Filed 4/29/13 P. v. Hastings CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F062135
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF129823A)
                   v.

KERRY DANA HASTINGS,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman II, Judge.
         Robert D. Bacon, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Catherine Chatman and A. Kay Lauterbach, Deputy Attorneys General, for
Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
        Appellant Kerry D. Hastings fatally shot three men in separate criminal events that
occurred in 2006, 2007 and 2009. During this time period he was an active member of
the Eastside Crips gang. He was convicted after jury trial of 17 felonies that include
three counts of premeditated murder with special circumstances, three counts of
premeditated attempted murder, conspiracy to commit murder, robbery, illegal firearm
possession and possession of controlled substances with intent to sell. He was sentenced
to, inter alia, three terms of life imprisonment without the possibility of parole, to be
served consecutively.
        In this opinion we hold that appellant‟s due process rights were not infringed by
the loss of a photographic lineup. Also, we reject appellant‟s challenges to CALJIC No.
8.66.1 and conclude that his objections to admission of testimony that his mother
threatened a witness and to portions of the gang expert‟s testimony do not have any merit.
We conclude that count 10 is time barred because criminal proceedings began after
expiration of the applicable statute of limitations. The conviction on count 10 will be
reversed and the sentence imposed for this count will be vacated. Finally, the superior
court will be instructed to correct a clerical error in the abstract of judgment. As so
modified, the judgment will be affirmed.
                                PROCEDURAL EVENTS
        Grand jury proceedings commenced in this case on November 2, 2009. On
November 17, 2009, the grand jury returned a true bill on all counts that were contained
in the second amended indictment. The second amended indictment was filed on this
date.
        Counts 1 through 6 in the second amended indictment were alleged to have
occurred on March 6, 2004. Appellant was charged in counts 1, 2 and 3 with attempting
to murder Columbus Holford, Deon Davis and Keona Roberts with a firearm. Count 4
charged appellant with assault with a machine gun. Count 5 charged him with assault

                                              2.
with a semiautomatic firearm. Count 6 charged him shooting at an occupied motor
vehicle. (Pen. Code, §§ 664, 187 subd. (a), 245, subds. (a)(3), (b), 246.)1
       Counts 7 through 10 were alleged to have occurred on September 20, 2006.
Appellant was charged in count 7 with attempting to murder Leon Banks.2 He was
charged in count 8 with assaulting Leon with a semiautomatic firearm and in count 9 with
robbing Leon. Count 10 charged him with being a felon in possession of a firearm.
(§§ 664, 187, subd. (a), 245, subd. (b), 212.5, subd. (c), former § 12021,3 subd. (a)(1).)
       Counts 11 through 14 were alleged to have occurred on September 21, 2006.
Appellant was charged in count 11 with murdering Leon‟s son, Leonard Banks. He was
charged in count 12 with attempting to murder Leon. Count 13 charged appellant with
being a felon in possession of a firearm. Count 14 charged him with second degree
robbery.4 (§§ 187, subd. (a), 664, 212.5, subd. (c), former § 12021, subd. (a)(1).)
       Count 15 alleged that on September 25, 2006, appellant possessed marijuana for
purpose of sale while charges were pending. (Health & Saf. Code, § 11359.)



       1   Unless otherwise specified all statutory references are to the Penal Code.
       2To increase readability some witnesses will be referenced by their first names.
Also, a witness‟s title (e.g., Detective) will be omitted after the initial reference to the
witness. No disrespect is intended or implied by these informalities.
       3 The Deadly Weapons Recodification Act of 2010 repealed and recodified former
sections 12000 to 12809 without substantive change. (§§ 16000, 16005; Cal. Law
Revision Com. com., 51D pt. 2 West‟s Ann. Pen. Code (2012 ed.) foll. § 16000, p. 317.)
Former section 12021, subdivision (a)(1) was repealed by Stats. 2010, ch. 711 (Sen. Bill
No. 1080), § 4, operative January 1, 2012. (Historical and Statutory Notes, 51D pt. 1
West‟s Ann. Pen. Code (2012 ed.) foll. §§ 12010 to 12021.3, p. 48; Historical and
Statutory Notes, 51D pt. 1 West‟s Ann. Pen. Code (2012 ed.) foll. §§ 12316 to 12325, p.
293.)
4      The second amended indictment alleged that counts 13 and 14 occurred on
June 21, 2009. We agree with appellant that this was a clerical error and the People
intended to allege that these crimes occurred on September 21, 2006.



                                               3.
       Counts 16 through 18 were alleged to have occurred on July 24, 2007. He was
charged in count 16 with murdering Ernest Kerr. He was charged in count 17 with
attempting to murder Aaron Mosby. Count 18 charged appellant with being a felon in
possession of a firearm. (§§ 187, subd. (a), 664, former § 12021, subd. (a)(1).)
       Counts 19 through 21 were alleged to have occurred on May 12, 2009. He was
charged in count 19 with being a felon in possession of a firearm; in count 20 with
carrying an unregistered firearm in public; and in count 21 with carrying a loaded firearm
in public. (Former §§ 12021, subd. (a)(1), 12031, subd. (a)(2)(C), (F).)
       Counts 22 and 23 were alleged to have occurred on June 30, 2009. Count 22
charged appellant with murdering Anthony Daniels. Count 23 charged appellant with
being a felon in possession of a firearm. (§ 187, subd. (a), former § 12021, subd. (a)(1).)
       Counts 24 through 27 were alleged to have occurred on July 11, 2009. Counts 24
and 25 charged appellant with being a felon in possession of two different firearms.
Count 26 charged him with possession of phencyclidine for purpose of sale. Count 27
charged him with receiving stolen property. (§ 496, subd. (a), former § 12021, subd.
(a)(1); Health & Saf. Code, § 11378.5.)
       Count 28 charged appellant with participating in a criminal street gang from
November 18, 2006 to October 1, 2009. (§ 186.22, subd. (a).)
       Count 29 charged appellant with conspiracy to commit murder from September
20, 2006 to October 1, 2009.5 (§§ 182, subd. (a)(1), 187, subd. (a).)
       The murders and attempted murders charged in counts 1, 2, 3, 7, 11, 12, 16, 17
and 22 were alleged to be deliberate and premeditated. Special circumstances of gang


       5Markisha Williams and Roosevelt Mitchell, Jr. were jointly charged with
appellant in count 29. Williams was also jointly charged with appellant in counts 11, 12
and 14. Mitchell died on August 6, 2009. The case against Williams was separately
resolved and she was not tried together with appellant.



                                             4.
murder and multiple murders were alleged in connection with counts 11, 16 and 22.
(§§ 189, 190.2, subd. (a)(3), (22).)
       A section 186.22, subdivision (b)(1)(C) gang enhancement was alleged in
connection with every count except count 28.
       Several firearm use enhancements were alleged. A section 12022.53, subdivisions
(c) and (e)(1) enhancement was alleged in connection with counts 1, 2, 3, 6 and 17. A
section 12022.53, subdivisions (d) and (e)(1) enhancement was alleged in connection
with counts 7, 9, 11, 12, 14, 16 and 22. A section 12022.5, subdivision (a) enhancement
was alleged in connection with counts 4, 5 and 8.
       A section 12022.7 enhancement for inflicting great bodily injury was alleged in
connection with counts 7 and 8. A section 12022.1 on bail enhancement was alleged in
connection with counts 22 through 27. A section 667.5, subdivision (b) prior prison term
enhancement was alleged in connection with counts 7 through 28.
       On November 19, 2009, appellant pled not guilty and denied the enhancement
allegations and special circumstances.
       On December 15, 2010, jury trial commenced. Appellant rested on the state of the
evidence.
       Counts 9, 13, 14, 21, 25, 27 and the prior prison term enhancement allegations
were dismissed on the People‟s motion.
       The jury returned its verdicts on February 15, 2011. It found appellant not guilty
on counts 1 through 6 and found all of the enhancement allegations attached to these
counts not true.6 It found appellant guilty on all remaining counts (counts 7, 8, 10, 11,


       6 The crimes alleged in counts 1 through 6 are based on a shooting that occurred in
front of a convenience store named Mr. Fast Gas on March 6, 2004. Since appellant was
found not guilty on these counts and did not raise any appellate issues relating to them, a
factual summary of the evidence pertaining to this shooting will not be provided.



                                             5.
12, 15, 16, 17, 18, 19, 20, 22, 23, 24, 26, 28, 29) and found all of the enhancement
allegations and special circumstance allegations attached to these counts to be true. It
found all overt acts attached to counts 29 to be true.
       On March 16, 2011, appellant was sentenced to three consecutive terms of life
imprisonment without the possibility of parole plus six consecutive terms of 25 years to
life imprisonment plus three consecutive terms of seven years to life imprisonment plus a
total determinate term of 43 years.
                                          FACTS
Events on September 20-21, 2006 (counts 7 to 14)
       Leon lived in a single family home on Fairview Drive in Bakersfield with his wife,
his son Leonard and their other children. His daughter Shalon‟s boyfriend, Mike Nettles,
lived with them. Leon cultivated marijuana from seed and 12 plants grew in different
places inside his fenced backyard. In September 2006, a crop of marijuana was maturing
for harvest. Three of the marijuana plants were budding.
       Leon testified that after going to bed for the evening on September 20, 2006, he
awakened to the sounds of a gunshot and his three beagles barking. He retrieved his gun
and went outside. He saw a young Black man climb over his backyard fence and enter a
neighbor‟s yard. The man was holding a piece of a marijuana plant. Leon heard the man
talking to another person. Leon climbed onto the fence and told them to leave. He heard
the sound of a gunshot and felt a bullet penetrate his right arm. Leon was driven to the
hospital where he was treated for a gunshot wound and released about 6:30 a.m.
       When Leon returned home, he looked over a side fence and noticed two bags on
the ground near the fence. Shalon went into the backyard to check on the dogs. She
noticed that one of the marijuana plants was moving rapidly back and forth. One of the
dogs repeatedly barked and then looked at her. Shalon concluded someone was in the
backyard. She went inside the house and informed Leonard of her suspicions. Leonard
picked up a shotgun and walked into the backyard. Leon and Nettles joined Leonard in

                                              6.
the backyard. Nettles looked over the side fence and told Leon that the two bags were
still there. Leon sent everyone inside. Leon looked around the area but did not see
anyone. He went inside the house.
      A short time later, Leon checked the back yard again. He was not armed. Leon
noticed that some of the marijuana plants were missing branches and that pieces of
marijuana were lying on the ground. Leonard, who was armed with a shotgun, walked
onto the back patio. As Leon turned to return to the house, someone started shooting at
them. The first two bullets missed Leon but the third bullet hit him in the back and
another bullet grazed his shoulder. Leonard fired one round and then a bullet hit him in
the torso. Leonard yelled, “[A]h, the [N-word] shot me.” Leonard tossed the shotgun to
his father and retreated inside the house. Leon saw a heavyset person running through
the back yard. Leon could not determine the person‟s race or gender. Leon reloaded the
shotgun and fired one shot at him or her. The shot missed. The person scaled a wobbly
fence at the southwest corner of the backyard.
      Leon and Leonard were transported to the hospital. Leon survived his injuries but
Leonard did not. Leonard died from a single gunshot wound that entered his left side and
passed through several internal organs. A 9 mm hollow point bullet was recovered from
Leonard‟s body during the autopsy.
      Danielle Jeffers lived next door to the Banks family. Around 11:30 p.m., she
heard the sounds of dogs barking and a gunshot. Around 7:00 a.m., she heard gunshots
again. She looked out her window towards the Banks‟ backyard. She saw a man trying
to climb the fence from the Banks‟ backyard into her backyard. The man appeared to be
a Hispanic or light skinned Black man who was in his 20‟s. The man was holding what
appeared to be a shotgun with a shortened barrel. He was unable to climb the fence and
went back into the Banks‟ backyard. Then he scaled another fence. While she was on
the phone with the emergency operator, Leonard arrived at her house. He had been shot
in the chest and was bleeding.

                                            7.
       Another neighbor, David Sempel, testified that he heard three pistol shots and then
the sound of a shotgun firing as he entered his garage to leave for work at 7:03 a.m. on
September 21, 2006. Sempel went outside and saw a man and a woman holding plant
material.
       Hilda Santiago lived one block south of the Banks family. At 7:00 a.m. on
September 21, 2006, she heard a loud explosion. She went outside and walked to her
driveway. She saw a chubby Black woman, who was about 20 years old, standing in the
front yard of a rental house across the street from Santiago‟s home. The woman was
looking toward the rental house‟s fenced backyard. About 10 seconds later, a Black
male, who was about 19 years old, walked through the gate that separated the front and
back yards of the rental house. The woman was about five feet two inches tall; the man
was a little taller than the woman.7 The man wore a gray hooded sweater with the hood
up. Santiago did not get a good look at the man‟s face and would not be able to
recognize him if she saw him again. The man was carrying a bundle of plant material.
He joined the woman and they walked away in an easterly direction.
       Investigators found blood on the Banks‟ back fence and a trash can that was
subsequently determined to be consistent with the DNA profile of Diante Nettles. Three
bags containing marijuana plant material were found in adjoining backyards. There was
a trail of marijuana plant material on neighborhood sidewalks.
       Shanika Herron testified that she dated appellant during 2006 and 2007.8 She
heard appellant say that Julia Johnson told him where to find the marijuana.




       7The probation report states that appellant is five feet inches tall and weighs 150
pounds. He was 21 years old in September of 2006.
       8Herron testified under a grant of immunity and received financial assistance from
the witness relocation program.



                                             8.
Events on September 25, 2006 (count 15)
       On September 25, 2006, a traffic stop was effected of a vehicle appellant was
driving. The vehicle belonged to his mother, Theresa Ellis. Appellant was arrested for
driving without a valid license. (Veh. Code, § 12500.) The officer discovered that
appellant was on parole and conducted a search of his person. The officer found two cell
phones, over $216 in cash and plastic baggies.
       The officer obtained consent to search Ellis‟s residence. A backpack was found
underneath a bag containing a man‟s dirty laundry. Unprocessed marijuana that was in
bud form and still attached to the branch on which it had been growing was found inside
the backpack. Ellis testified that appellant brought his laundry to her apartment.9
       A DNA analysis was conducted on samples of the marijuana that was found in the
backpack. The marijuana had five different genotypes; four of these genotypes matched
the genotypes of the marijuana growing in the Banks‟ backyard.
Events on July 24, 2007 (counts 16 to 18)
       On July 24, 2007, Ernest Kerr, Aaron Mosby and Clarence West were conversing
on the sidewalk outside the gated Cottonwoods Apartments complex located on
Cottonwood and Cheatham Avenues in Bakersfield. This location is claimed by the
Country Boy Crips gang. West was dressed in red clothing. Mosby testified that he
thought West‟s choice of attire was “not too smart” because red is a gang-related color
that should not be worn in this neighborhood. West, Mosby and Kerr were not gang
members.
       A Dodge Magnum with tinted windows repeatedly drove past them. Suddenly
two young, slim Black men ran towards West, Kerr and Mosby from inside the apartment
building. One of the men fired a rifle at them. Kerr was struck by three bullets. Mosby

       9
       When the marijuana was discovered, Ellis told the police that she did not know
whose marijuana it was. At trial, she testified that it belonged to Jimmy Rufus.



                                             9.
ducked behind a car. West fled, pleading, “Please don‟t shoot me.” The three men
chased West. West flagged down a passing police car and got inside it. Neither Mosby
nor West was able to identify the men who shot at them.
      Kerr died from the gunshot wounds. The pathologist testified that Kerr was
probably lying on the ground when the fatal bullet struck his abdomen. Three .223-
caliber bullets were removed from Kerr‟s body.
      Six .223-caliber shell casings were found at the crime scene. This type of
ammunition is most commonly used in “rifle similar to … a military M-16 or an AR-15.”
      Pearlene Cannon told a police officer that she saw appellant and two other men
run shortly after hearing the sound of gunshots. Appellant was carrying a “machine gun.”
She said to him, “Kerry.” Appellant stopped and looked at her. The three men looked at
each other for a moment and then appellant began running again. They ran into a nearby
apartment building where appellant lived with his girlfriend.
      Shanika Herron testified that she lived in an apartment that was located south of
the apartment complex where the shooting occurred. For about a month around the time
of the shooting, appellant stored a long “Army gun” at her apartment. Typically,
appellant would call Herron before he came over. She would wrap herself and the gun in
a blanket and bring it outside to him. On July 24, 2007, appellant called Herron and told
her he was coming over for his gun. She brought it to him in the usual way. Herron saw
appellant get into a Dodge Magnum. Herron saw Anthony Hodge sitting in the car. A
few minutes later, Herron was outside checking her mail when she heard the sound of
gunshots at the apartment complex north of the one where she lived. Then she saw
appellant running towards her. He was carrying his gun. Appellant headed towards a
parking lot where the Dodge Magnum was parked. Five minutes later, appellant
telephoned her. He told her “[t]o go outside and see how many people he hit.”




                                           10.
Events on May 12, 2009 (counts 19 to 21)
       On May 12, 2009, a search warrant was served in an apartment located on
Northrup Street in Bakersfield where appellant lived with Ebony Nichols. Appellant was
standing in the bedroom where officers found a set of car keys underneath a pile of
clothes. The keys fit a Buick that was parked in front of the building. A .22-
semiautomatic handgun loaded with 10 live rounds in the magazine was found inside the
Buick‟s front center console. Examination of the firearm yielded DNA that was
subsequently determined to be consistent with appellant‟s DNA profile. Appellant‟s
grandmother, Annie Ellis, told a police officer that appellant had just returned after
driving his children in the Buick to a bus stop.10 Appellant posted bail on May 30, 2009.
Events on June 30, 2009 (counts 22 and 23)
       Shortly after midnight on June 30, 2009, Anthony Daniels was standing in front of
a house on Reese Street in Bakersfield socializing with Eddie Earl Howard, Kelan
Williams and another man. Krystal San Nicholas, Christina Shepherd and some other
people also were outside chatting with each other. This location is claimed by the
Country Boy Crips. Daniels approached Nicholas and Shepherd. He chided them for
failing to pay attention to their surroundings and asked them if they saw the people
“walking up.” Nicholas looked around and saw three Black men walking towards them.
Nicholas heard Daniels ask the men, “[W]ho are you[?]” One of the men answered,
“S‟s.” “S” is an abbreviation for “Southside,” which refers to the Country Boy Crips.
The men started shooting. Shepherd testified that they were shooting at Daniels. Howard
and Williams were armed and they returned fire. The three men ran away in the direction
from which they came. One of them soon slowed down and began limping. After the
police left the crime scene, Nicholas told Shepherd that “K9” shot Daniels. Shepherd



       10At   trial, Annie testified that appellant drove a white Impala that morning.


                                              11.
knew that “K9” referred to appellant because she was friends with one of appellant‟s
sisters.11
       Daniels suffered multiple gunshot wounds and was transported to a hospital.
Appellant arrived at the same hospital a few minutes later. He had sustained a gunshot
wound in the left buttock and the bullet was lodged in his left hip. Daniels and appellant
were placed in nearby rooms in the emergency ward. Daniels died a short time later.
Daniels mother became hysterical. When she informed people who had gathered in the
waiting area of Daniels‟ death, they created a loud disturbance. At the same time,
appellant left the hospital against medical advice, claiming that he was “not getting any
respect.”
       Appellant had arrived at the hospital in a silver colored SUV. The SUV belonged
to Regan Roberts, who was Roosevelt Mitchell, Jr.‟s girlfriend. Mitchell had borrowed
the SUV earlier that evening, telling Roberts that he was going to drive it to Los Angeles.
Roberts received a telephone call between 2:00 a.m. and 3:00 a.m. informing her that the
car was parked in her driveway. The SUV was impounded by the police on the day after
the shooting. Several small blood stains were found on the vehicle‟s back seat.
       Seven .45-caliber shell casings, two .45-caliber bullets and one .22-caliber bullet
were located at the crime scene. Two .22-caliber bullets, a .38- or .357-caliber bullet and
a .45-caliber bullet were removed from Daniels‟ body.
       Bakersfield Police Officer Ryan Kroeker testified that Nicholas told him that she
recognized appellant as one of the men who shot Daniels. Nicholas said she recognized
appellant because they previously attended school together.




       11Shepherd provided this information to the police after her boyfriend was killed
in September of 2009. She was placed into the witness protection program. Nicholas was
on a material witness hold when she testified.



                                            12.
       Kern County Sheriff‟s Detective Jason Balasis testified that Nicholas told him that
appellant and Mitchell were two of the men who shot at Daniels.
       Herron recalled seeing appellant on crutches in July 2009. Appellant told her that
he “did something” on Reese Street and shot himself in the foot.
Events on July 11, 2009 (counts 24 to 27)
       Appellant was arrested in a motel room on July 11, 2009. He had phencyclidine
on his person and appeared to be under the influence of this drug. Additional PCP, a .45-
caliber pistol, a .380-caliber pistol, a box of sandwich baggies, rolling papers and two
pairs of Nike brand shoes were found in the motel room. The .45-caliber pistol matched
one of the spent shell casings found at the Reese Street crime scene. The size and class
characteristics of the Nike shoes matched some of the shoe tracks that investigators found
on the dirt path by the canal bank at the Reese Street crime scene.
Testimony of Jason Dawson
       Jason Dawson testified that he was an Eastside Crips member for 20 years.12
Dawson and appellant were close friends. He knew appellant to be a fellow Eastside
Crips gang member. Appellant belonged to the Lakeview Gangstas subset. Dawson
explained that there was an ongoing conflict between the Country Boys and the Westside
Crips together against the Eastside Crips. The hatred among the Eastside Crips towards
the Country Boys was particularly intense during the period of time from February
through July of 2009. Dawson testified that he saw appellant daily during this time
period He witnessed appellant selling crack cocaine and PCP. Appellant was using a
crutch and was armed with a .45-caliber pistol the last time Dawson saw him. Dawson
knew that appellant had been shot and asked him if he was all right. Appellant replied, “I
toot my shit.” This phrase is gang parlance meaning, “I killed someone.”

        In exchange for Dawson‟s testimony, the People dismissed felony charges that
       12
were pending against him.



                                            13.
       Dawson was arrested on July 14, 2009. He encountered appellant in jail and they
shared a cell for a few days. During this period, appellant talked to Dawson about the
murders. Dawson testified that appellant said that he and some other people went to the
Banks‟ house on two occasions to steal marijuana. Appellant said that Leon “had got
shot the first time, and that [there was] so much marijuana there that they had to go back
and get it.” Appellant said that Henry Cartwright‟s girlfriend gave him a .9 mm firearm
and he used this weapon to shoot Leonard.
       With respect to the Kerr murder, Dawson testified that appellant said that he was
told that there were some Country Boys loitering in front of the Cottonwood apartment
complex. He had his girlfriend bring him the assault rifle. Then he “and Eugene Cook
snuck through the apartments up on the guys and opened fire.”
       With respect to Daniels‟ murder, appellant said that Mitchell and “G-Bob,” who
are also Eastside Crips members, accompanied him. Appellant told Dawson that they
walked down the canal and snuck up a dirt alley. As they approached Daniels and his
companions, they called out “South” and “S‟s” to make the intended victims think that
they were friends. They used a .22-caliber gun, a .45-caliber gun and a .357-caliber gun.
Appellant said that “[a]s they were fleeing, someone was shooting back and shot him in
the butt.” Appellant said that “Nuke” took him to the hospital. He was placed in a room
next to the person he just shot. The victim‟s family and some Country Boy Crips were at
the hospital. Appellant left without being treated because he did not feel safe. Appellant
said that he wore a royal blue shirt and sneakers during the attack.13 Dawson testified
that appellant‟s act of killing a rival gang member increased his respect within the
Eastside Crips and that it is taboo to take credit for a murder you did not commit.



       13 Nicholas told a police officer that one of the men who shot at Daniels wore a
royal blue shirt. The color royal blue is associated with the Eastside Crips.



                                            14.
        Dawson called a police officer and offered to provide information in exchange for
concessions in his pending case. On August 9, 2009, Dawson and appellant were housed
together in a cell that was equipped with a recording device. Later that day and on the
following day appellant made incriminating statements to Dawson during their
conversations. The conversations were recorded and the recordings were played for the
jury.
        During these conversations, appellant told Dawson that Mitchell, Diante Nettles,
Jesse Hill and “Don Don” accompanied him on the first trip to the Banks‟ house.
Appellant brought a backpack and a duffel bag to hold the marijuana that they intended to
steal. Appellant said that they were in the backyard pulling up the marijuana plants when
“someone had came and seen them, and they had all ran. And Mr. Banks had grabbed
another guy at the fence and was holding him and that he reached over the guy and shot
him” with a .22-caliber gun. On the second trip to the Banks‟ house, appellant took
“Julia” as the driver and “Markisha” as the look-out. While he was in the backyard
Markisha alerted him that someone was coming. Appellant saw two people enter the
backyard from the house. He crouched down in a shooting stance and began firing at
them. Appellant said that he killed Leonard.
        Appellant told Dawson that during the attack on Kerr and Mosby he shot “this
boy,” who fell on the ground. Then “a gay dude” started screaming and he told Cook to
shoot him. Appellant said that after the shooting they got into a Dodge Magnum and
drove away. Appellant did not know who he killed until he heard it on the news the
following day. He was disappointed that he had not killed a rival gang member.
        Appellant told Dawson that during the attack on Daniels he was armed with the
.45-caliber gun. Mitchell and G-Bob were armed with a .357-caliber gun and a 22-
caliber gun. Appellant said that he fired exclusively at Daniels, who was trying to turn
and run when he shot him multiple times.



                                            15.
Expert gang testimony
       Bakersfield Police Officer Brent Stratton testified as a gang expert. He opined that
appellant was an active member of the Eastside Crips gang when each of the charged
offenses was committed. With respect to each offense, Stratton testified in response to a
hypothetical that the crime was committed for the benefit of, at the direction of, or in
association with the Eastside Crips with the intent to promote, further, or assist in
criminal conduct by gang members.14
                                       DISCUSSION
I.     Appellant’s Due Process Rights Were Not Infringed By Loss Of A
       Photographic Lineup.
       A.     Facts.
       Santiago testified that on the morning of September 21, 2006, she saw a chubby
Black woman, who was about 20 years old, standing in the front yard of a rental house
across the street from her home. About 10 seconds later, a Black male, who was about 19
years old, walked through the gate that separated the front and back yards of the rental
house. The man wore a gray hooded sweater with the hood up. Santiago did not get a
good look at the man‟s face and would not be able to recognize him if she saw him again.
The man was carrying a bundle of plant material. He joined the woman and they walked
away in an easterly direction. Santiago also testified that about a week later two police
officers came to her home. One of the officers spoke Spanish. The officers showed her a
lineup of six Black males. Santiago was not “able to identify any of the pictures as the
person [she] saw.”




       14Stratton‟s testimony will be discussed in greater detail during the discussion of
appellant‟s challenges to admission of the expert gang evidence.



                                             16.
       The People called Bakersfield Police Detective Anthony Mosley. Mosley testified
he recalled speaking with Santiago after Leonard‟s murder. Mosley had not remembered
this conversation until the day he testified.
       At this point, defense counsel objected; Mosley and the jury were excused.
Defense counsel asserted that the prosecutor‟s failure to disclose the photographic lineup
that was shown to Santiago during discovery was a Brady violation. (Brady v. Maryland,
(1963) 373 U.S. 83.) The prosecutor and defense counsel were unaware that Santiago
had been shown a photographic lineup. During Santiago‟s grand jury testimony she had
not testified that she was shown a lineup. Defense counsel stated that he would have
presented a different opening statement, conducted a different voir dire examination and
retained an identification expert if he had been informed during discovery that Santiago
was shown a lineup.
       An evidentiary hearing was conducted. (Evid. Code, § 402.) During this hearing,
Mosley testified that he did not recall showing Santiago a lineup until a police officer
mentioned to him that Santiago had testified about it. Mosley had not told the prosecutor
that he spoke with Santiago or showed her a lineup because he did not remember these
events. Mosley now recalled creating a standard six person photographic lineup and
showing it to Santiago about five to seven days after Leonard was killed. Appellant‟s
photograph was included in the lineup because he was a person of interest at that time.
Santiago did not select anyone from the lineup. A detective who spoke Spanish acted as
a translator because Santiago did not speak English. Mosley did not have Santiago sign
the lineup or indicate in any way that she had looked at it. Mosley did not prepare a
police report documenting this part of the investigation. He did not book the lineup into
evidence.
       Mosley had unsuccessfully attempted to obtain a copy of the lineup. He examined
the “murder book,” which is a binder containing all of the original information on the
homicide, but it did not contain a copy of the lineup. Mosley telephoned the caretaker of

                                                17.
records, who informed him that the computer system had been replaced and the
photographic lineup could not be recovered. Appellant‟s two booking photos that were
taken in 2006 were preserved in the computer system.
       Bakersfield Police Detective Herman Caldas testified during the evidentiary
hearing that he accompanied Mosley to Santiago‟s house and acted as a translator
because Santiago only spoke Spanish. Santiago was shown a photographic lineup that
consisted of six Black males. Santiago said that she was unable to identify anyone in the
lineup because the person that she saw was moving “too fast.” Santiago did not “say
anything to the effect of the man that I saw across the street is not in this lineup.”
       Stratton testified during the evidentiary hearing that he attempted to locate the
photographic lineup that was shown to Santiago. The lineup was preserved for about two
years and three months in the Picture Link computer program. The Picture Link system
was replaced with the Cogent program on January 1, 2009. At that time, the lineup was
irretrievably lost. Stratton contacted the administrator for the Picture Link program for
Kern County, who confirmed that the program “is now defunct.” The administrator told
him that booking photos, but not photographic lineups, were transferred to the Cogent
program because lineups required too much space on the server. Stratton contacted the
company that created and owns the Picture Link program. He was told that the company
does not have any way of preserving lineups; a lineup would have to be maintained on a
local server.
       Defense counsel argued that the lineup “was obviously exculpatory material” in
the police‟s custody and they had a duty to preserve it. Defense counsel stated he was not
alleging bad faith on the part of prosecution or law enforcement. He motioned for
dismissal of all counts related to Leonard‟s murder and mistrial as to all other counts.
       The prosecutor stated that she “would agree … that the police officer did not act in
bad faith. I don‟t think he purposefully destroyed the lineup. I think he felt that it was



                                              18.
not a requirement of his office to book lineup in which someone is not identified and
acted negligently in not preserving it.”
       The trial court denied the motions for dismissal and a mistrial. It found the loss of
the lineup did not violate appellant‟s due process rights and justice had not been
obstructed. It found that the exculpatory value of the lineup was not readily apparent
when Detective Mosley showed it to Santiago. Appellant was not a suspect at that time;
he was only a person of interest. Also, Santiago did not tell Detective Mosley that
appellant was not the person she saw. She merely said that she could not identify anyone
in the lineup. The court also found that the same evidence could be obtained by other
reasonably available means. The booking photo of appellant that was used in the lineup
is still available (exhibit No. 38) and could be shown to the jury. Detective Mosley could
testify that he used this photo in the lineup and Santiago did not select anyone from the
lineup. Also, “the defense has conceded that there is no evidence of bad faith by either
law enforcement or the prosecutor in this case.” The court reserved appellant‟s right to
seek remedy or sanctions for late discovery.
       When the trial resumed, Mosley testified that five to seven days after Leonard‟s
death he showed Santiago a photographic lineup containing appellant‟s photograph. The
photograph of appellant that was used in the lineup was the booking photograph that was
marked as People‟s exhibit No. 38. This photograph was taken about three weeks before
Leonard was killed. Santiago did not recognize anyone depicted in the lineup. Mosley
testified that he did not save the lineup, did not book it into evidence and did not write a
police report about his contact with Santiago. Mosley left the homicide department in
late 2006 or early 2007. He did not tell the prosecutor about his contact with Santiago.
       The court instructed on the discovery violation with CALJIC No. 2.28, as follows:

              “The prosecution and the defense are required to disclose to each
       other before trial the evidence each intends to present at trial so as to
       promote the ascertainment of the truth, save court time, and avoid any
       surprise which may arise during the course of the trial. Delay in the

                                             19.
       disclosure of evidence may deny a party a sufficient opportunity to
       subpoena necessary witnesses or produce evidence which may exist to
       rebut the noncomplying party‟s evidence.

              “Disclosures of evidence are required to be made at least 30 days in
       advance of trial. Any new evidence discovered within 30 days of trial must
       be disclosed immediately.

              “In this case, the People failed to timely disclose the following
       evidence: The existence of the photographic lineup produced to Hilda
       Santiago by Detective Mosley shortly after the incidents alleged [in the
       Banks‟ murder] and her failure to identify any persons in the lineup.
       [¶]…[¶]

             “Although the People‟s failure to timely disclose evidence was
       without lawful justification, the Court has, under the law, permitted the
       production of this evidence during the trial.

               “If you find that the delayed disclosure was by the prosecution and
       relates to a fact of importance rather than something trivial and does not
       relate to subject matter already established by other credible evidence, you
       may consider that delayed disclosure in determining the weight to be given
       to that particular evidence.”
B.     Failure to preserve the lineup was not a due process violation because there
       was no bad faith, the lineup did not possess apparent exculpatory value when
       it was lost, and comparable evidence was elicited at trial by alternative
       means.
       Appellant contends that loss of the lineup prejudicially infringed his due process
rights (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, subd. (a), 15) because
this evidence was exculpatory and material. We are not convinced. As we will explain,
the lineup did not have exculpatory value that was apparent at the time it was lost and
comparable evidence was reasonably available at trial by other means. There was no bad
faith on the part of the police or the prosecutor. Therefore, the failure to timely disclose
the lineup to the defense did not infringe appellant‟s due process rights. The cautionary
instruction given by the court was an appropriate remedy for the discovery violation.
       The United States Supreme Court has held that law enforcement agencies have a
duty, under the due process clause of the Fourteenth Amendment, to preserve “evidence


                                             20.
that might be expected to play a significant role in the suspect‟s defense.” (California v.
Trombetta (1984) 467 U.S. 479, 488, fn. omitted (Trombetta).) To fall within the scope
of this duty, the evidence “must both possess an exculpatory value that was apparent
before the evidence was destroyed, and be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.” (Id. at p.
489.) If a defendant demonstrates either that significant exculpatory evidence was lost or
establishes bad faith in connection with the loss of potentially useful evidence, then a due
process violation has occurred and the trial court has discretion to impose appropriate
sanctions. (People v. Medina (1990) 51 Cal.3d 870, 894.) “[U]nless a criminal
defendant can show bad faith on the part of the police [or the prosecution], failure to
preserve potentially useful evidence does not constitute a denial of due process of law.”
(Arizona v. Youngblood (1988) 488 U.S. 51, 58.)
       In People v. Velasco (2011) 194 Cal.App.4th 1258, the Sixth Appellate District
discussed the applicable standard of review, writing:

       “… It is settled that the substantial evidence standard applies to a trial
       court‟s determination, following a factual inquiry, that the state acted in
       good or bad faith in failing to preserve evidence. [Citation.] Beyond that,
       the matter seems to be unresolved nationwide. (Compare State v. Leonard
       (2005) 217 W.Va. 603, 609-610 [619 S.E.2d 116, 122-123] [clearly
       erroneous standard of review applies to trial court‟s factual findings after it
       conducts an evidentiary hearing on a Trombetta motion (see State v.
       Osakalumi (1995) 194 W.Va. 758 [461 S.E.2d 504])] with U.S. v. Cooper
       (9th Cir. 1993) 983 F.2d 928, 930, 931 [applying de novo standard of
       review although a factual inquiry took place] and State v. Burden (2001)
       104 Wn.App. 507, 512 [17 P.3d 1211, 1214] [applying de novo standard of
       review, but it is unclear whether a factual inquiry took place].)” (People v.
       Velasco, supra, 194 Cal.App.4th at p. 1262.)
       The Velasco court concluded that it “need not resolve this threshold consideration
here, however, because under any standard of review defendant‟s Trombetta claim fails.”
(People v. Velasco, supra, 194 Cal.Appp.4th at p. 1262.) Similarly, in this case
appellant‟s Trombetta argument fails under any standard of review.


                                             21.
       “To meet [the] standard of constitutional materiality, [citation], evidence must
both possess an exculpatory value that was apparent before the evidence was destroyed,
and be of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.” (Trombetta, supra, 467 U.S. at p. 489.)
“„The mere possibility that an item of undisclosed information might have helped the
defense, or might have affected the outcome of the trial, does not establish “materiality”
in the constitutional sense.‟ [Citation.]” (People v. Fauber (1992) 2 Cal.4th 792, 829.)
Evidence with only “minimal exculpatory value” does not meet the constitutional
standard of materiality. (People v. Beeler (1995) 9 Cal.4th 953, 977.) For example, in
Kordenbrock v. Scroggy (1990) 919 F.2d 1091, the defendant claimed a victim‟s
identification of him as the perpetrator in a later photo lineup was influenced by the
overly suggestive nature of an earlier unsuccessful photo lineup that the police failed to
preserve. The Court of Appeals, Sixth Circuit, rejected this argument, reasoning that the
lineup was not material exculpatory evidence: “Kordenbrock has never denied that [the
victim‟s] identification is correct, and any error in the photo display, if one had occurred,
would be harmless beyond a reasonable doubt…. [¶] The fact that the photo display was
lost does not help Kordenbrock‟s case. The misplacement or destruction of the display
does not entitle Kordenbrock to a presumption that a constitutional violation has
occurred. Under the Trombetta test, the display would have not had any exculpatory
value.” (Id. at p. 1103.)
       Our Supreme Court considered the effect of failing to preserve a color copy of a
photographic lineup in People v. Yeoman (2003) 31 Cal.4th 93. Yeoman robbed and
attempted to kidnap Geraldine Ford. Ford failed to identify Yeoman in the first
photographic lineup that was shown to her but subsequently identified him in a later
photographic lineup. (Id. at pp. 108, 126.) The police lost the original color photographs
that were used in the first photographic lineup. A black and white photocopy of this
lineup was available and introduced at trial. The trial court refused to exclude Ford‟s

                                             22.
identification testimony. The Supreme Court upheld this ruling, reasoning: “Despite the
loss of the original photographs, the defense successfully proved with the photocopy and
through the testimony of Detective Trimble that Ford had failed to identify defendant on
February 17. The court‟s remedial rulings barred the People from attempting to rebut the
defense evidence by arguing that the original photograph was not a good likeness of
defendant. On this record, we see no reason to doubt that defendant received a fair trial.”
(Id at p. 126.) It then concluded that Yeoman did not suffer any prejudice, even if the
“hypothetical error” is evaluated under the stringent Chapman standard, because the
evidence identifying Yeoman as Ford‟s attacker was so strong it left no serious doubt that
the defendant was Ford‟s assailant. (Id. at pp. 126-127.)
       Appellate courts in several states other than California have rejected due process
claims arising from the police‟s failure to preserve a photographic lineup in which the
witness did not select the defendant‟s photograph. While not binding on this court, these
decisions may be considered “for their cogent reasoning and persuasive value.”
(McCann v. Lucky Money, Inc. (2005) 129 Cal.App.4th 1382, 1396.) Maresca v. State
(Nev. 1987) 748 P.2d 3, determined that the exculpatory value of the lineup was not
apparent and no prejudice occurred because the jury saw the picture of the defendant that
was used in the lineup and heard testimony that the witness was not able to identify the
defendant from the lineup. (Id. at p. 5.) Cuesta v. State (Tex.Ct.App. 1988) 763 S.W.2d
547, concluded that the failure to disclose an unsuccessful lineup did not have any effect
on the outcome of the trial because defense counsel cross-examined the victim and the
investigating detective about the victim‟s failure to identify the defendant from the photo
lineup. (Id. at p. 554.) People v. Ramirez (N.Y. 1996) 224 A.D.2d 455, reasoned that
“the defendant failed to adequately show how the photo array, which was destroyed by
the arresting officer, would constitute exculpatory material. The exculpatory value that
would have been derived from the photo array would be no more than the complainant‟s



                                            23.
failure to identify the defendant, an issue that was fully explored by the defense counsel
in his cross-examination of the arresting officer.” (Id. at p. 456.)
        Having reviewed the applicable legal principles and decisions we now turn to an
assessment of the factual circumstances before us. Appellant contends that the destroyed
photographic lineup constitutes material exculpatory evidence. We disagree. The
photographic lineup was merely potentially useful evidence. Santiago testified that she
did not get a good look at the face of the man she saw on the morning of September 21,
2006. Santiago was across the street from the man and saw him only briefly. The man
was wearing a sweater with the hood pulled up over the top of his head. Santiago was
not able to describe any of the man‟s facial features. She testified that she would be
unable to recognize this male if she saw him again. Santiago‟s inability to select anyone
from the lineup merely corroborated her testimony that she did not get a good look at the
male‟s face and would be unable to identify him if she saw him again. It did not tend to
prove that appellant was not present at the Banks‟ house on the morning of September 21,
2006.
        Appellant‟s contention that there was no substitute means for the defense to
present this evidence is also unconvincing. The jury learned through testimony provided
by Santiago and Mosley that she was shown a photographic lineup about a week after the
shooting that included appellant‟s photo and that she did not select anyone from this
lineup. The jury was shown the photograph of appellant that Mosley used in the lineup.
The jury knew Santiago‟s location, vantage point, the time of day, the lighting and the
amount of time she had to make her observations. The lineup did not have any additional
evidentiary value beyond Santiago‟s failure to identify appellant and that point was fully
explored during direct and cross-examination of Santiago and Mosley.
        Finally, there was no evidence of bad faith on the part of the police or the
prosecutor. Undisputed testimony proved that the lineup was lost during a change in
computer systems. It was not destroyed to prevent appellant from benefitting from any

                                             24.
value it might have. When the photographic lineup was shown to Santiago, appellant was
merely a person of interest. Mosley did not remember speaking with Santiago or
showing her the lineup before Santiago testified at trial. Santiago had not mentioned
being shown a lineup during her testimony before the grand jury.
       Accordingly, we conclude that because the lineup was merely potentially useful
evidence and neither the police nor the prosecutor acted with bad faith, appellant‟s due
process rights were not infringed by the failure to preserve the lineup and disclose it to
the defense in a timely manner.
       We turn to the question whether the trial court fashioned an adequate remedy for
the discovery violation. “[T]he courts enjoy a large measure of discretion in determining
the appropriate sanction that should be imposed because of the destruction of
discoverable records and evidence.” (People v. Zamora (1980) 28 Cal.3d 88, 99.)
Permissible sanctions include fashioning a suitable cautionary instruction. (Id. at pp.
102-103.) In this case, the court gave a modified version of CALJIC No. 2.28. This
instruction informed the jury that the prosecution failed to timely disclose the
photographic lineup to the defense and that it could consider the delay in determining the
weight to be given to that particular evidence. Considering all the circumstances, we find
this cautionary instruction to be an adequate remedy for the discovery violation.
II.    CALJIC No. 8.66.1 Is Not Unnecessary, Argumentative Or Biased.
       A.     Facts.
       Appellant was charged with six counts of attempted murder. He was charged in
counts 1, 2 and 3 with attempting to murder Holford, Davis and Roberts. Count 7
charged him with attempting to murder Leon on September 20, 2006, and count 12
charged him with attempting to murder Leon on September 21, 2006. Count 17 charged
him with attempting to murder Mosby. Appellant was found guilty of twice attempting
to murder Leon and attempting to murder Mosby. He was found not guilty of attempting
to murder Holford, Davis and Roberts.

                                             25.
       The prosecutor relied on a “kill zone” theory of concurrent intent in two of the
attempted murder counts: the second attempt on Leon‟s life and the attempt to kill
Mosby. The facts of these crimes will be briefly recapitulated.
       Appellant attempted to kill Leon twice. The first attempt on Leon‟s life occurred
late at night on September 20, 2006. When Leon attempted to stop appellant and others
from stealing his marijuana plants, Leon was shot in the arm. The second attempt on
Leon‟s life occurred a few hours later. Appellant returned to Leon‟s backyard to steal
more marijuana. When Leon and Leonard walked outside into the yard, appellant shot at
them. Both men were hit; Leon survived but Leonard did not.
       Appellant attempted to murder Mosby on July 24, 2007. On that evening, Mosby
was standing outside an apartment complex, conversing with Kerr and some other people.
Suddenly, appellant and two other men ran towards them. Appellant fired a
semiautomatic rifle at them. Kerr was struck by a bullet and killed. Mosby was not
injured.
       The court instructed on the elements of attempted murder with CALJIC No. 8.66.
It instructed on the concept of concurrent intent with CALJIC No. 8.66.1. Appellant did
not object to either of these instructions. CALJIC No. 8.66.1 provided:

              “A person who primarily intends to kill one person, may also
       concurrently intend to kill other persons within a particular zone of risk.
       This zone of risk is termed the „kill zone.‟ The intent is concurrent when
       the nature and scope of the attack, while directed at a primary victim, are
       such that it is reasonable to infer the perpetrator intended to kill the primary
       victim by killing everyone in that victim‟s vicinity.

              “Whether a perpetrator actually intended to kill the victim, either as
       a primary target or as someone within a „kill zone‟ zone of risk is an issue
       to be decided by you.”
       The prosecutor argued in closing that the “kill zone” theory applied to the second
attempt to kill Leon and the attempt to kill Mosby. He said:




                                             26.
       “[Y]ou can be the victim of attempted murder or the unintended victim, but
       if you are within that kill zone, you intend to kill everyone within that zone.
       [¶] Let‟s talk about the Cottonwood case for an example. Ernest Kerr,
       Clarence West, and Aaron Mosby were all in a group there, and the
       defendant walked up and opened fire on all of them. He intended to kill
       them all because they were within the kill zone. They were within a short
       group and -- or a small group, gathering of people. [¶] The same could be
       true for the kill zone of some of the others on Reese Street, but actually no
       attempted murders are charged for anybody there. [¶] And, also, the same
       is true with Mr. Banks and -- Leonard Banks for that second incident, that
       Mr. Banks -- when Leonard was killed within the kill zone.”
Later, the prosecutor argued:

               “As far as the attempted murders that are alleged in connection with
       the Cottonwood crime, there is one attempted murder charge where Aaron
       Mosby is the victim. The defendant is guilty of this crime, too, because he
       intended to kill all of those in the kill zone, the danger zone. [¶] He came
       out of that gate firing at a group of people that were very, very close
       together. Mosby was forced to run and hide. Luckily, he was not shot.
       The defendant is still guilty of the attempted murder of Aaron Mosby
       because he was in that area.”
       B.     The jury was properly instructed on concurrent intent.
       Appellant contends that inclusion of CALJIC No. 8.66.1 in the jury charge
violated his federal constitutional rights (U.S. Const., 5th, 6th & 14th Amends.) because
the instruction was “argumentative, biased and unnecessary.” We disagree.
              1.     Forfeiture
       The Attorney General argues this challenge to CALJIC No. 8.66.1 was forfeited
because appellant did not object to this instruction on any ground at trial. We agree.
People v. Campos (2007) 156 Cal.App.4th 1228 (Campos) found that a challenge to the
clarity and completeness of CALCRIM No. 600, which is another pattern instruction on
concurrent intent, was forfeited by the absence of contemporaneous objection. (Id. at p.
1236.) It reasoned: “Generally, „“[a] party may not complain on appeal that an
instruction correct in law and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or amplifying language.”‟



                                             27.
[Citations.]” (Ibid.) We discern no basis to depart from Campos on this point. In any
event, appellant‟s challenges to CALJIC No. 8.66.1 are not persuasive.
              2.     Legal principles related to concurrent intent/kill zone.
        “„“The mental state required for attempted murder has long differed from that
required for murder itself. Murder does not require the intent to kill. Implied malice—a
conscious disregard for life—suffices. [Citations.] In contrast, “[a]ttempted murder
requires the specific intent to kill and the commission of a direct but ineffectual act
toward accomplishing the intended killing.” [Citations.]‟ [Citation.]” (People v.
McCloud (2012) 211 Cal.App.4th 788, 796-797 (McCloud).) Transferred intent can
support murder convictions if nontargeted individuals are killed but it cannot support
attempted murder convictions concerning nontargeted person who survive. (Id. at p.
797.)
        The kill zone theory, first considered by our Supreme Court in People v. Bland
(2002) 28 Cal.4th 313 (Bland), “yields a way in which a defendant can be guilty of the
attempted murder of victims who were not the defendant‟s „primary target.‟ [Citation.]”
(McCloud, supra, 211 Cal.App.4th at p. 797.) Bland “explained … that if a person
targets one particular person, under some facts a jury could find the person also,
concurrently, intended to kill—and thus was guilty of the attempted murder of—other,
nontargeted persons.” (People v. Stone (2009) 46 Cal.4th 131, 137 (Stone).) Citing Ford
v. State (1993) 330 Md. 682 [625 A.2d 984], Bland “recognizes that a shooter may be
convicted of multiple counts of attempted murder on a „kill zone‟ theory where the
evidence establishes that the shooter used lethal force designed and intended to kill
everyone in an area around the targeted victim (i.e., the „kill zone‟) as the means of
accomplishing the killing of that victim. Under such circumstances, a rational jury could
conclude beyond a reasonable doubt that the shooter intended to kill not only his targeted
victim, but also all others he knew were in the zone of fatal harm.” (People v. Smith
(2005) 37 Cal.4th 733, 745-746 (Smith).) Examples where the kill zone theory apply

                                             28.
include “using an explosive device with intent to kill everyone in the area of a blast, or
spraying a crowd with automatic weapon fire, a means likewise calculated to kill
everyone fired upon.” (People v. Perez (2010) 50 Cal.4th 222, 232 (Perez).)
       Bland cited with approval this court‟s decision in People v. Vang (2001) 87
Cal.App.4th 554. (Bland, supra, 28 Cal.4th at p. 330.) In Vang, the defendants used
“high-powered, wall-piercing weapons” to spray bullets into an occupied duplex unit and
an apartment. We found that the evidence supported the conclusion that the “defendants
harbored a specific intent to kill every living being within the residence they shot up.”
(Vang, supra, at p. 564.)
       Subsequent decisions by our Supreme Court have explored the boundaries of the
kill zone theory. Stone, supra, 46 Cal.4th 131, held that the mental state required for
attempted murder is the intent to kill a human being, not a particular human being.
“Although a primary target often exists and can be identified, one is not required.” (Id. at
p. 140.) It decided that the kill zone theory did not fit the charge or facts of the case and,
therefore, the trial court erred by instruction on the point. Most recently, Perez, supra, 50
Cal.4th 222, held that the defendant did not create a kill zone by firing a single shot into a
group of people. (Id. at pp. 231-233; see also Smith, supra, 37 Cal.4th 733.)
              3.     Instruction on concurrent intent is discretionary.
       “„“The trial court has the duty to instruct on general principles of law relevant to
the issues raised by the evidence [citations] and has the correlative duty „to refrain from
instructing on principles of law which not only are irrelevant to the issues raised by the
evidence but also have the effect of confusing the jury or relieving it from making
findings on relevant issues.‟ [Citation.]”‟” (McCloud, supra, 211 Cal.App.4th at p. 796.)
       Appellant does not argue the People produced insufficient evidence to justify
instruction on concurrent intent. Rather, he argues that the instruction is “unnecessary”
and should never be used. In support, appellant relies on the following passage in the
Bland decision: “This concurrent intent theory is not a legal doctrine requiring special

                                             29.
jury instructions, as is the doctrine of transferred intent. Rather, it is simply a reasonable
inference the jury may draw in a given case: a primary intent to kill a specific target does
not rule out a concurrent intent to kill others.” (Bland, supra, 28 Cal.4th at p. 331, fn. 6,
italics added.) The fallacy in appellant‟s argument is readily apparent. Appellant
incorrectly equates not required with unnecessary. These terms are not synonymous.
This passage is not properly understood as prohibiting separate instruction on concurrent
intent. Rather, it makes instruction on this point discretionary.
       As we have explained, in the years following the Brand decision the Supreme
Court decided three cases involving the kill zone theory: Stone, supra, 46 Cal.4th 131,
Smith, supra, 37 Cal.4th 733 and Perez, supra, 50 Cal.4th 222. In none of these cases did
the Supreme Court affirmatively decide that separate instruction on concurrent intent
should not be given even when the People have produced substantial evidence in support
of the kill zone theory. Smith, supra, 37 Cal.4th 733, parenthetically noted that Bland
does not “require the giving of … special instructions.” (Id. at p. 746.) In Stone, the
Supreme Court quoted the portion of Bland on which appellant relies and then wrote:
“Nevertheless, current pattern jury instructions discuss the kill zone theory. (CALJIC
No. 8.66.1 (2004 rev.); CALCRIM No. 600 (2008).) The Bench Notes to CALCRIM No.
600 explain that Bland stated that a special instruction on the point is not required, and
that the kill zone „language is provided for the court to use in its discretion.‟” (Stone,
supra, 46 Cal.4th at pp. 137-138, fns. omitted.) Notably, the Stone decision did not
forbid continued use of these instructions. Rather, it noted some ambiguities in the
wording of CALCRIM No. 600 and suggested ways to improve the instruction. (Id. at p.
138, fn. 3.) If the Supreme Court had intended to discourage or prohibit separate
instruction on the kill zone theory, it would not have suggested improvements to
CALCRIM No. 600.
       Recently, McCloud, supra, 211 Cal.App.4th 788 cited Bland and Stone to support
its conclusions that “jury instructions on the kill zone theory are never required” (id. at p.

                                             30.
802) and “[i]t is consequently impossible for a trial court to commit error, much less
prejudicial error, by declining to give a kill zone instruction.” (Id. at p. 803.)
       We conclude from these authorities that the trial court is vested with discretion to
include CALJIC No. 8.66.1 in the jury charge when it is supported by the evidence. To
the extent it can be argued that CALJIC No. 8.66.1 is superfluous because the concept of
concurrent intent is adequately explained in CALJIC No. 8.66 (see McCloud, supra, 211
Cal.App.4th at p. 803), any error resulting from inclusion of both instructions in the jury
charge is harmless. The jury was instructed with CALJIC No. 17.31 which told them that
some instructions might be unnecessary. Appellant‟s rights under the United States
Constitution were not implicated by inclusion of a legally correct but superfluous
instruction in the jury charge. No miscarriage of justice within the meaning of the
California Constitution occurred. (People v. Crew (2003) 31 Cal.4th 822, 849
[superfluous instruction was harmless]; People Wallace (2008) 44 Cal.4th 1032, 1076
[same ].)
              4.      CALJIC No. 8.66.1 is not argumentative or biased.
       Next, appellant argues “CALJIC No. 8.66.1 is inappropriate because the term „kill
zone‟ is biased and prejudicial.” He challenges the following sentences in this
instruction: “A person who primarily intends to kill one person, may also concurrently
intend to kill other persons within a particular zone of risk. [This zone of risk is termed
the „kill zone.‟]” (CALJIC No. 8.66.1.) Appellant argues the phrases “zone of risk” and
“kill zone” “adds nothing to the legal point except to introduce argumentative
terminology and improperly endorse a prosecutorial viewpoint.” Recognizing that
Campos, supra, 156 Cal.App.4th 1228 resolved this point adverse to his position,
appellant argues Campos was wrongly decided and should not be followed. We are not
convinced.
       Campos determined that the term “kill zone” in CALCRIM No. 600 is neither
argumentative nor inflammatory. It explained that “[a]n instruction is argumentative

                                              31.
when it recites facts drawn from the evidence in such a manner as to constitute argument
to the jury in the guise of a statement of law” or when it invites “„“„the jury to draw
inferences favorable to one of the parties from specified items of evidence.‟
[Citations.]”‟ [Citation.]” (Id. at p. 1244.) Then it reasoned:

              “CALCRIM No. 600 merely employs a term, „kill zone,‟ which was
       coined by our Supreme Court in Bland and referred to in later California
       Supreme Court cases. [Citation.] It does not invite inferences favorable to
       either party and does not integrate facts of this case as an argument to the
       jury. Other disparaging terms, including „flight‟ (CALJIC No. 2.52),
       „suppress[ion] of evidence‟ (CALJIC No. 2.06) and „consciousness of guilt‟
       (CALJIC No. 2.03) have been used in approved, longstanding CALJIC
       instructions. We see nothing argumentative in this instruction.” (Campos,
       supra, 156 Cal.App.4th at p. 1244.)
       We agree with Campos that the phrase “kill zone” is not argumentative because it
does not invite inferences that are favorable to either party and does not integrate facts of
the case as an argument to the jury. The term “zone of risk” is not argumentative for the
same reasons. While these terms are disparaging, they are not inflammatory and it is not
reasonably possible that they would cause the jury to be biased against appellant.
       McCloud, supra, 211 Cal.App.4th 788, was decided after completion of briefing in
this case. In a footnote, it expressed the opinion that the language of CALJIC No. 8.66.1
“should probably be revised.” (Id. at p. 802, fn. 7.) It reasoned:

       “… The instruction‟s repeated references to a „zone of risk‟ are misleading
       and have no basis in the law—neither the phrase „zone of risk‟ nor even the
       word „risk‟ appears anywhere in Bland. The word „risk‟ likewise appears
       nowhere in Perez, nowhere in the majority opinion in Smith, and nowhere
       in Stone apart from a quote of CALJIC No. 8.66.1. [Citation.] By referring
       repeatedly to a „zone of risk,‟ the instruction suggests to the jury that a
       defendant can create a kill zone merely by subjecting individuals other than
       the primary target to a risk of fatal injury. As we have already explained,
       that is not correct.” (McCloud, supra, 211 Cal.App.4th at p. 802, fn. 7.)
       Although the point raised in McCloud is a different objection to the phrase “zone
of risk” than was raised by appellant and this portion of the McCloud decision is dicta,



                                             32.
we have decided to address the point. We do not believe that the phrase “zone of risk” is
misleading. It does not impermissibly suggest to the jury that a defendant can create a
kill zone merely by subjecting individuals other than the primary target to the risk of
injury. Reasonable jurors would not interpret the phrase “zone of risk” as did the court in
McCloud. The instruction must be considered in its entirety. When read as a whole,
CALJIC No. 8.66.1 correctly explains the principle of concurrent intent.
              5.     Appellant was not prejudiced by use of CALJIC No. 8.66.1.
       In any event, any possible error resulting from use of CALJIC No. 8.66.1 is
harmless. Appellant assumes that the stringent prejudice standard that imposes a burden
on the People of proving the error was harmless “beyond a reasonable doubt” applies. He
is incorrect. “[M]isdirection of the jury, including incorrect, ambiguous, conflicting, or
wrongly omitted instructions that do not amount to federal constitutional error, are
reviewed under the harmless error standard articulated in People v. Watson (1956) 46
Cal.2d 818, 836.” (People v. Palmer (2005) 133 Cal.App.4th 1141, 1157.) Thus,
Campos applied the Watson standard to a challenge to CALCRIM No. 600, finding that
any possible error was not prejudicial. (Campos, supra, 156 Cal.App.4th at p. 1244.)
       Considering all the circumstances, it is not reasonably probable that appellant
would have obtained a more favorable result if the jury had not been instructed with
CALJIC No. 8.66.1. The trial court properly instructed the jury on the elements of
attempted murder with CALJIC No. 8.66. The appellate court presumes the jurors
understood and followed the trial court‟s instructions. (People v. Hovarter (2008) 44
Cal.4th 983, 1005.) The kill theory was supported by substantial evidence. A person can
be guilty of attempted murder even if he or she intended to kill a random person rather
than a specific one. (Stone, supra, 46 Cal.4th at p. 141.) The jury could have concluded
that appellant was guilty of attempting to murder Leon and Mosby under the kill zone
theory. Appellant‟s statements to Dawson prove that he intended to kill everyone who
walked in the Banks‟ backyard on September 21, 2006, while he was stealing marijuana.

                                            33.
Similarly, his statements to Dawson about the shooting at the Cottonwood Apartments
show that he intended to kill all the young men loitering in front of the apartment
complex because he thought they were Country Boy Crips. This included Mosby, who
was dressed in rival gang colors. The prosecutor‟s discussion on this theory was brief
and not inflammatory. For all of these reasons, we conclude that appellant was not
prejudiced by inclusion of CALJIC No. 8.66.1 in the jury charge. (Campos, supra, 156
Cal.App.4th at p. 1244.)
III.   Admission Of Evidence That Ellis Threatened Cannon Was Not An Abuse Of
       Discretion.
       A.      Facts.
       Pearlene Cannon testified that she did not recall hearing gunshots or seeing
appellant holding a gun on the evening when Kerr was fatally shot. Cannon did not recall
telling Ellis, that shortly after Kerr was shot she saw appellant running away while
holding a gun. She did not recall if her sister, Lucille Parks, relayed to her threats Ellis
made against her. Cannon did not recall talking to Bakersfield Police Officer Kyle
Ursery. The prosecutor asked Cannon if she remembered telling Ursery that Parks told
her that Ellis threatened her. Cannon answered, “No, I did not.” Defense counsel said, “I
have an objection. And I‟d like an instruction this is not for the truth of the matter.” The
court asked if this testimony was “offered for state of mind?” The prosecutor replied,
“This is offered for state of mind, credibility, and not for the truth of the matter.” The
court instructed the jury, “[I]f the witness testifies as to what someone else told her, her
sister in this case, that what her sister told her is not being offered for the truth of the
words that were spoken but it‟s to show this witness‟s state of mind. It‟s limited to that
purpose. So you are going to consider it for that limited purpose only.” Thereafter,
Cannon testified that she did not recall if any law enforcement officer ever questioned her
about the Kerr murder.




                                               34.
       After Cannon completed her testimony, the People called Ursery as a witness.
Ursery testified that he spoke with Cannon on August 1, 2007. Cannon said that she had
been threatened. The prosecutor asked Ursery to “tell us what she told you.” Defense
counsel objected on grounds of hearsay and “Crawford.” An unreported sidebar
conference was held. The court overruled these objections. It granted defense‟s request
for these objections to be deemed continuing.
       Ursery testified that Cannon told him that Parks had contacted her on July 31,
2007. Parks said that Ellis believed Cannon was responsible for appellant‟s arrest. Ellis
reportedly said to Parks, “You tell Pearlene that if she comes over to the east side she‟s
dead.” Ellis also reportedly said to Parks, “If that bitch comes over to the east side I will
have these young Eastsiders shoot her ass up.” Cannon also told him that some people
she did not recognize drove by her house in a white minivan. Ursery asked Cannon if she
felt her life was in danger. She replied, “Hell, yeah, but I don‟t know why she is mad at
me. I didn‟t see anything.” Ursery testified that Cannon appeared fearful during their
conversation.
       Bakersfield Police Detective Royce Haislip was called as a prosecution witness.
Haislip testified that he spoke with Cannon after reading Ursery‟s report about his
conversation with her. Haislip and another detective spoke with Cannon at her home.
Cannon “was very evasive” and would not “give any kind of direct answer as far as what
she had seen” after Kerr‟s murder. Cannon expressed a great deal of fear for her safety
and the safety of her family. Cannon said that she was going to move out of state
because of this fear.
       Detective Balasis testified that Cannon telephoned the police after Daniels was
murdered. Balasis and another police officer met with Cannon at a park on July 2, 2009.
Cannon said that she felt guilty because she had an opportunity two years ago to provide
information about a shooting but had not done so and now the same person shot Daniels.
Cannon said that on the night Kerr was shot she was walking in the area of the

                                             35.
Cottonwood Apartments. She heard the sound of gunshots. A “very short time later” she
saw appellant and two other males running in a southerly direction. Appellant was armed
with a black gun that Cannon described as “an UZI or an AK.” Cannon said that she
called out, “Kerry.” Appellant stopped and looked at her. The three men briefly stopped,
looked at each other for a moment and then began running again. Cannon saw appellant
enter a nearby apartment complex where he lived with his girlfriend. Cannon said that
she told Ellis what she had seen on the night Kerr was killed. She began receiving threats
from Ellis and other members of appellant‟s family.
      Balasis recorded their conversation without Cannon‟s knowledge. An audio CD
of the conversation and written transcription were entered into evidence (People‟s
exhibits Nos. 54 & 54-A). Appellant‟s objections on the grounds of “[h]earsay and
confrontation” were overruled. At defense counsel‟s request, the court instructed the
jurors on tactics used during police interviews and speculative statements. The audio CD
was played for the jurors, who were provided with copies of the transcription.
      Thereafter, the court made the following findings:

      “I do want to make a record on the objection that you made when [the
      prosecutor] started offering testimony from the witnesses that followed
      Pearlene Cannon to impeach her with prior inconsistent statements. You
      objected on hearsay and Crawford. And I overruled your objection because
      the Court is making its finding now that Pearlene Cannon was not being
      truthful … when she told this Court that she could not remember the
      different things that she said to the various officers. And the Court found
      that she was evasive, and I base that finding both upon the words that she
      spoke as well as watching her body movements and mannerisms. So, that‟s
      the basis for my ruling.”
      Defense counsel stated that he wanted to put one more point on the record.
He said:

      “I also made -- part of my objection included a request for instructions
      because much of the colloquy that we have heard between the officer, what
      the officer was saying, and Ms. Cannon -- if that was Ms. Cannon. She
      sounded different on the tape -- regarding statements that Mr. Hastings has


                                           36.
       to be put away and that he was guilty, and stuff like that. And the Court did
       give an instruction implicitly overruling my objection I assume on
       [Evidence Code section] 352 grounds.”
       The court replied, “With regard to the evidence being probative and the prejudicial
effect did not substantially outweigh it?” Defense counsel answered, “Yeah.” The court
responded, “That‟s my ruling.”
       B.     Evidence Code section 352 did not compel exclusion of the threat
              evidence.
       Appellant contends the trial court abused its discretion by overruling his Evidence
Code section 352 objection to admission of evidence that Ellis threatened Cannon. This
argument is not convincing.
       Initially, we address the question of forfeiture. To preserve a point for appellate
review an objection must have been interposed at trial on that same ground. (Evid. Code,
§ 353; People v. Kennedy (2005) 36 Cal.4th 595, 612.) Appellant did not interpose an
Evidence Code section 352 objection to the threat evidence on the record. He objected
only on hearsay and confrontation grounds. Also, appellant did not did not argue that
threat evidence should be excluded because the threat originated with a third party. He
did not contend that the prosecutor presented the threat testimony under a pretext. Yet,
the record is susceptible to the possibility that defense counsel could have interposed an
Evidence Code section 352 objection during the unreported sidebar conference. After the
court set forth its findings that Cannon was evasive and untruthful, appellant said, “And
the Court did give an instruction implicitly overruling my objection I assume on
[Evidence Code section] 352 grounds.” The court replied, “With regard to the evidence
being probative and the prejudicial effect did not substantially outweigh it?” Defense
counsel answered, “Yeah,” to which the court responded, “That‟s my ruling.” We will
treat this colloquy as sufficient to preserve an Evidence Code section 352 challenge for
appellate review.




                                            37.
       Evidence Code section 352 permits exclusion of otherwise admissible evidence
when the probative value of the evidence is outweighed by the risk of undue prejudice or
excessive consumption of time. (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
“The prejudice which exclusion of evidence under Evidence Code section 352 is
designed to avoid is not the prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. „… The “prejudice” referred to in Evidence Code
section 352 applies to evidence which uniquely tends to evoke an emotional bias against
the defendant as an individual and which has very little effect on the issues. In applying
section 352, “prejudicial” is not synonymous with “damaging.”‟ [Citation.]” (People v.
Karis (1988) 46 Cal.3d 612, 638.) The trial court‟s exercise of discretion under Evidence
Code section 352 will not be disturbed on appeal absent a clear abuse of discretion.
(Karis, supra, at p. 637.)
       Evidence is relevant if it has any tendency in reason to prove or disprove any
disputed fact or consequence, including evidence relevant to the credibility of a witness.
(Evid. Code, § 210.) “Evidence that a witness is afraid to testify or fears retaliation for
testifying is relevant to the credibility of that witness and is therefore admissible.
[Citations.] An explanation of the basis for the witness‟s fear is likewise relevant to her
credibility and is well within the discretion of the trial court. [Citations.]” (People v.
Burgener (2003) 29 Cal.4th 833, 869 (Burgener).) “„[E]vidence of a “third party” threat
may bear on the credibility of a witness, whether or not the threat is directly linked to the
defendant.‟ [Citation.]” (People v. Abel (2012) 53 Cal.4th 891, 925.) “There is no
requirement … that threats be corroborated before they may be admitted to reflect on the
witness‟s credibility.” (Burgener, supra, at p. 869.)
       Burgener upheld admission of testimony about unattributed threats to explain a
witness‟s fear, reasoning that “the threats explained why [the witness‟s] testimony in
1981 differed in certain respects from her current testimony.” (Burgener, supra, 29
Cal.4th at p. 869.) People v. Mendoza (2011) 52 Cal.4th 1056, upheld admission of

                                              38.
evidence that the defendant‟s brother threatened a key prosecution witness and fellow
gang members threatened two additional witnesses over defendant‟s Evidence Code
section 352 objection. (Mendoza, supra, at pp. 1083-1088.)
       We have examined the record in detail and conclude that Evidence Code section
352 did not require exclusion of the threat evidence. Cannon was an important witness
because she saw appellant, armed with a firearm, running with two other men near the
Cottonwood Apartments soon after Kerr was fatally shot. Evidence that appellant‟s
mother threatened to kill her was probative to Cannon‟s state of mind and credibility. It
explained why Cannon‟s testimony was inconsistent with her prior statements to police
officers. The probative value of this evidence was not substantially outweighed by the
risk of undue prejudice. The court dissipated any potential for unfair prejudice by
granting appellant‟s request for a limiting instruction during Cannon‟s testimony.15
       Appellant‟s contention that the threat evidence was unfairly prejudicial because
the jurors were likely to have imputed the threats to him is not convincing. As previously
explained, evidence that a witness fears retaliation is admissible to assess his or her
credibility, even when the threat is not directly linked to the defendant. (People v.
Stewart (2004) 33 Cal.4th 425, 492, fn. 28.) Appellant had the opportunity during cross-
examination of Cannon and the police officers to elicit testimony clarifying whether or
not appellant authorized his mother to threaten Cannon.
       Relying on Dudley v. Duckworth (7th Cir. 1988) 854 F.2d 967, appellant also
argues the prosecutor called Cannon as a witness merely as a pretext to admit the threat
evidence. Federal court opinions are not binding on state courts as to interpretation of


       15  Appellant did not request a similar limiting instruction during the police
officers‟ testimony concerning the threats Ellis made against Cannon. The trial court did
not have a sua sponte obligation to give such an instruction. (Mendoza, supra, 52 Cal.4th
at p. 1087, fn. 20.)



                                             39.
state law. (McCann v. Lucky Money, Inc. (2005) 129 Cal.App.4th 1382, 1396.) In any
event, Dudley is factually and legally inapposite. In Dudley, the court found that the
defendant‟s due process rights were infringed by admission of evidence concerning
unspecified and unattributed threats that were made against witness Edward Pointer.16
The threat evidence was admitted to explain Pointer‟s extreme nervousness. The
reviewing court found there was no evidence that Pointer was unduly nervous about
testifying. The fear was merely a pretext used by the prosecutor to gain admission of the
threat evidence. (Dudley, supra, at pp. 970-972.) Contrary to appellant‟s argument, the
appellate court did not find that the People called Pointer as a witness as a pretext to
admit the threat evidence. It was Pointer‟s nonexistent fear that was pretextual.
       In contrast with Dudley, there was ample evidence in this case demonstrating that
Cannon was reluctant to testify and feared retaliation. The trial court made a finding that
Cannon was evasive and untruthful when she testified that she could not remember
things. The record supports this finding. Cannon was arrested and held in jail as a
material witness so that her testimony could be presented to the grand jury. She testified
at trial without a warrant but denied appearing of her own accord because she knew that
she would be held in jail if she did not appear. Cannon was clearly scared to testify
truthfully at trial. Thus, the impermissible pretext that occurred in Dudley is not present
in this case.
       Appellant‟s final complaint, that the trial court abused its discretion by failing to
address in its ruling the specific points he advances on appeal, lacks merit. “„[T]he trial
judge need not expressly weigh prejudice against probative value—or even expressly
state that he has done so [citation].‟ [Citation.]” (People v. Rowland (1992) 4 Cal.4th


       16 Appellant did not object to admission of threat evidence on the ground that it
infringed his federal due process right. Therefore, the point was not preserved for
appellate review. (Burgener, supra, 29 Cal.4th at p. 869.)



                                             40.
238, 259, fn. 1; Mendoza, supra, 52 Cal.4th at p. 1087, fn. 20 [“court was not required to
explicitly state it was engaging in the Evidence Code section 352 weighing process when
it fashioned its order”].) Appellant did not argue below that threat evidence should be
excluded because the threat originated with a third party or assert that the prosecutor
presented Cannon‟s testimony under a pretext. Therefore, the trial court cannot be
faulted for failing to specifically discuss those points in its ruling. The record shows that
appellant applied the proper standard; nothing further is required.
IV.    Expert Gang Evidence Was Properly Admitted.
       A.     Facts.
              1.       In limine motions and evidentiary hearing.
       Appellant filed an limine motion to bifurcate the trial of the gang allegations. He
filed another in limine motion requesting pretrial review of gang-related evidence that the
prosecution intended to introduce at trial.
       The prosecutor opposed the motion to bifurcate trial of the gang allegations,
arguing that gang evidence was “inextricably intertwined with all the underlying
substantive offenses” and was relevant to prove motive, identity and specific intent.
       An evidentiary hearing concerning the People‟s proposed gang evidence was held
on December 15, 2010. (Evid. Code, § 402.) Stratton was the sole witness.
              a.       The PowerPoint.
       Stratton testified that he prepared a PowerPoint presentation (PowerPoint) to
accompany his testimony in this case.17 The PowerPoint was shown during his testimony


       17  Exhibit No. 1 is a paper copy of the preliminary version of the PowerPoint that
was played during Stratton‟s testimony at the evidentiary hearing. A paper copy of the
final version of the PowerPoint that was played during Stratton‟s trial testimony was
admitted as People‟s exhibit No. 172. During the evidentiary hearing the court ordered
three slides to be removed from the PowerPoint. Therefore, the pagination of exhibit No.
1 is not the same as the pagination of exhibit No. 172.



                                              41.
at the evidentiary hearing and at trial. The PowerPoint begins with slides summarizing
the history of the Crips gang in Bakersfield. Then it contains slides about the Eastside
Crips; their geographical boundaries, identifying tattoos, hand signs, colors and primary
activities. The same information is then provided about the Westside Crips and the
Country Boy Crips. Next, the PowerPoint contains slides providing information about
five predicate offenses committed by Eastside Crips gang members.
       Next, the PowerPoint contains slides containing information about appellant.
There is a slide containing a photograph of appellant with information about his gang
affiliation, moniker and tattoos. This is followed by slides containing photographs of
appellant‟s tattoos. Next are slides providing information about appellant‟s contacts with
police officers during the period of August 12, 1999 to June 22, 2009. This is followed
by two slides setting forth information concerning field interviews police officers
conducted with appellant during 2001. The next slide lists each date that appellant was
booked during the period of February 22, 2004 to July 11, 2009, and indicates whether or
not appellant admitted being affiliated with a gang on that date.
       The PowerPoint concludes with slides containing information about individuals
other than appellant who are connected in some way to the criminal incidents that
resulted in the charges that were filed against appellant. Each slide pertains to a different
person. The person‟s name, photograph, tattoos, moniker, gang affiliation, contacts and
booking dates are set forth (as applicable). These slides are subdivided into seven groups
based on the location and date of the criminal incident. There is a title page for each
subdivision.18


       18 The title pages are: “Mr. Fast Gas 3/06/04,” “Fairview Drive 9/20/06,”
“Fairview Drive 9/21/06,” “Cottonwood Rd 7/24/07,” “… Northrup St 5/12/09,” “Reese
Ave 6/30/09” and “Howard Johnson 7/11/09.” Following the Mr. Fast Gas title page are
slides containing information about Carl Jones, Deon Davis and Columbus Holford.
Following the Fairview Drive title pages are slides containing information about Leonard,


                                            42.
              b. Stratton’s testimony at the evidentiary hearing
       Stratton testified about five predicate offenses committed by members of the East
Side Crips gang. Appellant asked the court to “excise some of the predicates,” pursuant
to Evidence Code section 352. The court overruled this objection, finding that each
offense was probative and not inflammatory. It found the dates of the predicate offenses
properly took into consideration the dates of the charged crimes.
       Stratton testified about reports involving appellant that were generated by law
enforcement agencies during the period of 1999 to 2009. These reports include street
checks, field interview cards, booking records and offense reports. PowerPoint slides
summarized the facts of each case and circumstances of each contact. Appellant objected
to testimony about these reports and the associated PowerPoint slides “on Crawford
issues, lack of confrontation and lack of personal knowledge on the part of the officer in
what he is recounting. I know there‟s a California case holding against me. But I want to
preserve these issues, and I am grounding my objection in Federal concerns.” The
prosecutor opposed this motion, citing People v. Thomas (2005) 130 Cal.App.4th 1202.
The court overruled these objections.
       Appellant objected to Stratton‟s testimony about people other than appellant who
were connected to the charged crimes and to PowerPoint slides containing information
about such individuals. Appellant argued that “to associate these people with the events


Leon, Julia Johnson, Mitchell, Jessie Hill, Jeremy Johnson, Donald Parrish, Diante
Nettles, Mark Tatum and Markisha Williams. Following the Cottonwood Road title page
are slides containing information about Kerr, Mosby, Rodney Johnson, Clarence West,
Anthony Hodge, Eugene Cooks and Shanika Herron. Following the Northrup Street title
page is a slide containing information about Ebony Nichols. Following the Reese
Avenue title page are slides containing information about Daniels, Mitchell, Bobby
Moore, Regan Roberts, Irahan Avila and John Henry Bryant. Following the Howard
Johnson title page are slides containing information about Maurice Barnett and Jason
Dawson.



                                            43.
by somebody who is not a percipient witness to those events is a form of argument” that
is proscribed by People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew).
       The prosecutor replied that during Stratton‟s trial testimony he would only ask if
Stratton “has researched that person and what is his opinion on that person. I wouldn‟t be
asking him is that individual connected with a certain event.”
       Defense counsel replied:

       “My objection is that it‟s argumentative in that if you put up a slide with a
       certain incident and then the next thing is a couple of people or certain
       people and you ask about them, it doesn‟t matter how you frame the
       question. The fact that the referenced incident is followed by those people
       basically assumes and tells the jury that the prosecution theory of the case
       is true as to who is involved in each incident and that the expert‟s relying
       upon that. Basically, it‟s a subtle way of associating people with incidents
       outside of the proper forum, which is argument.”
       The court overruled this objection. It also declined to exclude these slides
pursuant to Evidence Code section 352, finding they were not unduly argumentative or
prejudicial. It found that the title slides merely served to identify the subject matter that
will follow them.
       Appellant interposed an Evidence Code section 352 objection to the photograph of
a Bakersfield police department badge that is depicted on the first slide of the
PowerPoint. The court overruled this objection, finding that the depiction of the badge
was not unduly prejudicial.
       The court ordered a slide about the Eastside Crips “to delete the reference to Penal
Code Section 186 and the reference to qualifying them as a criminal street gang.”
       Appellant objected on Evidence Code section 352 grounds to three video clips that
were identified as slide Nos. 18, 27 and 29 in exhibit No. 1. This objection was
sustained.
       The court denied appellant‟s motion to bifurcate trial of gang issues. It found
“that evidence of gang affiliation is relevant to the issues of one or more of the following:


                                             44.
motive, intent, identity, malice, and premeditation, as to each of the charges.” It found
that the prejudicial effect of the gang evidence did not substantially outweigh its
probative value.
       The court asked defense counsel if it had ruled on all of appellant‟s objections.
Defense counsel answered in the affirmative and said there was nothing else he
specifically wanted the court to rule on in connection with Stratton‟s testimony.
       The court stated that it had conducted a discussion with counsel in chambers
concerning the in limine motions. The contents of this discussion were not memorialized
on the record.
                 2.   Stratton’s trial testimony.
       Stratton testified about the history and culture of criminal street gangs in
Bakersfield, including the Eastside Crips, the Westside Crips and the Country Boy Crips.
The Eastside Crips are rivals of the Country Boy Crips and the Westside Crips from 2004
to 2009. The rivalry was particularly violent between 2006 and 2009.
       Stratton testified that the Eastside Crips have over 400 members. This gang has
claimed specific areas of Bakersfield for the past 20 years. They identify with the colors
royal blue and navy blue. They have identifying hand signs and tattoos. Their primary
criminal activities are possession of firearms and other weapons, assaults with firearms
and other deadly weapons, robberies, auto thefts, carjackings, burglaries and narcotics
sales. Stratton testified about five predicate offenses committed by Eastside Crips
members during the period of 2001 to 2007. A certified copy of the “registrar of action”
for each crime was admitted into evidence.
       The prosecutor asked if Stratton believed appellant was a member of a criminal
street gang. Defense counsel objected on the ground of “[i]mproper question.” An
unreported sidebar conference was held. The court overruled the objection and gave the
following limiting instruction:



                                             45.
               “The witness may testify as to certain matters that he describes as
       facts or evidence and then form opinions based upon what he‟s describing
       as the facts that he is aware of.

               “I am instructing you that if the witness is relying upon things that
       are not within his personal knowledge, that anything that he relies upon
       that‟s not within his own personal knowledge, is not being offered for the
       truth of what he is talking about but it‟s limited to allow him to form an
       opinion as to that information.

               “So I am admonishing you that just because he describes certain
       information that he‟s gathered that he believes relates somehow to this
       defendant, that‟s not necessarily--that‟s not to be considered by you as true.
       Rather, you are to consider that in evaluating his opinion and decide--I will
       be giving you instructions as to how you evaluate expert witness‟s
       opinions. And you can consider how much weight you are going to give to
       his opinion as you evaluate whether or not there‟s really an adequate basis
       for his opinion.”
       Thereafter, defense counsel stated that it should have “laid that out more fully
earlier” but the earlier objection was “also based on hearsay and confrontation.” The
court overruled these objections, which it deemed continuing.
       Stratton testified that appellant has been an active member of the Eastside Crips
for over 10 years. He was an active gang participant at the time each of the charged
crimes were committed. Appellant‟s gang moniker was “K9.” Appellant has tattoos with
gang significance. Stratton testified that in forming this opinion he relied upon reports
involving appellant generated by law enforcement agencies during the period of 1999 to
2009. These included street checks, field interview cards, booking records and offense
reports. Stratton testified that he personally had sporadic contact with appellant for the
past four or five years. Stratton spoke with the investigating officers who were involved
in some of appellant‟s contacts with law enforcement.




                                             46.
       Stratton opined whether or not various individuals connected with the charged
crimes were gang members.19 Stratton testified, based on hypothetical situations, that
each of the charged crimes was committed in association with and for the benefit of the
Eastside Crips and with the intent to promote, further or assist in criminal conduct by
gang members.
       During Stratton‟s testimony the PowerPoint was played for the jury. When the
People moved to admit the paper copy of the PowerPoint into evidence defense counsel
stated that he would stipulate it could be used to make a record as to what was being
displayed to the jury. Yet, he was preserving all prior objections. Defense counsel
subsequently objected to exhibit No. 172 being allowed into the jury room during its
deliberations. Defense counsel argued it “is not actual evidence. It is a summary of other
evidence, the testimony of the witness.” The prosecutor responded that exhibit No. 172
was not prejudicial and was an “aid to the expert‟s testimony. And the majority of it
were items that I think we could have presented independently.” The court stated, “I
think it would have to be removed from evidence if I grant [defense counsel‟s] request.”
It ruled that exhibit No. 172 “shall remain in evidence, shall be available to the jury.”
       B.     Stratton’s reliance on testimonial hearsay in forming his opinions did
              not infringe appellant’s confrontation right.
       Appellant asserts that Stratton‟s opinion testimony was based in “large part” on
“testimonial hearsay from mostly unnamed declarants.” He argues that admission of this

       19 Stratton opined that Daniels, Mitchell, Carl Jones, Deon Davis, Columbus
Holford, Jesse Hill, Donald Parrish, Diante Nettles, Markisha Williams, Shanetta Brooks,
Anthony Hodge, Eugene Cooks, Bobby Moore, Regan Roberts, Irahan Avila, John Henry
Bryant, Neil Davidson, Edward Campbell, Eddie Earl Howard, Kelan Williams, Craig
Hunter, Lloyd Killebrew, Michael Hanks, Danny Cannon, Billy Ray Thompson, Maurice
Barnett, and Jason Dawson are gang members or were gang members at the time of their
deaths. Jeremy Johnson, Ryan Johnson, Shanika Herron, and Ebony Nichols could be
considered gang associates. Leon, Kerr, Mosby, Rodney Johnson, and Clarence West are
not gang members or were not at the time of their deaths.



                                             47.
evidence violated his Sixth Amendment confrontation right as interpreted in Crawford v.
Washington (2004) 541 U.S. 36 (Crawford). We disagree.
       Under Crawford, supra, 541 U.S. 36 and Davis v. Washington (2006) 547 U.S.
813, admission of a testimonial out-of-court statement is barred by the confrontation
clause of the Sixth Amendment unless the witness is unavailable and the defendant had a
prior opportunity to cross-examine the witness. Several California appellate courts have
concluded that there is nothing in Crawford or Davis that prohibits a gang expert from
relying on hearsay as a basis for his or her opinions that identify a person as a gang
member or about gang behavior generally. (See, e.g., People v. Ramirez (2007) 153
Cal.App.4th 1422, 1427; People v. Fulcher (2006) 136 Cal.App.4th 41, 57; People v.
Thomas, supra, 130 Cal.App.4th at p. 1210.) We discern no basis to depart from these
authorities.
       “Expert testimony may … be premised on material that is not admitted into
evidence so long as it is material of a type that is reasonably relied upon by experts in the
particular field in forming their opinions.” (People v. Gardeley (1996) 14 Cal.4th 605,
618.) This may include reliable hearsay. (Ibid.) A expert witness may describe the
material that forms the basis of the opinion, including material that is not directly
admissible. (People v. Thomas, supra, 130 Cal.App.4th at p. 1209.)
       “Hearsay in support of expert opinion is simply not the sort of testimonial hearsay
the use of which Crawford condemned.” (People v. Ramirez, supra, 153 Cal.App.4th at
p. 1427.) “Crawford does not undermine the established rule that experts can testify to
their opinions on relevant matters, and relate the information and sources upon which
they rely in forming those opinions. This is so because an expert is subject to cross-
examination about his or her opinions and additionally, the materials on which the expert
bases his or her opinion are not elicited for the truth of their contents; they are examined
to assess the weight of the expert‟s opinion. Crawford itself states that the confrontation
clause „does not bar the use of testimonial statements for purposes other than establishing

                                             48.
the truth of the matter asserted.‟ [Citations.]” (People v. Thomas, supra, 130
Cal.App.4th at p. 1210.)
       Courts have previously found the type of material Stratton based his opinions on
to be reliable. Gang experts regularly use materials they receive from law enforcement
personnel and probation officers such as police reports and field identification cards.
(People v. Vy (2004) 122 Cal.App.4th 1209, 1223, fn. 9.) Experts may rely upon
personal contacts with past and present members of gangs. (People v. Ruiz (1998) 62
Cal.App.4th 234, 241.) They may rely on photographs of the defendant and on his
writings. (People v. Gamez (1991) 235 Cal.App.3d 957, 967.)
       Appellant‟s assertion that the hearsay materials on which Stratton relied were
offered for the truth of the matters asserted therein lacks basis in fact. The jury was
instructed that anything Stratton “relies upon that‟s not within his own personal
knowledge, is not being offered for the truth of what he is talking about but it‟s limited to
allow him to form an opinion as to that information.” This instruction adequately
informed the jury of the evidentiary limitations of the challenged testimony.
       Appellant‟s citation to the recent decision of the United States Supreme Court in
Williams v. Illinois (2012) ___ U.S. ___ (132 S.Ct. 2221) does not advance his argument.
In Williams, the plurality opinion of four justices found that information contained in a
DNA report was not testimonial. The DNA report was only admitted to explain the basis
of the police forensic biologist‟s independent conclusion and it was not prepared for the
primary purpose of a criminal prosecution.
       For these reasons we conclude that admission of Stratton‟s testimony concerning
the hearsay bases for his expert gang opinions did not infringe appellant‟s Sixth
Amendment confrontation right.
       C.     No Killebrew violation occurred.
       As previously explained, the portion of the PowerPoint containing information
about individuals other than appellant is subdivided into seven sections. Each

                                             49.
subdivision is preceded by a title slide that lists a specific date and location where a
criminal event occurred. Relying on Killebrew, supra, 103 Cal.App.4th 644, appellant
argues that the inclusion of these title pages constitutes improper expert opinion that
these individuals participated in the criminal events. This argument is not convincing.
       “It has long been settled that expert testimony regarding whether a crime was gang
related is admissible.” (People v. Vang (2011) 52 Cal.4th 1038, 1050, fn. 5 (Vang).)
Killebrew, supra, 103 Cal.App.4th 644 prohibited experts from testifying “whether the
specific defendants acted for a gang reason.” (Vang, supra, 52 Cal.4th at p. 1048, fn.
omitted.)20
       We reject appellant‟s claim of Killebrew error because his interpretation of the
PowerPoint is not reasonable. Stratton did not testify that specific people were involved
in the criminal events with appellant. The jurors would not reasonably have understood
the title pages as constituting such testimony. The title pages merely served to generally
identify the subject matter that followed them.
       In any event, it is not reasonably possible that the inclusion of the title pages in the
PowerPoint affected the verdict. Ordinarily, “violations of state evidentiary rules do not
rise to the level of federal constitutional error.” (People v. Benavides (2005) 35 Cal.4th
69, 91.) The Watson prejudice standard applies. (People v. Cudjo (1993) 6 Cal.4th 585,
611; People v. Watson, supra, 46 Cal.2d 818, 836.) Appellant‟s assertion that the jury‟s
consideration of the gang allegations and conspiracy charge was tainted by the title pages
is not convincing. Properly admitted evidence such as Dawson‟s testimony connected
various individuals in addition to appellant to the charged crimes. Also, there is
overwhelming evidence of appellant‟s guilt of the charged crimes and of their gang-


       20 Vang disapproved Killebrew to the extent that it purported to condemn the use
of hypothetical questions that were based on the evidence in the case. (Vang, supra, 52
Cal.4th at p. 1047, fn. 3.)



                                             50.
relatedness. There is no risk that appellant was found guilty because of his association
with individuals who are referenced in the PowerPoint. It is not reasonably probable that
the jury would have returned a verdict more favorable to appellant if the title pages had
been excluded from the PowerPoint. (Vang, supra, 52 Cal.4th at p. 1052, conc. opn. of
Werdegar, J. [found claimed Killebrew error to be harmless].)
       D.     Evidence Code section 352 did not require exclusion of the PowerPoint.
       Appellant argues that allowing the PowerPoint to be played during Stratton‟s
testimony and admitting exhibit No. 172 into evidence was an abuse of discretion under
Evidence Code section 352. We disagree.
       Once again, we must begin by addressing the question of forfeiture. During
Stratton‟s testimony defense counsel stated that during the evidentiary hearing he had
“objected to the PowerPoint in its entirety under [Evidence Code section] 352 grounds as
to the nature of the presentation.” The record does not support defense counsel‟s
statement. Although defense counsel objected to various portions of the PowerPoint on
Evidence Code section 352 grounds during the evidentiary hearing, he did not object to
the entirety of the PowerPoint on this basis. He did not argue that Stratton should be
prohibited, under Evidence Code section 352, from using a PowerPoint during his
testimony or that the printed copy of it should be excluded from evidence. Nonetheless,
we will assume, without deciding, that defense counsel‟s comment during trial was
sufficient to preserve the issue for appellate review.
       The trial court has broad discretion in determining the relevance of evidence.
(People v. Weaver (2001) 26 Cal.4th 876, 933.) It may exclude relevant evidence under
Evidence Code section 352 if its probative value is substantially outweighed by the risk
of undue prejudice or excessive consumption of time. (People v. Wesson, supra, 138
Cal.App.4th at p. 969.) The trial court‟s exercise of discretion in determining the
admissibility of evidence under Evidence Code section 352 will not be reversed unless



                                             51.
the ruling is arbitrary, capricious or patently absurd. (People v. Ochoa (2001) 26 Cal.4th
398, 437-438.)
       There was no abuse of discretion in the present case. The PowerPoint is the
functional equivalent of a written report prepared by a testifying expert. The information
contained in the PowerPoint was relevant, admissible and not unfairly prejudicial. It
contains information on which Stratton based his opinions that appellant was a gang
member, the charged crimes were gang related and the predicate offenses were gang
related. Some of the information contained in the PowerPoint was duplicative of other
testimony. For example, Dawson identified Mitchell and other individuals who are
referenced in the PowerPoint as gang members. Dawson testified about appellant‟s
statements concerning the participation of such individuals in the charged offenses.
       Appellant‟s argument that the presence of exhibit No. 172 in the jury room further
“compounded the prejudice” is not persuasive. Appellant did not cite any authority
supporting the proposition that the court possesses discretion to prohibit the jury from
examining a properly admitted trial exhibit during its deliberations. Appellant‟s analogy
comparing the PowerPoint to a writing that is used to establish a past recorded
recollection fails because that type of writing may not be admitted as an exhibit by its
proponent. (See People v. Stevenson (1978) 79 Cal.App.3d 976, 990.) In contrast to a
past recorded recollection, the PowerPoint was admitted as a trial exhibit.
       In any event, the alleged error is harmless. As previously explained, the
applicable prejudice standard is the Watson standard. (People v. Cudjo, supra, 6 Cal.4th
at p. 611.) Considering all the circumstances, we are confident that the PowerPoint did
not affect the verdict. The evidence of appellant‟s guilt of the charged offenses, of his
gang membership and of the gang relatedness of the crimes was overwhelming.
Appellant did not present any defense witnesses. There is no reasonable probability that
the jury would have returned a more favorable verdict if Stratton had not shown the
PowerPoint during his testimony or if exhibit No. 172 had been excluded from evidence.

                                            52.
V.        Prosecution Of Count 10 Was Time Barred.
          A.    Facts.
          Grand jury proceedings began in this case on November 2, 2009. The grand jurors
were provided with an indictment. During proceedings the prosecutor presented the
jurors with a first amended indictment that superseded the original indictment. The first
amended indictment made several substantive changes. Shortly thereafter, the prosecutor
presented the jurors with a second amended indictment that corrected some typographical
errors.
          On November 17, 2009, the grand jury returned a true bill on all counts, the
second amended indictment was filed and an arrest warrant was issued.
          Counts 7 through 10 of the second amended indictment relate to events that
occurred on September 20, 2006. Appellant was charged in count 7 with attempting to
murder Leon, in count 8 with assaulting Leon with a firearm, and in count 9 with robbing
Leon. Count 10 charged appellant with being a felon in possession of a firearm.
          Counts 11 through 14 relate to events that occurred on September 21, 2006.
Appellant was charged in count 11 with murdering Leonard and in count 12 with
attempting to murder Leon. Count 13 charged appellant with being a felon in possession
of a firearm. Count 14 charged appellant with robbing Leon.
          On December 16, 2009, the prosecutor motioned to dismiss counts 9, 13 and 14
because the statute of limitations had expired on these crimes. The court found good
cause and dismissed these counts. Neither the prosecutor nor defense counsel mentioned
count 10.
          The court sentenced appellant on count 10 to eight months (one-third the middle
term) plus 16 months for the section 186.22, subdivision (b)(1) enhancement. Count 10
was ordered to be served consecutive to count 26.




                                              53.
       B.     Prosecution of count 10 commenced after expiration of the three-year
              statute of limitations.
       “[T]he statute [of limitations] is jurisdictional, and … an indictment or information
that shows on its face that the prosecution is barred by limitations fails to state a public
offense. The point may therefore be raised at any time, before or after judgment.”
(People v. McGee (1934) 1 Cal.2d 611, 613.) “[A] defendant may not inadvertently
forfeit the statue of limitations and be convicted of a time-barred charged offense…. [I]f
the charging document indicates on its face that the charge is untimely, absent an express
waiver, a defendant convicted of that charge may raise the statute of limitations at any
time.” (People v. Williams (1999) 21 Cal.4th 335, 338.) “[T]he government cannot
overcome the bar of a statute of limitations by demonstrating a lack of prejudice to the
defendant.” (People v. Zamora (1976) 18 Cal.3d 538, 547.)
       The crime of illegal firearm possession by a felon in violation of former section
12021, subdivision (a)(1) is subject to a three-year statute of limitations. (§ 801, former
§ 12021, subd. (c)(1).) Count 10 was committed on September 20, 2006. The grand jury
proceedings began on November 2, 2009, and the second amended indictment was filed
15 days later. Thus, prosecution of count 10 commenced more than three years after the
date on which the crime occurred.
       Respondent argues that that it is not clear whether prosecution of count 10 was
time barred “because there may have been a first amended indictment or an original
indictment that was filed on or before September 20, 2009.” The reporter‟s transcript of
the grand jury proceedings solves the mystery of the missing indictments. At the
beginning of the grand jury proceedings on November 2, 2009, the jurors were provided
with an indictment. The prosecutor subsequently presented the grand jurors with a first
amended indictment that superseded the original indictment. The first amended
indictment made several substantive changes. Shortly thereafter, the prosecutor
presented a second amended indictment to the grand jury that corrected some



                                              54.
typographical errors. Thus, the appellate record is adequate to resolve this issue and we
reject respondent‟s request to remand the matter to the trial court for the limited purpose
of “clearing up the ambiguity.”
       Since the appellate record establishes that prosecution of count 10 commenced
more than three years after the offense was committed, the conviction is invalid and void.
(People v. Zamora, supra, 18 Cal.3d. at p. 547.) The effect of reversing count 10 on
appellant‟s sentence presents a pure question of law with only one answer. Therefore, it
is appropriate to resolve the point on appeal and order any necessary sentencing
modifications rather than to remand the matter to the trial court for this limited purpose.
(See People v. Smith (2001) 24 Cal.4th 849, 852-854.) On count 10, the court imposed a
subordinate term of eight months (one-third the midterm) plus 16 months for the section
186.22, subdivision (b)(1) enhancement. We will vacate this punishment. This
modification does not have any effect on the remainder of appellant‟s sentence.
VI.    Clerical Error In The Abstract Of Judgment.
       Rendition of judgment is an oral pronouncement. (People v. Mesa (1975) 14
Cal.3d 466, 471.) The abstract of judgment “„cannot add to or modify the judgment
which it purports to digest or summarize.‟ [Citation.]” (Ibid.) When there is a
discrepancy between the oral pronouncement of judgment and the abstract of judgment,
the oral pronouncement controls. (Ibid.)
       The trial court imposed the upper term of five years for count 26. Respondent
asserts that the abstract of judgment incorrectly describes this term as the low term. Our
review of the abstract of judgment reveals that this term was incorrectly described as the
middle term. Since the abstract of judgment does not accurately reflect the judgment as
orally pronounced, we will direct the trial court to prepare an amended abstract of
judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)
       Respondent also asserts than the abstract of judgment erroneously failed to reflect
that the court stayed the two-year term that was imposed for the out-on-bail enhancement

                                             55.
attached to count 22. The sentencing record does not support this assertion. The court
did not stay the two-year term that was imposed for the out-on-bail enhancement attached
to count 22. The court stated during sentencing, “As the enhancement per Penal Code
Section 12022.1 may only be imposed once per case, it will be stricken on counts 23, 24,
and 26. It will be imposed on Count 22.” (Italics added.)
                                     DISPOSITION
       The conviction on count 10 is reversed and the sentence imposed for count 10 is
vacated. The superior court is directed to prepare an amended abstract of judgment
reflecting all of the following: (1) reversal of count 10; (2) that the punishment imposed
on count 10 has been vacated; and (3) the five-year term imposed for count 26 is the
upper term. The superior court is also directed to transmit copies of the amended abstract
of judgment to the parties and the appropriate authorities. As so modified, the judgment
is affirmed.

                                                                _____________________
                                                                      LEVY, Acting P.J.
WE CONCUR:


 _____________________
KANE, J.


 _____________________
FRANSON, J.




                                            56.
