)
       The Supreme Court recently clarified that trial courts need not “sever and excise
any and all portions of an otherwise inculpatory statement that do not ‘further
incriminate’ the declarant.” (Grimes, supra, 1 Cal.5th at p. 716.) Instead, “courts must
consider each statement in context” to determine whether the “statement, even if not
independently inculpatory of the declarant, is nevertheless against the declarant’s interest,
such that ‘a reasonable man in [the declarant’s] position would not have made the
statement unless he believed it to be true.’ ” (Ibid.) The Supreme Court noted that a
statement is more likely to satisfy the against-interest exception when the declarant
inculpates himself or herself while also exculpating someone else. However, “not all
such statements are admissible; sometimes a declarant who makes an inculpatory
statement may have a substantial incentive to exculpate others.” For example, a
“member of a criminal street gang ... may choose to take the fall for fellow gang
members by making a confession that exculpates them.” (Ibid.)
       The trial court could reasonably find that Barragan’s statements were
insufficiently trustworthy for two reasons: (1) the statements were made in return for a
promise of immunity; and (2) the statements were made about fellow gang members.
Barragan’s written agreement to be interviewed informed him that after the interview
“the prosecution may offer to enter into a negotiated plea ... .” The agreement also
                                             19
included a broad immunity clause under which the prosecution agreed not to use any
statements made during the interview against Barragan “in the prosecution’s case-in-chief
in ... any criminal matter[, or] in the prosecution’s case-in-chief in any matter in which he
is criminally charged ... .” The trial court could reasonably conclude that Barragan’s
statements—made with the hope of a negotiated plea and with the knowledge that the
statements could not be used in the prosecution’s case-in-chief in any criminal matter
against Barragan—were not made under circumstances that were so far contrary to
Barragan’s interests that a reasonable person in his position would not have made them
unless he believed them to be true. (Evid. Code, § 1230.) Even if the agreement did not
immunize Barragan from every conceivable penal consequence, the trial court could
nonetheless find that the agreement made Barragan’s statements insufficiently
trustworthy.
       Defendants attack the trial court’s justification for excluding the statements, which
was based on Justice Kennard’s concurrence in Gordon, where she stated “it is well
established that a statement made under a grant of immunity is not admissible as a
declaration against penal interest.” (Gordon, supra, 50 Cal.3d at p. 1281 (conc. opn. of
Kennard, J.).) Though the trial court was not legally bound by that statement, Justice
Kennard’s discussion is persuasive authority that identifies a relevant factor to consider
when evaluating the trustworthiness of a declarant’s statements.
       In addition to being made under an immunity agreement, Barragan’s exculpatory
statements about defendants were made about fellow gang members. The Supreme Court
in Grimes cautioned that statements by a gang member exculpating fellow gang members
might not meet the against-interest exception because a gang member “may choose to
take the fall for fellow gang members by making a confession that exculpates them.”
(Grimes, supra, 1 Cal.5th at p. 716.) The gang expert testified that Barragan, Mendoza,
and Martell were Norteño gang members, and that Ramirez was a Norteño gang
associate. The trial court could reasonably conclude that Barragan had an incentive to
                                             20
inculpate himself to protect fellow his gang members (i.e., defendants), which would
vitiate the statements’ trustworthiness. The trustworthiness of Barragan’s exculpatory
statements was particularly suspect here because Barragan knew, based on the immunity
agreement, that he would suffer no penal consequences for incriminating himself to
protect defendants.
       Defendants’ due process argument is without merit. The cases cited by defendants
finding federal constitutional error all involved objectively trustworthy evidence that was
excluded by mechanistic or erroneous application of evidentiary rules. (Chambers v.
Mississippi (1973) 410 U.S. 284 [federal constitutional error where trial court excluded
evidence that another person “had admitted responsibility for the murder on four separate
occasions”]; Green v. Georgia (1979) 442 U.S. 95, 96–97 [federal constitutional error
where Supreme Court found “substantial reasons” to assume the excluded statements’
reliability]; Cudjo v. Ayers (9th Cir. 2012) 698 F.3d 752, 763 [federal constitutional error
where “trustworthy and material exculpatory evidence was erroneously excluded”].)
Because the trial court properly applied the hearsay exception and Barragan’s statements
lack the level of reliability that would support a showing of federal constitutional error,
there was no due process violation in the trial court’s decision to exclude Barragan’s
statements. (See Miller v. Stagner (9th Cir. 1985) 757 F.2d 988, 995 [reviewing courts
“must give due weight to the substantial state interest in preserving orderly trials, in
judicial efficiency, and in excluding unreliable or prejudicial evidence.”].)
   B. MISCONDUCT IN OPENING STATEMENT
          1. Statements About Rivas’s Veracity
       Defendants argue the prosecutor improperly vouched for the credibility of
Salvador Rivas. A prosecutor may not vouch for the credibility of witnesses by referring
to evidence outside the record but may mention the “ ‘apparent honesty or reliability’ ” of
witnesses so long as that statement is based on facts in the record as well as reasonable
inferences drawn from those facts. (People v. Romero and Self (2015) 62 Cal.4th 1, 39.)
                                              21
       The prosecutor described Rivas’s expected testimony, stating: “And he can’t see
any stabbing, but can ... see that everyone in this group is participating. He says five to
seven people. This is what he -- he was cooperative with the police and told them that
much. And I believe that he will be a cooperative and an honest witness here in court.”
       There was no suggestion by the prosecutor that he was relying on personal
knowledge outside of what he intended to present as evidence to vouch for Rivas. He
merely expressed a belief that he thought Rivas would testify honestly and implied that
he based that belief on Rivas’s cooperation with the police. The prosecutor’s comments
did not amount to improper vouching.
          2. Stating that Defendants Lied to Police
       Defendants argue that the prosecutor improperly denigrated them by stating that
they lied to police. “Prosecutors ‘are allowed a wide range of descriptive comment and
the use of epithets which are reasonably warranted by the evidence,’ ” and they may
make fair comments on what they anticipate the evidence may show. (People v. Farnam
(2002) 28 Cal.4th 107, 168 [finding no misconduct where prosecutor referred to the
defendant during opening statement as monstrous, cold-blooded, and a predator].)
       The prosecutor here told the jury that officers would testify about their interviews
with the defendants. The prosecutor argued that when confronted with evidence that his
cellular phone was at the scene, Martell “gives them a lie. He does not give any
explanation, that he just watched, or that he was acting in self-defense. [¶] He says: ‘No.
No. I wasn’t there.’ And then gives this phony alibi ... .” The prosecutor continued:
“The police ... arrest Juan Ramirez. ‘Look, we know you were there. Just tell us what
happened.’ Give them an opportunity to tell their evidence. ... [¶] Juan Ramirez lies.
He doesn’t say: ‘I just watched. I didn’t participate.’ He says: ‘No. Wasn’t there. I may
have been drunk one time two months ago, but I wasn’t at no murder scene on Ezie
Street.’ ” As for Mendoza, the prosecutor stated Mendoza denied he was at Ezie Street
the night of the murder and “[l]ies to the police.” The prosecutor concluded: “The
                                             22
evidence will show you that all these defendants lied because they knew they were guilty
of first degree murder.”
       Rather than labeling them generally as liars, as defendants suggest on appeal, the
prosecutor stated that each defendant lied in a specific context (i.e., when asked by police
whether he was present at the scene of the homicide). The prosecutor could reasonably
expect the evidence to show that the defendants were indeed present on Ezie Street on the
night of the homicide based on the anticipated testimony of Tommy and Raymond Jr., as
well as physical evidence including DNA and fingerprints. The prosecutor’s statements
were not improper.
           3. Claimed Griffin Error
       Defendants argue that the prosecutor improperly commented on the defendants’
failure to explain when given “an opportunity to tell their evidence” when questioned by
the police. A prosecutor’s comment on a defendant’s silence violates the Fifth
Amendment to the United States Constitution. (Griffin, supra, 380 U.S. 609, 615 [“[T]he
Fifth Amendment, in its direct application to the Federal Government, and in its bearing
on the States by reason of the Fourteenth Amendment, forbids either comment by the
prosecution on the accused’s silence or instructions by the court that such silence is
evidence of guilt.”].)
       The prosecutor stated during his opening statement that the police gave defendants
“an opportunity to tell their evidence” and that “all these defendants lied” when given
that opportunity. Counsel for Ramirez (joined by the other defendants) asserted Griffin
error during his mistrial motion, arguing that “it was very subtle, but it’s [Griffin] error,
because my client asked for an attorney, and [the prosecutor] should not be allowed to
say my client wouldn’t cooperate.”
       Defendants argue that after the jury heard that defendants lied to the police when
given an opportunity to explain themselves, the jury was “improperly encouraged ... to
consider [defendants’] assumed decision not to testify at trial when considering”
                                              23
defendants’ statements to police. They continue that because the prosecutor called
attention to defendants’ failure to testify, the jury necessarily took the prosecutor’s
statements as a comment on their failure to testify.
       The prosecutor did not focus on defendants’ silence, but rather on their assertions
that they were not involved in the homicide. The prosecutor characterized defendants’
assertions as lies, based on the evidence he intended to present. As discussed in the
preceding section, the prosecutor stated that defendants lied in a specific context.
Contrary to defendants’ argument, taking the stand at trial was not “the only means to
redeem [defendants’] credibility ... .” Defendants could have supported their pretrial
assertions of non-involvement by attacking the prosecutor’s circumstantial evidence of
defendants’ presence or by presenting evidence of their own. Thus, we do not find that
the prosecutor’s statement could reasonably be construed by the jury as a comment on
defendants’ failure to testify at trial.
           4. Reference to Deleone’s Girlfriend’s Motive to Dispose of Weapons
       Mendoza and Ramirez argue that the prosecutor committed misconduct by
referencing facts that the prosecutor knew could not be introduced into evidence. “The
purpose of the opening statement is to inform the jury of the evidence the prosecution
intends to present, and the manner in which the evidence and reasonable inferences relate
to the prosecution’s theory of the case.” (People v. Millwee (1998) 18 Cal.4th 96, 137.)
Remarks made during an opening statement are not impermissible misconduct “unless
the evidence referred to by the prosecutor ‘was “so patently inadmissible as to charge the
prosecutor with knowledge that it could never be admitted.” ’ ” (People v. Wrest (1992)
3 Cal.4th 1088, 1108 (Wrest).)
               a. Background
       Deleone testified during Mendoza’s grand jury proceedings that Barragan and
others came to his apartment with “bloody weapons and a bloody sweatshirt.” The
people who came over wanted the weapons washed and Deleone’s girlfriend “told
                                              24
everybody that she was going to wash them and dispose of them.” Deleone stated that
the weapons were “wrapped up in a dark sweatshirt” and that while he did not see the
weapons, he knew what they were because his girlfriend told him what they were. He
answered in the affirmative when the prosecutor asked him if he used to buy
methamphetamine “from the Barragans ... .”
      The prosecutor told the jury in his opening statement that he expected Deleone to
testify that Barragan, Ramirez, and another person came to his apartment with “weapons,
which Javi, Mr. Barragan, had wrapped up in a black sweatshirt, that [Deleone’s]
girlfriend took these weapons and disposed of them for these guys. She was also a meth
user, wanted to continue to participate in getting meth.” There was no contemporaneous
objection but counsel for Ramirez included argument on this point in the mistrial motion
he made after the opening statement.
      The prosecutor asked Deleone at trial about his drug source. Deleone testified that
he did not get his drugs from Javier Barragan, stated that he knew Barragan’s brother,
and responded “Yeah” when the prosecutor asked: “Did you get drugs from either of
them?” The trial court sustained a relevance objection to the prosecutor’s next question
(“Who?”).
             b. Analysis
      Mendoza and Ramirez argue that the prosecutor’s opening statement informed the
jury that defendants brought weapons to Deleone’s apartment and that Deleone’s
girlfriend disposed of those weapons to support her methamphetamine habit even though
the prosecutor knew he could not provide evidence to support those facts. Regardless of
Deleone’s personal knowledge (or lack thereof), the prosecutor’s statement about the
presence of weapons is supported by Tommy’s trial testimony that he and Barragan
brought weapons to the house and handed them to Deleone’s girlfriend.
      As for Deleone’s girlfriend’s motive to dispose of the weapons, the prosecutor did
not produce direct evidence at trial regarding a motive. However, when he made his
                                           25
opening statement the prosecutor knew that Deleone had testified to the grand jury that at
the time of the homicide Deleone’s girlfriend obtained her methamphetamine from
Deleone, who purchased it from the Barragans. Based on that grand jury testimony, the
prosecutor could reasonably expect Deleone to give the same testimony at trial and it is a
reasonable inference that Deleone’s girlfriend would help a drug dealer dispose of
evidence due to a desire to continue receiving methamphetamine. Further, while the jury
never heard which of Barragan’s family members was Deleone’s drug supplier because
the trial court sustained a relevance objection to the prosecutor’s question, the prosecutor
did not know when he made his opening statement that the court would later sustain that
objection. And that evidence was not so patently inadmissible that the prosecutor should
have known the trial court would sustain an objection. (See Wrest, supra, 3 Cal.4th at p.
1108.)
            5. Reference to Ramirez Dealing Drugs
         Ramirez argues the prosecutor committed misconduct by stating that Ramirez
dealt drugs even though “the prosecutor had never identified drug dealing as a bad act on
which he intended to rely.” Ramirez appears to argue that the prosecutor’s reference to
drug dealing violated a pretrial order, which would constitute misconduct. (People v.
Silva (2001) 25 Cal.4th 345, 373 [“[I]t is misconduct to elicit or attempt to elicit
inadmissible evidence in violation of a court ruling ... .”].)
               a. Background
         Ramirez filed a pretrial motion in limine, entitled “Alleged Juvenile Bad Acts
and/or Acts of Moral Turpitude,” that specifically referenced two bad acts: Ramirez’s
arrest in the early morning of August 28, 2011 for being drunk in public, and Ramirez’s
arrest in September 2011 for a “beer run” where he stole a case of beer from a
convenience store. (Emphasis omitted.) The motion stated that Ramirez believed the
prosecution would seek to admit evidence of “these bad acts” and sought to exclude “any


                                              26
mention of this evidence” under Evidence Code section 352. The trial court granted the
motion.
       During his opening statement, the prosecutor said: “Barragan and Juan Ramirez,
they are tight. I believe Mr. Deleone will tell you that when Javier Barragan was arrested
for his attempted murder as a juvenile, he went away, also, to C.Y.A. And during that
time, it was Juan Ramirez who took his cell phone and conducted the drug-dealing that
he’d been doing on his behalf during that time period.” There was no contemporaneous
objection but counsel for Ramirez argued in his oral mistrial motion after the prosecutor’s
opening statement that he had previously moved to exclude “all, not just convictions, but
all bad acts of my client ... . And the court ruled in my favor.”
              b. Analysis
       On appeal, Ramirez argues that “[a]t no time, in any brief or argument, did the
prosecutor reveal an intention to suggest that Mr. Ramirez was a drug dealer.” But
Ramirez does not identify any legal duty requiring the prosecutor to have done so.
Ramirez suggests that his pretrial motion sought to exclude “any prior bad acts,” but his
motion was not so broad. Apparently based on information received from the
prosecution, the motion specified two bad acts, neither of which was drug dealing.
Ramirez’s motion did not mention, much less seek to exclude, evidence that Ramirez
dealt drugs, nor did he raise that bad act at the pretrial hearings on the motion. As
Ramirez has not demonstrated that he sought to exclude evidence that he dealt drugs, the
prosecutor was under no obligation to withhold discussion of that topic.
   C. PROSECUTOR’S DIRECT EXAMINATION OF DELEONE
          1. Testimony About Weapons
       Mendoza and Ramirez contend that the prosecutor committed misconduct by
asking Deleone questions he knew would elicit inadmissible hearsay. “[A] prosecutor
may not ‘ “ask questions of a witness that suggest facts harmful to a defendant, absent a
good faith belief that such facts exist.” ’ ” (People v. Young (2005) 34 Cal.4th 1149,
                                             27
1186; People v. Bonin (1988) 46 Cal.3d 659, 689 [“It is, of course, misconduct for a
prosecutor to ‘intentionally elicit inadmissible testimony.’ ”], overruled on another
ground by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill).)
              a. Background
       Deleone testified during Mendoza’s grand jury proceedings that he never saw
weapons the night of the homicide and knew about them only because his girlfriend told
him about them.
       At trial, the prosecutor asked Deleone if the people who came to his apartment the
night of the homicide brought weapons and, after Deleone answered affirmatively, asked
Deleone: “What kind of weapons?” Deleone testified that the weapons were a knife, a
box cutter, and a Philips-head screwdriver. Defense counsel objected that the testimony
was based on hearsay, which the trial court initially overruled. When Deleone later
testified that “I don’t really think I seen [the weapons], but my girlfriend told me they
were there,” the trial court struck “the testimony relating to the Philips screwdriver and
the box cutter and the knife” and instructed the jury to “[d]isregard it.” Deleone testified
that he heard “all the stuff” that was in the black sweatshirt one of the people who came
to the apartment brought “rattling around in the sink.”
       The prosecutor next referred to “weapons” in the following two questions: “And
you never saw the weapons after that?”; “You never saw the weapons after you heard that
rattling around and the water in the sink?” The court sustained objections to each of
those questions on the ground that they misstated the testimony. The trial court denied a
renewed mistrial motion at a hearing outside the presence of the jury, reminding “all
counsel that there has to be a good faith basis for any and all questions” but finding that
“given the nature of the testimony that was to be anticipated from Mr. Deleone, who
really knew what he was going to say[?]”




                                             28
               b. Analysis
        We see no error in the trial court’s implicit finding that there was a good faith
basis for the prosecutor’s initial question about weapons. Though the prosecutor was
likely aware that Deleone had testified during the grand jury proceedings that he never
saw the weapons, the prosecutor also knew, as Deleone freely admitted at trial, that
Deleone had been a heavy methamphetamine user at the time of the homicide and that his
prior drug use adversely affected his ability to remember things. Based on that history,
the prosecutor could reasonably believe at trial that Deleone might remember personally
seeing the weapons. However, once Deleone testified at trial that he had not seen the
weapons, the prosecutor no longer had any good faith basis for continuing to refer to
“weapons” in further questions to Deleone. The trial court correctly sustained objections
to those questions and instructed the prosecutor to rephrase.
       Mendoza and Ramirez argue that despite the trial court’s proper response to those
questions, the prosecutor’s misconduct in asking the questions constitutes reversible
error. Mendoza argues that the error should be reviewed under the harmless-beyond-a-
reasonable-doubt standard applicable to federal constitutional error but does not explain
why that standard applies. The cases he cites regarding prosecutorial misconduct apply
the test applicable to state law error: whether there is a reasonable probability that he
would have received a more favorable result had the error not occurred. (Citing People v.
Wagner (1975) 13 Cal.3d 612, 620 [citing Cal. Const., art. VI, § 13]; see also People v.
Johnson (1978) 77 Cal.App.3d 866, 874 [“ ‘[M]isconduct will cause reversal if it caused
a miscarriage of justice, that is, if there is a reasonable probability that it shifted the
verdict.’ ”]; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) We likewise apply
the Watson standard.
       The trial court struck Deleone’s testimony regarding weapons, instructing the jury
to “[d]isregard it.” The court also sustained objections to the prosecutor’s reference to
“weapons” in later questions to Deleone. We presume the jury followed those specific
                                               29
instructions, as well as the general provisions of CALCRIM No. 222 that the attorneys’
“questions are not evidence.” (People v. Boyette (2002) 29 Cal.4th 381, 453 (Boyette).)
Further, the jury heard testimony from Tommy about the weapons the defendants
allegedly used during the attack, and Tommy further testified that Mendoza and Ramirez
made statements while fleeing the attack suggesting they used weapons. Mendoza and
Ramirez have not demonstrated a reasonable probability of a more favorable result had
the prosecutor not asked the improper questions.
          2. Improperly Refreshing Deleone’s Recollection
       Mendoza argues, and the People essentially concede, that the prosecutor
improperly refreshed Deleone’s recollection by reading an excerpt from Deleone’s grand
jury testimony out loud in front of the jury. “Statements which have no independent
basis of admissibility may not be introduced under the guise of refreshing a witness’
memory. If it is necessary to refresh the memory of a witness through the use of a prior
recorded statement, that statement should not be read aloud before the jury but should be
given to the witness to read or be read by the attorney outside the presence of the jury.”
(People v. Parks (1971) 4 Cal.3d 955, 960–961 (Parks).)
              a. Background
       Deleone testified at trial that on the night of the homicide, Barragan and Ramirez
came into his apartment but that he did not “remember any other people coming in [his]
house.” The prosecutor asked Deleone: “Do you remember testifying at the grand jury,
and you weren’t sure about this, but that you thought that a third person, Travi, came in?”
Mendoza’s trial counsel objected that the prosecutor was leading the witness, which the
court overruled. Deleone testified: “Yeah, I thought there was a third person. I wasn’t
sure who it was.” The prosecutor eventually read from the grand jury transcript: “My
question to you, line 24: [¶] ‘What happens on this occasion? Who came over on this
occasion?’ [¶] Your answer was: [¶] ‘I remember Javi, Javier, Juan, and somebody else.
I don’t remember who the other person -- I think it was Travi, but I couldn’t be certain.’ ”
                                             30
              b. Analysis
       As the People concede that the prosecutor improperly refreshed Deleone’s
recollection, the only dispute is whether that error was prejudicial. Mendoza cites
Chapman v. California (1967) 386 U.S. 18 (Chapman) as the appropriate standard for
prejudice, but does not demonstrate how the prosecutor’s action violated any of
Mendoza’s federal constitutional rights. Absent a showing that Mendoza’s federal
constitutional rights were violated, we consider whether it is reasonably probable that he
would have obtained a more favorable result had the error not occurred. (Parks, supra,
4 Cal.3d at p. 961, citing Watson, supra, 46 Cal.2d at p. 836.)
       At trial, Deleone testified that he could not remember the name of the third person
who came to his house the night of the homicide. He was not even sure if a third person
accompanied Barragan and Ramirez at all. Though it was damaging to Mendoza to have
the jury hear that Deleone had previously indicated at the grand jury hearing that
Mendoza might have been present, the grand jury testimony was equivocal. Deleone
stated he thought Mendoza was the third person, “but I couldn’t be certain.” During
extensive cross-examination at trial by all three defendants’ attorneys, Deleone
consistently acknowledged both generally that he had a poor memory due to his history
of heavy methamphetamine use and specifically that he could not remember the identity
of the third person who came to his apartment. Deleone also testified that during at least
one interview with police he had identified Tommy as the third person. The only other
testimony the jury heard regarding who was present at the apartment came from Tommy,
who testified that only he and Barragan went up to the apartment.
       Further, whether Mendoza actually entered Deleone’s apartment was of secondary
importance to the prosecution’s case. On the more fundamental issue of whether
Mendoza was with the other assailants in the hours after the homicide, the prosecution
presented independent supporting evidence. For example, Tommy testified that Mendoza
participated in the attack and fled with the others. The prosecution also introduced
                                            31
evidence showing that calls from a cellular phone associated with Mendoza connected
through towers in the vicinity of the crime scene around the time of the crime (around
10:00 p.m.), through a tower closer to Deleone’s house closer to 11:00 p.m., through a
tower near Barragan’s mother’s house after 11:00 p.m., and through a tower in Milpitas
shortly after 2:00 a.m. Those locations are consistent with Tommy’s testimony about the
group’s flight. On this record, Mendoza has not demonstrated that it is reasonably
probable that he would have obtained a more favorable result had the jury not heard
Deleone’s grand jury testimony.
   D. GANG ISSUES
       All three defendants argue that insufficient evidence supported their gang
enhancements. Mendoza and Ramirez argue that the prosecution was allowed to present
an unduly prejudicial number of predicate offenses and also contend that certain slides in
the gang expert’s slideshow were unduly prejudicial.
          1. Gang Expert Testimony
       Detective Chris Gridley was a gang detective with more than 100 hours of training
about gangs, including training specifically about Hispanic gangs in San Jose. This was
his first homicide investigation as a gang expert. He testified that indicia of gang
membership he looks for when determining whether an individual is a gang member
include: use of gang symbols, hand signs, and clothing; admission of gang affiliation;
association with known gang members; tattoos; and prior gang-related criminal conduct.
       Gridley testified that he was “familiar with a gang called the Nortenos.” He stated
that the gang has approximately 2,000 members in San Jose and that their “territory
would be considered Bakersfield north to Northern California.” The primary activities of
the Norteño gang include assault with a deadly weapon, homicide, drive-by shootings,
car theft, robbery, and burglary. Norteño gang members commonly carry weapons for
protection and for use in attacks. Violence is common and is used to gain respect from
other gang members and to intimidate non-gang members. It is common for gang
                                             32
members to support themselves by selling drugs. Common names, signs, and symbols
for the Norteño gang include: Norte, Norteño, Northerner, the color red, the number 14,
the Huelga bird symbol, the San Jose Sharks symbol, and “compass-bearing points for
San Jose, such as East Side San Jo, E.S.S.J.”
       Gridley stated that the Norteño gang is an informal gang. The Norteño gang is
affiliated with the Nuestra Familia prison gang, which Gridley described as “the pinnacle
of Norteño prison gangs.” At the local level, gang members sometimes create formal
subsets that claim specific territory. While street gangs “derive a history” from the
Nuestra Familia, “not all Northerner gang members are affiliated” with the Nuestra
Familia. The Nuestra Familia influences Norteño street gangs to “a certain extent”
through sending out kites18 that “may be disseminated down to the street level.” But
Gridley testified that in his experience, “some of our subsets in San Jose don’t align
themselves with the N.F.” Further, some Norteño gang members are what Gridley
termed “solo Northerners,” who do not follow orders from the Nuestra Familia or any
formal subset.
       The Norteño gang’s main rival is the Sureño gang. Gridley stated that if a Sureño
gang member walks into a Norteño neighborhood, it is likely he will be challenged, and
possibly attacked, by Norteño gang members. Based on pictures taken of graffiti in the
neighborhood surrounding 436 Ezie St., Gridley opined that it was a Norteño
neighborhood that was specifically claimed by a Norteño subset called Seven Trees.
There was no evidence that any of the defendants were part of the Seven Trees subset.
       Gridley opined that the Norteño gang has engaged in a pattern of criminal gang
activity, based on seven predicate offenses. In 2001, Tommy Gonzalez admitted
committing assault with a deadly weapon with a gang enhancement as a juvenile in
Gilroy. Gridley testified that Tommy or another suspect called the victims “ ‘scraps’ ”
       18
         Detective Gridley explained that a kite is a method of communicating in jail by
sending messages written on a small strips of paper.
                                            33
and Tommy hit a victim’s car multiple times with a bat. In 2004, Barragan admitted
committing attempted murder with a gang enhancement in Stanislaus County. Gridley
testified that Barragan was visiting “two other Northerners” when a Sureño drove by and
that Barragan eventually shot the car the victim was driving multiple times. In 2007,
Mendoza admitted robbing someone as a juvenile in San Jose. Despite the lack of a gang
enhancement allegation in Mendoza’s robbery adjudication, Gridley opined that the
offense was related to Norteño gang activity because Mendoza asked the victim if he
“bangs,” which Gridley described as a “street check” that gang members sometimes ask
perceived rivals.19 In 2008, Martell admitted committing assault with a deadly weapon
with a gang enhancement in San Jose as a juvenile. Gridley testified that Martell was in a
group of “Northerners” that challenged another group to a fight “by calling them ‘Scraps’
and yelling out ‘Norte.’ ” A fight ensued, an individual in the group referred to as Scraps
was stabbed, and Martell pleaded guilty to that stabbing.
       In addition to predicate offenses involving defendants or accomplices to Garcia’s
homicide, the prosecution offered additional predicate offenses committed by other
individuals. In 2010, Jose Sotelo pleaded no contest to felony vandalism with a gang
enhancement in San Jose. Gridley testified that Sotelo was “a Northerner gang member.”
In 2010, Orlando Heredia and Miguel Hurtado pleaded no contest to assault with a deadly
weapon with gang enhancements in San Jose. Gridley testified that in that case the
victim was walking through “a known Norteño hood claimed by Triple L., Los Latinos
Locos” and a suspect (presumably Heredia or Hurtado) cut the victim’s chin while the
other suspect “yells ‘Norte’ and also pulls out a knife.” In 2010, Andy Martinez pleaded
guilty to assault with a deadly weapon with a gang enhancement in San Jose. Gridley

       19
         Though all of the predicate offenses involved a suspect or were for crimes
committed in Santa Clara County, Detective Gridley agreed on cross-examination with
Ramirez’s attorney’s statement that based on Gridley’s theory about the breadth of the
Norteño gang’s territory, “you could just as well have brought in a criminal act by
somebody in Fresno that was a Norteño, or Crescent City, or Sacramento ... .”
                                            34
testified that a group of what the victim apparently identified as “Northerners” challenged
the victim to fight while yelling “ ‘Puro Norte,’ ” and that Martinez eventually threw a
brick through the victim’s car window.
       Regarding the gang membership of the defendants and other suspected
perpetrators, Gridley opined that Barragan and Tommy were active Norteño gang
members, based on each of them self-identifying as Norteños and on their previous
convictions for Norteño-related offenses. Gridley thought Martell was an active solo
Norteño gang member who was not affiliated with any subsets. That opinion was based
on Martell’s tattoos; the presence of his name on a jail kite found after the homicide; his
criminal history; his mode of dress; and Martell’s admission during a 2011 field
interview that he had been a Norteño since he was 12 years old. Gridley believed
Mendoza was an active Norteño gang member based on his admission during booking;
his tattoos (Gridley opined the “U” and “Unidos” were gang-related rather than being
related to a Utah college); his juvenile adjudication where he asked the victim if he
“banged”; and the facts of the present case.
       Regarding Ramirez, the prosecutor asked Gridley “whether Mr. Ramirez is a
member of the Norteño gang,” and Gridley stated he “found him to be an associate,” or
someone who was working to become a gang member. That opinion was based on
Ramirez’s “East Side” tattoo, Tommy’s statement that Ramirez was “putting in work” to
benefit the gang, and Ramirez’s close association with Barragan. Gridley acknowledged
that Ramirez had no criminal record, no arrests, and no gang-related field identifications
before this case. Finally, Gridley opined that Maurillo Garcia was a Sureño gang
member (and therefore a rival to defendants) based on his tattoos and on the graffiti he
spray-painted being Sureño-related.
       In addition to being Norteño gang members, Gridley testified that Barragan,
Mendoza, and Ramirez were part of a Norteño subset called San Jose Unidos. Gridley
had never heard of that subset before working on this case and said he learned about it
                                               35
from Tommy, Deleone, and another gang detective. Deleone had apparently told police
during an interview that Barragan “and others” were members of San Jose Unidos.
Gridley testified that Deleone referred to San Jose Unidos as “ ‘the U’ ” and Gridley
believed Mendoza’s “U” and “Unidos” tattoos demonstrated his affiliation with the
subset. Gridley was not aware of any affiliation or relationship between San Jose Unidos
and the subset who claimed the neighborhood where the homicide occurred (Seven
Trees). On cross-examination, counsel for Mendoza asked Gridley: “And the reason that
you are using Norteño as the sort of umbrella street gang is because I think you said that
there are no crimes that have been committed by the subset S.J.U. if it exists, right?”
Gridley responded: “I did not find any predicates by them, no,” and also acknowledged
that he found no evidence of any criminal activity by the San Jose Unidos subset before
the homicide in this case.
       Gridley opined that the homicide was gang-related. He believed defendants
committed the homicide for the benefit of, and in association with, the Norteño gang
based on the way the defendants worked together to carry out the assault. The homicide
benefited the Norteño gang by increasing the gang’s respect and intimidating others in
the neighborhood.
          2. Sufficiency of the Evidence to Support Gang Enhancement
       Citing People v. Prunty (2015) 62 Cal.4th 59 (Prunty), defendants argue that the
evidence was insufficient to support the finding that the Norteños were a criminal street
gang. Defendants were alleged to have murdered Maurillo Garcia “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).) The prosecution’s theory during closing argument was that the crimes were
committed for the benefit of the Norteño gang.
       “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
                                              36
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 (Bolin).) We presume the “existence of every fact that the trier of fact could
reasonably deduce from the evidence” to support the judgment. (People v. Medina
(2009) 46 Cal.4th 913, 919 (Medina).) To overturn a conviction, “it must clearly appear
that upon no hypothesis whatever is there sufficient substantial evidence to support it.”
(People v. Redmond (1969) 71 Cal.2d 745, 755.)
                 a. Section 186.22 and Prunty
       Section 186.22, subdivision (f) defines a criminal street gang as “any ongoing
organization, association, or group of three or more persons, whether formal or informal,
having as one of its primary activities the commission of one or more of [certain
enumerated] criminal acts ... , 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.” Those enumerated offenses are called predicate
offenses. (People v. Tran (2011) 51 Cal.4th 1040, 1044 (Tran).) Section 186.22,
subdivision (e), in turn, defines a pattern of gang activity as “the commission of,
attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile
petition for, or conviction of two or more of the following offenses” listed in the
subdivision, “provided at least one of these offenses occurred after the effective date of
this chapter and the last of those offenses occurred within three years after a prior
offense, and the offenses were committed on separate occasions, or by two or more
persons ... .”
       In Prunty, the Supreme Court addressed “what type of showing the prosecution
must make when its theory of why a criminal street gang exists turns on the conduct of
one or more gang subsets.” (Prunty, supra, 62 Cal.4th at p. 67.) The court reviewed the
definition of “criminal street gang” in section 186.22, subdivision (f) and determined that
“where the prosecution’s case positing the existence of a single ‘criminal street
                                             37
gang’ ... turns on the existence and conduct of one or more gang subsets, then the
prosecution must show some associational or organizational connection uniting those
subsets.” (Prunty, at p. 71.) The court decided that the statute’s reference to an
“ ‘ongoing organization, association, or group’ ” is a “distinct requirement” and cannot
be satisfied merely by showing “shared colors, names, and other symbols.” (Id. at
pp. 74–75, quoting § 186.22, subd. (f).)
       The Prunty court presented an expressly non-exclusive list of methods prosecutors
can use to establish that “the ‘gang’ that the defendant sought to benefit, and the ‘gang’
that the prosecution proves to exist, are one and the same.” (Prunty, supra, 62 Cal.4th at
p. 75.) Prosecutors might provide evidence that multiple subsets are connected by some
form of hierarchy. Examples of that sort of proof include evidence that multiple subsets
each have a “ ‘shot caller’ ” who answers to a higher authority within the chain of
command; engage in independent activities that benefit the same higher ranking
individual or group (e.g., “various Norteño subset gangs that share a cut of drug sale
proceeds with the same members of the Nuestra Familia prison gang”); are governed by
the same bylaws; act to protect the same territory; or conduct “independent, but
harmonious, criminal operations within a discrete geographical area ... .” (Id. at pp. 77–
78.) Absent evidence of a hierarchy, prosecutors might provide evidence of
“collaboration, unity of purpose, and shared activity” sufficient to support a finding of a
single organization, association, or group. Examples of that sort of proof includes
evidence that multiple subsets: work in concert to commit a crime; profess or exhibit
loyalty to one another; have fluid or shared membership among subsets; or have a
“ ‘liaison’ ” who coordinates relations between subsets. (Id. at p. 78.) Finally,
prosecutors can demonstrate that multiple subsets “manifest specific behavior” that
suggests a shared identification with a single group. Examples of that sort of proof
include evidence that: “a certain Norteño subset retaliates against a Sureño gang for
affronts that gang has committed against other Norteño subsets”; or multiple subsets
                                             38
within a geographic area require prospective members to perform the same initiation
activities. (Id. at pp. 79–80.)
          The Prunty court noted that nothing in that opinion should be construed to reflect
“any skepticism regarding the general factual question of whether the Norteños exist” and
noted that the court had “previously upheld gang enhancements where the ‘criminal street
gang’ in question was a geographically dispersed group.”20 (Prunty, supra, 62 Cal.4th at
p. 85.)
                 b. Analysis
          The prosecution’s theory was that defendants murdered Garcia for the benefit of
“the Norteño gang” rather than any gang subset.
          Gridley testified that the Norteño gang has about 2,000 members. According to
Gridley, Tommy, Barragan, Mendoza, and Martell were all Norteño gang members.
Ramirez was a Norteño gang associate. That evidence supported a finding that the
Norteño gang had three or more members. (§ 186.22, subd. (f).)
          Gridley testified that the Norteño gang’s primary activities include assault with a
deadly weapon (§ 186.22, subd. (e)(1)), homicide (§ 186.22, subd. (e)(3)), drive-by
shootings (§ 186.22, subd. (e)(6)), car theft (§ 186.22, subd. (e)(9) [grand theft]), robbery
(§ 186.22, subd. (e)(2)), and burglary (§ 186.22, subd. (e)(11)). That testimony supported
a finding that the Norteño gang’s primary activities included “commission of one or more
of the criminal acts enumerated” in section 186.22, subdivision (e)(1) through (e)(25) or
(e)(31) through (e)(33). (§ 186.22, subd. (f).)



          20
           Prunty disapproved In re Jose P. (2003) 106 Cal.App.4th 458, where a different
panel of this court found that the prosecutor had provided sufficient evidence supported
the existence of “the Norteño gang.” (In re Jose P., at pp. 467–468; disapproved by
Prunty, supra, 62 Cal.4th at p. 78, fn. 5.) But the Prunty court noted that the
prosecution’s evidence in In re Jose P. “was likely sufficient to satisfy the framework”
laid out in Prunty. (Prunty, at p. 78, fn. 5.)
                                               39
       Gridley testified that common names, signs, and symbols for the Norteño gang
include: Norte, Norteño, Northerner, the color red, the number 14, the Huelga bird
symbol, the San Jose Sharks symbol, and compass-bearing points for San Jose. That
evidence supported a finding that the Norteño gang has “a common name or common
identifying sign or symbol.” (§ 186.22, subd. (f).)
       As for the requirement in section 186.22, subdivision (f) that the prosecution prove
the Norteño gang “engaged in a pattern of criminal gang activity,” the prosecution could
do so by showing that two or more predicate offenses were committed (or attempted) on
separate occasions, and that the last of the predicate offenses occurred within three years
after a prior offense. (§ 186.22, subdivision (e).) Gridley discussed several prior
offenses committed either by the current defendants (Mendoza and Martell) or their
accomplices (Tommy and Barragan), all of whom Gridley identified as Norteño gang
members. Tommy admitted committing assault with a deadly weapon with a gang
enhancement as a juvenile in 2001. Assault with a deadly weapon is a predicate offense.
(§ 186.22, subd. (e)(1).) Barragan admitted committing attempted murder with a gang
enhancement as a juvenile in 2004. Homicide is a predicate offense. (§ 186.22,
subd. (e)(3).) Mendoza admitted robbing someone as a juvenile in 2007, and Gridley
opined that the robbery was related to Norteño gang activity based on the circumstances
of the case. Robbery is a predicate offense. (§ 186.22, subd. (e)(2).) And Martell
admitted committing assault with a deadly weapon with a gang enhancement as a
juvenile in 2008. There was therefore evidence of two or more predicate offenses
committed by two or more Norteño gang members, and Martell’s juvenile adjudication
occurred within three years after Mendoza’s juvenile adjudication.
       Prunty clarified that section 186.22 also “requires the prosecution to introduce
evidence showing an associational or organizational connection that unites members of a
putative criminal street gang.” (Prunty, supra, 62 Cal.4th at p. 67.) In the instant case,
the prosecutor provided evidence of an associational connection by introducing predicate
                                             40
offenses committed by the very same individuals who were involved in Garcia’s
homicide. Because the prosecutor also presented evidence that Tommy, Mendoza,
Barragan, Martell, and Ramirez were all at Tommy’s house the night of the homicide,
defendants cannot reasonably argue they had no connection to one another. The evidence
in this case is therefore different from the evidence presented in Prunty, where the
predicate offenses introduced by the prosecution were committed by individuals other
than the current defendant and there was no evidence connecting those individuals to the
defendant. (Prunty, at pp. 82–85.)
       The prosecution presented sufficient evidence for a reasonable trier of fact to find
that defendants’ gang qualified as a criminal street gang beyond a reasonable doubt.
(Bolin, supra, 18 Cal.4th at p. 331.)
          3. Predicate Offenses
       Mendoza and Ramirez argue that the trial court admitted an unduly prejudicial
number of predicate offenses. (Evid. Code, § 352.) We review the trial court’s decision
for abuse of discretion. (Tran, supra, 51 Cal.4th at p. 1049.)
              a. Legal Principles
       In Tran, the Supreme Court provided guidance regarding an Evidence Code
section 352 objection to predicate offenses in the related context of showing a
defendant’s active participation in a criminal street gang. (Tran, supra, 51 Cal.4th at
p. 1048; § 186.22, subd. (a).) The court acknowledged that “evidence a defendant
committed an offense on a separate occasion is inherently prejudicial” but explained that
“Evidence Code section 352 requires the exclusion of evidence only when its probative
value is substantially outweighed by its prejudicial effect.” (Tran, at p. 1047, italics in
original.) Evidence is less likely to be prejudicial if it comes from “a source independent
of evidence of the charged offense” or if the previous offense “is no stronger or more
inflammatory than the testimony concerning the charged offense.” (Ibid.) Evidence of
uncharged criminal acts that did not result in a criminal conviction has a higher
                                             41
prejudicial effect. (Ibid.) The Tran court concluded that “evidence of a defendant’s
separate offense may be admissible to prove a predicate offense” but cautioned that while
a trial court “need not limit the prosecution’s evidence to one or two separate offenses
lest the jury find a failure of proof as to at least one of them, the probative value of the
evidence inevitably decreases with each additional offense, while its prejudicial effect
increases, tilting the balance towards exclusion.” (Id. at p. 1049.)
               b. Mendoza’s Juvenile Adjudication was Properly Admitted
       The trial court overruled Mendoza’s Evidence Code section 352 objection to
Gridley’s use of Mendoza’s juvenile adjudication for robbery as a predicate offense. The
court noted that Detective Newton had already testified that Mendoza admitted having
suffered a prior juvenile adjudication, meaning “there is prejudice that’s already
occurred.” Mendoza argues that the court abused its discretion because Detective
Newton’s testimony about the adjudication was general and Gridley went into greater
detail by opining that even though the robbery was not charged as a gang-related offense,
Mendoza’s conduct of asking the victim “ ‘Do you bang?’ ” was consistent with gang
activity (specifically, as evidence of a street check).
       Whether Mendoza was affiliated with the Norteño street gang was a disputed issue
at trial. Although he acknowledged during his police interview that he claimed
“Northern,” Mendoza denied being a gang member. Evidence that Mendoza engaged in
a street check was highly probative of whether he was a gang member. Mendoza has not
demonstrated that the inherently prejudicial nature of the sustained juvenile adjudication
posed such an intolerable risk of prejudice that the court should have excluded it. (Tran,
supra, 51 Cal.4th at p. 1047 [“ ‘Evidence is substantially more prejudicial than
probative ... [only] if, broadly stated, it poses an intolerable “risk to the fairness of the
proceedings or the reliability of the outcome” [citation].’ ”].)




                                               42
              c. Predicate Offenses Were Not Unduly Prejudicial or Cumulative
       Four of the seven predicate offenses were committed by individuals who were
allegedly involved in Garcia’s murder, including Barragan, Martell, Tommy, and
Mendoza. Three of those convictions specifically included gang enhancements and
Gridley opined that the fourth offense (Mendoza’s) was gang-related. Those four
predicate offenses were highly probative because they provided support for the
prosecutor’s theory that those four individuals killed Garcia for the benefit of the Norteño
street gang. (See Tran, supra, 51 Cal.4th at p. 1048 [evidence of a defendant’s prior
gang-related offense “provides direct evidence of a predicate offense ... and that the
defendant knew the gang engaged in a pattern of criminal gang activity.”].) As for the
three predicate offenses committed by other people, the crimes of which they were
convicted (assault with a deadly weapon and felony vandalism) were less serious than the
murder charges defendants faced. Further, all seven predicate offenses were convictions
and not merely uncharged criminal conduct, meaning there was less risk that the jury
would be confused about the issues in the case. (See Tran, supra, 51 Cal.4th at p. 1047
[uncharged acts not resulting in conviction are more prejudicial “because the jury might
be inclined to punish the defendant for the uncharged acts regardless of whether it
considers the defendant guilty of the charged offense”].) On this record, defendants have
not demonstrated an abuse of discretion.
          4. Gang Expert’s PowerPoint Presentation
       Mendoza and Ramirez argue the trial court erred in overruling their objections to
four slides included in Gridley’s PowerPoint presentation. Evidentiary rulings are
reviewed for abuse of discretion. (People v. Thomas (2011) 51 Cal.4th 449, 485
(Thomas).)
              a. Slide Four
       Slide four listed some of the predicate offenses enumerated in section 186.22,
subdivision (e) as well as a picture of what Ramirez’s trial counsel described as “guns,
                                            43
drugs, cash, [and] more drugs ... .” The court overruled defendants’ Evidence Code
section 352 objection, reasoning that the slide was generic, the list of offenses was
accurate, and the picture was “relatively small.”
       Mendoza argues that the slide “suggested that appellant and his co-defendants may
have committed rapes, tortures, or kidnappings” and that it implied defendants “were
involved in a lifestyle of guns, drugs, and cash.” There is no evidence that the prosecutor
spent any significant amount of time discussing this slide or that he or the gang expert
made any statements that would connect defendants with the content of the slide. The
trial court did not abuse its discretion.
               b. Slide 10
       Slide 10 had the heading “ ‘Norteño’ ” and showed pictures of people making
what the prosecutor stated were Norteño gang hand signs. The trial court overruled
objections by Ramirez’s counsel that the pictures had not been authenticated and that
they were unduly prejudicial. The court obtained Gridley’s assurance that slide 10 was
the only slide demonstrating gang signs, and the detective later testified before the jury
that the use of gang hand signs is one indicator of gang membership.
       Because there was no evidence that the defendants used gang signs on the date of
the homicide, the slide was irrelevant and should not have been admitted. However, the
error was not prejudicial. The slide was one of several shown during Gridley’s
testimony, and the prosecutor did not place any special emphasis on slide 10. The
remainder of Gridley’s testimony provided ample independent evidence of Mendoza’s
and Ramirez’s gang affiliation (including their tattoos, Mendoza’s juvenile adjudication
for what Gridley opined was a gang-related offense, Ramirez’s close association with
Barragan, and the facts of the present case). Mendoza and Ramirez therefore have not
demonstrated that it was reasonably probable that they would have obtained a more
favorable result had the error not occurred. (People v. Partida (2005) 37 Cal.4th 428,


                                             44
439 [“Absent fundamental unfairness, state law error in admitting evidence is subject to
the traditional Watson test.”].)
              c. Slides 40 and 41
       Mendoza argues that slides 40 and 41, which contained photographs of graffiti,
were unauthenticated and unduly prejudicial. At a hearing outside the presence of the
jury, Ramirez’s trial counsel argued that two of the four photographs in slide 40 were not
authenticated because there was no testimony about “how long they have been there,
where they came from, what neighborhood they are in.” He raised the same objection
about all of the pictures in slide 41. A person identified in the Reporter’s Transcript as
“The Witness” (presumably Gridley) stated that the photos “are all from the
neighborhood.” The trial court overruled the objections and when the prosecutor
continued his direct examination of Gridley, he confirmed that two successive slides of
graffiti (presumably slides 40 and 41) showed “some of the gang graffiti in this area of
[Richdale] and Ezie Street ... .” Mendoza’s argument on appeal that the “officer did not
know what neighborhood the photographs on slide no. 40 came from” is contradicted by
the foregoing testimony from Gridley that the graffiti photographs were taken in the area
of the homicide.
       Mendoza contends that Gridley “did not know who painted the graffiti or when the
graffiti was painted.” As the purpose of the photographs was to support Gridley’s expert
opinion that the area surrounding the scene of the homicide was claimed by a Norteño
subset, the photographs were relevant and admissible without testimony regarding who
painted the graffiti or the length of time the graffiti was present in the area. The absence
of testimony about those characteristics merely affected the weight of the photographic
evidence and factored into the court’s Evidence Code section 352 determination. The
trial court could reasonably conclude that any prejudice from the jury seeing photographs
that might not be directly related to defendants’ actions did not substantially outweigh the


                                             45
photographs’ probative value in supporting Gridley’s opinion that the area around the
homicide was claimed by a Norteño subset.
   E. DEFENDANTS’ STATEMENTS
          1. Mendoza’s Statements at the Non-Custodial Interview
       Mendoza argues that the court abused its discretion by admitting his March 2012
non-custodial interview into evidence and by allowing Detective Newton to testify about
statements Mendoza made during that interview. He contends that his statements “did
not provide any evidentiary value” and were unduly prejudicial. (Evid. Code, §§ 210,
350, 352.) A trial court’s decisions that evidence is relevant and that its probative value
is not substantially outweighed by the probability of undue prejudice are reviewed for
abuse of discretion. (People v. Kelly (1992) 1 Cal.4th 495, 523 (Kelly); Thomas, supra,
51 Cal.4th at p 485.)
       Mendoza fails to demonstrate that the trial court abused its discretion in finding
his statements relevant. Mendoza made statements at the interview that were relevant
and admissible as party admissions (Evid. Code, § 1220), including that he claimed
“Northern” and that he admitted having a juvenile adjudication for robbery. Mendoza
also made statements that were relevant to show a consciousness of guilt, including that
he denied visiting Ezie Street, denied being in a gang, and denied knowing the other
homicide suspects. The prosecutor provided other evidence (including Tommy’s
testimony about Mendoza’s presence and Gridley’s opinion about Mendoza’s gang
membership) that suggested Mendoza’s denials were false. (Cf. People v. Kimble (1988)
44 Cal.3d 480, 496 [“[A]s a general rule, false statements made by a defendant at the
time of arrest are admissible—not for the truth of the statements—but to show
consciousness of guilt.”].)
       We likewise see no abuse of discretion in the trial court’s decision to overrule
Mendoza’s Evidence Code section 352 objection. Mendoza’s admission that he claimed
“Northern” was highly probative of whether he was a gang member. Mendoza’s denials
                                             46
of involvement in the homicide had probative value both in supporting his defense case
and in supporting the prosecutor’s theory that his statements showed a consciousness of
guilt. Either way, they had probative value. Nothing in his statements was so prejudicial
as to compel the conclusion that the trial court abused its discretion when it decided that
the statements’ probative value was not substantially outweighed by the danger of undue
prejudice. (Evid. Code, § 352.)
          2. Mendoza’s Booking Interview Statement
       Mendoza argues that the trial court erred in admitting testimony from correctional
officer Rios that Mendoza “admitted Northerner” during a classification interview at the
county jail after his arrest. In People v. Elizalde (2015) 61 Cal.4th 523 (Elizalde), the
Supreme Court determined that questions about gang affiliation during a jail
classification booking interview are reasonably likely to elicit incriminating responses,
making the interview a custodial interrogation under the Fifth Amendment. (Elizalde, at
pp. 527, 541; U.S. Const., 5th Amend.) As a custodial interrogation, the Elizalde court
found that answers to such questions are inadmissible in the prosecution’s case-in-chief
unless preceded by a Miranda advisement. (Elizalde, at pp. 527, 541.)
       Mendoza received no Miranda advisement before being questioned at booking.
The trial court thus erred in allowing correctional officer Rios to testify about Mendoza’s
statements during the booking interview.
       “The erroneous admission of a defendant’s statements obtained in violation of the
Fifth Amendment is reviewed for prejudice under the beyond a reasonable doubt standard
of Chapman ... .” (Elizalde, supra, 61 Cal.4th at p. 542.) The jury had already heard that
Mendoza had claimed to be “Northern” during the non-custodial interview he had with
Officer Newton. Gridley opined that Mendoza was an active Norteño gang member,
based on his tattoos, a juvenile adjudication, and the facts of the present case. Because
other admissible evidence (including an admission by Mendoza himself) suggested that


                                             47
Mendoza was a Norteño gang member, the trial court’s erroneous admission of
Mendoza’s booking statement was harmless beyond a reasonable doubt.
           3. Text Messages Sent from Mendoza’s Phone
       Mendoza argues that the trial court erred in admitting text messages sent from
Mendoza’s cellular phone because they were irrelevant and unduly prejudicial.
(Evid. Code, §§ 350, 352.) We review the trial court’s decision for abuse of discretion.
(Kelly, supra, 1 Cal.4th at p. 523; Thomas, supra, 51 Cal.4th at p. 485.)
               a. Background
       People’s Exhibit 21 (Mendoza’s phone records) includes just over 20 text
messages sent from or received by the phone. Some of those text messages reference
“pills” and “bud ... .”
       Gridley indicated multiple times during his testimony that he based his opinions
about whether individuals were gang members on the totality of the circumstances. The
detective agreed with the prosecutor that selling controlled substances is one of the
enumerated crimes that can be used to validate a criminal street gang. (See § 186.22,
subd. (e)(4).) He also agreed that it is common for gang members to support themselves
by selling drugs. Gridley stated that some of Ramirez’s text messages were consistent
with drug dealing. The prosecutor asked him whether “that’s consistent with being a
gang member,” to which Gridley responded: “Well, I mean, I think it depends on the
gang member. [¶]...[¶] But, yes, selling drugs is something that gang members do.”
       During cross-examination, Mendoza’s attorney had the following exchange with
Gridley: “[Mendoza’s counsel:] All right. Now, [the prosecutor] showed you yesterday
some text messages that were from a phone that was attributed to Marcos Mendoza, and
it was some text messages about drug sales. Did it appear to you that it was minor drug
sales? [¶] [Gridley:] It appeared to me to be marijuana. [¶] [Mendoza’s counsel:] As far
as this case goes, do you see these text messages as very important to the case? [¶]
[Gridley:] As far as establishing the homicide of the victim and the assault, no. [¶]
                                             48
[Mendoza’s counsel:] What about as far as in forming your opinion about his gang
membership? [¶] [Gridley:] No, I wouldn’t -- even though a lot of gang members sell
drugs, it’s not a stand-alone criteria that I would use. [¶] [Mendoza’s counsel:] And, in
fact, in these text messages, there is absolutely no information that would associate Mr.
Mendoza with gang type of activity at all? [¶] [Gridley:] Not that I found.” Mendoza’s
counsel asked: “So, just to be clear, you would not say that the text messages indicate
any gang-related activity?” Gridley responded: “Correct.”
       The court overruled Mendoza’s relevance and Evidence Code section 352
objections, finding that drug dealing is an enumerated section 186.22 offense, Gridley
testified that his opinions were based on the totality of the circumstances (including the
text messages), and the “relatively innocuous” nature of the messages meant that the
“prejudice is minimal.”
              b. Analysis
       Mendoza does not provide the content of the messages to which he objects on
appeal. He argues generally that to the extent any of the text messages suggested that
Mendoza sold drugs, they were irrelevant because Gridley did not rely on drug dealing to
form his opinion about Mendoza’s gang affiliation.
       Gridley testified that it is common for gang members to sell drugs, noted that
drug-dealing is one enumerated crime relevant to establishing a pattern of criminal gang
activity (§ 186.22, subd. (e)(4)), and opined that Mendoza was a gang member. Based on
that testimony, evidence of drug dealing in text messages from Mendoza’s phone was
relevant to the jury’s resolution of the case. Mendoza’s trial counsel effectively cross-
examined Gridley, with Gridley agreeing with counsel that the text messages were not
“very important” to establishing Mendoza’s gang membership and that drug dealing was
“not a stand-alone criteria that I would use.” But Gridley never testified that evidence of
drug dealing in text messages was wholly irrelevant to his opinion; his cross-examination
testimony merely affected the weight of the text message evidence.
                                             49
       As for Mendoza’s Evidence Code section 352 argument, the messages were
relatively innocuous and were confined to five heavily redacted pages from among over
300 pages of phone records in a trial with a voluminous record. Mendoza has not shown
that the trial court abused its discretion in finding that the risk of undue prejudice did not
substantially outweigh the evidence’s probative value.
            4. Text Messages Received on Mendoza’s Phone
       Mendoza argues, based on his trial counsel’s argument at a hearing, that two
messages received on Mendoza’s cellular phone should have been excluded as hearsay.
We review the trial court’s evidentiary decision for abuse of discretion.21 (People v.
Pirwani (2004) 119 Cal.App.4th 770, 787.)
       Our review of People’s Exhibit 21 does not disclose the first message trial counsel
paraphrased as saying “only call him if they are calling him.” Because defendant has not
shown that the foregoing message was part of the exhibit provided to the jury, we do not
address his appellate argument related to it.
       The exhibit contains the other message Mendoza challenged in the trial court,
which was received by Mendoza’s phone and reads: “Dont give tht number out to
eneone cuz. He only wnts s0certain ppl to have tht only u me n marty n cholo have tht
shit, just so u kno bro, gracias.” (Errors in original.) The prosecutor did not respond to
the hearsay objection, and the trial court implicitly overruled the hearsay objection by
admitting the evidence. (Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 449
[“Although the court did not rule on the objection, we infer from its reliance upon the
[evidence] that it implicitly overruled the objection.”]; see People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 407.)


       21
          Contrary to the People’s argument on appeal, Mendoza’s trial counsel
preserved the hearsay objection by arguing that the messages received by Mendoza were
“hearsay. There is no exception. The expert did not rely on the hearsay, so there is
further no exception to that rule.”
                                                50
       The message received on Mendoza’s phone was an out-of-court statement. But
the trial court could reasonably conclude that the message was not hearsay because it was
not offered to prove the truth of any matters asserted. (Evid. Code, § 1200, subd. (a).)
The person referred to as “He” in the message was not identified, nor was there any
testimony or argument that the unidentified person indeed only wanted certain people to
have access to the number the message refers to. The court could have admitted the
message for the non-truth purpose of connecting Mendoza with people named Marty and
Cholo, who could be Barragan’s brothers (based on Tommy’s testimony at trial). We see
no abuse of discretion.
          5. Ramirez Forfeited Objections to His Statements
       Ramirez joins Mendoza’s appellate arguments about Mendoza’s statements to
police and text messages. (Cal. Rules of Court, rules 8.200(a)(5) [“[A] party may join in
or adopt by reference all or part of a brief in the same or a related appeal.”]; 8.360(a).)
Ramirez also appears to argue that the trial court erred in admitting Ramirez’s statements
to police and text messages because the parts of Mendoza’s brief that he joins apply
“equally to Mr. Ramirez’s denials of guilt and text messages.” But Ramirez provides no
analysis to challenge the trial court’s decision regarding Ramirez’s statements.
       A party challenging the admission of evidence must, at the very least, describe the
evidence being challenged and explain why the trial court erred in admitting it. Even if
the evidence Ramirez challenges falls into the same broad categories as the evidence
Mendoza challenges (i.e., statements to police and text messages), a trial court’s decision
whether to admit evidence is necessarily evidence-specific. As Ramirez fails to provide
reasoned argument to support his claim on appeal, he has forfeited his appellate argument
related to admission of his statements at trial. (Tellez v. Rich Voss Trucking, Inc. (2015)
240 Cal.App.4th 1052, 1066 [“When an appellant asserts a point but fails to support it
with reasoned argument and citations to authority, we treat the point as forfeited.”].)


                                              51
   F. EVIDENCE CORROBORATING TOMMY’S TESTIMONY ABOUT MENDOZA
       Mendoza argues that there was insufficient evidence of his involvement in the
homicide to corroborate Tommy’s accomplice testimony. (Citing § 1111.)
       “A conviction can not [sic] be had upon the testimony of an accomplice unless it
be corroborated by such other evidence as shall tend to connect the defendant with the
commission of the offense ... .” (§ 1111.) But corroboration can come from
circumstantial evidence that would be of limited weight if standing alone, so long as it
tends to “implicate the defendant by relating to an act that is an element of the crime.”
(People v. McDermott (2002) 28 Cal.4th 946, 986 (McDermott).) The prosecutor is not
required to present corroborating evidence establishing every element of the crime, but
the corroborating evidence must, “without aid from the accomplice’s testimony, tend to
connect the defendant with the crime.” (Ibid.) We are bound by the jury’s decision
“unless the corroborating evidence should not have been admitted or does not reasonably
tend to connect the defendant with the commission of the crime.” (Ibid.)
       Tommy testified that Mendoza was at 436 Ezie St. the night of the homicide; that
Mendoza was punching the victim during the attack; that Mendoza fled with Tommy and
the others; and that Mendoza stated while in the car that “ ‘I booked him’ ... .” Tommy
also suggested that Mendoza accompanied Tommy and the others to Deleone’s house,
Barragan’s mother’s house, and Milpitas after the homicide.22
       As for corroborating evidence, Raymond Jr. responded “I think so” when asked at
trial whether Mendoza was at 436 Ezie St. on the night of the homicide. Mendoza’s
fingerprints matched those on a beer can recovered from the back yard at 436 Ezie St.
and his fingerprints and DNA were recovered from a can in the house’s front driveway.


       22
          Tommy did not explicitly mention Mendoza’s name every time he testified
about the next destination of their flight, but also never testified that Mendoza left the
group. Tommy also stated that Creeper picked up “[a]ll of us except David [Martell]”
from Barragan’s mother’s house in order to drive them to Milpitas.
                                             52
Calls from a cellular phone associated with Mendoza connected through towers in the
vicinity of the crime scene around the time of the crime (around 10:00 p.m.), through a
tower closer to Deleone’s house closer to 11:00 p.m., through a tower near Barragan’s
mother’s house after 11:00 p.m., and through a tower in Milpitas shortly after 2:00 a.m.
Rivas testified that everyone who ran from 436 Ezie St. participated in the assault.
       The corroborating evidence supported findings that Mendoza was at 436 Ezie St.
around the time of the homicide, that he participated in the assault on Garcia (if the jury
believed he was one of the people who left 436 Ezie St. to chase Garcia), and that he fled
the scene of the crime with the other assailants. The corroborating evidence sufficiently
tended to connect Mendoza to the homicide.
       Mendoza relies on People v. Pedroza (2014) 231 Cal.App.4th 635 (Pedroza). In
Pedroza, an accomplice testified that he heard two gun shots, turned and saw Pedroza
with a revolver pointed at the victim, and then saw a third person (Garivay) shoot the
victim twice with a shotgun. (Id. at p. 640.) Pedroza, Garivay, and the accomplice drove
to Garivay’s house (20 minutes away from the crime scene) where Garivay’s girlfriend
Lisa also lived. (Id. at pp. 639–640.)
       On appeal from the trial court’s acquittal of Pedroza based on its finding that there
was insufficient corroboration as a matter of law, the Court of Appeal summarized the
corroborating evidence connecting Pedroza to the murder charge as follows:
“(1) [Pedroza] was in the same gang as the victim and [the accomplice]; (2) the gang—
which had over 400 members—was experiencing frequent in-house murders; and (3) at
some time after 11:00 p.m., Lisa heard a banging noise at her house; a few hours later,
between 2:00 and 3:00 a.m., she saw [Pedroza] in her garage, along with Garivay, [the
accomplice], and Renteria.” (Pedroza, supra, 231 Cal.App.4th at pp. 643, 647, 651.)
The Court of Appeal found that the corroborating evidence showed nothing more than a
general connection to the victim and other perpetrators and that there was no evidence


                                             53
about Pedroza’s acts or conduct, “except that he was with at least one admitted
perpetrator, hours after the crime.” (Id. at p. 651, italics in original.)
       Pedroza is distinguishable because the only corroborating evidence in that case
came from someone who was nowhere near the scene of the crime and who only saw the
defendant hours after the crime was committed. By contrast, the corroborating evidence
in this case supported findings that Mendoza was at the scene of the crime when the
crime took place, participated in the assault, and fled with the other perpetrators.
   G. INTIMIDATION EVIDENCE
       Defendants argue the trial court erred in denying their motion in limine to exclude
intimidation evidence related to Rivas, Tommy, and Deleone as unduly prejudicial.
(Evid. Code, § 352.) We review the trial court’s decision for abuse of discretion.
(Thomas, supra, 51 Cal.4th at p. 485.)
           1. Background
       The trial court denied defendants’ motion in limine to exclude intimidation
evidence and invited counsel to make specific objections during trial. Rivas testified that
his home was vandalized within hours after he received a subpoena to testify at
defendants’ trial and that he remained fearful at the time of trial. Tommy testified that
Barragan’s brother made statements about Raymond Jr. and Raymond III “snitching,”
which made Tommy fearful for both his and his family’s safety. Deleone testified that he
was attacked while in county jail and was told that the attack had been ordered by
Norteños because he had made statements to the police about defendants’ case. Deleone
testified that he became somewhat fearful after the attack and had requested that the
district attorney’s office escort him to and from his testimony at defendants’ trial.
       The court instructed the jury before deliberations: “A witness or witnesses have
testified regarding threats made by someone other than the defendants. Evidence of
third-party threats is relevant only as to the witness’ state of mind, attitude, actions, bias


                                               54
and prejudice. Do not consider this evidence for any other purpose. Such evidence may
not be used to infer direct, or consciousness of, guilt on the part of defendants.”
            2. Analysis
       “[E]vidence that a witness is afraid to testify or fears retaliation for testifying is
relevant to that witness’s credibility ([citations]), and may be admissible whether or not
the threat is directly linked to the defendant ... .” (People v. Mendoza (2011)
52 Cal.4th 1056, 1087 (Mendoza); Evid. Code, § 780.) Each of the three witnesses
testified to receiving threats that they perceived were related to their involvement in
defendants’ trial, and each testified that those threats made them fearful. The evidence
was probative of their state of mind and credibility. (Mendoza, supra, 52 Cal.4th at
p. 1087.) The trial court reduced the risk of prejudice related to the statements by
providing a limiting instruction directing the jury not to use the evidence “to infer direct,
or consciousness of, guilt on the part of defendants.” We presume the jury followed that
instruction. (Boyette, supra, 29 Cal.4th at p. 453.) Because the evidence had probative
value and the trial court properly limited the purposes for which the evidence could be
considered, we find no abuse of discretion in the trial court’s decision that the probative
value of the evidence was not substantially outweighed by its risk of undue prejudice.
   H. JURY INSTRUCTIONS
       Defendants argue the trial court improperly instructed the jury regarding the
mental state necessary to convict defendants for aiding and abetting assault or murder;
the extent to which the defendants’ voluntary intoxication could be considered; and the
definition of a criminal street gang.23 We review defendants’ argument on appeal despite
their failure to object at trial because “ ‘[w]hether claimed instructional error affected the
substantial rights of the defendant necessarily requires an examination of the merits of the
claim’ ... .” (People v. Ngo (2014) 225 Cal.App.4th 126, 149; § 1259 [“The appellate
       23
      Mendoza originally claimed an additional instructional error (related to
CALCRIM No. 400) in his Opening Brief but withdrew the argument in his Reply Brief.
                                              55
court may also review any instruction given, refused or modified, even though no
objection was made thereto in the lower court, if the substantial rights of the defendant
were affected thereby.”].)
            1. Standard of Review
       “No judgment shall be set aside, or new trial granted, in any cause, on the ground
of misdirection of the jury, ... unless, after an examination of the entire cause, including
the evidence, the court shall be of the opinion that the error complained of has resulted in
a miscarriage of justice.” (Cal. Const., art. VI, § 13.) We review claims that a trial court
has misdirected a jury de novo. If the challenged instruction is ambiguous, we
independently review whether there is a “reasonable likelihood that the jury construed or
applied the challenged instructions in a manner” contrary to law. (People v. Berryman
(1993) 6 Cal.4th 1048, 1077, overruled on another ground by Hill, supra, 17 Cal.4th at
p. 823, fn. 1.) In reviewing whether the trial court properly instructed the jury, we
consider “ ‘the entire charge of the court’ ” rather than focusing on only parts of an
instruction. (People v. Carrington (2009) 47 Cal.4th 145, 192 (Carrington).)
            2. Mens Rea for Aiding and Abetting Liability
               a. Mens Rea Instructions
       The jury was instructed as follows.24 CALCRIM No. 252 provided that the
“following crime and allegation requires a specific intent or mental state: Murder as
charged in Count 1 and the gang enhancement.” The instruction explained that to find a
defendant guilty the jury must find not only that the defendant “intentionally commit[ted]
the prohibited act” but also that he did so “with a specific intent and/or mental state,” as
“explained in the instruction for that crime or allegation.” CALCRIM No. 252 provided
that the lesser included offenses of voluntary manslaughter and involuntary manslaughter
require only general criminal intent.
       24
        As the written instructions do not materially differ from the oral
pronouncement, we quote the instructions as they appear in the Clerk’s Transcript.
                                             56
       CALCRIM No. 400 provided that the jury may find a defendant guilty of a crime
in two ways, either by finding that the defendant “directly committed the crime” or by
finding that the defendant “aided and abetted a perpetrator, who directly committed the
crime.” CALCRIM No. 401 defined the elements of aiding and abetting liability and also
states that someone “aids and abets a crime if he or she knows of the perpetrator’s
unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate,
promote, encourage, or instigate the perpetrator’s commission of that crime.”
       CALCRIM No. 403 provided, in relevant part: “Before you may decide whether
the defendant is guilty of murder, you must decide whether he is guilty of assault or
assault with force likely to cause great bodily injury. [¶] To prove that the defendant is
guilty of murder, the People must prove that: [¶] 1. The defendant is guilty of assault or
assault with force likely to cause great bodily injury; [¶] 2. During the commission of
the assault or assault with force likely to cause great bodily injury a co-participant in that
assault or assault with force likely to cause great bodily injury committed the crime of
murder; [¶] and [¶] 3. Under all of the circumstances, a reasonable person in the
defendant’s position would have known that the commission of the murder was a natural
and probable consequence of the commission of the assault or assault with force likely to
cause great bodily injury. [¶] ... [¶] The People are alleging that the defendant originally
intended to aid and abet assault or assault with force likely to cause great bodily injury.
[¶] If you decide that the defendant aided and abetted one of these crimes and that
murder was a natural and probable consequence of that crime, the defendant is guilty of
murder. You do not need to agree about which of these crimes the defendant aided and
abetted.” (Capitalization omitted.)
       CALCRIM Nos. 915 and 875 defined assault and assault with force likely to cause
great bodily injury, respectively, and informed the jury that to find a defendant
committed one of those crimes, “[i]t is not required that [the defendant] intend[ed] to


                                              57
break the law, hurt someone else, or gain any advantage.” Those instructions also state
that “[v]oluntary intoxication is not a defense to assault.”
              b. Mens Rea Instructions Were Adequate
       Defendants argue that the combination of the foregoing instructions caused the
jury to be “advised that no ‘specific intent’ need be proven for guilt to arise as to assault
for [an] aider and abettor.” Ramirez states in his Opening Brief that “[a]s will be shown,
CALCRIM 401 did not save the day” but then proceeds to his argument about voluntary
intoxication without explaining why CALCRIM No. 401 did not adequately instruct the
jury regarding the mens rea necessary to convict defendants as aiders and abettors.
       Defendants’ argument appears to be that, (1) CALCRIM No. 252 purportedly
informed the jury that specific intent need only be shown for murder and the gang
enhancement; (2) specific intent is necessary to be convicted for aiding and abetting;
(3) CALCRIM Nos. 915 and 875 informed the jury that assault and assault with force
likely to cause great bodily injury do not require specific intent; (4) CALCRIM No. 403,
which stated that the prosecutor’s theory of the case was that defendants intended to aid
and abet an assault or assault with force likely to cause great bodily injury, did not repeat
the statement from CALCRIM No. 401 that specific intent is required for aider and
abettor liability; and (5) that failure to repeat the specific intent mental state left the jury
with the impression that specific intent did not need to be shown to find defendants guilty
of murder based on aiding and abetting assault (the natural and probable consequence of
which was murder).
       We disagree with defendants’ first premise and their conclusion. CALCRIM
No. 252 stated that murder and the gang enhancement “requires a specific intent or
mental state” but did not instruct the jury that those were the only issues in the case
requiring specific intent. That instruction merely informed the jury that the only
substantive count charged in the case (murder) was a specific intent crime and that lesser
included offenses related to that count (voluntary and involuntary manslaughter) were
                                               58
general intent crimes. The jury was also not misinstructed by the court’s failure to repeat
the mens rea necessary for aider and abettor liability in CALCRIM No. 403. The trial
court explicitly stated that specific intent was necessary for aider and abettor liability in
CALCRIM No. 401 immediately before providing CALCRIM No. 403. When read in
the context of the instructions as a whole, we find no reasonable likelihood that the
instructions caused the jury to misapply the law. (Carrington, supra, 47 Cal.4th at
p. 192.)
           3. Voluntary Intoxication Instruction
       Defendants argue that the voluntary intoxication instruction provided to the jury
improperly limited the issues about which the jury could consider evidence of
defendants’ voluntary intoxication. “[T]he intent requirement for aiding and abetting
liability is a ‘required specific intent’ for which evidence of voluntary intoxication is
admissible” under section 29.4, subdivision (b). (People v. Mendoza (1998) 18 Cal.4th
1114, 1131; § 29.4, subd. (b) [“Evidence of voluntary intoxication is admissible solely on
the issue of whether or not the defendant actually formed a required specific intent ... .”].)
       The jury was instructed: “You may consider evidence, if any, of a defendant’s
voluntary intoxication only in a limited way. You may consider that evidence only in
deciding whether the defendant acted with the specific intent to kill or to promote,
further, and assist in criminal conduct by gang members or a mental state such as
premeditation. [¶] ... [¶] Do not consider evidence of intoxication in deciding whether
murder was a natural and probable consequence of assault or assault with force likely to
cause great bodily injury. [¶] In connection with the charge of murder the People have
the burden of proving beyond a reasonable doubt that the defendant acted with the
requisite specific intent or mental state required. If the People have not met this burden,
you must find the defendant not guilty of murder. [¶] ... [¶] You may not consider
evidence of voluntary intoxication for any other purpose.” (Capitalization omitted.)


                                              59
       Contrary to defendants’ argument, the foregoing instruction informed the jurors
that they could consider evidence of defendants’ voluntary intoxication in deciding three
things: (1) intent to kill; (2) intent to promote, further, and assist in gang conduct; or
(3) regarding “a mental state such as premeditation.” It also specifically stated that the
People had the burden to prove that defendants “acted with the requisite intent or mental
state required” to convict one or all of them of “the charge of Murder ... .” (Italics
added.) The prosecutor’s theory was that defendants were guilty of murder by aiding and
abetting an assault. As aiding and abetting liability was only relevant to whether
defendants were guilty of the murder charge, we find that reasonable jurors would have
understood their freedom to consider voluntary intoxication when deciding whether
defendants formed the specific intent necessary to convict them of murder under an
aiding and abetting theory.
           4. Section 186.22 Instruction
       Defendants argue that, in light of the Supreme Court’s decision in Prunty, the trial
court erred by not instructing the jury about the “ ‘associational or organizational
connection’ ” and “ ‘sameness’ ” requirements necessary to support the gang
enhancement. (Quoting Prunty, supra, 62 Cal.4th at p. 71, italics omitted.)
       The trial court read the jury a version of CALCRIM No. 1401, which provided the
elements of the section 186.22, subdivision (b) gang enhancement and also defined the
phrases “ ‘criminal street gang’ ” and “ ‘pattern of criminal gang activity’ ” by
paraphrasing section 186.22, subdivisions (f) and (e), respectively.
              a. Legal Background and Prunty
       “ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) Among other things,
that sua sponte duty includes instructing the jury regarding the elements of special
allegations like the section 186.22, subdivision (b) enhancements alleged here. (People v.
                                               60
Mil (2012) 53 Cal.4th 400, 409.) That duty is generally satisfied by providing an
instruction that tracks the language of the statute defining the enhancement at issue,
especially if “the jury would have no difficulty in understanding the statute without
guidance ... .” (People v. Poggi (1988) 45 Cal.3d 306, 327.) When “a phrase ‘is
commonly understood by those familiar with the English language and is not used in a
technical sense peculiar to the law, the court is not required to give an instruction as to its
meaning in the absence of a request.’ ” (People v. Rowland (1992) 4 Cal.4th 238, 270–
271.)
        In Prunty, the Supreme Court interpreted “organization, association, or
group, ... whether formal or informal,” as used in section 186.22, subdivision (f) to
“contemplate some kind of relationship, or degree of ‘togetherness,’ uniting those
individuals.” (Prunty, supra, 62 Cal.4th at p. 72.) The court’s decision was based on the
common understanding of those terms, as shown by the Supreme Court’s reliance on
dictionary definitions to support its reasoning. The Prunty court rejected the argument
that it was adding “ ‘an element to the statute that the Legislature did not put there.’ ”
(Id. at p. 76, fn. 4.) The court clarified that it was merely interpreting the words of
section 186.22. (Ibid.)
               b. Analysis
        Defendants do not explain how the trial court could have a duty to instruct the jury
sua sponte about a case that would not be decided by the California Supreme Court until
two years after the trial ended. Even if it would be possible to impose such a duty,
defendants’ argument here is without merit. Defense counsel did not seek clarification of
the phrase “ongoing, association, or group ... , whether formal or informal,” as used in
section 186.22, subdivision (f) and in the version of CALCRIM No. 1401 provided to the
jury. The trial court provided an instruction that tracked the language of section 186.22,
subdivisions (b), (e), and (f), thereby providing the jury the elements of the gang
enhancement. The organizational association discussed in Prunty is not a separate
                                              61
statutory element of the enhancement but rather a judicial interpretation of the “ongoing
organization, association, or group” language used in section 186.22, subdivision (f).
(Prunty, supra, 62 Cal.4th at p. 71.) Further, the Prunty court’s discussion demonstrates
that the phrase in section 186.22, subdivision (f) does not have a technical meaning
different from its commonly understood meaning. Because the trial court instructed the
jury about all elements of the gang enhancement, defendants’ instructional error claim
fails.
    I. EVIDENCE SUPPORTING MARTELL’S MURDER CONVICTION
         Martell argues there was insufficient evidence to support his second degree
murder conviction. As stated above, “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.” (Bolin, supra, 18 Cal.4th at p. 331.)
         Based on the instructions the jury received, we assume the jury found Martell
guilty of second degree murder under the natural and probable consequences doctrine
based on the following implicit findings: Martell personally assaulted Garcia; Martell
aided and abetted Mendoza and Ramirez (and possibly others) in their assault of Garcia;
one or more of the perpetrators to that assault murdered Garcia; and a reasonable person
in Martell’s position would have or should have known that murder was a reasonably
foreseeable consequence of the group assault.
            1. Rivas’s Credibility was a Question for the Jury
         Martell argues that Rivas’s testimony about what he could see the night of the
homicide was not credible as a matter of law and that, without Rivas’s testimony, there
was insufficient evidence that Martell committed any crime (either directly or as an aider
or abettor).




                                             62
              a. Background
       Rivas testified that five to seven men came from the direction of 436 Ezie St.,
chased Garcia, and knocked him down. Those men “were all participating” in the assault
that followed, which included mostly kicking but also some punching. Rivas
acknowledged that it was not very light outside that night, that there were no streetlights
near the victim’s location on Richdale, and that his vantage point in the garage was about
60 yards from the victim. A defense investigator testified that the distance between Rivas
and the victim was around 66 yards and that, based on information from the Internet,
there would have been almost no light coming from the moon on the night of the
homicide. Martell’s trial counsel did not elicit testimony from any witness (expert or
otherwise) regarding how well one might be able to see an assault occurring under similar
circumstances as those experienced by Rivas.
              b. Analysis
       Contrary to Martell’s argument, Rivas’s credibility as an eyewitness was a
quintessential jury question. Rivas testified about what he saw that night and
acknowledged factors (including distance and lighting) that might affect how the jury
would weigh his testimony. Attorneys for Martell and Ramirez cross-examined Rivas at
length about the lighting conditions and distance from which he witnessed the homicide.
       It is not unreasonable as a matter of law that someone could see whether a group
of five to seven men were all participating in an assault occurring about 60 yards from the
eyewitness despite poor lighting conditions. The defense provided no expert testimony to
call into question Rivas’s ability to see under those circumstances, much less testimony
that could discredit Rivas’s account as a matter of law. Martell cannot discredit Rivas’s
testimony by simply labeling it an “improbable and extraordinary visual feat” on appeal.
The jury was free to weigh Rivas’s credibility and decide whether his testimony should
be credited. Based on defendants’ convictions, we infer that the jury found Rivas’s


                                             63
testimony credible, a finding we must defer to on appeal. (People v. Jackson (2014)
58 Cal.4th 724, 749.)
           2. Evidence Supporting Aider and Abettor Liability
       Based largely on his argument about Rivas’s credibility, Martell argues there was
insufficient evidence to convict him of aiding and abetting the assault on Garcia.
“[P]roof of aider and abettor liability requires proof in three distinct areas: (a) the direct
perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider and
abettor’s mens rea—knowledge of the direct perpetrator’s unlawful intent and an intent to
assist in achieving those unlawful ends, and (c) the aider and abettor’s actus reus—
conduct by the aider and abettor that in fact assists the achievement of the crime.”
(People v. Perez (2005) 35 Cal.4th 1219, 1225 (Perez); § 31 [“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.”].)
       There was ample evidence that a perpetrator assaulted Garcia, including Tommy’s
testimony that Ramirez and Mendoza punched Garcia; Mendoza’s hearsay statement to
Tommy that he “ ‘booked’ ” Garcia 14 or 15 times; and Dr. O’Hara’s testimony that
Garcia received numerous stab wounds, lacerations, and blunt-force trauma.
       There was also evidence showing that Martell assisted in the attack by personally
assaulting Garcia. Martell “concede[s] here that Martell was not only drinking with the
other co-defendants that evening, but also went with them to the vicinity where the
homicide took place.” Rivas testified that the people who ran from 436 Ezie St. (a group
that Martell now concedes he was a part of) “were all participating” in the assault on
Garcia. Detective Vallejo testified that when he interrogated Martell four days after the
assault, Martell had scratches or abrasions on his hands. And Tommy testified that
Martell left the scene of the homicide with the other defendants. Though the foregoing
evidence was challenged by calling into question Rivas’s ability to see and by offering an
                                              64
innocent explanation for the scratches on Martell’s hands (that he had sustained the
injuries at work), those challenges were only to the weight of the evidence. A reasonable
trier of fact could have found that Martell assisted the other defendants by personally
assaulting Garcia. (Bolin, supra, 18 Cal.4th at p. 331.)
       As for Martell’s mens rea, the prosecutor had to show not only Martell’s
knowledge of the perpetrators’ unlawful intent but also Martell’s intent to assist the
perpetrators. (Perez, supra, 35 Cal.4th at p. 1225.) The evidence supported a finding
that Martell was present and directly participated in the assault. Based on that evidence,
the jury could find both that Martell had knowledge of the other perpetrators’ intent
(because he could see them assaulting Garcia), and that Martell intended to assist those
other perpetrators by actively assaulting Garcia.
       Martell’s arguments to the contrary all go to the weight of the evidence rather than
to its sufficiency to support a conviction. Martell argues that Rivas “never testified as to
when he heard” the perpetrators yell, meaning those statements could not support a
finding that Martell knew of the perpetrators’ intent. But the jury could reasonably infer
that whoever yelled “ ‘Get him’ ” would do so before assaulting Garcia, thus supporting a
finding that Martell became apprised of the perpetrators’ intent in advance. Martell also
argues that he was intoxicated, which he deems “important in evaluating the motive of
[an] intoxicated 20-year-old following others [to] where the homicide eventually
occurred.” But, as already discussed, the jury was properly instructed regarding
voluntary intoxication and its decision to convict Martell supports an inference that the
jury determined that voluntary intoxication did not negate Martell’s specific intent to aid
and abet.
            3. Evidence Supporting Martell’s Murder Conviction
       Martell argues that even if there was sufficient evidence that he assaulted Garcia
and aided and abetted the other perpetrators’ assault, the evidence was nonetheless
insufficient to show that murder was a natural and probable consequence of the assault.
                                             65
“ ‘A person who knowingly aids and abets criminal conduct is guilty of not only the
intended crime [target offense] but also of any other crime the perpetrator actually
commits [nontarget offense] that is a natural and probable consequence of the intended
crime.’ ” (Medina, supra, 46 Cal.4th at p. 920, brackets in Medina.) A nontarget offense
is a natural and probable consequence of the target offense if a reasonable person in the
defendant’s position should have known that the charged offense was a reasonably
foreseeable consequence of the intended crime the defendant aided and abetted. (Ibid.)
Whether the charged offense was a reasonably foreseeable consequence “is a factual
issue to be resolved by the jury.” (Ibid.)
       Tommy testified that he, Barragan, Martell, Mendoza, and Ramirez all ran toward
Garcia, and Rivas testified that everyone in the group who ran after Garcia participated in
the assault by punching or kicking Garcia. Based on that evidence, a jury could
reasonably conclude that a reasonable person in Martell’s position should have known
that Garcia’s death would be a foreseeable consequence of five men assaulting one
victim.
   J. EFFECTIVENESS OF MARTELL’S TRIAL COUNSEL
       Martell argues that his trial counsel provided ineffective assistance by failing to
raise a defense theory and by failing to adequately cross-examine Rivas.
       To establish ineffectiveness of trial counsel in violation of a defendant’s right to
counsel under the Sixth Amendment to the United States Constitution, a defendant must
show both that counsel’s performance was deficient and that he was prejudiced by the
deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216–217 (Ledesma).) Deficient
performance is rarely shown if there was a tactical reason for trial counsel’s conduct.
(See People v. Cruz (1980) 26 Cal.3d 233, 255–256 [“except in rare cases, an appellate
court should not attempt to second-guess trial counsel as to tactics”]; Bolin, supra,
18 Cal.4th at p. 317 [affirming conviction when alleged failure to object “may well have
been ‘an informed tactical choice within the range of reasonable competence’ ”].) To
                                             66
prove prejudice, a defendant must affirmatively show a reasonable probability that, but
for his trial counsel’s errors, the result would have been different. (Ledesma, at pp. 217–
218.)
           1. Counsel Was Not Ineffective During Closing Argument
        Martell argues that the theory of the case his trial counsel argued to the jury—that
Martell drank a beer at 436 Ezie St. but left the area before the homicide—was not
plausible and that he should have instead argued that Martell was present at the scene of
the homicide but did not aid and abet any crime. Alternatively, Martell argues that his
trial counsel should have at least presented both theories to the jury.
               a. Trial Counsel’s Theory Was Plausible
        Martell’s trial counsel acknowledged that Martell’s DNA and fingerprints were
found on one cigarette and one beer can, respectively, at 436 Ezie St. Based on that
evidence, trial counsel argued Martell came to the house for one beer and then left. Trial
counsel noted that Tommy was the only person who testified that Martell was at the
scene of the crime, and trial counsel read the jury parts of CALCRIM No. 335, which
instructed the jury to view Tommy’s accomplice testimony with caution. Trial counsel
argued that Martell lied to the police about not visiting Ezie Street on the night of the
homicide because Martell knew “ ‘snitches get stitches,’ ” “[y]ou’ve looked at what
happened to Mr. Deleone,” and “you can imagine what it would be [like] out on the street
for Mr. Martell having been involved in gang activity and now being labeled a snitch.”
And counsel argued that it was “certainly a possibility” that Martell dropped his cellular
phone in the vicinity of the homicide area when he walked to 436 Ezie St. from where he
had been dropped off earlier, or when he walked away from the house before the
homicide occurred.
        On appeal, Martell argues that the foregoing theory was implausible and that his
theory on appeal—that he was present at the scene of the homicide but did not aid and
abet any crime—was better supported by the evidence. But both theories have significant
                                             67
weaknesses. Martell’s preferred appellate theory was inconsistent with Rivas’s testimony
that everyone who approached Garcia participated in the assault. His appellate theory
would have also required trial counsel to make the complicated argument that while
Martell was present at the scene of the homicide, the jurors should not construe any
action he took there as assisting the perpetrators. Given the number of ways conduct can
be found to aid and abet a crime (“aid, facilitate, promote, encourage, or instigate the
perpetrator’s commission” of a crime), any theory that isolated Martell entirely from the
scene of the crime would benefit his defense.
       Trial counsel’s argument also harmonized Martell’s version of events with what
Rivas saw because if Martell was not at the scene of the homicide then Rivas’s testimony
that everyone who was there participated would not implicate Martell. Trial counsel’s
argument attempted to insulate Martell from the homicide by making the straightforward
argument that he did not aid and abet any crime because he was not there when the crime
occurred. Trial counsel could have reasonably concluded that a jury would be less likely
to be confused by that argument.
       Martell’s attack on his trial counsel’s argument is unpersuasive. He argues that his
trial strategy required him to admit that Martell lied to the police. But, as Martell
acknowledges, evidence about lying to the police “was obviously not favorable evidence
for any argument,” and even under his appellate theory Martell would have had to admit
lying to the police. Further, trial counsel provided a plausible explanation for Martell’s
lies, arguing that he lied to protect himself from retaliation from the actual perpetrators.
       As for the location of Martell’s cellular phone, Martell contends that trial
counsel’s argument that Martell happened to lose his phone in the same area where the
homicide later occurred “would have been extraordinarily bad luck” and was mere
speculation. But counsel provided a plausible explanation for its location by arguing that
Martell would have likely walked through that area before the homicide occurred. Trial
counsel also reminded the jury that an officer had testified that the clip securing Martell’s
                                             68
phone to his pocket was loose. While the cellular phone’s location was certainly a major
weakness in trial counsel’s theory, providing an innocent explanation for its location
allowed Martell to isolate himself from the scene of the homicide.
       Trial counsel’s decision about which theory to pursue also informed counsel’s
decision about which evidence to use and Martell does not demonstrate that trial counsel
erred in choosing which evidence to present to support that theory. Because we find that
trial counsel made an informed tactical decision when selecting the theory to present to
the jury, Martell has not demonstrated ineffective assistance from trial counsel.25
              b. Trial Counsel’s Decision Not to Argue Two Theories
       Martell argues that trial counsel should have at least argued both theories to the
jury and that by not arguing both theories he impliedly conceded that Martell’s preferred
appellate theory was not supported by the evidence. But the two theories were
contradictory. Either Martell was not at the scene of the homicide at all (trial counsel’s
theory) or he was at the scene but did not participate (Martell’s appellate theory). Trial
counsel could reasonably conclude that arguing both theories would risk confusing the
jury or, even worse, suggest to the jury that trial counsel was not confident enough in
either of the theories to rely on only one. (See People v. Palmer (2005)
133 Cal.App.4th 1141, 1159 [“Counsel may have wished to concentrate on the argument
he viewed as more persuasive ... rather than potentially confusing the issues and
detracting from his credibility with the jury by making a nonpersuasive argument.”].)




       25
          Trial counsel stated: “[T]here is an old kind of a joke: how can you tell when a
lawyer is lying? When his lips are moving. I think the same is true of the Gonzalez
family. How can you tell when the Gonzalez family is lying? Their lips are moving.”
Martell calls that analogy “a vile slur against all counsel” and appears to suggest that the
jury would have found trial counsel’s argument less credible as a result. Trial counsel’s
intent was to attack the credibility of the Gonzalez family and not himself or the entire
legal profession.
                                             69
Given those risks, there was a tactical reason for trial counsel’s decision to rely on but
one theory.
          2. Counsel Was Not Ineffective During Rivas’s Cross-Examination
       Martell argues his trial counsel was deficient for failing to impeach Rivas with two
statements Rivas made during Mendoza’s grand jury proceedings.
              a. Participation in the Homicide
       On direct examination at trial, Rivas responded “Yes” when asked, “Did they all
participate in beating him up?” At the grand jury proceedings, the prosecutor had asked a
similar question and Rivas responded: “Yes. It looked like everybody did.” Martell’s
trial counsel did not ask Rivas about his grand jury testimony.
       Counsel for Ramirez cross-examined Rivas at length at trial about what Rivas
could see that night. As part of that cross-examination, counsel for Ramirez drew a
diagram (with an X representing the body and the letters A through G surrounding the X)
and proceeded to ask Rivas what he recalled seeing each assailant do. Rivas
acknowledged that he could not testify regarding any specific assailant’s actions and that
“I just seen everybody swinging.” Ramirez’s counsel eventually asked Rivas, “Is it safe
to say that ... if you had seen seven people in front of you, you couldn’t tell us what each
one of them did today?” to which Rivas responded, “No.”
       Seizing on the words “looked like” in Rivas’s grand jury testimony, Martell argues
on appeal that Rivas “was not certain that everyone participated” and that Martell’s trial
counsel was deficient for not impeaching Rivas with his grand jury testimony. But after
the extensive cross-examination by Ramirez’s trial counsel, Martell’s trial counsel could
have reasonably concluded that the issue of Rivas’s ability to see the assault and his
ability to recall what he saw had been adequately explored. This is especially true
because Rivas’s grand jury testimony was almost identical to his trial testimony.
Martell’s trial counsel could have also concluded based on Rivas’s responses to his cross-
examination by counsel for Ramirez that asking Rivas additional questions would lead to
                                             70
further damaging statements about what Rivas saw (e.g., “I just seen everybody
swinging”). Martell has not shown his trial counsel was deficient.
               b. Order of Chase
       Martell argues that his trial counsel was deficient for not questioning Rivas about
the order of the people chasing Garcia.
                        i.   Grand Jury and Trial Testimony
       Rivas testified before the grand jury that “[o]ne individual from 436 started
running towards him ... [a]nd then, after he started trotting up to him, two people started
running behind him,” followed by three or four more. That grand jury testimony was not
introduced at trial.
       At trial, Rivas initially testified that one person approached Garcia from
436 Ezie St., followed by the others. Rivas testified during cross-examination by Martell
that he initially saw one person approach Garcia but that when the group decided to
charge Garcia “[t]here was two guys at first that were charging. One was a little bit
closer than the other guy. And then after those two guys came closer to him and four
more guys started rushing closer.”
       Tommy testified at trial that he ran toward Garcia first, followed by Martell and
then the others. During closing argument, the prosecutor paraphrased Rivas’s testimony
about two people charging Garcia, with one slightly in front of the other. The prosecutor
did not provide names for the people he thought those two people were.
                       ii.   Analysis
       Martell notes that Tommy testified that Martell was the closest person following
Tommy as they approached Garcia. Martell argues that the prosecutor’s paraphrasing of
Rivas’s testimony relied on Tommy’s testimony and implied that Martell was the second
person chasing Garcia. Martell contends that eliciting Rivas’s grand jury testimony
somehow “would have greatly undercut” the inference that Martell was the second person


                                              71
“as well as casting further doubt on Rivas’s ability to accurately recall what he believed
he had seen.”
         Martell seems to suggest that Tommy’s testimony should have triggered Martell’s
trial counsel to question Rivas about his grand jury testimony. But Tommy testified after
Rivas. Martell does not explain how his trial counsel would have known that Tommy
would implicate Martell as the person who followed Tommy most closely during the
chase.
         Even if Martell’s trial counsel could have known what Tommy would say,
Tommy’s testimony could be accurate under each of the scenarios Rivas described. If
one person was followed by a group of people, Martell could have been the first one in
that later group. If two people initially approached Garcia, with one a little bit closer than
the other, Martell could have been the second person. And if one person originally
approached Garcia, followed by a group of two people, Martell could have been the first
person in that group of two people. As eliciting Rivas’s grand jury testimony would not
have materially assisted Martell’s defense, trial counsel may have had a tactical reason
for not doing so.
   K. STAYING THE GANG ENHANCEMENTS
         The trial court purported to stay the sentence for the section 186.22,
subdivision (b) gang enhancements, citing Johnson, supra, 109 Cal.App.4th 1230. We
requested supplemental briefing regarding whether section 186.22, subdivision (b)(5)
requires that the abstracts of judgment be amended to note a 15-year minimum parole
eligibility date. In supplemental briefing, Ramirez (joined by Mendoza and Martell)
argues that we do not have “jurisdiction to add a section 186.22(b)(5) allegation where
there was none below.”
            1. Background
         The information alleged that defendants committed the murder for the benefit of a
criminal street gang “within the meaning of Penal Code section 186.22(b)(1)(C).” The
                                               72
verdict forms also specifically identified the enhancement as involving section 186.22,
subdivision (b)(1)(C).
       At sentencing, counsel for Mendoza stated: “So as we discussed in chambers --
and [the prosecutor] was kind enough to provide the citation -- the ten years would not be
imposed on this case because it’s a homicide case. And the cite is People versus
Johnson, 109 Cal.App.4th 1230 at 1236–7. So I’m going to ask the Court not to impose
the ten-year gang enhancement, the punishment pursuant to that statute.” The court
concluded that the “additional ten-year term for the enhancement pursuant to Penal Code
section 186.22(b)(1)(c) is stayed pursuant to the Johnson case cited by counsel.”
          2. Analysis
       Section 186.22, subdivision (b)(1) provides that “[e]xcept as provided in
paragraphs (4) and (5),” any person convicted of committing a felony for the benefit of a
criminal street gang “shall be punished” with a term that varies based on the severity of
the underlying felony. Section 186.22, subdivision (b)(1)(C) states that if the underlying
“felony is a violent felony, as defined in subdivision (c) of Section 667.5, the person shall
be punished by an additional term of 10 years.” However, section 186.22,
subdivision (b)(5) provides, in relevant part: “any person who violates this subdivision in
the commission of a felony punishable by imprisonment in the state prison for life shall
not be paroled until a minimum of 15 calendar years have been served.”
       In Johnson, supra, 109 Cal.App.4th 1230, the Court of Appeal decided that the 10-
year section 186.22, subdivision (b)(1)(C) enhancement could not apply to a second-
degree murder conviction because that felony conviction “is a ‘felony punishable by
imprisonment in the state prison for life’ within the meaning of section 186.22,
subdivision (b)(5).” (Johnson, at p. 1237.) The Johnson court struck the 10-year
enhancement and instructed the trial court to “modify the abstract of judgment to ... note
a 15-year minimum parole eligibility date on that count pursuant to section 186.22,
subdivision (b)(5).” (Johnson, at pp. 1239–1240.)
                                             73
       Here, in response to a request from Mendoza’s counsel, the trial court purported to
stay the gang enhancements based on Johnson, and it appears the trial court intended to
follow that case’s holding. But the abstracts of judgment here do not contain the
section 186.22, subdivision (b)(5) parole eligibility limitation discussed in Johnson. To
effectuate the trial court’s apparent intent (which, again, was based on a request from
Mendoza), we will order that the abstracts of judgment be modified to note a 15-year
minimum parole eligibility date.
   L. CUMULATIVE ERROR
       Defendants claim that the various errors they identify are cumulatively prejudicial.
“Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment
absent a clear showing of a miscarriage of justice.” (Hill, supra, 17 Cal.4th at p. 844.)
“Nevertheless, a series of trial errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and prejudicial error.” (Ibid.)
       We have found the following errors: (1) the prosecutor improperly continued to
ask about weapons during his direct examination of Deleone; (2) the prosecutor used an
improper method of refreshing Deleone’s recollection; (3) the trial court admitted an
irrelevant slide during the gang expert’s slide show; and (4) the court improperly
admitted evidence of Mendoza’s statements about gang affiliation during his jail
classification interview. These issues are not insignificant, but neither are they
cumulatively prejudicial.
[The remainder of this opinion is to be published.]
        III.   NO RETROACTIVE APPLICATION OF PROPOSITION 57
       We granted rehearing and asked the parties to submit supplemental briefing
regarding whether Proposition 57 had any effect on Ramirez’s appeal. Ramirez argues
that he is entitled to relief under Proposition 57 because: (1) the voters intended to apply
Proposition 57 to non-final cases; (2) In re Estrada (1965) 63 Cal.2d 740 (Estrada)
compels retroactive application of Proposition 57; and (3) the failure to apply Proposition
                                             74
57 retroactively would violate his California and federal constitutional rights to equal
protection and due process.
   A. PROCEDURAL BACKGROUND AND PROPOSITION 57
       Ramirez, who was 16 years old when the homicide occurred, was charged by
direct filing in adult court.26 At that time, former Welfare and Institutions Code section
707, subdivision (d)(1) allowed a prosecutor to bypass the juvenile court and directly file
certain charges against a minor in adult court. (Stats. 2008, ch. 179, § 236, pp. 656–657.)
Specifically, a prosecutor could file an accusatory pleading directly in adult court against
a minor, like Ramirez, who was both 16 years of age or older and accused of committing
certain specified offenses (including murder). (Former Welf. & Inst. Code, § 707, subds.
(d)(1), (b)(1); Stats. 2008, ch. 179, § 236, pp. 654–657.)
       The voters approved Proposition 57 at the November 8, 2016 general election; it
took effect the next day. (Cal. Const., art. II, § 10, subd. (a).) Proposition 57 amended
the Welfare and Institutions Code to mandate that any allegation of criminal conduct
against any person under 18 years of age be commenced in juvenile court, regardless of
the age of the juvenile or the severity of the offense. (Voter Information Guide, Gen.
Elec. (Nov. 8, 2016) Text of Proposed Laws, pp. 141–145.) As amended by
Proposition 57, Welfare and Institutions Code section 707, subdivision (a)(1) now
specifies that the sole mechanism by which a minor can be prosecuted in adult court is
through a motion by a prosecutor to transfer the case from juvenile court to adult court. 27
In response to a motion to transfer, “the juvenile court shall decide whether the minor

       26
          As we will be differentiating between courts of criminal jurisdiction and
juvenile courts, we will refer to courts of criminal jurisdiction as adult courts.
       27
          Specifically, Welfare and Institutions Code section 707, subdivision (a)(1) now
provides: “In any case in which a minor is alleged to be a person described in
Section 602 by reason of the violation, when he or she was 16 years of age or older, of
any felony criminal statute, or of an offense listed in subdivision (b) when he or she was
14 or 15 years of age, the district attorney ... may make a motion to transfer the minor
from juvenile court to a court of criminal jurisdiction.”
                                             75
should be transferred to a court of criminal jurisdiction,” considering: the “degree of
criminal sophistication exhibited by the minor”; whether “the minor can be rehabilitated
prior to the expiration of the juvenile court’s jurisdiction”; the “minor’s previous
delinquent history”; the success “of previous attempts by the juvenile court to rehabilitate
the minor”; and the “circumstances and gravity of the offense alleged in the petition to
have been committed by the minor.”28 (§ 707, subd. (a)(2)(A)–(a)(2)(E).)
       Proposition 57 also changed parole eligibility for both adults and juveniles tried in
adult court. It added section 32 to article I of the California Constitution, which
provides: “Any person convicted of a nonviolent felony offense and sentenced to state
prison shall be eligible for parole consideration after completing the full term for his or
her primary offense.” (Cal. Const., art. I, § 32, subd. (a)(1).)
       Proposition 57 contains uncodified sections, some of which are relevant to
Ramirez’s contentions. Section 2 states that the purpose and intent of the proposition
was, among other things, to “[s]ave money by reducing wasteful spending on prisons”;
“[s]top the revolving door of crime by emphasizing rehabilitation, especially for
juveniles”; and “[r]equire a judge, not a prosecutor, to decide whether juveniles should be
tried in adult court.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016) Text of
Proposed Laws, p. 141.) Section 5 states that the act “shall be broadly construed to
accomplish its purposes.” (Id. at p. 145.) Section 9 states that the act “shall be liberally
construed to effectuate its purposes.” (Id. at p. 146.)
   B. TEXT AND HISTORY OF PROPOSITION 57 DO NOT SUPPORT RETROACTIVITY
       Whether the voters intended Proposition 57 to apply retroactively is a question of
law to which we apply our independent judgment. (People v. Arroyo (2016)
62 Cal.4th 589, 593 (Arroyo).) When interpreting a voter initiative, we apply the same

       28
          Proposition 57 also amended Welfare and Institutions Code section 602, but
those amendments are not relevant to this appeal. (Voter Information Guide, Gen. Elec.
(Nov. 8, 2016) Text of Proposed Laws, pp. 141–142.)
                                              76
rules that govern statutory construction. We first look to the language of the enactment,
giving the words their ordinary meaning. If the law is ambiguous, we refer to other
sources of voter intent, including the arguments and analyses contained in the official
ballot pamphlet. (Ibid.)
       “Whether a statute operates prospectively or retroactively is, at least in the first
instance, a matter of legislative intent. When the Legislature has not made its intent on
the matter clear with respect to a particular statute, the Legislature’s generally applicable
declaration in section 3 provides the default rule: ‘No part of [the Penal Code] is
retroactive, unless expressly so declared.’ ” (People v. Brown (2012) 54 Cal.4th 314, 319
(Brown).) We are “cautious not to infer retroactive intent from vague phrases and broad,
general language in statutes.” (Ibid.)
       The text of Proposition 57 contains no express statement of intent regarding
prospective or retroactive application. Ramirez argues that retroactive intent can be
inferred from broadly and liberally construing the initiative’s stated purposes of saving
money by reducing spending on prisons and requiring judges rather than prosecutors to
decide whether juveniles should be tried in adult court. (Citing Voter Information Guide,
Gen. Elec. (Nov. 8, 2016) Text of Proposed Laws, p. 141.) But even broadly construed,
none of the stated purposes provide a reference to timing from which retroactive intent
can be inferred. In fact, there is arguably textual support for an inference of prospective
intent. One stated purpose is to require judges rather than prosecutors to decide “whether
juveniles should be tried in adult court.” (Voter Information Guide, Gen. Elec. (Nov. 8,
2016) Text of Proposed Laws, p. 141, italics added.) That statement suggests an intent
that Proposition 57 apply only to cases that have not already been tried. At most, the text
of Proposition 57 is ambiguous.
       Because the text of the initiative is arguably ambiguous, we look to the ballot
materials to determine whether they shed light on the voters’ intent. (Arroyo, supra,
62 Cal.4th at p. 593.) Ramirez points to several statements from the argument in favor of
                                              77
Proposition 57, which we separate into two groups because they appear to discuss
different aspects of the initiative.
       The first group includes three statements that Ramirez argues suggest the voters
intended to apply Proposition 57 retroactively: “Prop. 57 focuses resources on keeping
dangerous criminals behind bars, while rehabilitating juvenile and adult inmates and
saving tens of millions of taxpayer dollars”; “Prop. 57 focuses our system on evidence-
based rehabilitation for juveniles and adults because it is better for public safety than our
current system”; and “Prop. 57 saves tens of millions of taxpayer dollars by reducing
wasteful prison spending, breaks the cycle of crime by rehabilitating deserving juvenile
and adult inmates, and keeps dangerous criminals behind bars.” (Voter Information
Guide, Gen. Elec. (Nov. 8, 2016) argument in favor of Proposition 57 and rebuttal to
argument against Proposition 57, pp. 58–59.) But those statements all reference both
juveniles and adults, suggesting that they refer to the changes to parole Proposition 57
added to the California Constitution rather than to the Welfare and Institutions Code
amendments.
       The second group includes two passages that Ramirez points to as indications of
voter intent, which appear to be related to the Welfare and Institutions Code amendments
at issue here: “Requires judges instead of prosecutors to decide whether minors should
be prosecuted as adults, emphasizing rehabilitation for minors in the juvenile system”;
and “Evidence shows that the more inmates are rehabilitated, the less likely they are to
re-offend. Further evidence shows that minors who remain under juvenile court
supervision are less likely to commit new crimes. Prop. 57 focuses on evidence-based
rehabilitation and allows a juvenile court judge to decide whether or not a minor should
be prosecuted as an adult.” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016)
argument in favor of Proposition 57, p. 58.) Though those passages express voter intent
to focus on rehabilitation, they are silent as to intent regarding retroactive application.
And, like the statement of intent from Proposition 57 we already discussed, those
                                              78
passages are susceptible of the same inference of prospective intent. Both state that
judges should decide whether minors “should be prosecuted,” suggesting an intent for the
law to apply only in the future.
       In sum, we find that the voters did not make their intent clear regarding retroactive
application in the text of Proposition 57 nor can we clearly discern their intent from the
ballot pamphlet, meaning that we must follow section 3 and apply Proposition 57
prospectively unless the Estrada rule applies. (Brown, supra, 54 Cal.4th at p. 319.)
   C. THE ESTRADA RULE DOES NOT APPLY
       Ramirez argues that retroactive application of Proposition 57 is compelled by the
Estrada rule, which is a judicially-created exception to the general section 3 presumption
that new statutes apply prospectively.
          1. The Estrada Rule
       Even in the absence of voter intent to apply a proposition retroactively, the
Estrada rule provides a “contextually specific qualification to the ordinary presumption”
of prospective application. (Brown, supra, 54 Cal.4th at p. 323, citing Estrada, supra,
63 Cal.2d 740.) When the electorate (or Legislature) amends “a statute to reduce the
punishment for a particular criminal offense,” the Estrada rule provides an inference that
the voters “intended the amended statute to apply to all defendants whose judgments are
not yet final on the statute’s operative date.” (Brown, at p. 323.) That conclusion is
based on the “premise that ‘[a] legislative mitigation of the penalty for a particular crime
represents a legislative judgment that the lesser penalty or the different treatment is
sufficient to meet the legitimate ends of the criminal law.’ ” (Ibid., quoting Estrada, at
p. 745, italics in Brown.)
       Brown is instructive regarding application of the Estrada rule. Brown involved a
legislative amendment to section 4019 that temporarily increased the rate at which
presentence custody credits were calculated. (Brown, supra, 54 Cal.4th at pp. 317–319.)
Brown was sentenced to prison before the amendment but argued, based on the Estrada
                                             79
rule, that the amendment should apply retroactively to him because his judgment was not
yet final when the amendment became effective. (Id. at pp. 318–319, 323.) The Brown
court decided the Estrada rule did not apply. It reasoned that unlike a legislative
mitigation of the penalty for a particular crime, “a statute increasing the rate at which
prisoners may earn credits for good behavior does not represent a judgment about the
needs of the criminal law with respect to a particular criminal offense, and thus does not
support an analogous inference of retroactive intent.” (Id. at p. 325.) The court noted
that section 4019 did not alter the penalty for a crime at all, it merely “addresses future
conduct in a custodial setting by providing increased incentives for good behavior.”
(Brown, at p. 325, italics in original.)
       The Brown court rejected an argument that the Estrada rule should “apply more
broadly to any statute that reduces punishment in any manner.” (Brown, supra,
54 Cal.4th at p. 325.) The court reasoned that such a broad application would expand the
Estrada rule to such an extent as to swallow the general section 3 presumption of
prospective application. (Ibid.) That expansion would run counter to the court’s
interpretation of the Estrada rule “not as weakening or modifying the default rule of
prospective operation codified in section 3, but rather as informing the rule’s application
in a specific context by articulating the reasonable presumption that a legislative act
mitigating the punishment for a particular criminal offense is intended to apply to all
nonfinal judgments.” (Brown, at p. 324.) The court also explained that broadening the
Estrada rule to apply to the section 4019 amendments would not “represent a logical
extension of Estrada’s reasoning.” (Brown, at p. 325.) While acknowledging that “a
convicted prisoner who is released a day early is punished a day less,” the court noted
that “the rule and logic of Estrada is specifically directed to a statute that represents ‘ “a
legislative mitigation of the penalty for a particular crime” ’ [citation] because such a
law supports the inference that the Legislature would prefer to impose the new, shorter
penalty rather than to ‘ “satisfy a desire for vengeance.” ’ ” (Ibid., italics in Brown.)
                                              80
            2. Analysis
       Ramirez argues that the Estrada rule applies because Proposition 57 “specified
that ‘different treatment’ as a juvenile was sufficient to meet ... ‘the legitimate ends of the
criminal law.’ ” (Quoting Brown, supra, 54 Cal.4th at p. 323.) The fundamental problem
with Ramirez’s argument is that—unlike every case he cites where a court found that the
Estrada rule applied29—Proposition 57 does not mitigate the penalty for a particular
crime. As the court emphasized in Brown: “We based this conclusion [that the Estrada
rule requires retroactive application of statutes that reduce punishment for a particular
offense] on the premise that ‘[a] legislative mitigation of the penalty for a particular
crime represents a legislative judgment that the lesser penalty or the different treatment is
sufficient to meet the legitimate ends of the criminal law.’ ” (Brown, at p. 323, quoting
Estrada, supra, 63 Cal.2d at p. 745, italics in Brown.)
       Proposition 57 is distinguishable in two respects from the laws at issue in cases
applying the Estrada rule. First, Proposition 57 does not expressly mitigate the penalty
for any particular crime. Instead, it amends the Welfare and Institutions Code to create a
presumption that all individuals under the age of 18 come within the jurisdiction of the

       29
           Other than Estrada and Brown, Ramirez cites: People v. Francis (1969)
71 Cal.2d 66, 75–78 [defendant entitled to resentencing on controlled substances
conviction where amendment made offense a wobbler instead of a straight felony];
People v. Rossi (1976) 18 Cal.3d 295, 298 [reversing oral copulation conviction after
legislative amendment rendered the defendant’s conduct non-criminal]; People v.
Babylon (1985) 39 Cal.3d 719, 721–722 [reversing television piracy convictions where
conduct no longer illegal under amendment enacted while appeal pending]; People v.
Nasalga (1996) 12 Cal.4th 784, 787 [defendant entitled to shorter sentencing
enhancement under legislative amendment increasing the minimum value of stolen
property required for longer enhancement to apply]; People v. Trippett (1997)
56 Cal.App.4th 1532, 1536, 1548–1549 [reversing for limited retrial as to whether
medicinal marijuana initiative provided valid defense to the defendant’s marijuana
possession conviction]; People v. Urziceanu (2005) 132 Cal.App.4th 747, 783–786
[reversing for new trial to allow the defendant to argue that legislative amendments
related to medicinal marijuana provided a valid defense to conspiracy to possess
marijuana for sale charge].
                                              81
juvenile court (Welf. & Inst. Code, § 602), and provides a procedural method for
prosecutors to move to transfer a juvenile case to adult court (Welf. & Inst. Code, § 707,
subd. (a)(1)). We acknowledge that the amendments may have the effect of reducing the
punishment in some cases because, unlike adult court sentences, the longest that juvenile
court jurisdiction generally extends is until the juvenile offender is 25 years old. (§ 607,
subd. (b).) But, as the Brown court reasoned when reviewing the amendments to section
4019, the Estrada rule is not applicable to any amendment that may reduce a punishment.
Instead, the Estrada rule is “specifically directed to a statute that represents ‘ “a
legislative mitigation of the penalty for a particular crime.” ’ ” (Brown, supra,
54 Cal.4th at p. 325, italics in Brown.)
       Second, Proposition 57 provides no certainty that a minor will actually receive a
mitigated penalty because juvenile courts have discretion under Proposition 57 to transfer
juvenile cases to adult court. (Welf. & Inst. Code, § 707, subd. (a)(2).) If a case is
transferred to adult court, the penalty for all offenses will be the same as they were before
Proposition 57.
       Given these distinctions, we find that applying the Estrada rule to Proposition 57
would expand that rule in such a manner as to risk swallowing the general section 3
presumption that legislation is intended to apply prospectively. (Brown, supra,
54 Cal.4th at pp. 324–325.)
       People v. Francis (1969) 71 Cal.2d 66 (Francis), relied on by Ramirez, is
distinguishable. Francis was convicted of committing a felony drug offense. While his
case was pending on appeal, the statute prohibiting that drug offense was amended to
change it from a straight felony to a wobbler that could be charged as a felony or a
misdemeanor. The Francis court determined that the Estrada rule applied. (Id. at
pp. 75–78.) The court reasoned that while the amendment did not guarantee Francis a
lower sentence, making the crime punishable as a misdemeanor showed a legislative


                                              82
intent that punishing the offense as a felony might be too severe in certain cases. (Id. at
p. 76.)
          Francis is distinguishable because it involved a legislative mitigation of the
potential punishment for a specific crime. Where, as under Proposition 57, the potential
benefit inures to a class of offenders based on their age rather than on the offenses they
commit, the inference that voters deemed the entire Penal Code unduly severe when
applied to minors is too attenuated to support application of the Estrada rule.30
          Our conclusion that the Estrada rule does not apply is consistent with a recent
decision interpreting Proposition 57. (People v. Cervantes (Mar. 9, 2017, A140464)
__ Cal.App.5th __ (Cervantes).) Cervantes (who was 14 years old) was charged as an
adult before Proposition 57 and convicted of several charges, including attempted murder
and torture. (Cervantes, at p. __ [pp. 1, 6–7].) Proposition 57 passed while his case was
pending on appeal. The Court of Appeal rejected Cervantes’s argument that Proposition
57 should apply retroactively to him under the Estrada rule, reasoning that while
Proposition 57 “will have a substantive impact on time in custody in some cases—
sometimes a big impact—the transfer procedure required under [Welfare and Institutions
Code] Section 707 does not resemble the clear-cut reduction in penalty involved in
Estrada.” (Id. at pp. __ [pp. 52–54].) The court observed that Proposition 57 “may or
may not in some attenuated way affect punishment, but it is not a direct reduction in
penalty as required for retroactivity under Estrada.” (Ibid.)



          30
          In concluding that the Estrada rule does not apply to Ramirez’s case, we
express no opinion on the possible applicability of Proposition 57 to cases where trial had
not commenced before the initiative took effect. (See People v. Superior Court (Lara)
(Mar. 13, 2017, E067296) __ Cal.App.5th __, __ [pp. 33–36] [finding juveniles charged
in adult court by direct filing before Proposition 57 are entitled to fitness hearings before
trials commence]; Cervantes, supra, __ Cal.App.5th at p. __ [pp. 54-69] [finding juvenile
convicted in adult court after direct filing was entitled to a fitness hearing on remand
before retrial of counts the Court of Appeal reversed].)
                                               83
   D. NO EQUAL PROTECTION VIOLATION
        Ramirez argues that not applying Proposition 57 retroactively to his case would
violate his state and federal constitutional rights to equal protection. (U.S. Const.,
14th Amend.; Cal. Const., art. I, § 7, subd. (a).)
           1. Standard of Review
        The concept of equal protection recognizes that individuals who are similarly
situated should be treated equally, unless there is a justification for the differential
treatment. (Brown, supra, 54 Cal.4th at p. 328.) The first step in an equal protection
challenge is demonstrating that the state adopted a classification that affects two or more
similarly situated groups in an unequal way. (Ibid.) That “initial inquiry is not whether
persons are similarly situated for all purposes, but ‘whether they are similarly situated for
purposes of the law challenged.’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228,
253.)
        The second step is determining whether there is a sufficient justification for the
unequal treatment. The level of justification needed is based on the right implicated.
When the disparity implicates a suspect class or a fundamental right, strict scrutiny
applies. (People v. Wilkinson (2004) 33 Cal.4th 821, 836 (Wilkinson).) When no suspect
class or fundamental right is involved, the challenger must demonstrate that the law is not
rationally related to any legitimate government purpose. (People v. Turnage (2012)
55 Cal.4th 62, 74 (Turnage).) “In other words, the legislation survives constitutional
scrutiny as long as there is ‘ “any reasonably conceivable state of facts that could provide
a rational basis for the classification.” ’ ” (Ibid.)
           2. Ramirez is Similarly Situated with Juveniles Benefiting from
               Proposition 57
        Ramirez is similarly situated with another class for purposes of his challenge to
Proposition 57. The two classes are distinguished by whether trial had commenced


                                               84
before Proposition 57’s effective date.31 Ramirez falls within the class of individuals
whose trials had already commenced. He is similarly situated with a class of hypothetical
individuals who are 16 or 17 years old and accused of crimes that could result in transfer
to adult court, but whose trials had not commenced before Proposition 57 became
effective.
             3. There is a Rational Basis for Ramirez’s Differential Treatment
       Having determined that Ramirez is similarly situated with another class of
individuals, we must decide whether there is a justification for the differential treatment
caused by prospective application of Proposition 57. But first we must decide which
standard of review applies: strict scrutiny or rational basis.
       Ramirez argues both that strict scrutiny applies because Proposition 57 implicates
Ramirez’s fundamental liberty interest (citing People v. Olivas (1976) 17 Cal.3d 236, 251
(Olivas)), and that the distinction cannot even survive rational basis review.
       Olivas involved a challenge to a law that allowed adult misdemeanants who were
under 21 years old to be tried in adult court and then remanded to the California Youth
Authority. (Olivas, supra, 17 Cal.3d at p. 239.) The California Youth Authority could
retain an individual until he or she turned 23 years old. (Id. at p. 241.) Olivas (who was
19 years old when he was arrested) was convicted of a misdemeanor that had a maximum
sentence of six months, meaning that under the challenged law he faced a “potential
period of confinement several times longer than the longest jail term which might have
been imposed.” (Id. at pp. 239–242.) Because his challenge implicated a fundamental

       31
          We acknowledge that when remanding the case for possible retrial or
resentencing, the Cervantes court found that the distinguishing event for application of
Proposition 57 was sentencing rather than commencement of trial. (Cervantes, supra, __
Cal.App.5th __ [pp. 62–67] [“[B]eginning with the effective date of Prop[.] 57, a juvenile
felon may not be ‘sentenced in adult court’ without a prior transfer hearing under
Section 707, subdivision (a), if he or she so requests.”].) We explain in footnote 7, post,
why defining the two classes based on sentencing rather than the commencement of trial
would not change our equal protection analysis here.
                                             85
liberty interest, the Supreme Court concluded that strict scrutiny applied. (Id. at pp. 247–
251.)
        Ramirez essentially argues that strict scrutiny applies here because he is
potentially subject to a longer period of incarceration than those to whom Proposition 57
applies. Though Olivas could be interpreted to require strict scrutiny in any case
involving penal statutes authorizing different sentences, “Olivas properly has not been
read so broadly.” (Wilkinson, supra, 33 Cal.4th at p. 837–838 [applying rational basis to
equal protection challenge to two statutes prohibiting battery against custodial officers
where it was possible that statute prohibiting battery without injury could be punished
more severely than statute prohibiting battery with an injury]; accord People v. Owens
(1997) 59 Cal.App.4th 798, 802 [“California courts have never accepted the general
proposition that ‘all criminal laws, because they may result in a defendant’s incarceration,
are perforce subject to strict judicial scrutiny.’ ”].) In a similar context, the Ninth Circuit
concluded that the rational basis standard applied to a challenge brought by a defendant
sentenced under Washington’s indeterminate sentencing scheme who argued that he had
been denied equal protection by not having that state’s later-enacted determinate
sentencing scheme applied to his case. (Foster v. Washington State Bd. of Prison Terms
and Parole (9th Cir. 1989) 878 F.2d 1233, 1235.)
        Ramirez’s prosecution, conviction, and sentencing in adult court were all proper
under the laws in place at the time of those events. Proposition 57 differentiates between
people based on the timing of their prosecution rather than on any suspect classification.
And Ramirez had no vested liberty interest “ ‘ “in a specific term of imprisonment or in
the designation a particular crime receives.” ’ ” (Turnage, supra, 55 Cal.4th at p. 74.)
We find that the rational basis standard applies.
        Ramirez argues that the differential treatment he receives “bears no rational
relationship to [Proposition] 57’s ‘objective.’ ” But the rational basis standard does not
focus solely on a law’s stated objective. It allows for “ ‘ “any reasonably conceivable
                                              86
state of facts that could provide a rational basis for the classification.” ’ ” (Turnage,
supra, 55 Cal.4th at p. 74, italics added.) The voters could rationally conclude that
applying Proposition 57 prospectively would serve the legitimate purpose of not
overwhelming the juvenile courts with requests for fitness hearings by those who had
already been convicted in adult court for crimes committed as juveniles. (E.g., Talley v.
Municipal Court (1978) 87 Cal.App.3d 109, 114–116 [finding no equal protection
violation in prospective-only application of alcohol treatment program that bypassed
license suspension because differential treatment rationally related to law’s purpose of
“ ‘prevent[ing] the courts and programs in each county from being overburdened at the
commencement of the implementation of this article’ ”].)
       The voters could also rationally conclude that applying Proposition 57
prospectively was rationally related to the legitimate government purpose of assuring that
“ ‘penal laws will maintain their desired deterrent effect by carrying out the original
prescribed punishment as written’ ” when the defendant committed the crime and was
tried for that offense. (People v. Floyd (2003) 31 Cal.4th 179, 188, 190–191 [rejecting
equal protection challenge to prospective-only application of Proposition 36, the
Substance Abuse and Crime Prevention Act of 2000, which guaranteed probation for
individuals convicted of nonviolent possession offenses, subject to certain disqualifying
circumstances].) We acknowledge that the penal laws will not maintain their desired
deterrent effect in all cases because Proposition 57 likely applies to juveniles who
committed crimes before Proposition 57 but who were not prosecuted until after its
effective date. But a “ ‘classification is not arbitrary or irrational simply because there is
an “imperfect fit between means and ends” ’ [citations], or ‘because it may be “to some
extent both underinclusive and overinclusive.” ’ ” (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 887.)
       More fundamentally, the federal Constitution “ ‘does not forbid ... statutory
changes to have a beginning and thus to discriminate between the rights of an earlier and
                                              87
later time.’ ” (Califano v. Webster (1977) 430 U.S. 313, 314–316, 321 [rejecting equal
protection challenge to an amendment to the Social Security Act that improved a
retirement benefit calculation but applied only prospectively; plaintiff had argued
retroactive application was required to prevent discrimination based on date of birth].)
       Because there is a rational basis for prospective-only application of
Proposition 57, Ramirez’s equal protection challenge fails.32
   E. NO DUE PROCESS VIOLATION
       Ramirez argues that not applying Proposition 57 retroactively to his case would
violate his federal constitutional right to due process. He cites a single case to support
that proposition, Kent v. United States (1966) 383 U.S. 541 (Kent).
       Kent involved what the Supreme Court characterized as “a number of disturbing
questions concerning the administration ... of the District of Columbia laws relating to
juveniles.” (Kent, supra, 383 U.S. at pp. 542–543.) When Kent was 16 years old, he was
apprehended after his fingerprints were found in the apartment of a woman who had been
raped. Police interrogated Kent for several hours, delivered him to a “Receiving Home
for Children” for the night, and then interrogated him for several more hours the next
day. (Id. at pp. 543–544.) Kent’s mother retained counsel for Kent. His counsel filed
motions requesting a hearing on the juvenile court’s apparent intention to transfer Kent to


       32
           Even assuming, consistent with Cervantes, that the two classes are
distinguished by whether sentencing had occurred before Proposition 57’s effective date
(see Cervantes, supra, __ Cal.App.5th at p. __ [p. 67]), our equal protection analysis
would not change. Applying Proposition 57 to juveniles who had been found guilty in
adult court before Proposition 57 but who were not sentenced until after the initiative
became effective would slightly increase the class of people who benefit from
Proposition 57. But the voters could still rationally conclude that applying Proposition 57
only to that slightly larger class of juveniles would serve the legitimate government
interest of preventing juvenile courts from being overwhelmed with requests for fitness
hearings by those who had already been convicted and sentenced in adult court for crimes
they committed as juveniles.

                                             88
adult court and seeking access to Kent’s juvenile court file. The juvenile court file
contained a report that discussed the possibility of Kent having a mental illness. (Id. at
pp. 544–546.) Without holding a hearing, the juvenile court summarily ordered Kent’s
case transferred to adult court, finding that “after ‘full investigation, I do hereby waive’ ”
the juvenile court’s jurisdiction. (Id. at p. 546.) Kent was charged in adult court with
residential burglary, robbery, and rape. He was found not guilty by reason of insanity of
rape, but was found guilty of the remaining charges. (Id. at pp. 548, 550.)
       The Supreme Court found that the juvenile court violated Kent’s rights to due
process and the effective assistance of counsel when it summarily transferred his case to
adult court. (Kent, supra, 383 U.S. at pp. 557, 561–562.) The statute at issue stated that
the juvenile judge “may, after full investigation, waive jurisdiction and order such child
held for trial under the regular procedure of the court which would have jurisdiction of
such offense if committed by an adult.” (Id. at pp. 547–548.) The court found that “the
statute read in the context of constitutional principles relating to due process and the
assistance of counsel” required the juvenile court to provide a hearing, assistance of
counsel (including providing the attorney access to juvenile court files), and a statement
of reasons to support its decision. (Id. at pp. 557, 561–562.)
       We find Kent readily distinguishable. Kent did not involve review of whether a
law that had taken effect after a conviction should be applied retroactively. And the
Supreme Court was careful to note that it was deciding the case based on its
interpretation of the statute at issue there, read in the context of constitutional principles.
(Kent, supra, 383 U.S. at pp. 557.) Ramirez does not argue that the trial court here
violated any procedural statute in effect when he was prosecuted.
       Over a century ago, the United States Supreme Court concluded that for purposes
of due process, “the 14th Amendment does not forbid statutes and statutory changes to
have a beginning, and thus to discriminate between the rights of an earlier and later
time.” (Sperry & Hutchinson Co. v. Rhodes (1911) 220 U.S. 502, 505 [denying due
                                              89
process challenge to new law prohibiting use of person’s picture in advertising without
consent].) Ramirez has failed to demonstrate any due process violation.
                                 IV.    DISPOSITION
      The superior court is directed to prepare a new abstract of judgment for each
defendant to note a 15-year minimum parole eligibility date based on Penal Code
section 186.22, subdivision (b)(5), and to forward those abstracts to the Department of
Corrections and Rehabilitation. As so modified, the judgments are affirmed.




                                            90
                               ____________________________________
                               Grover, J.




WE CONCUR:




____________________________
Manoukian, Acting P.J.




____________________________
Mihara, J.




People v Mendoza et al
H039705
Trial Court:                          Santa Clara County Superior Court, Case
                                      Nos.: 212506, C1114503

Trial Judge:                          Hon. Andrea Y. Bryan
Attorneys for Plaintiff/Respondent:   Xavier Becerra
The People                             Attorney General of California
                                      Gerald A. Engler
                                       Chief Assistant Attorney General
                                      Jeffrey M. Laurence
                                       Senior Assistant Attorney General
                                      Catherine A. Rivlin
                                       Supervising Deputy Attorney General
                                      Moona Nandi
                                       Deputy Attorney General

Attorneys for Defendant/Appellant:    James S. Thomson
Marcos Mendoza                         Attorney at Law

                                      Under Appointment by the Court of
                                      Appeal Sixth District Appellate Project

Attorneys for Defendant/Appellant:    Kyle Gee
Juan Ramirez                           Attorney at Law

                                      Under Appointment by the Court of
                                      Appeal Sixth District Appellate Project

Attorneys for Defendant/Appellant:    David D. Martin
David Martell                          Attorney at Law

                                      Under Appointment by the Court of
                                      Appeal Sixth District Appellate Project
