Filed 6/9/14 P. v. Maddox CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B234514

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA344164)
         v.

KEVIN MADDOX et al.,

         Defendants and Appellants.



         APPEAL from judgments of the Superior Court of Los Angeles County. Patricia
M. Schnegg and Alex Ricciardulli, Judges. Affirmed in part and reversed in part.
         Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant Kevin Maddox.
         Christine C. Shaver, under appointment by the Court of Appeal, for Defendant and
Appellant Morgan Smith.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Marc. A. Kohm and Steven E.
Mercer, Deputy Attorneys General, for Plaintiff and Respondent.
                                   _______________________________
       Kevin Maddox and Morgan Smith (collectively defendants) appeal from
judgments entered after a jury found each of them guilty of willful, deliberate and
premeditated attempted murder, assault with a firearm, unlawfully carrying a loaded
firearm, conspiracy to transport and sell cocaine, and two counts of conspiracy to commit
murder. The jury also found gang and firearm enhancement allegations against
defendants to be true. After defendants admitted prior conviction allegations, the trial
court sentenced Maddox to 114 years to life plus 69 years, and sentenced Smith to 130
years to life plus 69 years. Maddox and Smith each join in the contentions the other
raises on appeal.
       Maddox contends the trial court committed reversible error in denying his
                          1
Wheeler/Batson motion. He also contends, in related arguments, (1) there is insufficient
evidence establishing the existence of three separate conspiracies as charged in the
information and found by the jury, (2) the trial court committed reversible error in not
instructing the jury sua sponte to decide whether there was “a single, all-inclusive
                                                                        2
conspiracy,” or multiple conspiracies, and (3) Penal Code section 654 prohibits multiple
punishments for the three conspiracy counts.
       Smith contends there is insufficient evidence supporting the convictions for
attempted murder and assault with a firearm. He also contends section 654 prohibits
multiple punishments for the attempted murder count and the first of the two conspiracy
to commit murder counts. Finally, he contends the trial court erred in imposing the prior
serious felony enhancements under section 667, subdivision (a)(1), because the
enhancements were not properly pleaded or proved.
       We agree with Smith that the prior serious felony enhancements were not properly
imposed. Accordingly, we reverse those enhancements. In all other respects, we affirm.




       1
           Batson v. Kentucky (1986) 476 U.S. 79; People v. Wheeler (1978) 22 Cal.3d 258.
       2
           Statutory references are to the Penal Code unless otherwise indicated.

                                               2
                                    BACKGROUND
Defendants’ Gang Membership
       At all times relevant to this appeal, Maddox and Smith were members of the
Hoover criminal street gang. They belonged to the 7-4 Hoover set. Maddox was a leader
of the gang, having been a member for 15 to 20 years. Smith was a “soldier” in the gang.
According to the prosecution’s gang expert, Los Angeles Police Department (LAPD)
Officer Nicholas Hartman, a “soldier” in a gang is “someone who goes out and commits
these crimes and rallies the troops to commit the crimes with him.” At trial, Officer
Hartman opined Maddox and Smith committed the charged offenses for the benefit of
and in association with the Hoover criminal street gang. The jury agreed, finding the
gang enhancement allegation to be true as to each charged offense. Neither defendant
challenges the gang enhancement findings on appeal.
Investigation
       Evidence presented at trial indicated defendants came to the attention of law
enforcement during an investigation of a March 1, 2004 armored car robbery and
homicide, not related to the offenses charged in this case. A joint task force formed
between the robbery/homicide division of the LAPD and the Federal Bureau of Alcohol,
Tobacco, Firearms and Explosives investigated those 2004 crimes. As Officer Hartman
testified at trial, after gathering information indicating Maddox might have been involved
in two murders and trafficking narcotics, the Los Angeles County District Attorney’s
Office applied to the superior court for several wiretaps to monitor defendants’ telephone
calls. The LAPD monitored more than 10,000 calls pursuant to these court-ordered
           3
wiretaps. The prosecutor played 66 calls for the jury. The calls were made between
June 7 and July 16, 2008. Transcripts of these calls are included in the record on appeal.



       3
          As discussed below, Maddox has asked this court to independently review the
public and sealed portions of the wiretap documents and proceedings and decide whether
the trial court erred in denying his motion to unseal the wiretap affidavit and to quash and
traverse the wiretap warrant. We discuss our independent review below.

                                             3
       Prosecution witnesses Officer Hartman and Davell Galloway interpreted for the
jury the coded language the Hoover gang members and their associates used to refer to
guns, ammunition, drugs, the police, rival gang members, etc., during the 66 telephone
calls. Galloway had been a member of the 9-Deuce set of the Hoover gang for about 20
years. He supplied guns and ammunition to the gang. At the time of trial, he had known
Maddox for 10 years and Smith for four years and knew them both to be 7-4 Hoover
gang members. Galloway participated in and was arrested for offenses charged in this
case. He also was a participant in 10 of the 66 telephone calls played for the jury. He
testified against defendants at trial in exchange for a 10-year plea deal. The trial court
instructed the jury, “If the crimes of conspiracy to commit murder, attempted murder,
assault with a firearm, and conspiracy to sell and transport cocaine were committed, then
Davell Galloway is an accomplice to those crimes.”
       In addition to monitoring telephone calls over the wiretaps, the LAPD also
conducted surveillance during June 2008 at various locations connected with defendants.
The LAPD set up a camera to observe 7521 South Figueroa, known as the “Big House.”
The property had a front house and a back house. Smith lived in the back house. The
LAPD also sent surveillance teams in vehicles to follow defendants leaving from and
going to the Big House, 919 West 84th Street (known as “Granny’s House”), and the
Vagabond Inn motel. The prosecution presented evidence indicating Maddox had
relatives who lived at Granny’s House, and Maddox lived at the Vagabond Inn with his
girlfriend, Ebony Lee.
Charged Offenses and Supporting Evidence
       June 7-8, 2008 conspiracy to commit murder (count 1)
                                                                                 4
       In count 1 of the second amended information filed February 24, 2011, the
prosecution charged defendants with a conspiracy to commit murder (§§ 182, subd. (a)(1)

       4
        As Smith and the Attorney General did in their appellate briefs, we refer to the
counts as they were charged in the second amended information, and listed in the June
28, 2011 minute orders from the sentencing hearing and the July 7, 2011 abstracts of
judgment. The parties and the trial court renumbered the counts for the jury and on the

                                              4
& 187) occurring between June 7 and 8, 2008, and alleged 11 overt acts in support of this
conspiracy count. The prosecution presented evidence demonstrating defendants
conspired to murder rival Denver Lane Blood gang members in retaliation for the murder
of a 5-Deuce Hoover gang member (Cleveland Mouton) on June 6, 2008, and the murder
of an 8-Trey Gangster gang member (Michael Smith) on June 7, 2008. The telephone
calls described below were played for the jury.
        In the evening on June 7, 2008, Maddox called his sister, Lakeisha, and asked her
to get in touch with “Gangster” and let him know Maddox needed to talk to him.
Maddox explained he wanted to talk to Gangster about “get[ting] that thing,” which
Officer Hartman interpreted to mean a gun. Maddox and Lakeisha then spoke about the
murders of Michael Smith and Mouton (identified by Lakeisha as Gangster’s nephew).
Maddox told Lakeisha, “We going to speed this shit up out here and make it serious
then . . . .”
        A few minutes after the call with Lakeisha, Maddox spoke on the phone with
Galloway. Galloway asked if Maddox had heard about what happened to Michael Smith.
Maddox indicated that is what he wanted to talk about. He wanted to buy a gun because
“[s]omething’s gotta be ultimately done.” Maddox asked Galloway, “How many little
demons in that five thing you got?” According to Officer Hartman, Maddox wanted to
know how many bullets Galloway had for a .45 caliber gun. Galloway told Maddox he
had 10 bullets for the .45 and “eight in the other.” At trial, Galloway explained that at the
time of the call he had eight bullets for a .380 caliber handgun in his possession. Near the
end of the call, Maddox told Galloway: “Oh, killer. Oh, killer. And then I could demo


verdict forms, but agreed the prosecution would not file a further amended information
renumbering the counts. The parties used the renumbered counts in their sentencing
memoranda, and the trial court accordingly referred to the renumbered counts when
orally pronouncing judgment at the sentencing hearing. In his appellate briefs, Maddox
refers to the renumbered counts, and asks this court to modify the abstracts of judgment
to reflect the renumbered counts. We decline to do so. We believe potential future
confusion can best be avoided if the record remains as it is, with the abstracts of
judgment reflecting the counts as they were charged in the second amended information.

                                             5
some. I want to put all ten in somebody sitting in in, in endsity [sic].” Officer Hartman
interpreted this to mean Maddox wanted to use the gun to put 10 bullets into someone.
Galloway understood that Maddox wanted to put 10 bullets into someone’s face.
       Immediately after the call with Galloway, Maddox spoke on the phone with
William Lee Jackson, an 8-Trey Hoover gang member. Maddox told Jackson: “I need
one of them big truck things, man. A big boy, man. A big big one, man. I need to buy
one or something ASAP. They just knocked the homie Chip’s son [Michael Smith]
down.” According to Officer Hartman, Maddox was saying he wanted to buy a large
caliber handgun or rifle. Maddox also informed Jackson that the same rival gang killed
Gangster’s nephew (Cleveland Mouton).
       About 30 minutes later, Maddox spoke on the phone with defendant Smith. Smith
informed Maddox that he could obtain a .22 rifle, a 30-30 rifle or an M1 carbine rifle.
Maddox indicated he was looking for a gun with a “[l]otta bam.”
       In the early afternoon on June 8, 2008, Galloway met Maddox at a Hoover
hangout on 89th Street and gave Maddox a .380 handgun, loaded with eight hollow-point
bullets, and a rented silver F150 pickup truck. In count 10 of the second amended
information, the prosecution charged Maddox with carrying a loaded firearm on June 8,
2008 while being an active participant in a criminal street gang. (Former § 12031, subds.
(a)(1) & (a)(2)(C).)
       In the evening on June 8, 2008, Maddox and Smith spoke on the phone numerous
times. In a call at 5:11 p.m., Smith asked Maddox if he had any ammunition. Smith
commented that his “homie” Mad Trey, who was known to Officer Hartman as an 8-Trey
gang member, had a large caliber gun but it did not have any bullets in it. Smith gave
Maddox his location and told Maddox he was “waiting for Treymonk [sic] to come
back.” Officer Hartman also knew Trey Monk to be an 8-Trey gang member. Later in
the call, Smith asked Maddox if he could obtain a rental car for Smith and his associates
to use. Maddox told Smith there was a car parked “in the back where I’m at” that Smith
could use, but it needed a jump start. Smith indicated he would use the car that evening.
A few hours later, Officer Hartman and other officers observed—and used the

                                             6
surveillance camera to take photographs of—several males wiping down and apparently
jump starting a brown Hyundai car parked in back of the Big House.
       In a call a couple of minutes later, Maddox told Smith, “I ain’t doing nothing but
fucking with the dicks for a minute.” He added, “I’m going to give them a strong dickie
demo.” Officer Hartman explained at trial that Hoover gang members refer to rival
Denver Lane Blood gang members as, “‘dicks.’” According to both Officer Hartman and
Galloway, Maddox was telling Smith he was going to shoot Denver Lane gang members.
In the same call, Maddox told Smith, “3, 4, 5. Back to back. Bam, bam. Back to back.
Bam, bam, bam.” Galloway testified that Maddox was saying he wanted to kill three,
four or five Denver Lane gang members back to back. Smith informed Maddox that he
was “going to go by and check the studio out.” Galloway explained at trial that Denver
Lane gang members frequented a studio on 110th Street.
       In a call at 8:01 p.m., Smith asked Maddox where he could find the car keys for
the brown Hyundai. Maddox told him the keys were in the front house of the Big House.
Smith informed Maddox he had “just spot[ted] two of them”—two Denver Lane gang
members. In a call at 8:19 p.m., Maddox directed Smith to the particular place in the
front house where he could find the car keys. Maddox told Smith, “Make sure everything
is clean all the way visity [sic].” As discussed above, officers observed several males
proceed to wipe down the brown Hyundai.
       In a call at 9:12 p.m., Smith told Maddox he “just spotted one”—a Denver Lane
gang member. Galloway testified that at the time of this call most Hoover gang members
were looking for Denver Lane gang members. Also during this call, Smith asked
Maddox if he could “get another one.” Officer Hartman interpreted this to mean a gun.
Maddox told Smith to meet him “on the four”—Granny’s House on 84th Street—and pull
into the alley behind the house.
       Shortly after 9:00 p.m., LAPD Officer Debbie Guerrero and other members of the
surveillance team saw the brown Hyundai drive away from the Big House. The officers
followed the Hyundai to 84th and Hoover where the Hyundai proceeded down an alley.
Officer Guerrero could see two people in the Hyundai.

                                             7
       In a call at 9:16 p.m., Smith let Maddox know he was in the alley. Maddox told
Smith to park the car there, walk up to Granny’s House, and wait for him.
       June 8, 2009 attempted murder (count 2)/assault with a firearm (count 15)
       Prosecution evidence
       In count 2 of the second amended information, the prosecution charged defendants
with the June 8, 2008 willful, deliberate and premeditated attempted murder of Officer
Richard Jaramillo. (§§ 187, subd. (a) & 664, subd. (a).) Count 15, alleging defendants
assaulted Officer Jaramillo with a firearm on June 8, 2008 (§ 245, subd. (a)(2)), is based
on the same facts as count 2. The second amended information also charged Smith in
count 7 with carrying a loaded firearm on June 8, 2008 while being an active participant
in a criminal street gang. (Former § 12031, subds. (a)(1) & (a)(2)(C).)
       Around 9:20 p.m. on June 8, 2008, as Maddox and Smith were preparing for an
attack on rival Denver Lane Blood gang members, LAPD Officer Richard Jaramillo
followed the silver F150 pickup truck as it left the Vagabond Inn. As the truck merged
into traffic and Officer Jaramillo followed in an undercover car, he observed Maddox in
the driver seat. An air unit (helicopter) kept track of Maddox as he drove in the direction
of Granny’s House. When Officer Jaramillo arrived on 84th Street, the F150 truck was
parked at a residence. Officer Jaramillo also parked so he could observe Maddox.
Officer Jaramillo saw Maddox walking around the truck and out onto the street, while
holding something up to his ear that looked like a cell phone. Officer Jaramillo also saw
Maddox look in his direction a couple of times. It was about 9:30 p.m. when Officer
Jaramillo was making these observations. Officer Jaramillo was wearing blue jeans, a
white t-shirt, a tactical vest over the t-shirt with the word “police” on the front and the
back, and a jacket “over [his] shoulder.”
       At 9:33 p.m., Maddox called his girlfriend, Ebony Lee, and told her a car had
followed him from the Vagabond Inn and was “sit[ting] there and waiting.” Maddox
instructed Lee to “[g]et over here with the thumper.” According to Officer Hartman’s
testimony, in the context of this call, “thumper” means gun.



                                              8
       At about 9:35 p.m., five minutes after Officer Jaramillo had parked on 84th Street
to observe Maddox, his supervisor called and told him to leave the area. Based on the
intercepted call from Maddox to Lee, Officer Jaramillo’s supervisor believed Maddox
had noticed Officer Jaramillo’s car and knew he was being followed. Officer Jaramillo
waited 30 to 45 seconds and then “was able to use the cover of . . . two vehicles” driving
on 84th Street to pull out and turn down the alley. Officer Jaramillo looked at Maddox
before turning down the alley and noticed that Maddox was staring at him. In a 9:35 p.m.
call from Lee to Maddox, after Lee greets Maddox, Maddox says, “That’s it. That’s it.
Watch -- ay, ay, ay, ay,” and then the call ends. In listening to this call, it did not sound
to Officer Hartman like Maddox was directing those comments to Lee.
       As Officer Jaramillo drove slowly down the alley, he heard something hit the rear
windshield of the car. He thought it was a rock. A couple of seconds later, he “heard
more things hitting [the] car,” and heard gunshots. Realizing he “had been shot at,”
Officer Jaramillo ducked down, “floored it,” and drove out of the alley as quickly as he
could. He used his radio to notify other officers that he was being shot at and to give his
location. About 15 seconds after the end of the 9:35 p.m. call between Maddox and Lee,
described above, Officer Hartman heard a supervisor say that shots had been fired and an
officer needed help.
       When Officer Jaramillo had an opportunity to exit the car and inspect it, he
noticed a “ricochet round on the rear driver’s side rear window,” “three impact rounds by
the trunk and the lower bumper,” and “another ricochet round on the top portion of the
trunk on the driver’s side.” Officers later recovered from the alley where the shooting
occurred seven .380 cartridge casings and a live hollow-point round.
       The prosecution presented expert testimony from a special agent with the Federal
Bureau of Investigation, who testified that cell phone tower records indicated Smith’s and
Maddox’s cell phones were near each other in the area of Granny’s House at around the
time shots were fired upon Officer Jaramillo’s car.
       Numerous officers responded to Officer’s Jaramillo’s call for help and they set up
a perimeter around the scene of the shooting. In a call between Smith and Maddox at

                                               9
10:02 p.m., about 25 minutes after the shooting, Smith asks Maddox if they are going to
“meet up, right back there.” Maddox tells him no because “[t]hey got swinine all over
here.” Officer Hartman testified that “swinine” is “a code word Hoover gang members
use for the police.”
        LAPD Sergeant Marco Lozano was part of a surveillance team watching Maddox
after the shooting. Shortly after midnight, he observed Maddox walking up and down the
sidewalk in front of Granny’s House, talking on a cell phone. The silver F150 pickup
truck was parked in the driveway of Granny’s House. The brown Hyundai was parked in
the alley behind Granny’s House.
        At 12:29 a.m. on June 9, 2008, Smith and Galloway spoke on the phone with
Maddox. Galloway had just picked up Smith at the Big House and they were driving to a
liquor store. During the call, Galloway asked Maddox if “the wheels cool,” meaning if
the F150 pickup truck Galloway gave Maddox was okay. Maddox responded, “Oh yeah.
We straight. They ain’t touching the yard or nothing.” Galloway told Maddox he “still”
had the keys for the truck and indicated he would bring them to Maddox, but he and
Smith were going to stay away from Granny’s House until the police cleared out of the
area.
        According to Galloway’s trial testimony, on the drive to the liquor store he and
Smith had to pass by the perimeter and they saw officers searching the area. Smith told
him “he bust on a car on 84th that was acting suspicious and he wasn’t sure who it was, if
it was rival enemies, that they were following Maddox.” Galloway asked Smith where he
put the .380 gun, and Smith told him “it was in a safe place.” Smith also told Galloway
“the gun worked well.”
        During a call at 1:22 a.m. on June 9, 2008, Maddox asked Smith if he thought the
person in the car (Officer Jaramillo) had “wrecked” because “he was driving real fast.”
Smith responded that he did not know. Smith expressed concern that the person in the
car was “a relation to” Maddox, and Maddox assured him that was not the case. At the
end of the call Maddox sang the following words to Smith: “She got off the boy,
intelligent boy, fuck these fucking cops up.” Officer Hartman testified that Maddox took

                                             10
these words from a rap song and changed them slightly. Officer Hartman believed
Maddox had “figured out now that the victim was a police officer” and he was “singing
his [Smith’s] praises of what ha[d] happened.”
       Galloway and Maddox spoke on the phone at 11:28 a.m. on June 9, 2008.
Galloway stated he had just picked up a 30-30 rifle but it needed bullets. Maddox told
Galloway he was “trying to see what’s up with that other unit.” Galloway responded that
he had “just hit Groove and told him to get up and recover the bitch.” Galloway
explained to Maddox that he and “Groove” were drinking alcohol the night before and he
(“Groove”) was “half asleep still.” According to Officer Hartman, in the context of this
call, “unit” and “bitch” mean gun. “Groove” is a generic term Hoovers use to refer to
others. Galloway testified at trial that he was referring to Smith in this call when he used
the word “Groove,” and he was letting Maddox know that he had told Smith to wake up
and retrieve the .380 gun.
       During the same 11:28 a.m. call, Maddox informed Galloway that he told
someone, “‘Take a shower. Get out that shit.’ Calm down, get out, stop sweating.”
Galloway testified at trial that Maddox was letting him know he had told “Smith to calm
down and stop sweating after the shooting” of Officer Jaramillo. Maddox also
commented during the call, “[n]othing but professional shit on his end,” and “he get his
next stripe” and “a G-roller.” According to Galloway’s testimony, Maddox was
indicating that Smith had taken care of business professionally, would be “recognized for
a job well done,” and would be rewarded with $1,000.
       Galloway also testified at trial about a meeting he had later in the day on June 9,
2008 with Maddox and Smith. Galloway picked up Maddox at the Vagabond Inn and
drove him to the Big House. Smith was home, inside the back house of the Big House.
The three men discussed the shooting. Maddox stated that a car had followed him to 84th
Street. After the car parked, Maddox told Smith he had been followed and pointed out
the car. Smith crouched down between cars parked across the street from Officer
Jaramillo’s car. As he started to approach Officer Jaramillo’s car, the car pulled out into
traffic and turned down the alley. Smith “went into the alley and opened fire,” firing all

                                             11
of the rounds in the .380 gun. When Smith returned the .380 gun to Galloway on June 9,
2008, there were two rounds inside the gun, but they were not rounds that Galloway had
provided.
       Defense evidence
       In his defense at trial, Smith called Jose Villanueva and Marcos Vellos who
testified that, in the evening on June 8, 2008, they were socializing in a group outside 927
West 84th Street and drinking alcohol, when they saw a man (not Smith) with his hand in
his pocket walk toward the alley behind Granny’s House. After the witnesses heard
gunshots, they saw the man run away and then noticed a white car speed out of the area.
       Villanueva had known Maddox and his family for many years. Villanueva saw
Maddox on 84th Street in the hour before the shooting. At that time, Maddox gave
Villanueva a cigar and told Villanueva to roll it up with marijuana. Villanueva smoked
some of it and gave it back to Maddox. Villanueva and Smith were friends. Villanueva
had attended a prior court hearing in this case to show his support for Smith. Vellos was
a friend of Villanueva, but did not know Smith or Maddox personally.
       June 17, 2008 conspiracy to commit murder (count 3)
       In count 3 of the second amended information, the prosecution charged defendants
with a conspiracy to commit murder occurring on June 17, 2008, and alleged 13 overt
acts in support of this conspiracy count. The prosecution presented evidence
demonstrating defendants conspired to murder rival 65 Menlo Gangster Crip gang
members.
       At 6:49 p.m. on June 17, 2008, Smith spoke on the phone with Harry Wallace, a
fellow 7-4 Hoover gang member. Wallace told Smith that 8-Trey Gangster gang
members (7-4 Hoover allies) were going to shoot 67 Neighborhood Crip gang members
that evening, and 7-4 Hoover gang members (Maddox and Smith’s gang) were “supposed
to” shoot 65 Menlo Gangster Crip gang members at the same time in a coordinated
attack. Smith let Wallace know he might have a gun for him to use. Wallace stated that
he had associates ready to carry out the attack.



                                             12
       Less than 10 minutes later, at 6:57 p.m., Smith spoke on the phone with Galloway
and relayed to him the plan about the coordinated attack on Crip gang members. Smith
told Galloway he was going to pick up a 30-30 rifle. Galloway told Smith he needed
ammunition for the other 30-30 rifle Smith had. Galloway asked Smith, “Ain’t the boy
on deck with the chunky shit?” Galloway explained at trial that he was asking Smith if
Wallace had an AK-47 assault rifle because Galloway was under the impression that
Wallace did. During this call, Galloway also asked Smith, “And did the boy come
through with the other piece to that?” Galloway testified that he had a .45 gun that was
jamming and Smith had somebody look at it to see if it could be fixed. Galloway was
asking Smith about the status of the repair.
       At 7:02 p.m. the same evening, Smith called an unidentified man and asked if he
could use the man’s gun while the man held onto Smith’s gun. The man agreed. Smith
said he would find a ride to the man’s location.
       Smith spoke on the phone with Maddox at 7:10 p.m. and told him Wallace had
made a plan with 8-Trey gang members. According to Officer Hartman’s testimony,
Smith was seeking Maddox’s approval because Maddox was a leader in the gang.
Maddox gave his approval by stating, “All right. All right. That’s the BI,” meaning,
“that’s the business.”
       During a call at 7:23 p.m., Smith and Wallace spoke about the plan. Wallace told
Smith he needed a car. Smith explained that “Conrad,” also known as Dazhawn Tyler, a
7-4 Hoover gang member, had a 2008 Dodge Avenger at his residence on 79th Street that
they would use. Wallace stated that the Hoover gang members who were going to carry
out the shooting needed a gun. Wallace told Smith that he would be “trailing” behind the
shooters in a different car. Smith told Wallace that one of their associates had a 30-30
rifle or an M1 rifle, but it did not have a clip. Another associate had a 30-30 rifle with 12
rounds. During a subsequent call at 8:37 p.m., Wallace told Smith one of their associates
had a .45 gun, but Smith stated he did not know if that man was going to come along that
evening.



                                               13
       Smith spoke on the phone with Galloway at 8:40 p.m. and asked Galloway if he
could use his gun. Galloway told him it did not have any bullets in it. Smith stated he
would take bullets from another gun and put them in Galloway’s gun. Galloway
explained at trial that Smith wanted to use Galloway’s 30-30 rifle instead of his own
because Galloway’s rifle had a longer clip and held more bullets.
       According to Galloway’s trial testimony, Galloway picked up Smith at the Big
House at about 9:00 p.m. on June 17, 2008, and drove him to another location to pick up
a 30-30 rifle. From there, Galloway drove to Dazhawn Tyler’s residence on 79th Street,
where Smith placed the rifle in the trunk of a Buick car parked in the back of Tyler’s
residence. Galloway and Smith drove away from Tyler’s residence, with Tyler and two
other men following behind in a silver Dodge Avenger. They drove to another location
where Galloway picked up his unloaded 30-30 rifle and handed it to a man sitting in the
back seat of the Avenger. Galloway did not know the two men driving with Tyler.
       At 9:29 p.m., presumably in the midst of these travels with Galloway, Smith spoke
on the phone with Wallace and told him there were younger associates following him
who were going to put the gun in their trunk. Smith also told Wallace he needed
ammunition for the gun, and asked Wallace if he could get another gun. Wallace
informed Smith he had a .32 gun, but did not have bullets for it. At 9:32 p.m., Smith
spoke on the phone with Maddox and told him he had a .32 gun, but no ammunition for
it. Maddox asked Smith if anyone had used the gun to see if it was working properly.
Smith said no one had tried out that gun, but someone had used the other gun and it was
working fine.
       After picking up his 30-30 rifle and giving it to a man in the Dodge Avenger,
                                                                    5
Galloway followed the Dodge Avenger back to Tyler’s residence. According to
Galloway, Smith exited the car and had a conversation with Wallace in front of Tyler’s


       5
         A police surveillance unit followed Galloway’s car and the Dodge Avenger as
the cars left Tyler’s residence, stopped at a couple of locations, and then drove back to
Tyler’s residence.

                                            14
residence. Galloway joined the conversation and told Wallace to return the 30-30 rifle to
Smith “when they got back from them doing their thing”—the attack on rival gang
members—and he would pick up the rifle from Smith the next morning. Wallace agreed.
Galloway drove Smith back to the Big House and then Galloway went home.
       During a call at 11:19 p.m., Smith informed Maddox that the young Hoover gang
members were ready to leave the location and carry out the plan to attack rival gang
members. At about 11:40 p.m., a police surveillance unit followed the Dodge Avenger
and a white car as they left Tyler’s residence and made stops at two other locations.
Sometime after midnight on June 18, 2008, the surveillance unit terminated surveillance
while following the two vehicles “due to erratic driving.”
       In a call at 12:31 a.m. on June 18, 2008, Tyler told Smith about the shooting.
Tyler stated that he was hanging out the window of the car, close to the intended target of
the shooting, but the 30-30 rifle did not fire properly. The .45 gun fired once and then it
jammed. At 1:52 a.m., Smith spoke on the phone with Maddox and indicated the
shooting did not go as planned and he (Smith) was not happy about it.
       At 6:02 a.m., Smith spoke on the phone with Galloway and expressed his
dissatisfaction with the results of the shooting. Smith indicated that the victim had only
been “[s]cratched,” not killed. Smith told Galloway the shooters only had one of the 30-
30 rifles and a .45 gun. In a call with an unidentified man at 2:59 p.m., Smith again
expressed his disapproval with the manner in which the shooting was carried out. Smith
explained that he had instructed Wallace to tell the shooters “how to do it”—to park and
wait for a rival gang member to come by, and not just pull up in a car and start shooting.
The man asked Smith who the intended target was and Smith informed him it was a 65
Menlo Gangster Crip gang member.
       No eyewitness testified at trial about the shooting. There was no police report
made and police never identified a victim of this shooting.
       May 10-July 16, 2008 conspiracy to transport and sell cocaine (count 6)
       In count 6 of the amended information, the prosecution charged defendants with a
conspiracy to transport and sell cocaine (§ 182, subd. (a)(1) & Health & Saf. Code, §

                                             15
11352) occurring between May 10 and July 16, 2008, and alleged 12 overt acts in support
of this conspiracy count.
       At trial, the prosecution played for the jury more than 20 telephone calls during
which Maddox, Smith, Galloway and others discussed the transportation and sale of
cocaine. Detective Daniel Jenks, who has background, training and experience regarding
transportation and sale of cocaine, testified about these telephone calls during which the
parties discussed quantities, prices and arrangements for the delivery of cocaine.
       Galloway testified that rock cocaine was cut up, weighed, wrapped up and sold at
the Big House. Galloway was present on occasions when drug transactions were
conducted at the Big House. Galloway was aware that cocaine was transported between
the Vagabond Inn and the Big House. On one occasion, Galloway drove with Maddox to
the Vagabond Inn in the F150 pickup truck, and Maddox “had the cocaine stashed inside
the headliner of the truck.”
       In the evening on June 19, 2008, officers riding in an unmarked patrol car stopped
to investigate the smell of marijuana around the Big House. The officers observed Tyler
and another man conduct a hand-to-hand drug transaction. The officers ordered the two
men and Smith, who was standing nearby, to show their hands. Smith grabbed his
waistband and backed into the house. One of the officers believed he saw a gun in
Smith’s waistband. The officers requested backup and a perimeter was set up around the
Big House. A SWAT team extracted Smith from the Big House in the morning on June
20, 2008. Smith was arrested. During a search of the Big House, officers recovered a
                                                                                 6
digital scale and a razor, both with white powder on them, in the front house.
       In a telephone call on June 21, 2008, Maddox informed Galloway that he had
another location where drugs could be sold now that the Big House had been raided and
drugs could no longer be sold there.



       6
         Officers also recovered a rifle and ammunition in the back house (where Smith
lived) and another rifle in the front house.

                                            16
Sentencing
       Before the jury returned the verdicts, each defendant admitted the special
allegation in the second amended information that he had suffered a prior strike
conviction within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i) &
1170.12, subds. (a)-(d)), a 1993 robbery for Maddox and a 2003 first degree residential
burglary for Smith. The jury found defendants guilty of all of the charged offenses, and
found true all of the gang and firearm enhancement allegations in the second amended
information.
       The trial court sentenced Maddox to 114 years to life plus 69 years in prison. On
count 1 for conspiracy to commit murder, the court imposed a term of 50 years to life
plus 5 years: 25 years to life for the offense, doubled under the Three Strikes law, plus 5
                                                                                         7
years for the prior serious felony enhancement under section 667, subdivision (a)(1). On
count 2 for willful, deliberate and premeditated attempted murder, the court imposed a
consecutive term of 14 years to life plus 25 years: 7 years to life for the offense, doubled
under the Three Strikes law, plus 20 years for the firearm enhancement under section
12022.53, subdivisions (c) and (e), and 5 years for the prior serious felony enhancement.
On count 3 for conspiracy to commit murder, the court imposed a consecutive term of 50
years to life plus 25 years: 25 years to life for the offense, doubled under the Three
Strikes law, plus 20 years for the firearm enhancement, and 5 years for the prior serious
felony enhancement. On count 6 for conspiracy to transport and sell cocaine, the court
imposed a consecutive term of 14 years: the upper term of 5 years for the offense,
doubled under the Three Strikes law, plus 4 years for the gang enhancement under
section 186.22, subdivision (b)(1)(A). On count 10 for carrying a loaded firearm while
being an active participant in a criminal street gang, the court imposed a concurrent term
of 6 years: the upper term of 3 years for the offense, doubled under the Three Strikes law.


       7
         As discussed below, we reverse the prior serious felony enhancements under
section 667, subdivision (a)(1), because the enhancements were not alleged in the second
amended information and defendants did not admit to them.

                                             17
On count 15 for assault with a firearm, the court stayed the 13-year sentence: the upper
term of 4 years for the offense, doubled under the Three Strikes law, plus 5 years for the
prior serious felony enhancement.
       The trial court sentenced Smith to 130 years to life plus 69 years in prison.
Smith’s sentence was the same as Maddox’s except on count 2 for willful, deliberate and
premeditated attempted murder. The court imposed a term of 30 years to life plus 25
years: 15 years to life for the offense, doubled under the Three Strikes law, plus 20 years
for the firearm enhancement under section 12022.53, subdivision (c), and 5 years for the
                                    8
prior serious felony enhancement.
                                        DISCUSSION
Wheeler/Batson Motion
       Asserting the prosecutor’s reasons for striking two prospective African-American
                   9
jurors (jurors 3488 and 8913) were pretextual, Maddox contends the trial court erred in
denying his Wheeler/Batson motion. Maddox and Smith are both African-American
men.
       Proceedings below
       Neither defendant objected to the prosecutor’s use of peremptory challenges until
the prosecutor exercised his 28th challenge on prospective juror 8913. At that point,
Maddox made a Wheeler/Batson motion, arguing the prosecutor had “challenged well
over 50 percent of the potential African-American trial jurors.” Maddox’s counsel stated
the prosecutor had used peremptory challenges on three African-American men (jurors

       8
        The only other difference is that Smith was charged with carrying a loaded
firearm while being an active participant in a criminal street gang in count 7 of the second
amended information, while Maddox was charged with that offense in count 10.
       9
         According to the reporter’s transcript, when this prospective juror was first called
up to the jury box, the clerk referred to this prospective juror as “Juror number 3448,” not
3488 as Maddox in his opening brief and the Attorney General refer to this juror on
appeal. Because Maddox’s trial counsel and the prosecutor also referred to this
prospective juror as juror 3488 in connection with defendants’ Wheeler/Batson motion,
we will do the same, although we note the discrepancy.

                                             18
3559, 6179 and 8913) and three African-American women (jurors 3488, 2309 and 1991).
Counsel also commented that juror 8913 was “a very articulate potential juror.”
       The trial court stated that it had “been keeping track of the racial characteristics as
well as the answers of each individual juror,” and did not find that Maddox had made a
prima facie case of group bias. “[I]n order to preserve the record,” the court “invite[d]
the People to state any reasons for excusing all of the jurors that have been identified by
[Maddox’s counsel].”
       The prosecutor stated: “My concern for 8913 is that there is a sympathy for the
defendants in this case, because they are gang members, because he said he has a cousin
who is in a street gang as well as he has a nephew who is currently incarcerated and
serving time and whom he gives money to. And because of that, I’m concerned about
any sort of sympathy towards the defendants. [¶] As well as his answers of familiarity
towards gangs, I’m concerned about any sympathy towards the defendants.”
       Regarding juror 6179, the prosecutor stated: “[T]hat individual discussed how his
friends got a beat-down by the cops at a rave concert, as well as how family members and
friends are members of criminal street gangs, and he doesn’t feel that he was capable of
serving as a juror. [¶] And that was the individual that also wanted to go back to school.
I was concerned that he wasn’t going to be able to concentrate for this trial, as well as
sympathy for gang members and problems with the officers that would have to testify in
this case, because of his friends’ beat-down by L.A.P.D., as he explained.”
       With respect to juror 1991, the prosecutor stated: “[T]his juror, like many jurors,
had expressed hardship because of financial reasons. However, she expressed it several
times, because she was self-employed in the retail business and said she would have
concern for the -- financial concern for her business, that it would in essence be a
disaster. So that juror was moved on -- was excused for that reason.”
       Regarding juror 3488, the prosecutor stated: “[T]hat juror had a neighbor who
was an ex-gang member. I was concerned for sympathy again for these defendants, if the
defense would be if they are not gang members any more or that they used to be. [¶]
Also she was a member of a hung jury. And with specific questioning trying to find

                                              19
where she was coming from and that hung jury [sic] was asked, one, whether or not she --
the jury was hung because of an honest difference of opinion amongst the jurors or, two,
if one or two of the jurors were being unreasonable. She answered both. The prosecution
was not able to get to the heart of where she was coming from on this, and because she
was a member of a hung jury the People were concerned that she would have an issue of
hanging this specific jury, also. [¶] And that particular juror also mentioned an issue
with the police where there was a problem of wrongful I.D., someone used her I.D.,
however, she got caught up with the police because of that wrongful I.D. And the
potential for her to hold that against any officer who may testify in this case, I didn’t want
that to play a part in this trial, so she was excused for that reason.”
          With respect to juror 3559, the prosecutor stated: “This is a juror who stated many
times that [he] had a hardship because of being a student and he didn’t want to miss
school, and then went so far as having a doctor’s note presented that he had asthma.
Because of that, and so he would not miss any of his schooling, the People dismissed that
juror.”
          Finally, regarding juror 2309, the prosecutor stated: “[T]hat juror had obvious
problems in walking and getting to her seat. It took her -- 50 percent more time than all
the other jurors to sit down. She was walking with a cane. She also discussed how she
had very high blood pressure. [¶] She felt that she could not judge guilt. She said she
simply could not do it. And said that both her sons are gang members. And the People
were concerned for sympathy for the defendants in this case.”
          In response, Maddox’s counsel stated: “I think that the People’s answers are
highly suspect. They have dismissed half of -- according to the People, half of their
dismissals of African-American jurors have been based on sort of good Samaritan
principles, letting people go for financial hardship where the court wouldn’t, or letting a
juror go because of a perceived physical disability, when the court wouldn’t do that. [¶]
I find the coincidence of this compassion directed towards the African-Americans when
the People can’t present any consistent record of supplying the compassion that the court
failed to supply with regard to other jurors entirely suspect. [¶] The net effect is that you

                                               20
have two African-American defendants who are being tried to a jury which the
prosecution has systematically purged of African-American jurors, and we object.”
Smith joined in the objection.
       The trial court commented: “I’ll make the additional observation that I have had
the opportunity to observe the demeanor of the prosecutor as he has made his
representations to the court, and have observed no inkling that he has used the reasons
that he has stated as a pretext for excusing the jurors in a discriminatory manner, and that
would include his tone of voice and other mannerisms before the court.”
       After the defense exercised two additional peremptory challenges and the
prosecutor exercised one additional peremptory challenge, without objection, the parties
accepted the panel.
       During selection of alternate jurors, the prosecutor exercised two peremptory
challenges and the defense exercised one, without objection. After the prosecutor struck
his third prospective alternate juror (juror No. 1), Maddox renewed his objection under
Wheeler/Batson. His counsel stated: “[T]he People have systematically purged the 12
jurors of African-Americans. They have now excused the only remaining African-
American person in the panel, who was seated as an alternate juror. [¶] I believe that the
notion that people are being excused because of some familiarity with the material that is
to be litigated is disingenuous, since those people who are both Latino and African-
American who live in the neighborhoods where there is gang activity are obviously going
to be familiar with it. It happens in their neighborhood. And what [the prosecutor] has
done is systematically banished everyone who might be able to view his gang expert
testimony with a critical eye based on personal experience. He has also systematically
banished all, save one, potential African-American jurors. [¶] I believe that both under
Wheeler and Batson, this is absolutely improper. I object, and I move for a mistrial.”
Again, Smith joined in the objection.
       The trial court stated: “I do not find that there is a prima facie case established
with respect to juror number 1. To note, this was a borderline juror whether I would



                                             21
excuse her for cause because she wouldn’t be fair to the trial. [¶] But again, once again,
I would invite the People, if they wish, to state the reasons for excusing number 1.”
        The prosecutor responded: “The People exercised the p[er]emptory challenge
with regards to juror number 1 because she stated the system was not fair. She stated that
officers get off for shooting an individual in the back even if it’s on video. The People
are concerned in [sic] her holding that against the many officers that would testify in this
case. [¶] As well as she discussed a family member whom she felt the police planted
something on him, which that family member now is on death row. Again the People are
concerned that she would hold that against any officer that may testify in this case. As
well as she has a son that was prosecuted by my office formerly, although a not-guilty
verdict was found, and the People are concerned that she would then hold that against
myself, being from the same prosecuting agency.”
        The trial court noted: “And there is one African-American female on the panel of
the 12 that has already been selected. And on this present panel, the only African-
American panel member [sic].” The court also commented: “The only thing I will
additionally state is, having witnessed the demeanor of the prosecutor, I do not find that
the reasons that he stated were in any way pretextual and his sincerity, as judged by his
body language and expressions, is confirmed, in the court’s opinion.”
        There were no further objections during the selection of alternate jurors.
        On appeal, Maddox takes issue with the excusal of only two of the seven
prospective jurors who were the subjects of his Wheeler/Batson motions, jurors 3488 and
8913.
        Applicable law
        “Both the federal and state Constitutions prohibit any advocate’s use of
peremptory challenges to exclude prospective jurors based on race. (Batson, supra, 476
U.S. at p. 97; Georgia v. McCollum (1992) 505 U.S. 42, 59; Wheeler, supra, 22 Cal.3d at
pp. 276-277.) Doing so violates both the equal protection clause of the United States
Constitution and the right to trial by a jury drawn from a representative cross-section of
the community under article 1, section 16 of the California Constitution. [Citations.]”

                                             22
(People v. Lenix (2008) 44 Cal.4th 602, 612.) “The Batson three-step inquiry is well
established. First, the trial court must determine whether the defendant has made a prima
facie showing that the prosecutor exercised a peremptory challenge based on race.
Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that
the challenges were exercised for a race-neutral reason. Third, the court determines
whether the defendant has proven purposeful discrimination. The ultimate burden of
persuasion regarding racial motivation rests with, and never shifts from, the opponent of
the strike. [Citation.] The three-step procedure also applies to state constitutional claims.
[Citations.]” (Id. at pp. 612-613.)
       “When a trial court denies a Wheeler motion because the movant failed to
establish a prima facie case of group bias, the reviewing court examines the entire record
of voir dire for evidence to support the trial court’s ruling. [Citation.] The ruling is
affirmed if the record ‘suggests grounds upon which the prosecutor might reasonably
have challenged the jurors in question.’ [Citation.]” (People v. Young (2005) 34 Cal.4th
1149, 1172-1173.) “Moreover, if we find that the trial court properly determined that no
prima facie case was made, we need not review the adequacy of the prosecution’s
justifications, if any, for the peremptory challenges. [Citation.]” (People v. Farnam
(2002) 28 Cal.4th 107, 135.)
       Analysis
       The trial court found defendants did not make a prima facie showing of group
bias. Accordingly, we have examined the entire record of voir dire. For the reasons set
forth below, we conclude the trial court did not err in denying defendants’
Wheeler/Batson motion as to jurors 3488 and 8913, the only two prospective jurors at
issue on appeal.
       Juror 3488
       In providing the required biographical information during voir dire, juror 3488
(who was referred to as prospective juror No. 16 at that time) stated she was from
Alhambra, was a registered nurse at USC Medical Center, and was single. She had
served on a jury in a criminal trial that resulted in a hung jury. In responding to the trial

                                              23
court’s inquiry about victims of violent crime, juror 3488 stated she had been a victim of
spousal abuse. When the court inquired about close relationships with persons in
criminal street gangs, juror 3488 stated her neighbor was an ex-gang member.
       The prosecutor asked juror 3488 about her prior jury experience during the
following exchange:
       “[Prosecutor]: . . . [¶] Ma’am, juror number 16, you described that you had sat
on a case where there was a hung jury?
       “Prospective Juror No. 16: Uh-huh.
       “[Prosecutor]: Did you find that to be a frustrating experience?
       “Prospective Juror No. 16: Yes and no.
       “[Prosecutor]: Okay. All right. [¶] Well, let me ask you this. I want to give you
a couple different categories to choose from and see if any of them fit. [¶] Do you
believe that that resulted in a hung jury because one or more jurors was being
unreasonable or because there was an honest difference of opinion amongst the jurors?
       “Prospective Juror No. 16: It was actually both.
       “[Prosecutor]: Does that explain the yes and the no?
       “Prospective Juror No. 16: Yes.
       “[Prosecutor]: Could you set that aside if you are chosen to be a juror in this
matter?
       “Prospective Juror No. 16: Sure.
       “[Prosecutor]: And if you recall -- and again, not how it was being voted one
direction or the other, but what was the charge that that was, if you recall?
       “Prospective Juror No. 16: It was murder, gang related.” (Bold font omitted.)
       Juror 3488 raised her hand when the prosecutor asked if any juror, friend or
relative had been arrested, charged or convicted of a crime. The following exchange
occurred:
       “[Prosecutor]: . . . [¶] Juror number 16, did you raise your hand?




                                             24
       “Prospective Juror No. 16: Yes, I did. Friends, D.U.I.’s. Neighbors, controlled
substance. Myself for theft with wrongful I.D. And other family members with
controlled substances.
       “[Prosecutor]: As far as the D.U.I.’s and the controlled substance, do you believe
that anyone was treated unfairly by law enforcement?
       “Prospective Juror No. 16: No.
       “[Prosecutor]: What about in the court system?
       “Prospective Juror No. 16: It was fair.
       “[Prosecutor]: Now, you said that you were wrongfully identified in a theft?
       “Prospective Juror No. 16: Yes, my neighbor stole my I.D., and she had robbed
Sears, and I was pulled over for a traffic arrest.
       “[Prosecutor]: And so you were arrested?
       “Prospective Juror No. 16: Yes.
       “[Prosecutor]: With what occurred there -- well, were you treated fairly by the
law enforcement?
       “Prospective Juror No. 16: If you were going by the books, yes. It’s just --
       “[Prosecutor]: It was tough because of the I.D.?
       “Prospective Juror No. 16: And it was an officer who was in training, so he
couldn’t just write me a ticket and let me go.
       “[Prosecutor]: Was it fair after that?
       “Prospective Juror No. 16: No. I went through the system. Well, I hadn’t been
through the system so there were some challenges, but it was eventually dismissed.
       “[Prosecutor]: Was your identification able to be cleared?
       “Prospective Juror No. 16: It was difficult, because I performed my own
handwriting test, and I failed. They said it was really nerves, and it was eventually
dismissed.
       “[Prosecutor]: Would you be able to set that aside if chosen as a juror here?
       “Prospective Juror No. 16: Yes.” (Bold font omitted.)



                                                25
       The prosecutor exercised six other peremptory challenges between the time juror
3488 was questioned and the prosecutor excused her.
       Juror 8913
       In providing the required biographical information during voir dire, juror 8913
(who was referred to as prospective juror No. 13 at that time) stated he was retired, used
to be a legislative lobbyist in Sacramento representing business entities, had never been
married, and had no adult children and no prior jury experience.
       In responding to the trial court’s questions, juror 8913 stated he had a cousin who
was a detective with the Los Angeles County Sheriff’s Department, had known both
prosecutors and defense attorneys, and had “[a] cousin that was a player in one of the
street gangs.” He also informed the court he had a family friend who was murdered four
days before, “found with his throat cut and shot in the head.” He stated the crime was
reported in the newspaper and the perpetrator had not been caught. He offered to
“elaborate” on the circumstances of the crime, but the court declined the invitation.
       During an exchange with Smith’s counsel, juror 8913 stated he did not want to
serve on the jury because he was “not motivated” to do so. When Smith’s counsel told
him the issues in the case would be interesting, he changed his outlook. Smith’s counsel
asked juror 8913 how a person becomes a lobbyist and he responded: “You spend years
in politics. And if you develop a reputation for getting things done, someone may
employ you to work on issues.” Juror 8913 told Smith’s counsel he had been a political
appointee for Governor Deukmejian, and that his background as a “political operative”
helped him secure the appointment.
       When Maddox’s counsel asked the prospective jurors, “Has anybody, just looking
at me, taken such an intense dislike to me that you can’t be fair to Mr. Maddox,” juror
8913 responded: “I don’t think so. Although you look familiar to me.” They discussed
the fact that they were both from Pasadena and perhaps that was why Maddox’s counsel
looked familiar to juror 8913.
       Maddox’s counsel questioned juror 8913 about his work as a political operative
and a lobbyist for oil and gas clients. Juror 8913 explained that when he worked for the

                                            26
Governor, he “was involved with locating lawyers to be recommended for judgeships.”
The prosecutor asked juror 8913 some follow-up questions about his work with the
Governor’s Appointments Secretary, Marvin Baxter, current California Supreme Court
Justice.
       The prosecutor also asked juror 8913 what he did in his spare time and he
responded: “I’m currently studying hospitality and hotel management at a local
community college. [¶] I suffered a stroke and was forced into retirement.”
       The prosecutor inquired about juror 8913’s cousin who was a gang member. Juror
8913 explained that his cousin was, at that time, a current member of a Blood gang in
Pasadena. He was not close with his cousin, but believed that connection with a gang
“certainly would impact [his] outlook.” Juror 8913 elaborated: “I have some awareness
of the nature of those things and, you know, why they function in our society. And I’ve
known numerous people that have been active in various capacities. I personally grew up
with probably one of the most notorious people from the Pasadena area.” The prosecutor
asked juror 8913: “Would the fact that you grew up with some people in gangs, is that
going to cause you to have some sympathy towards the defendants in this case if it is
proven that they are members of a gang?” He responded: “Would it? I could not say. I
mean, stating that, I could not say that it would or would not. I would say I have an
understanding of that world. I have a nephew that’s currently serving time in the state
penitentiary” (for burglary). Juror 8913 stated that he did not visit his nephew in prison,
but would “send him money monthly.”
       The prosecutor asked the prospective jurors to raise their hands if they would
dismiss and decline to listen to the testimony of a gang member testifying under a grant
of immunity or leniency. Juror 8913 was the only prospective juror to raise a hand. He
stated: “I would be less likely to. I’d be less likely to give as much weight to someone
testifying under that circumstance than I would someone who was not, because a person
under that circumstance has incentives.” The prosecutor followed up: “And you can take
that, things like that into consideration, sir. [¶] However, would you listen to the
testimony to see if there’s corroborating evidence? Or would you simply dismiss it and

                                             27
not listen to it?” Juror 8913 responded: “No, I would listen for the additional
information. I would not dismiss it out of hand. But it would certainly be there in my
way of thinking about that particular individual.”
        The prosecutor used his next peremptory challenge to excuse juror 8913.
Immediately thereafter, defendants made their Wheeler/Batson motion.
        No prima facie case
        Based on our review of the entire record of voir dire, we find there were
reasonable and race-neutral reasons for the prosecutor’s challenge of jurors 3488 and
8913.
        Juror 3488 served on a jury which did not reach a verdict in a criminal case
involving subject matter similar to this case—a gang-related murder trial. She was
arrested for a crime she did not commit and went through a difficult and protracted battle
with law enforcement to clear her name. She was subjected to a process she did not
believe was fair. Although juror 3488 stated she could put aside her negative experience
with law enforcement while serving as a juror in this case, her answers gave cause for
                                                                      10
concern that she might view an officer’s testimony with skepticism.
        Juror 8913 expressed familiarity with gangs and gang culture. Not only did he
state his cousin was a “a player” in a Blood street gang in Pasadena, but he also stated he
“personally grew up with probably one of the most notorious” gang members in the
Pasadena area whom he identified by name. Juror 8913 believed his familiarity with
gangs “certainly would impact [his] outlook” on this case. He could not say he would put


        10
         In his appellate reply brief, Maddox noted the prosecutor did not remove juror
5373 (prospective juror No. 17 at that time) who cited arrests for possession of marijuana,
possession of methamphetamine and cultivation which did not result in any court
proceedings. Maddox describes juror 5373’s experience as “a run-in with police.” The
key difference between juror 5373’s experience and juror 3488’s experience is that juror
3488 indicated she was treated unfairly during her difficult and protracted battle with law
enforcement. When the prosecutor asked juror 5373, “Do you have an opinion one way
or another whether or not you were treated fairly by law enforcement,” juror 5373
responded: “Yeah, they were cool.”

                                             28
aside his own personal experiences with gangs while serving as a juror in this case. He
was the only juror who admitted he would give less weight to the testimony of a gang
member testifying under a grant of immunity or leniency. Galloway, a Hoover gang
                                                                                       11
member testifying under a leniency agreement, was a key witness for the prosecution.
       Because “we find that the trial court properly determined that no prima facie case
was made, we need not review the adequacy of the prosecution’s justifications . . . for the
peremptory challenges. [Citation.]” (People v. Farnam, supra, 28 Cal.4th at p. 135.)
       We note that, in reviewing defendants’ Wheeler/Batson motion, we have
considered all circumstances of voir dire including the questioning of all of the
prospective jurors, the number of African-American prospective jurors struck from the
panel, and a comparison between the prospective jurors struck by the prosecutor and
those the prosecutor passed. We conclude the trial court did not err in denying the
motion.
Substantial Evidence Demonstrates Smith Fired Shots at Officer Jaramillo
       Smith contends his convictions for willful, deliberate and premeditated attempted
murder and assault with a firearm must be reversed because there is insufficient evidence
demonstrating he fired the gunshots that hit Officer Jaramillo’s car as Officer Jaramillo
       11
          In his opening appellate brief, Maddox asserted that “the prosecution did not
kick off Juror 8472 who lived in South Central Los Angeles, had cousins that were gang
members,” and apparently was not African-American. As the Attorney General pointed
out in her respondent’s brief, and Maddox conceded in his reply brief, the defense
exercised a peremptory challenge to excuse juror 8472 after the defense unsuccessfully
challenged this prospective juror for cause.
        In his appellate reply brief, Maddox noted the prosecutor did not remove juror
2431 (prospective juror no. 16, then 11) even though she stated she had cousins and
friends who were gang members. The prosecutor did not ask her any follow-up questions
regarding the gang membership of her cousins and friends like he did with juror 8913.
Maddox argues the prosecutor engaged in “disparate questioning” of juror 8913 because
he is African-American. Maddox cannot show group bias because the race of prospective
juror 2431 is not clear from the record. In connection with defendants’ Wheeler/Batson
motion, the trial court stated for the record that an African-American woman was selected
as a juror in this case. We cannot determine if juror 2431 was that African-American
woman.

                                            29
drove through the alley behind Granny’s House. Smith argues the accomplice testimony
of Galloway was not sufficiently corroborated by other evidence.
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence—that is, 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. [Citation.] The federal standard of review is to the same effect: Under
principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] . . . ‘“‘“If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also reasonably
be reconciled with a contrary finding does not warrant a reversal of the judgment.”’
[Citations.]”’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
       Section 1111 provides, “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; and the corroboration is not sufficient
if it merely shows the commission of the offense or the circumstances thereof.”
“Corroborating evidence may be slight, may be entirely circumstantial, and need not be
sufficient to establish every element of the charged offense.” (People v. Hayes (1999) 21
Cal.4th 1211, 1271.)
       “An accomplice is . . . defined as one who is liable to prosecution for the identical
offense charged against the defendant on trial in the cause in which the testimony of the
accomplice is given.” (§ 1111.) The trial court instructed the jury that Galloway was an
accomplice to the crimes of attempted murder and assault with a firearm (in addition to
the conspiracy offenses).

                                              30
       Galloway’s identification of Smith as the person who fired the shots at Officer
Jaramillo was sufficiently corroborated by other evidence tending to connect Smith with
the shooting. Telephone calls between Maddox and Smith, played for the jury and
summarized above, indicate that Smith drove from the Big House to the alley behind
Granny’s House shortly before the shooting. In a call at 9:12 p.m. on June 8, 2008,
Maddox instructed Smith to drive into the alley behind Granny’s House. In a call at 9:16
p.m., Smith informed Maddox he was in the alley. Maddox instructed him to park there,
walk up to Granny’s House and wait for him there.
       Maddox arrived at Granny’s House in the F150 pickup truck shortly before 9:30
p.m. In a call to his girlfriend Lee at 9:33 p.m., Maddox stated a car had followed him
from the Vagabond Inn and was parked and waiting. After Officer Jaramillo’s supervisor
notified him that Maddox had observed him, Officer Jaramillo drove out into the street.
At about the same time, officers heard Maddox say during an intercepted phone call,
“That’s it. That’s it. Watch -- ay, ay, ay, ay.” Then the call ended. A reasonable
inference from the evidence is that Maddox was directing these statements at Smith as
Smith followed Officer Jaramillo’s car into the alley, and not at Lee who was on the
phone. Cell phone tower records indicate Smith and Maddox were in the area around
Granny’s House at the time of the shooting.
       A telephone conversation between Smith and Maddox that occurred after the
shooting is further indication Smith was in the alley at the time of the shooting. In a call
at 1:22 a.m. on June 9, 2008, Maddox asked Smith if he thought the person in the car had
“wrecked” because “he was driving real fast.” A reasonable inference from this evidence
is that Maddox asked for Smith’s opinion because Smith was there and had observed the
car speeding out of the alley. Later in the call, Smith expressed concern that the person
in the car was “a relation to” Maddox, and Maddox assured him that was not the case. A
reasonable inference from this evidence is that Smith was concerned he had fired shots
upon someone connected with Maddox.
       Substantial evidence corroborates Galloway’s testimony that Smith was the person
who fired the shots at Officer Jaramillo. The calls between Smith and Maddox placing

                                              31
Smith at the scene of the shooting are not dependent upon Galloway’s interpretation. The
cell phone tower records also independently place Smith at the scene of the shooting. As
set forth above, “Corroborating evidence may be slight, may be entirely circumstantial,
and need not be sufficient to establish every element of the charged offense.” (People v.
Hayes, supra, 21 Cal.4th at p. 1271.)
Substantial Evidence Establishes Existence of Three Conspiracies
       Maddox contends there is insufficient evidence establishing the existence of three
conspiracies. He argues the evidence established “only one conspiracy as a matter of
law, that of a plan to assault rival gang members in the midst of a gang war and engage in
the sale of narcotics, all of which, as testified to by the state’s gang expert, [Officer]
Nicholas Hartman, was consistent with benefitting the Hoover gang.”
       A conspiracy exists where two or more people agree to commit a crime, they
specifically intend both to agree and to commit the crime, and one of them performs an
overt act in furtherance of their agreement. (§§ 182, subd. (a)(1) & 184.) “[T]he essence
of the crime of conspiracy is the agreement, and thus it is the number of the agreements
(not the number of the victims or number of statutes violated) that determine the number
of the conspiracies.” (People v. Meneses (2008) 165 Cal.App.4th 1648, 1669.) “‘Where
two or more persons agree to commit a number of criminal acts, the test of whether a
single conspiracy has been formed is whether the acts “were tied together as stages in the
formation of a larger all-inclusive combination, all directed to achieving a single
unlawful end or result.”’ [Citation.] ‘Relevant factors to consider in determining this
issue include whether the crimes involved the same motives, were to occur in the same
time and place and by the same means,’ and targeted a single or multiple victims.
[Citation.]” (Id. at p. 1672.)
       Substantial evidence establishes the existence of three conspiracies. Between June
7 and 8, 2008, defendants agreed to murder rival Denver Lane Blood gang members in
retaliation for the murders of two Hoover gang members on June 6 and June 7, 2008. On
June 17, 2008, defendants agreed to murder rival 65 Menlo Gangster Crip gang members



                                              32
in an attack coordinated with an 8-Trey gang attack on another Crip set. Between May
10 and July 16, 2008, defendants agreed to transport and sell cocaine.
       The three conspiracies occurred at different times. The overt acts supporting the
conspiracies were different—there was no overlap. The murder conspiracies targeted
different rival gangs. The motives for the murder conspiracies were different. The first
involved retaliation for two specific murders that occurred within a day or two before the
agreement to retaliate was formed. The second involved a coordinated attack on rival
Crip gang members due to a general hatred of different Crip sets that border 8-Trey
Gangster and 7-4 Hoover territories.
       The fact that each of these conspiracies was committed for the benefit of and in
association with the Hoover criminal street gang does not mean there was only one
conspiracy as Maddox argues. Maddox cites Officer Hartman’s expert testimony—given
in support of his opinion that the charged offenses were committed for the benefit of and
in association with the Hoover gang—that Hoover gang members generally reinvest the
profits from drug sales in the gang by purchasing guns and ammunition and renting cars
used in crimes. The evidence, however, does not establish the existence of one
agreement to sell narcotics to fund the purchase of the guns and ammunition to be used in
the planned murders of the rival Denver Lane Blood and 65 Menlo Gangster Crip gang
members. In fact there is no evidence specifically linking the agreement to transport and
sell cocaine between May 10 and July 16, 2008 with either of the two agreements to
murder rival gang members. There is no evidence indicating that defendants or their
associates planned to use or did use the profits from drug sales to rent cars or to purchase
the particular guns or ammunition gathered for the June 8, 2008 planned attack on
Denver Lane Blood gang members or the June 18, 2008 attack on the 65 Menlo Gangster
Crip gang member.
       Maddox also cites portions of the prosecutor’s closing argument during which the
prosecutor refers to an “overall conspiracy to shoot and kill rival gang members.” The
prosecutor’s arguments are not evidence. What the evidence shows is not the formation
of one agreement to kill any and all rival gang members, but the formation of two

                                             33
separate agreements, one to kill Denver Lane Blood gang members and one to kill 65
Menlo Gangster Crip gang members.
No Sua Sponte Duty to Instruct Jury to Decide if There Was a Single Conspiracy
       Defendants did not ask the trial court to task the jury with deciding the number of
conspiracies. On appeal, however, Maddox contends the trial court erred in not
instructing the jury sua sponte to decide whether there was a single or multiple
conspiracies.
       “California intermediate appellate courts are presently divided on whether the trial
court has a duty to instruct the jury on single versus multiple conspiracies. [Citations.]”
(People v. Meneses, supra, 165 Cal.App.4th at p. 1668.) Most decisions, including the
most recent cases, have held the trial court has a duty to instruct the jury to decide
whether there was a single or multiple conspiracies where there is evidence to support
alternative findings. (See, e.g., id. at p. 1671; People v. Jasso (2006) 142 Cal.App.4th
1213, 1220.)
       Maddox cites People v. Vargas (2001) 91 Cal.App.4th 506 in support of his
argument there was only one conspiracy in this case. In Vargas, the prosecution charged
the defendant, a member of the prison gang Nuestra Familia (NF), with one count of
murder and one count of “conspiracy to commit murder, robbery, assault with a deadly
weapon, arson, burglary, extortion, intimidation of witnesses, terrorist threats, escape,
possession of concealable firearm by a convicted felon, and distribution of heroin,
cocaine, phencyclidine (PCP), and methamphetamine.” (Id. at pp. 517-518.) On appeal,
the defendant contended the trial court erred in declining to instruct the jury to determine
whether one or multiple conspiracies existed. (Id. at p. 549.) In concluding the trial court
did not err, the Court of Appeal noted the court does not review “prosecutorial charging
discretion” and the defendant could not have been prejudiced by being charged with one
conspiracy count instead of multiple counts. (Id. at p. 553.)
       The appellate court in Vargas also explained that “a single agreement to commit a
number of crimes is only one conspiracy, regardless of the number of crimes sought to be
committed, or that are committed, under that conspiracy.” (People v. Vargas, supra, 91

                                             34
Cal.App.4th at p. 555.) The court found that “the record evidence points only to one
conspiracy—the agreement to establish the NF as a criminal gang to commit murder,
robbery, burglary, extortion, and drug trafficking, among other crimes. Within that
umbrella conspiracy were subconspiracies to commit specific crimes. However, the
commission of the specific crimes, and the drawing up of plans required to commit them,
were all in pursuance of the overriding purpose of the NF, which was to establish power
through the use of crime, force, and fear, and to use that power to further strengthen and
perpetuate itself by killing its enemies, raising money for the gang, and instilling
obedience and discipline among its members by killing members who break its rules.
Thus, Rosas was killed because he had ‘snitched on Pablo Pena, Panther.’ The decision
to kill Rosas, being one in furtherance of the overriding purpose of the conspiracy, was
part of the overall conspiracy, and hence cannot be the basis for filing a separate charge
of conspiracy.” (Id. at p. 553.)
       Here, the prosecution charged defendants with three conspiracies, and the
evidence shows three separate agreements, formed at different times, with different
intended victims, and different overt acts committed in support of each agreement. The
evidence does not show the formation of a single agreement to transport and sell
narcotics and to kill any and all rival gang members.
Section 654 Does Not Prohibit the Consecutive Terms Imposed
       Section 654, subdivision (a), provides in pertinent part, “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” “Whether a course
of criminal conduct is divisible and therefore gives rise to more than one act within the
meaning of section 654 depends on the intent and objective of the actor. If all of the
offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not for more than one.” (Neal v. State of California (1960) 55 Cal.2d
11, 19.) “On the other hand, if the defendant entertained multiple criminal objectives that
were independent and not incidental to each other, he or she ‘may be punished for each

                                             35
statutory violation committed in pursuit of each objective’ even though the violations
were otherwise part of an indivisible course of conduct.” (People v. Sok (2010) 181
Cal.App.4th 88, 99.) The purpose of section 654 is to ensure that punishment is
commensurate with a defendant’s culpability. (People v. Meeks (2004) 123 Cal.App.4th
695, 705.)
      Smith’s contention
      Smith contends section 654 prohibits multiple punishment for the conspiracy to
commit murder between June 7 and 8, 2008, and the attempted murder of Officer
Jaramillo, because “the conspiracy had no objective apart from the crime committed.”
We disagree. The intent and objective of the conspiracy to commit murder was to kill
rival Denver Lane Blood gang members in retaliation for the murder of two Hoover gang
members. The intent and objective of the attempted murder of Officer Jaramillo was to
kill the person who was following Maddox. Maddox did not know who was following
him, but he wanted any threat eliminated. The fact defendants attempted to murder
Officer Jaramillo in the midst of their preparations to kill Denver Lane Blood gang
members does not show they had the same intent and objective in committing both
crimes.
      Maddox’s contention
      Maddox contends, pursuant to section 654, the trial court was required to stay the
sentence for the conspiracy to commit murder on June 17, 2008 and the conspiracy to
transport and sell cocaine because there was “one overall conspiracy” with the single
“objective of assaulting rival gang members.” Again, we disagree. As discussed above,
the evidence does not establish one overall conspiracy. Between June 7 and June 8,
2008, defendants agreed to murder rival Denver Lane Blood gang members in retaliation
for the murders of Hoover gang members. On June 17, 2008, defendants agreed to
murder rival 65 Menlo Gangster Crip gang members in an attack coordinated with an 8-
Trey gang attack on another Crip set. Between May 10 and July 16, 2008, defendants
agreed to transport and sell cocaine. The evidence demonstrates defendants entertained
multiple criminal objectives that were independent and not incidental to each other.

                                            36
Section 667, Subdivision (a)(1), Enhancements
          Smith contends the trial court erroneously imposed the prior serious felony
enhancements under section 667, subdivision (a)(1), because the enhancements were not
properly pleaded or proved. We agree.
          The second amended information (and the prior version of the information) did not
allege a prior serious felony enhancement under section 667, subdivision (a)(1). As
discussed above, before sentencing, Smith and Maddox each admitted they suffered a
prior strike conviction within the meaning of the Three Strikes law. They were not asked
to admit a prior serious felony enhancement allegation under section 667, subdivision
(a)(1).
          Although Maddox admitted he suffered a prior robbery conviction, and Smith
admitted he suffered a prior first degree burglary conviction, for purposes of the special
allegation under the Three Strikes law, and these convictions also qualify as prior serious
felonies under section 667, subdivision (a)(1), defendants should have been apprised of
the consequences of their admissions before they made them—that an additional five-
year term would be imposed on all counts except the counts for carrying a loaded firearm
while being an active participant in a criminal street gang. (See People v. Haskin (1992)
4 Cal.App.4th 1434, 1440 [“a court cannot accept a guilty plea or admission from a
defendant, and thereafter accept evidence or make findings that change the character of
the crime or enhancement admitted so as to increase the authorized punishment
therefor”].)
          Defendants were not asked to admit a special allegation under section 667,
subdivision (a)(1), and the trial court was not asked to make a finding under section 667,
subdivision (a)(1). We will not encourage careless pleading and proof by allowing
imposition of an enhancement which was not alleged, admitted or otherwise proven. The
prior serious felony enhancements imposed on counts 1, 2, 3 and 15 are reversed and
stricken.




                                              37
This Court’s Independent Review of Wiretap Documents and Proceedings
       Maddox requests that this court independently review the public and sealed
portions of the wiretap documents and proceedings and decide whether the trial court
erred in denying his motion to unseal the wiretap affidavit and to quash and traverse the
wiretap warrant. The Attorney General does not object to this court conducting the
independent review.
       As part of his request for our independent review, Maddox asked that we “order
the superior court to transmit under seal to this Court, all relevant documents including
the in camera hearings and wiretaps.” He also asked that we “determine whether the
record demonstrates that no critical information was lost.”
       We have reviewed all documents and transcripts included in the original appellate
record related to Maddox’s motions regarding the wiretaps, including the sealed
transcripts from the April 8, 2010 and July 1, 2010 in camera hearings on Maddox’s
motion to unseal the wiretap affidavit and to quash and traverse the wiretap warrant,
conducted before Judge Patricia M. Schnegg.
       On January 15, 2014, we issued an order augmenting the record “to include all
pre-trial applications for wiretaps, including the supporting affidavits and all other
documents lodged with or received into evidence by the superior court regarding the
wiretaps, including wiretap progress reports and supporting investigation reports, for all
wiretaps authorized in this matter, including but not limited to” Wiretap 08-117 and
Wiretap 08-117 Extension #1, Wiretap 08-113, Wiretap 08-75, Wiretap 08-123 and
Wiretap 08-123 Extension #1, and Wiretap 07-195.
       On January 31, 2014, we received from the superior court a box containing the
items which appear to have been maintained in a sealed condition by LAPD: five sealed
envelopes containing the original wiretap books and Blu-ray Discs for the wiretaps listed
above. We also received the sealed copies of the wiretap affidavits the trial court
received at the in camera hearing. Finally, we received two augmented volumes of
clerk’s transcript containing the public documents relating to the wiretaps (Maddox’s
motions and the prosecution’s responses), all of which already were included in the

                                             38
record on appeal except for the wiretap sealing orders. Having reviewed the public and
sealed portions of the wiretap documents and proceedings, including the confidential
portions of the affidavit, we are confident that “no critical information was lost”—a
determination Maddox asked this court to make.
       Maddox also asked this court to determine whether there was probable cause to
issue the warrants and whether it was proper to seal portions of the affidavit.
       All or part of a warrant affidavit may be sealed when disclosure will reveal or tend
to reveal the identity of a confidential informant. (People v. Hobbs (1994) 7 Cal.4th 948,
971 (Hobbs) [search warrants]; People v. Acevedo (2012) 209 Cal.App.4th 1040, 1050-
1051 [Hobbs procedures applicable to wiretap warrants].) Where a warrant affidavit has
been sealed, the trial court should follow certain procedures “to strike a fair balance
between the People’s right to assert the informant’s privilege and the defendant’s
discovery rights.” (Hobbs, supra, 7 Cal.4th at p. 972.) If the defendant challenges the
issuance of the warrant, the court should conduct an in camera hearing and “determine
first whether there are sufficient grounds for maintaining the confidentiality of the
informant’s identity.” (People v. Galland (2008) 45 Cal.4th 354, 364.) If there are, the
court should then determine whether the sealing of the affidavit, or any part of it, is
necessary to protect the informant’s identity. (Ibid.; Hobbs, supra, 7 Cal.4th at p. 972.)
       If the trial court concludes the affidavit was properly sealed and the defendant has
moved to quash the warrant, “the court should proceed to determine whether, under the
‘totality of the circumstances’ presented in the . . . warrant affidavit” there was probable
cause for issuance of the warrant. (Hobbs, supra, 7 Cal.4th at p. 975.) “A wiretap may
be ordered based upon affidavits” furnishing “probable cause to believe that an individual
is committing one of a number of specified crimes (among them the drug-trafficking [and
conspiracy to commit murder] crimes charged in this case), and that communications
concerning the crimes will be obtained by the wiretaps.” (People v. Acevedo, supra, 209
Cal.App.4th at p. 1051, citing § 629.52.) The court may disturb the warrant “‘only if the
affidavit fails as a matter of law . . . to set forth sufficient competent evidence supportive
of the magistrates finding of probable cause.’” (Hobbs, supra, 7 Cal.4th at p. 975,

                                              39
citation omitted.) “If the court determines . . . that the affidavit and related materials
furnished probable cause for issuance of the warrant . . . the court should simply report
this conclusion to the defendant and enter an order denying the motion to quash.” (Ibid.,
citation omitted.) Whether the magistrate had a substantial basis for concluding there
was probable cause is a question of law and therefore subject to independent review.
(People v. Camarella (1991) 54 Cal.3d 592, 601.)
       Based on our independent review, we find the trial court properly sealed portions
of the warrant affidavit to protect an informant’s identity, and there was probable cause to
                                                         12
issue the warrants (both wiretap and search warrants).
                                       DISPOSITION
       The prior serious felony enhancements under Penal Code section 667, subdivision
(a)(1), imposed on counts 1, 2, 3 and 15, are reversed and stricken as to both defendants.
In all other respects, the judgments are affirmed. The clerk of the superior court is
directed to prepare an amended abstract of judgment for each defendant and to forward it
to the Department of Corrections and Rehabilitation.
       NOT TO BE PUBLISHED.



                                                          CHANEY, J.

We concur:



              ROTHSCHILD, Acting P. J.



              JOHNSON, J.

       12
         On appeal Maddox does not challenge the denial of his motion to traverse the
warrant. We note that our independent review of the warrant affidavit, including the
sealed portions, did not cause us to suspect that any material misrepresentations or
omissions were made. (See Hobbs, supra, 7 Cal.4th at p. 974.)

                                              40
