Filed 8/28/13 P. v. Easter 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                                           F063263
         Plaintiff and Respondent,
                                                                         (Fresno Super. Ct. No. F09905302)
                   v.

BRIAN DEMETRIUS EASTER et al.,                                                           OPINION
         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Robert Derham, under appointment by the Court of Appeal, for Brian Demetrius
Easter, Defendant and Appellant.
         Patricia J. Ulibarri, under appointment by the Court of Appeal, for Mark Patrick
Thompson, Defendant and Appellant.
         Stephen M. Hinkle, under appointment by the Court of Appeal, for Ernest Tevin
Williams, Defendant and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and
Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.
                                            -ooOoo-
                                      INTRODUCTION
       Appellants/defendants Ernest Tevin Williams, Mark Patrick Thompson, and Brian
Demetrius Easter were charged with committing a series of armed robberies against three
different victims over a two-day period. Two of the victims reported that they were
robbed by three men.
       During his postarrest interview, Williams confessed his participation in the three
robberies, and said the gunman in one of the crimes was “Alex.” Williams did not
identify Easter as a suspect. At their joint jury trial, Thompson testified and admitted he
participated in two robberies with Williams, and he was the gunman in one of the crimes.
Easter did not make any pretrial statements and testified at trial that he did not commit
any of the robberies. However, two of the victims identified Easter as the third suspect
who robbed them.
       After a joint jury trial, Williams, Thompson and Easter were convicted of counts I
and II, the second degree robberies of, respectfully, Garrett Gaynor and Joshua Franco
(Pen. Code,1 § 211), and the jury found gang enhancements true for those offenses
(§ 186.22, subd. (b)). The jury also found that Thompson personally used a firearm in
count I, and Easter personally used a firearm in count II (§ 12022.53, subd. (b)).
       Williams was separately convicted of count III, second degree robbery of Nicholas
Flechsing; Thompson and Easter were not charged with this robbery. All three
defendants were convicted of count IV, active gang participation in a criminal street gang
(§ 186.22, subd. (a)), identified as the “Playboyz” by the prosecution’s gang expert.
Defendants received lengthy prison terms.




       1   All further statutory citations are to the Penal Code unless otherwise indicated.



                                               2.
       Defendants have filed separate notices of appeal and appellate briefs, and their
cases have been consolidated.2 Thompson and Easter contend the court should have
granted their motions to bifurcate and sever the gang evidence and allegations in this
case. Thompson and Williams also contend there is insufficient evidence to support the
jury’s findings on the gang allegations.
       Williams contends there is insufficient evidence to support his conviction for
count I, the robbery of Garrett Gaynor, because he merely ran away with the victim’s
property and did not use force or fear. Williams also challenges the instructions given for
that count.
       Easter contends his defense attorney was ineffective for failing to file pretrial
motions to exclude the victims’ identifications of him as the third robbery suspect,
because the victims looked at a single photograph which showed Williams and Easter.
Easter argues the identification procedures for him were unduly suggestive, unreliable,
and violated his due process rights.
       Easter raises an issue based on the trial court’s decision to exclude the portion of
Williams’s postarrest interview where he said that he committed the robberies with
Thompson. The court excluded that evidence based on People v. Aranda (1965) 63


       2 In  their appellate briefs, each defendant generally requested to join the issues
raised by the other parties to the extent applicable to each of them. (Cal. Rules of Court,
rule 8.200(a)(5).) However, none of the defendants have offered specific arguments as to
how any of the issues raised by the other parties affected their unique circumstances and
the facts surrounding their own convictions. “Joinder may be broadly permitted
[citation], but each appellant has the burden of demonstrating error and prejudice
[citations] .…” (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) “Because of
the need to consider the particulars of the given case, rather than the type of error, the
appellant bears the duty of spelling out in his brief exactly how the error caused a
miscarriage of justice. [Citations.]” (Paterno v. State of California (1999) 74
Cal.App.4th 68, 106.) Defendants have failed to make particularized prejudice
arguments. In any event, we will find all the issues raised by the parties are without
merit.


                                             3.
Cal.2d 518 (Aranda), and Bruton v. U.S. (1968) 391 U.S. 123 (Bruton), since Williams
did not testify. The court admitted the evidence that Williams said the gunman was
“Alex” and did not identify Easter as a suspect.3 Easter contends his defense attorney
should have renewed his motion to admit Williams’s statements that he committed the
robberies with Thompson, since Thompson testified at trial and admitted he committed
the robberies, and the entirety of Williams’s statement would have had more credibility
with the jury.
       Finally, Easter contends the court should have granted his motion to reopen the
defense case to call a witness who would have testified about Easter’s character and his
purported alibi.
       We will affirm.
                                         FACTS
Robbery of Josh Franco (count II; defendants Williams, Thompson, Easter)
       Josh Franco, a high school teacher, placed a cell phone for sale on Craigslist, an
Internet sales site. Franco listed his personal cell phone as the contact number.
       At 11:00 a.m. on September 7, 2009, Franco received a call from a 408 area code.
A man said he wanted to meet and look at the phone. The caller, later identified as
defendant Williams, said he needed to delay the meeting because he was in church. At
1:30 p.m., Williams again called Franco and said to meet him in a church parking lot at
Ashlan and Hughes.



       3 As we will explain in issue VIII, post, the Aranda/Bruton rule “declares that a
nontestifying codefendant’s extrajudicial self-incriminating statement that inculpates the
other defendant is generally unreliable and hence inadmissible as violative of that
defendant’s right of confrontation and cross-examination, even if a limiting instruction is
given. [Citation.]” (People v. Anderson (1987) 43 Cal.3d 1104, 1120, superseded by
statute on other grounds as explained in People v. Letner (2010) 50 Cal.4th 99, 163, fn.
20.)


                                             4.
       At 3:00 p.m., Franco drove into the church’s parking lot. Williams called and said
he was running late. Franco waited for 15 minutes and was about to leave when he saw a
black SUV driving on the adjacent street. The SUV pulled into an apartment complex.
Franco believed there were more than three people in the vehicle and thought the
occupants were looking at him.
       About five minutes later, three African-American males walked across the street
and approached Franco’s truck. The three men tried to open the front passenger door, but
it was locked. Franco got out of his vehicle and spoke to the men. One of the men asked
to see the cell phone. Franco believed this man was the person who called him
(Williams). He looked at the phone and said it was in good shape.
       Within seconds, another man in the group pulled a gun and said: “ ‘Give us
everything you got.’ ” Franco testified the gunman had shoulder-length dreadlocks and a
goatee. He was wearing a white T-shirt, black shorts, and a black baseball cap. Williams
and the third man emptied Franco’s pockets in about 10 seconds. The three men then ran
across the street, toward the apartment complex. Franco testified none of the men said
anything about gangs during the robbery.
       As we will explain, post, Williams and Thompson admitted their participation in
this robbery. Easter denied committing the crime. Franco identified Easter as the suspect
with the dreadlocks, and said he was the gunman.
       Based on this offense, defendants Williams, Thompson, and Easter were charged
and convicted of count II, second degree robbery of Franco. The jury found true the gang
enhancement, and that Easter personally used a firearm.
Robbery of Nicholas Flechsing (count III; defendant Williams, only)
       Nicholas Flechsing, a college student, listed his Xbox video game console for sale
on Craigslist. In the late morning or early afternoon of September 9, 2009, Flechsing
received a call from a phone with a 408 area code. The caller, later identified as



                                             5.
Williams, said he wanted to buy the Xbox. Flechsing told Williams to meet him at Fig
Garden Village, and Williams agreed.
       Flechsing rode his bicycle to Fig Garden Village and waited for 20 minutes, but
the prospective buyer did not appear. Flechsing called him back, and the man said he
was “taking a little bit longer than usual.” Williams asked if they could meet somewhere
else. They agreed to meet at the corner of Ashlan and Palm. Flechsing rode his bicycle
there, but the man never showed up.
       Flechsing made another call, and Williams said that he was on his way. Flechsing
rode his bicycle toward the railroad tracks at Ashlan and Fruit, and waited for 5 to 10
minutes. Williams called Flechsing and said he could see him down the street, and
directed Flechsing to meet him at the corner of Fruit and Swift.
       Flechsing rode his bicycle to the new location. Williams was standing on the
street. Williams walked up to his bicycle. Flechsing opened his backpack and showed
the Xbox to Williams, and asked for $400.
       Flechsing testified that Williams started to grab his backpack. Suddenly, another
man appeared and pulled a handgun from his waistband. The gunman was African-
American, and his hair was shoulder-length and in dreadlocks.
       Flechsing testified the gunman cocked the weapon, loaded the chamber, and
pointed the gun at his chest. The gunman ordered Flechsing to give him his property.
Flechsing gave Williams his backpack with the Xbox; his cell phone; and his wallet,
which contained his identification and $200.
       Williams and the gunman looked Flechsing “up and down,” and then ran down the
street. Flechsing started to ride away on his bicycle. The gunman turned around and
pointed his handgun at Flechsing. Flechsing raised his hands and said, “ ‘I’m not going
to do anything.’ ” Williams and the gunman ran away. Flechsing testified that neither
suspect wore red or blue, and they did not say anything about a gang during the robbery.



                                             6.
       As we will explain, post, Williams confessed to his involvement in this robbery.
Williams was separately charged and convicted of count III, second degree robbery of
Flechsing. Prior to trial, Flechsing never identified anyone as the gunman or second
robbery suspect. Thompson and Easter were not charged with or convicted of
committing this robbery.
Robbery of Garrett Gaynor (count I; defendants Williams, Thompson, Easter)
       Garrett Gaynor4 listed his Blackberry Gold phone for sale on Craigslist. Gaynor
listed his own cell phone as the contact number.
       On September 9, 2009, the same day that Flechsing was robbed, Gaynor received
a call from a 408 area code from a man who wanted to buy the Blackberry. Gaynor
agreed to meet the man at a particular location. The prospective buyer, later identified as
Williams, repeatedly called back and changed the location. Gaynor finally told Williams
that he would meet him after work. They agreed to meet at the Walgreens parking lot at
Ashlan and Marks.
       At 9:00 p.m., Gaynor arrived at Walgreens, parked his car, and waited. Williams
called him again and asked if he was there. Gaynor said yes. Gaynor testified that three
young African-American men appeared at his car. Williams asked Gaynor if he was
selling a phone. Gaynor said yes. Williams was holding a white T-Mobile cell phone.
       Gaynor testified the second man was wearing a red baseball cap and blue jeans.
The third man had shoulder-length black hair, which was in dreadlocks with red tips.
       Gaynor got out of his vehicle and met the three men at the back of his car. He
showed them the Blackberry and handed it to Williams. Williams examined the
Blackberry and asked if it could hold a charge. Gaynor said he had the power plug and



       4
       On appeal, defendant Thompson erroneously describes this victim as “Robert
Gaynor.”



                                            7.
suggested they walk to Walgreens to charge the phone. As the group started to walk
toward the store, Williams ran away with Gaynor’s phone.5
        Gaynor testified that Williams ran toward an apartment complex. The other two
men asked Gaynor where Williams went. Gaynor replied: “… I don’t know, let’s go get
him. And as that started happening, they had taken off, as well, across the street,” in the
same direction as Williams.
        Gaynor testified: “I proceeded to follow them, or chase them.” The two men ran
toward an apartment complex’s side gate. They went inside, and the gate closed behind
them.
        Gaynor ran to the gate, but it was locked. Gaynor testified that when he got to the
gate, the three men “were just all pretty much standing there and the one individual came
back out and put a gun to my head .…”
        Gaynor testified the gunman was the man who was wearing the red baseball hat.
Gaynor testified Williams and the man with red-tipped black dreadlocks were clearly
visible to him. They stayed inside the apartment gate, and they stood there and watched
the gunman.
        Gaynor testified the gunman put the gun to his forehead and order him to turn over
everything he had, and threatened to kill him. The gunman reached into Gaynor’s
pockets and took Gaynor’s wallet and personal cell phone. Williams and the man in the
dreadlocks stayed in their same location and watched. The gunman placed the gun under
Gaynor’s chin and threatened to kill Gaynor if he turned around.




        5
        In issue IV, post, we will address and reject Williams’s contention that his
conviction for robbery should be reversed because he ran away with Gaynor’s cell phone
without using force or fear.



                                             8.
        After taking the property, the gunman ran back inside the apartment gate, joined
Williams and the other man, and all three men ran away. Gaynor testified the three
suspects never said anything about gangs during the robbery.
        As we will explain, post, Gaynor identified Williams and Thompson during an
infield show-up on the night of the robbery and said Thompson was the gunman. Gaynor
later identified Easter from a single photograph as the third suspect with the dreadlocks.
Williams and Thompson admitted their involvement in this robbery. Easter denied
committing the crime.
        Based on this offense, Williams, Thompson and Easter were charged and
convicted of count I, second degree robbery of Gaynor. The jury found true the gang
enhancement, and that Thompson personally used a firearm.
                       INVESTIGATION OF GAYNOR ROBBERY
Discovery of handgun and stolen property
        Around 10:10 p.m. on September 9, 2009, several officers responded to the
Walgreens parking lot and interviewed Gaynor about the robbery. Based on Gaynor’s
information, the officers spoke to the manager of the apartment complex on Ashlan and
Marks. The manager’s information led them to a particular apartment. The tenant gave
the officers permission to enter.6
        Defendants Thompson and Williams were in the apartment. The officers found
Flechsing’s stolen Xbox and videogames in the living room, and his ATM card in another
room.




        6   At trial, Thompson testified this apartment was his grandmother’s residence.



                                               9.
       The officers found a large stereo speaker box in the bedroom. It contained a nine-
millimeter semiautomatic handgun and a magazine. The magazine was loaded with live
nine-millimeter rounds and appeared to fit the weapon.7
       The same stereo speaker box also contained three cell phones: Gaynor’s
Blackberry that he showed to Williams and he ran away with; Gaynor’s personal cell
phone that was taken by the gunman; and a white T-Mobile cell phone.
Gaynor’s identification of Thompson and Williams
       As the investigation continued on the night of September 9, 2009, the officers
drove Gaynor past two or three men standing on the street, near the apartment complex,
and asked Gaynor if any of these men were the robbery suspects. Gaynor said no.
       Later that night, an officer escorted Gaynor to an infield show-up of three other
men: Williams, Thompson, and a third man. Easter was not present.
       Gaynor immediately identified Thompson and Williams as two of the robbery
suspects, and said Thompson was the gunman. Gaynor said he was 100 percent certain
of the identifications. Gaynor said the third man in the show-up was not involved in the
robbery.8
       The record implies that Thompson and Williams were arrested that night.
Williams’s postarrest interview
       In the early morning hours of September 10, 2009, Detective Mares interviewed
Williams at the police substation. Mares advised Williams of the warnings pursuant to



       7  Detective Patrick Mares, the investigating officer, later testified that he did not
try to obtain fingerprints from the handgun, and that was a “complete[] oversight on my
part.”
        8 Detective Mares testified that Tyrone Williams was one of the men who Gaynor
was asked to look at during an infield show-up on the night of the robbery. Mares
described Tyrone Williams as African-American, tall, thin, and with short hair. Gaynor
did not identify Tyrone Williams as one of the robbery suspects.



                                             10.
Miranda v. Arizona (1966) 384 U.S. 436, and Williams waived his rights. Williams was
16 years old.
       Detective Mares asked Williams about the while T-Mobile cell phone found in the
apartment, next to Gaynor’s stolen phones. Williams said it was his cell phone and had a
408 area code. Detective Mares determined that 14 calls were placed from Williams’s
cell phone to Franco’s cell phone. There were 10 calls placed from Williams’s cell phone
to Gaynor’s cell phone.
       During the interview, Williams admitted that he had been involved in the
robberies in the church parking lot (Franco), the Walgreens parking lot (Gaynor), and the
one involving the Xbox (Flechsing). Williams said that at the Walgreens robbery of
Gaynor, he ran away with the victim’s cell phone. He also said a gun was used.
       Detective Mares testified that Williams said a gun was also used during the
robbery in the church parking lot, and two cell phones were taken from the victim
(Franco). Williams said the gunman’s name was “Alex” or “A-1.” Detective Mares
testified that Williams did not identify Easter as the gunman or a suspect in the robbery.9
       As for the Xbox robbery of Flechsing, Williams said that he took the victim’s
backpack and the Xbox, and ran away. Williams said that a gun was also used during
this robbery. He did not identify the gunman.
The cell phone picture of Easter
       Gaynor told the officers that the third robbery suspect was slightly taller, and his
hair was in dreadlocks with red tips. Later on September 10, 2009, Detective Mares

       9 As we will explain in issue VIII, post, Williams also said that he committed the
robberies with Thompson. The court excluded Williams’s statements which implicated
Thompson pursuant to Aranda/Bruton. The court admitted evidence that Williams
identified “Alex” as the gunman, and he did not name Easter as a suspect. During trial,
Thompson testified and admitted he committed the robberies. On appeal, Easter contends
his defense attorney was prejudicially ineffective for failing to move for the admission of
Williams’s implication of Thompson, once Thompson testified and admitted his guilt.



                                             11.
reviewed the photographs on Williams’s T-Mobile cell phone to see if anyone matched
Gaynor’s description.
       Mares found a photograph on Williams’s cell phone, identified as exhibit No. 7,
which showed two African-American males: Williams, and a man with his hair in
dreadlocks with red tips. The cell phone also contained a photograph of Williams,
Thompson, and the man with the red-tipped dreadlocks. Officer Robert Yeager reviewed
the images and identified the man with the dreadlocks as Brian Easter, based on Yeager’s
prior contacts with him.
Gaynor’s identification of Easter10
       On September 10, 2009, Detective Mares showed Gaynor the photograph of
Williams and Easter, identified as exhibit No. 7, as it was displayed on the white T-
Mobile cell phone. Mares did not reveal their identities, and he read the following
admonition to Gaynor:

       “… I was in possession of a phone[,] that it was not my phone. I told him
       that there was a photograph on this phone that I wanted him to look at. I
       told him that I did not know who was in the photograph, I did not know the
       name of the individual. And I told him that, ‘It may or may not be involved
       in your case.’ ”
       Detective Mares testified that Gaynor looked at the cell phone photograph and said
both men were involved in the robbery. Gaynor testified that he had already identified
one man on the night of the robbery, as the suspect who ran off with the Blackberry
(Williams). Gaynor identified the other man in the photograph, with the red-tipped


       10 In issue VII, post, we will address Easter’s contentions that his defense attorney
was ineffective for failing to file pretrial motions to exclude the victims’ identifications
of him as the third suspect. Easter contends the identification procedures violated his due
process rights because they were unduly suggestive and unreliable, since the victims
made the identifications from exhibit No. 7, a single photograph depicting Easter and
Williams together, and they never reviewed any photographic lineups for the third
suspect.



                                            12.
dreadlocks, as the third robbery suspect. Gaynor said the man with the dreadlocks did
not have the gun.
       Gaynor also said he recognized the white T-Mobile phone which contained the
photograph because Williams was holding it during the robbery.
Franco’s identification of Easter
       Also on September 10, 2009, Detective Mares showed Joshua Franco the
photograph of Williams and Easter, as depicted on the white T-Mobile cell phone. Mares
did not identify the men, and read the same admonition to Franco as he read to Gaynor.
       Franco identified Easter as the robbery suspect with the dreadlocks, and said this
man held the gun during the robbery in the church parking lot. Franco also recognized
the white T-Mobile cell phone, and said the smaller suspect (Williams) used it during the
robbery.
       Easter was arrested on November 14, 2009.11
Photographic lineups
       Detective Mares showed Franco several “six-pack” photographic lineups, which
included pictures of Williams and Thompson. Franco identified Thompson as the man
who went through his pockets during the robbery. Franco did not identify Williams from
the lineups.12
       Detective Mares never showed Franco or Gaynor any six-pack photographic
lineups with Easter’s picture. Mares admitted that was “not standard operating
procedure.” Mares confirmed he only showed a single photograph to Gaynor and Franco,

       11 Officer Todd Turney testified that he came into contact with Easter on
November 14, 2009, about two months after the robberies. At that time, Easter’s hair
was short and almost shaved, and not in dreadlocks. Officer Yeager testified that by the
time of trial, Easter had shaved his hair off.
       12 While Franco did not identify Williams from the photographic lineups,
Williams confessed that he committed all three robberies, including the robbery of
Franco in the church parking lot.



                                            13.
Williams and Easter were in that picture, and he showed the picture to the victims after
Williams had been identified.
       Detective Mares testified that he looked for the suspect who Williams identified as
“Alex” or “A-1,” but he never found such a person.

            THE VICTIMS’ TRIAL TESTIMONY AND IDENTIFICATIONS
Garrett Gaynor
       Garrett Gaynor testified at trial that he identified Williams and Thompson during
an infield show-up on the night of the robbery. Gaynor testified the police showed him
several photographs to identify the third suspect, but none of the photographs showed that
person. Gaynor testified he was finally shown a photograph of a single person, and
identified that person – Easter – as the third suspect with the red-tipped dreadlocks.13
       Gaynor testified that Detective Mares showed him a photograph of two men from
a cell phone, which showed Williams and the suspect with the dreadlocks. Gaynor
testified he also looked at a photograph with three individuals. When he looked at this
picture, he had already identified two of the men on the night of the robbery, and he
identified the third man as the suspect with the dreadlocks. Gaynor did not think that he
identified Easter from the photographs which showed the suspects standing together.
       Gaynor testified that exhibit No. 3 showed the three men who robbed him: the
first man who spoke to him and ran off with the Blackberry (Williams), the gunman who
wore the hat (Thompson), and the man with the red-tipped dreadlocks (Easter).
       Also at trial, Gaynor identified Thompson as the gunman in the red hat. Gaynor
identified Easter as the suspect who wore his hair in dreadlocks with red tips, even


       13 While Gaynor testified that he identified Easter from a photograph that showed
a single person, Detective Mares testified that Gaynor made the identification after
looking at exhibit No. 7, the photograph from Williams’s cell phone which showed
Williams and Easter.



                                            14.
though Easter’s hair was now in a short buzz-cut. Gaynor identified Williams as the
person who called him about the Blackberry, met him at his car, and ran away with the
phone.
         Gaynor reviewed the photograph of the nine-millimeter semiautomatic handgun
found in the apartment on the night of the robbery. Gaynor identified the firearm as the
weapon the gunman held at his head, which had a silver barrel and black handle. Gaynor
again identified the white T-Mobile cell phone as the device which Williams was holding
when they met in the parking lot.
Josh Franco
         Josh Franco testified that a few days after the robbery, the police showed him a
series of photographic lineups. Franco positively identified one man as being involved in
the robbery, but he was not sure if that man was the gunman.14
         Franco testified he also looked at a photograph of two men. He was read an
admonition before he looked at this photograph, and told that it might not be the suspect.
He identified one man as the gunman, and he was positive about the identification when
he made it.15
         At trial, Franco identified defendant Thompson as one of the robbery suspects, and
Thompson was not the gunman. He believed Thompson was the man he identified in the
photographic lineup. Franco testified that he initially believed the man he identified in




         14
         Detective Mares testified that Franco identified Thompson from the
photographic lineup, and said that Thompson went through his pockets during the
robbery. Williams confessed to his involvement in the Franco robbery.
         15 Detective
                   Mares testified Franco identified Easter as the robbery suspect with
the dreadlocks, and said this man held the gun during the robbery in the church parking
lot.



                                             15.
the photographic lineup (Thompson), and the man in the single photograph (Easter), were
the same person, but later realized they were different people.16
       Franco reviewed the photograph of the handgun found in the apartment (Exhibit
No. 26), and testified it was very similar to the firearm used by the gunman during the
robbery. Franco recognized the silver barrel and the distinctive black handle.
Nicholas Flechsing
       Nicholas Flechsing testified that about three days after the robbery, Detective
Torres showed him several photographic lineups. Flechsing identified Williams from one
of the lineups (Exhibit No. 43), and said he was “absolutely positive” that Williams was
the man who called him and met him on the street. Williams was not the gunman. At
trial, Flechsing identified Williams as the man who met him on the street. Flechsing did
not identify anyone from the photographic lineups as the gunman.17
       Flechsing testified the chrome-plated handgun with the black grip, which was
found in the apartment, was similar to the weapon used by the gunman during the
robbery.
                          THE PROSECUTION’S GANG EXPERT
       As to counts I and II, the robberies of Gaynor and Franco, gang enhancements
were alleged as to all three defendants (§ 186.22, subd. (b)(1)). In count IV, defendants




       16As we have already explained, exhibit No. 7 was the photograph on Williams’s
cell phone depicting Easter and Williams.
       17Prior to trial, Flechsing never identified anyone else as a suspect. At trial,
however, Flechsing testified he thought Thompson was the gunman, although he thought
that Thompson’s hair was shorter and no longer in dreadlocks. The record implies that
Flechsing indicated that Easter was not the gunman. Williams, who confessed that he
robbed Flechsing, was the only defendant charged with this robbery. Thompson and
Easter were not charged with the offense, even after Flechsing’s trial identification of
Thompson.


                                            16.
were charged with the substantive offense of active participation in a criminal street gang
(§ 186.22, subd. (a)).
       Fresno Police Officer Ron Flowers testified as the prosecution’s gang expert. He
had been a gang investigator with the Multi-Agency Gang Enforcement Consortium
(MAGEC) since 2003. He worked specifically with African-American gangs in Fresno.
He had investigated close to 600 gang-related crimes. Flowers identified gangs, validated
an individual’s gang membership, and tracked crimes committed by gang members.
Flowers had qualified as a prosecution gang expert approximately 40 times.
The “Playboyz” Gang
       Officer Flowers testified that the “Playboyz” is an African-American criminal
street gang. Flowers first became aware of the Playboyz in 2004 or 2005, when a
shooting occurred which involved four victims. Flowers verified the four victims were
members of the Playboyz gang. Flowers validated the existence of the Playboyz at that
time.18

              “My partner and I were able to verify that there was a group that
       called themselves the Playboyz here in Fresno [C]ounty, and eventually we
       were able to identify members of that particular group. And that was
       confirmed through certain crimes that occurred in the city of Fresno.”
       Officer Flowers testified the Playboyz’s primary colors were blue and red.
Flowers acknowledged that blue was commonly claimed by the Crips, while red was
claimed by the Bloods. However, Flowers explained that it was not unusual for a Fresno
gang to claim both red and blue. “It is not like Bloods and Crips. We have gangs that
have Bloods and Crips within themselves[,]” and “[i]t is not unusual here in Fresno to
find those two groups in one gang .…” Flowers testified that African-American gangs in
Fresno and Los Angeles had different philosophies about colors. For the gangs in Fresno,

       18
        Flowers testified there was also an unrelated southern Hispanic criminal street
gang known as the “Playboyz.”



                                            17.
colors were “not critical” and did not have “much of an adverse effect as it does in Los
Angeles.”
       Officer Flowers believed there were approximately 34 to 35 members of the
Playboyz in Fresno. Flowers personally knew three or more members of the gang.
Flowers had conversations with members of the Playboyz about their lifestyles, loyalties,
criminal gang activities, membership, signs, colors, tattoos, and graffiti. Flowers testified
he reviewed about 60 police reports about the activities of the Playboyz.
       The Playboyz gang used the “Playboy” emblem from Hugh Hefner’s Playboy
magazine as one of their symbols. The gang members also configured their hands to
appear like Playboy bunny ears. Flowers had seen rivals mocking the same hand sign.
       Flowers testified that the area under the Playboyz’s “dominion of control” was in
northwest Fresno, between Herndon and McKinley, and Polk and Marks. The Playboyz
did not claim that area as its specific turf, but “there have been a lot of events specific to
this group within that area.”19
       Flowers had also seen the word “Playboyz” used in gang writings on clothing,
documents, glass, and MySpace pages. However, he had never seen any Playboyz-
related graffiti in a particular area or anywhere else in Fresno. Flowers explained that
some gangs are not “turf-oriented” and don’t have issues over particular territories.
Primary activities20
       Officer Flowers testified that he had reviewed approximately 70 to 80 police
reports involving members of the Playboyz gang. Flowers testified the primary activity


       19 A defense investigator testified he did not find any graffiti in Fresno relating to
the Playboyz gang, in the area where the gang allegedly claimed turf. The investigator
admitted that he was not familiar with the gang’s different slang terms and abbreviations,
and he only looked for pictures of rabbits.
       20 In issue II, post, we will address defendants’ contentions that there is
insufficient evidence to support the “primary activities” element of the gang allegations.



                                              18.
of the Playboyz gang was robbery, in violation of section 211. Flowers’s opinion was
based on his review of approximately 12 police reports involving incidents where
members of the Playboyz committed robberies, from 2006 to 2009. Flowers testified the
gang had “the pattern, again the consistency of violating Penal Code [section] 211.”
       Flowers testified he had also investigated homicides, shootings, and firearm cases
which involved members of that gang.
Predicate offenses
       Flowers testified about several predicate offenses committed by validated
members of the Playboyz gang, based on his review of certified copies of their
convictions. These predicate offenses were not committed by any of the defendants. In
2005, Christopher Williams was convicted of murder (based on a vehicular homicide),
transportation of narcotics for sale, and possession of cocaine base for sale. In 2006,
Duane Perry was charged with second degree robbery and convicted of attempted grand
theft. In 2008, Anthony Skinner was convicted of illegal possession of a weapon. In
2009, Rafael Houston pleaded guilty to illegal possession of a weapon. In 2009, Robert
Tyler was convicted of illegal possession of a weapon; and in 2008, he was convicted of
vehicle theft.
       On cross-examination, Flowers conceded that while these predicate offenses were
committed by members of the Playboyz gang, there were no gang enhancements alleged
or found true in those cases. Flowers also conceded that none of the predicate offenses
involved robbery charges. Flowers further testified that he did not believe anyone had
been convicted of the substantive offense of active participation in a criminal street gang
as a member of the Playboyz.
Defendants’ memberships in the Playboyz
       Officer Flowers testified to his opinion that Thompson, Williams, and Easter were
active members of the Playboyz gang. Thompson admitted being a member of the
Playboyz on six occasions in jail classification settings in January and April 2008, and

                                            19.
January, February, and September 2009. On January 5, 2009, Thompson admitted his
gang affiliation to Fresno homicide detectives.
        Thompson had been documented as associating with Playboyz gang members in
June 2003, August 2003, November 2004, and May 2007. Thompson was arrested with
other members of the Playboyz on July 4, 2004, November 6, 2004, and January 23,
2009.
        Officer Flowers classified Thompson as an active participant in the gang based on
the crimes he had committed, and his regular association with other active members of
the gang. Flowers identified Thompson in a photograph which showed him making the
Playboyz hand sign, placing his fingers like rabbit ears. Thompson had a tattoo of the
Playboy bunny on his left arm, with the word “Playboyz” written underneath it.
        Officer Flowers testified that Easter was arrested on February 14, 2006, with
Tyrone Williams, a member of the Playboyz. On May 24, 2008, Easter was documented
as associating during a shooting incident with Tyrone Williams, Anthony Silva and
Maharie Kidan, who were also members of the Playboyz. On July 10, 2008, Easter was
arrested with Robert Lee and Maharie Kidan. On January 3, 2009, Easter was with
Tyrone Williams when he was contacted about being present during a homicide. On
April 8, 2009, Maharie Kidan was arrested, and he claimed Easter provided him with a
weapon. On May 28, 2009, Easter was contacted during a traffic stop with Anthony
Skinner, a member of the Playboyz.
        Flowers testified that Easter’s nickname was “Kook.” Flowers classified Easter as
an active participant in the Playboyz based on his behavior and nature and frequency of
his contacts.
        Officer Flowers testified that on January 3, 2009, Williams was identified as a
member of the Playboyz by homicide detective Todd Frazier. On April 27, and July 19,
2009, Williams was documented as associating with, respectively, Tyrone Williams and



                                            20.
Jason Bryant, members of the gang. On June 7, and September 10, 2009, Williams
admitted to juvenile probation officers that he was a member of the Playboyz gang.
       Flowers testified Williams was an active participant in the Playboyz gang because
“his behavior is more than nominal, as we outlined the many contacts through law
enforcement and the related offenses during those investigations.”
Williams’s cell phone and the videos
       Williams’s cell phone contained a contact list. Officer Flowers testified the names
included “PB Kook,” “PB Crane,” “PB Gunne,” and “PBJKIDDDDD.” Flowers
believed “PB” was an acronym for “Playboyz.”21
       There were also two videos on the cell phone. Both videos were played for the
jury in this case.22
       One video showed Easter, Thompson, Williams, and another man in the bathroom
of the same apartment which was searched on the night of the robbery. Thompson was
holding a semiautomatic handgun, which was similar to the weapon found in the
apartment and identified by the victims. The “bathroom” video was recorded on
September 4, 2009.
       Officer Flowers testified that defendants’ conduct on the “bathroom” video
supported his opinion that they were members of the Playboyz, based on their dialogue,
hand signs, displays of tattoos and the gun, and discussion of specific rivals. The
defendants mentioned “The Mob, Klette Mob, also known as the Laidlaw Boys” as a
rival gang. Terrance Bryant was the fourth man in the video, and he displayed a red
tattoo of the letter “P” on his chest.

       21   Easter testified at trial and admitted his nickname was “Kook.”
       22The court admonished the jury that it could consider both videos for the limited
purposes of determining the elements required to prove the gang-related crimes and
enhancements; credibility of the expert witness; and whether the defendants had a motive
to commit the charged offenses.



                                             21.
       The second video showed several young men in a parking lot. It was recorded on
September 5, 2009. Officer Flowers testified the “parking lot” video showed Thompson,
Williams, and other young African-American males. They were announcing “Playboyz,”
and displaying Playboyz hand signs. Officer Flowers did not see Easter in that video.
       Flowers testified the expressions and statements made by defendants in the videos
clearly promoted the Playboyz gang. “Judging from the content and the dialogue and the
expressions made, I would be under the impression that these individuals had done
something and were warning others and claiming their gang membership openly.”
The charged offenses23
       Officer Flowers conceded that a gang member may commit a crime or a robbery
for personal reasons and not for the benefit of the gang. Based on a series of similar
hypothetical questions, Flowers testified to his opinion that the robberies were committed
in association with a criminal street gang. All of the perpetrators were members of the
same gang, they committed the crimes in concert, and they conspired together to commit
the robberies. While the participants did not say the gang’s name during the robberies,
the crimes benefitted the gang by building its reputation and each defendant’s notoriety.
The robbery proceeds also benefitted the gang financially by enabling the gang members
to buy guns, and increased their individual prestige and the gang’s prestige.
       Officer Flowers further explained that gang members gain respect through
committing acts of violence. These actions allow the gang members to instill fear in the
community and among their rivals. “Other members see it, other members want to be a
part of it. They want to repeat. They want to join. That’s the dangerous element about
group participation.”

       23 In issue III, post, we will address defendants’ contentions that the jury’s
findings on the gang enhancements must be reversed because there is insufficient
evidence the robberies were committed for the benefit of, at the direction of, or in
association with a criminal street gang.



                                             22.
                                DEFENSE EVIDENCE
      Thompson and Easter testified at trial; Williams did not testify.
Thompson’s trial testimony
      Thompson, who was 23 years old, admitted he had prior convictions for felony
statutory rape and petty theft in 2007. He obtained the “Playboyz” tattoo on his arm
when he was 14 years old to show his cousin that he liked girls.
      Thompson testified that he was depicted in the “bathroom” video, which was
filmed in September 2009 at his grandmother’s apartment. Easter, Williams, and
Terrance Bryant were also in the video. Thompson admitted that he held a gun in the
video. Thompson testified that he was in a “bad place” in his life at that time. He was
“… doing Ecstasy, smoking all kinds of weed, you know, just being stupid.” Thompson
said he was in the parking lot video with his cousins. Williams filmed the video. Easter
was not there.
      Thompson admitted that he was present during the Gaynor and Franco robberies,
and Williams was also there.
      Thompson testified the robberies were not committed for the benefit of the
Playboyz or any gang, but because he needed money for his rent and he did not have a
job. Thompson testified he was not present during the Flechsing robbery.
      Thompson testified he robbed Gaynor at gunpoint and used the nine-millimeter
handgun which was found in his grandmother’s apartment. Williams and an unknown
third man were also present. He said that Williams made the telephone calls to set up the
robbery.
      Thompson testified that he was present when Franco was robbed. Thompson was
not the gunman, but the same gun was used from the Gaynor robbery. Thompson went
through Franco’s pockets during the robbery. Williams and an unknown third man were
present during the robbery.



                                           23.
       Thompson initially testified that the unknown suspect who was present during the
Gaynor robbery was not the same unknown man who was present during the Franco
robbery. As to the Gaynor robbery suspect, Thompson testified he met this man in the
apartment complex, and the robbery was this man’s idea.
       Thompson testified he feared for his life if he identified the third suspect in the
Franco robbery. Thompson knew this man from the apartment complex, and this man
always wore blue and said he was a Crip. Thompson admitted he committed the Franco
robbery in association with a Crip.
       During cross-examination, Thompson’s description of the third suspect began to
change, and he admitted that the same man was the third suspect for both the Franco and
Gaynor robberies. Thompson testified this man was a member of the Crips, and he knew
the man was a Crip when they committed both robberies.
       Thompson testified that he knew about the Playboyz, but insisted it was not a
street gang: “It’s a family .… [M]ost of the people that are in it are all family, all
cousins and brothers.” “To us it is not a gang.” Thompson and some of his cousins
referred to themselves as Playboyz, but he meant that he was a “player” with the girls.
Thompson testified that the Playboyz partied and went to clubs when they were together.
       On further cross-examination, Thompson admitted he was a member of the
Playboyz and there were about 20 members, including many people in his family.
Thompson knew Christopher Williams, Anthony Skinner, Christopher Williams, Jason
Bryant, Tyrone Williams, and Rafael Houston, and also knew they were members of the
Playboyz.
       Thompson testified that members of the Playboyz did not get along with the
“Northside” and “Murder Squad” gangs because they did not want to join those two
gangs. Thompson repeatedly denied the Playboyz was a criminal street gang, that the
members committed crimes, or that its primary purpose was to commit robberies.
Thompson admitted that he claimed membership in the Playboy Crips during the jail

                                             24.
classification interviews. He did so to avoid being jumped in jail. He said there was no
such group as the Playboy Crips.
       Thompson testified that Williams was a member of the Playboyz. Thompson
knew Williams was a member when they committed the robberies. Thompson testified
that Easter was not a member of the Playboyz, and he was not present during the Gaynor
and Franco robberies.
       On further questioning, Thompson testified he was not afraid to implicate
Williams because he knew that Williams already talked to the police and said he was
involved in the robberies. Thompson testified he knew that Easter had not implicated
himself in the robberies. Thompson testified he was afraid to implicate Easter as the third
suspect because Easter had not implicated himself. Thompson testified he was related to
Easter, and Thompson had known Easter for his entire life. He did not want Easter to get
into trouble, but denied that he would lie for Easter.
Easter’s trial testimony
       Easter testified he had known Thompson since elementary school. He did not
know Thompson was a member of the Playboyz until he heard Thompson’s trial
testimony. He had known Williams since high school, and did not know whether he was
a member of the Playboyz. Easter testified the Playboyz were people who went to “dance
parties, and like going out to the clubs and stuff .…”
       Easter admitted that he was in the bathroom video with Thompson and Williams,
and that he saw the gun that was shown in the video. Easter testified the fourth person in
the bathroom video was known as “Gunne,” and Easter knew he had a “P” tattooed on his
chest.24 Easter also knew that Thompson had a tattoo of a Playboy bunny on his arm, but
these tattoos meant nothing to him. Easter testified he was present when Williams
spelled out the word “Playboyz” in the bathroom video. Williams testified he did not
       24   One of the contacts on Williams’s cell phone was “PB Gunne.”



                                             25.
recall Williams talking about the Bloods and the Crips during the bathroom video, and
the words meant nothing to him. Easter was not present during the parking lot video.
       Easter testified he had never been charged or convicted of a crime.25 Easter
admitted he vandalized a shopping cart with Tyrone Williams in February 2006. He was
taken to juvenile hall and released. He was arrested on September 10, 2008, for illegally
discharging a firearm, and released the same day.
       Easter admitted he was present when a homicide occurred at a party in January
2009. Easter denied that he gave a gun to Maharie Kidan on April 8, 2009. Easter was
with Anthony Skinner during a traffic stop on May 28, 2009. Skinner was a close family
friend, but Easter did not know if he was a member of the Playboyz.
       Easter testified he was not involved in the Franco or Gaynor robberies. He was
not a member of any gang, and he never committed any crimes for the benefit of a gang.
Easter never called himself a member of the Playboyz, but he knew some people who
used that name. Easter admitted he was known by the nickname of “Kook.”26
       Easter testified that in the fall of 2009, he was employed by a home care agency,
and cared for his disabled mother under a program sponsored by the state. He lived with
his mother, and he also shared an apartment with the mother of his child.
       Easter testified that at the time of the Franco robbery, he was working for the
home care agency and providing services to his mother. On the night of the Gaynor
robbery, he was staying with his daughter and the child’s mother, at their residence near
Clinton and Brawley. He cut his hair sometime after the bathroom video was made in
September 2009, and before he was arrested on November 14, 2009.


       25 In issue IX, post, we will address Easter’s contentions that this testimony was
sufficient to trigger either a defense instruction on character evidence or to reopen the
defense case to call a character witness.
       26   One of the contacts on Williams’s cell phone was identified as “PB Kook.”



                                            26.
Verdicts and sentences
       After a lengthy joint jury trial, Easter, Thompson and Williams were convicted as
charged with counts I and II, second degree robberies of, respectively, Gaynor and
Franco (§ 211); and count IV, active participation in a criminal street gang (§ 186.22,
subd. (a)). In count III, Williams was separately found guilty of the second degree
robbery of Flechsing.
       The jury found Thompson personally used a firearm in the commission of count I,
the robbery of Gaynor; and Easter personally used a firearm in count II, the robbery of
Franco (§ 12022.53, subd. (b)). As to counts I and II, the jury found the gang
enhancements true (§ 186.22, subd. (b)(1).
       Both Easter and Thompson were sentenced to 27 years 4 months in prison.
Williams was sentenced to 18 years.
                                      DISCUSSION
I.     Denial of severance/bifurcation motions on gang allegations and evidence
       Thompson and Easter contend the court abused its discretion when it denied their
pretrial motion to sever count IV, the substantive gang offense (§ 186.22, subd. (a)), and
bifurcate the gang enhancements (§ 186.22, subd. (b)(1)), from the three robbery charges.
Defendants argue the gang evidence was irrelevant and prejudicial to the robbery charges
because there was no evidence the suspects committed the robberies to benefit any gang.
       A. Background
       Prior to trial, Easter moved to bifurcate the robbery charges from count IV, the
gang substantive offense, and the gang enhancements; Thompson and Williams joined
the motion.27 They argued the gang evidence was irrelevant and prejudicial to the


       27As we will discuss, post, severance is the appropriate motion for a substantive
charge, while bifurcation is the appropriate motion for enhancements. (People v. Burnell
(2005) 132 Cal.App.4th 938, 946, fn. 5 (Burnell).)



                                             27.
robbery charges. The prosecutor replied the gang evidence was relevant to prove that
defendants intended to aid and abet each other in the commission of the robberies,
particularly during the Gaynor robbery. The prosecutor also cited to the “bathroom”
video which showed all three defendants talking about the Playboyz gang, and throwing
gang signs, while Thompson held the gun which appeared to have been used in the
robberies.
      The trial court denied defendants’ bifurcation motion:

      “[T]he court does not find the inclusion of the gang enhancement or the
      gang charge is such that it will unduly prejudice the defendants in their
      ability to receive a fair trial. It does not show any extraordinary prejudice
      in this Court’s mind. So the motion to bifurcate is denied. Because in
      essence what counsel is asking is not just for a bifurcation of the
      enhancements but for a severance of [count IV]. Because in essence it
      would be virtually impossible for counsel or for the Court to adequately
      explore the minds of potential jurors in this case concerning gangs during
      voir dire if the same jury was going to ultimately hear evidence on an
      enhancement and the gang count separate from the underlying charges. We
      couldn’t do that. We would have to have basically a new jury which would
      allow counsel and the Court to explore those attitudes.

              “Because by simply taking what [Williams’s attorney] said, by
      simply mentioning gangs in the context of a jury trial, that doesn’t have any
      information concerning gangs, at least so far as the jury is concerned. They
      wouldn’t know what is going on in this case. They would suspect but they
      would not know. It will cause them to speculate, in other words, if we were
      to start asking them questions about an enhancement, or charges or
      associations without there being any charges or enhancements in the case to
      begin with.

             “The Court is satisfied that the jurors – and the law recognizes that
      the jurors will do their responsibility and will follow the law. They will be
      informed as to any evidence concerning gang affiliation or gang conduct
      would be admitted for the sole purpose of determining whether the
      allegations are true concerning the enhancement and the charge, but they
      are not to consider that concerning the underlying robbery charges, only the
      gang charges. So the request to bifurcate is denied.”




                                           28.
       B. Bifurcation
       A trial court has broad discretion to control the conduct of a criminal trial,
including the power to bifurcate a gang enhancement from trial on the substantive
charges. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048 (Hernandez).) However,
the need to bifurcate gang allegations is often not as compelling as for the bifurcation of
prior conviction evidence. (Id. at pp. 1048-1049.) “A prior conviction allegation relates
to the defendant’s status and may have no connection to the charged offense; by contrast,
the criminal street gang enhancement is attached to the charged offense and is, by
definition, inextricably intertwined with that offense. So less need for bifurcation
generally exists with the gang enhancement than with a prior conviction allegation.
[Citation.]” (Id. at p. 1048, original italics.)
       In moving for bifurcation, the defense must “ ‘clearly establish that there is a
substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.]”
(Hernandez, supra, 33 Cal.4th at p. 1051.) Bifurcation may be necessary where the
predicate offenses offered to establish the pattern of criminal activity are “unduly
prejudicial,” or where some of the other gang evidence may be “so extraordinarily
prejudicial, and of so little relevance to guilt,” that it may influence the jury to convict
regardless of the defendant’s guilt. (Id. at p. 1049.) We review the trial court’s denial of
a motion to bifurcate for abuse of discretion. (Id. at p. 1048.)
       C. Severance
       Joint trials of offenses which occur together are legislatively preferred over
separate trials, and the party requesting severance of properly joined offenses has the
burden to “clearly establish that there is a substantial danger of prejudice requiring that
the charges be separately tried. [Citations.]” (People v. Bean (1988) 46 Cal.3d 919, 938-
939; Burnell, supra, 132 Cal.App.4th at p. 946; see § 954.)
       “In the context of severing charged offenses, we have explained that ‘additional
factors favor joinder. Trial of the counts together ordinarily avoids the increased

                                               29.
expenditure of funds and judicial resources which may result if the charges were to be
tried in two or more separate trials.’ [Citation.] Accordingly, when the evidence sought
to be severed relates to a charged offense, the ‘burden is on the party seeking severance
to clearly establish that there is a substantial danger of prejudice requiring that the
charges be separately tried. [Citations.]” (Hernandez, supra, 33 Cal.4th at p. 1050.)
       As with bifurcation, the court’s ruling on a severance motion is reviewed for abuse
of discretion. (People v. Marshall (1997) 15 Cal.4th 1, 27-28.) “Whether a trial court
abused its discretion in denying a motion to sever necessarily depends upon the particular
circumstances of each case. [Citations.] The pertinent factors are these: (1) would the
evidence of the crimes be cross-admissible in separate trials; (2) are some of the charges
unusually likely to inflame the jury against the defendant; (3) has a weak case been
joined with a strong case or another weak case so that the total evidence on the joined
charges may alter the outcome of some or all of the charged offenses; and (4) is any one
of the charges a death penalty offense, or does joinder of the charges convert the matter
into a capital case. [Citation.] A determination that the evidence was cross-admissible
ordinarily dispels any inference of prejudice. [Citations.]” (Ibid.)
       D. The court did not abuse its discretion
       The trial court did not abuse its discretion when it denied defendants’ motions for
severance and bifurcation of the gang allegations and evidence in this case. The gang
evidence was necessarily intertwined with the charged offenses as to several relevant
issues, particularly aiding and abetting, identity, and bias. As we will discuss in issue IV,
post, one of the key issues in the Gaynor robbery was the culpability of Williams and
Easter, who stood by while Thompson pulled the gun and went through Gaynor’s
pockets. Their joint gang status was clearly relevant as circumstantial evidence of their
intent and knowledge to prove aiding and abetting to commit robbery. (See, e.g., Burnell,
supra, 132 Cal.App.4th 938, 947; People v. Salgado (2001) 88 Cal.App.4th 5, 15-16; In
re Jose T. (1991) 230 Cal.App.3d 1455, 1460-1461.)

                                              30.
       In addition, the defendants’ common gang membership was relevant and
admissible as to identity, bias, and impeachment. In his postarrest statement, Williams
said that “Alex” and not Easter was the gunman for the Franco robbery. At trial,
Thompson refused to identify the third suspect in the Franco and Gaynor robberies, and
gave equivocal testimony about whether Easter was that man. For example, in People v.
Ruiz (1998) 62 Cal.App.4th 234, the defendant was charged with selling drugs to an
undercover officer. The defendant argued that a third party was guilty of the offense,
based on that person’s alleged confession to a defense investigator. Ruiz held the trial
court properly permitted the prosecution to introduce evidence that the defendant and the
third party were members of the same gang and likely knew each other, because the
evidence was relevant for impeachment and bias. (Id. at pp. 240-243.)
       As relevant to the charges in this case, “to entirely eliminate the gang evidence
would have required a severance ... of the street terrorism count and the bifurcation of the
gang enhancements.” (Burnell, supra, 132 Cal.App.4th at p 947.) Defendants failed to
carry their burden to clearly establish that there was a substantial danger of prejudice
requiring that the charges be separately tried for severance. The gang evidence was
cross-admissible as to aiding and abetting, identity, and bias of the witnesses. The
substantive gang charge required much the same evidence to prove, and was no more
potentially inflammatory than the other charges, such that severance would not have been
appropriate. (See, e.g., Hernandez, supra, 33 Cal.4th at p. 1051.) In addition, the jury
was correctly instructed on the limited purpose of gang evidence, including the limited
admissibility of the two videos. (CALCRIM NO. 1403.) We presume the jury followed
the instructions. (Cf. Hernandez, supra, 33 Cal.4th at pp. 1052-1053.)
       E. Due process
       Finally, Thompson argues the denial of his motions for bifurcation and/or
severance violated his due process right to a fair trial on the robbery charges, because of
the alleged “gross unfairness” that resulted from the introduction of the gang evidence in

                                             31.
this case. Thompson’s argument is based on People v. Albarran (2007) 149 Cal.App.4th
214 (Albarran), which held:

               “To prove a deprivation of federal due process rights, [the
       defendant] must satisfy a high constitutional standard to show that the
       erroneous admission of evidence resulted in an unfair trial. ‘Only if there
       are no permissible inferences the jury may draw from the evidence can its
       admission violate due process. Even then, the evidence must “be of such
       quality as necessarily prevents a fair trial.” [Citation.] Only under such
       circumstances can it be inferred that the jury must have used the evidence
       for an improper purpose.’ [Citation.] ‘The dispositive issue is ... whether
       the trial court committed an error which rendered the trial “so ‘arbitrary and
       fundamentally unfair’ that it violated federal due process.” [Citations.]’
       [Citation.]” (Id. at pp. 229-230, fn. omitted.)
       However, Albarran dealt with a factual scenario that was different from this case.
In Albarran, the defendant was charged with multiple offenses based on his participation
in a shooting at the victim’s home. He was not charged with the gang substantive
offense, but gang enhancements were alleged. The trial court permitted the prosecution
to introduce gang evidence to prove the defendant’s motive and intent. The jury
convicted the defendant of the substantive offenses and found the gang enhancements
were true. Thereafter, the trial court granted defendant’s posttrial motion and dismissed
the gang allegations for insufficient evidence. (Albarran, supra, 149 Cal.App.4th at pp.
217-222.)
       Albarran held that while the trial court may have initially found that the
defendant’s gang activities were relevant and probative to his motive and intent, the court
abused its discretion when it permitted the prosecution to introduce additional gang
evidence that was irrelevant to the defendant’s motive or the substantive criminal
charges. (Albarran, supra, 149 Cal.App.4th at p. 217.) The irrelevant evidence included
other gang members’ threats to kill police officers, and references to the Mexican Mafia
prison gang. Albarran characterized the irrelevant gang evidence as “overkill,” (id. at
p. 228, fn. omitted) and “extremely and uniquely inflammatory, such that the prejudice


                                            32.
arising from the jury’s exposure to it could only have served to cloud their resolution of
the issues.” (Id. at p. 230, fn. omitted.) Albarran found the gang evidence was so
inflammatory that it “had no legitimate purpose in this trial,” and held admission of that
evidence violated defendant’s due process rights. (Id. at pp. 230-231.)
       In contrast to Albarran, the instant case is not “one of those rare and unusual
occasions where the admission of evidence has violated federal due process and rendered
the defendant’s trial fundamentally unfair.” (Albarran, supra, 149 Cal.App.4th at p.
232.) The defendants in this case were charged with both the gang substantive offense
and enhancements. The trial court did not grant a posttrial motion to dismiss either count
IV or the enhancements. As we have explained, the jury was properly instructed on the
limited admissibility of the gang evidence. As we will also explain in issues II and III,
post, the jury’s findings on the gang substantive offense and enhancements are supported
by substantial evidence.
       More importantly, Officer Flowers’s expert testimony regarding the criminal
activities of the Playboyz was not similar to the sensational and prejudicial testimony
admitted in Albarran. While Flowers addressed predicate offenses committed by other
members of the Playboyz, his testimony was limited to the essential facts which the
prosecution was required to prove for the elements of both the gang substantive offense
and the enhancements. The gang evidence in this case was no more sensational than the
evidence as to the three Craigslist armed robberies committed against the victims in this
case. The court did not abuse its discretion when it denied bifurcation and severance of
the gang allegations, and the admission of the gang evidence did not violate defendant's
due process rights.
II. Substantial evidence of “primary activities”
       Thompson and Williams contend there is insufficient evidence to support the
“primary activities” element of count IV, the gang substantive offense (§ 186.22, subd.
(a)), and the gang enhancements found true for counts I and II, the Gaynor and Franco

                                            33.
robberies (§ 186.22, subd. (b)(1)). Defendants acknowledge that Officer Flowers
testified that robberies were the primary activities of the Playboyz, but they argue
Flowers’s testimony was insufficient because he merely referred to police reports as the
basis for his opinion, and he failed to offer specific testimony about the nature of these
alleged robberies.
       A. Substantial evidence
       “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses evidence that is
reasonable, credible, and of solid value such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.) The same substantial evidence standard applies when reviewing a
jury’s true finding on gang enhancements. (People v. Albillar (2010) 51 Cal.4th 47, 59-
60 (Albillar).)
       B. Primary activities
       To establish that a group is a criminal street gang within the meaning of section
186.22, for purposes of both the gang substantive offense and the gang enhancement, “the
People must prove: (1) the group is an ongoing association of three or more persons
sharing a common name, identifying sign, or symbol; (2) one of the group’s primary
activities is the commission of one or more statutorily enumerated criminal offenses; and
(3) the group’s members must engage in, or have engaged in, a pattern of criminal gang
activity. [Citations.]” (People v. Duran (2002) 97 Cal.App.4th 1448, 1457, italics added;
People v. Vy (2004) 122 Cal.App.4th 1209, 1221-1222; § 186.22, subd. (f).)
       “The phrase ‘primary activities,’ as used in the gang statute, implies that the
commission of one or more of the statutorily enumerated crimes is one of the group’s
‘chief’ or ‘principal’ occupations,” as opposed to the “occasional commission of those

                                             34.
crimes by [one or more of] the group’s members.” (People v. Sengpadychith (2001) 26
Cal.4th 316, 323 (Sengpadychith.) “Sufficient proof of the gang’s primary activities
might consist of evidence that the group’s members consistently and repeatedly have
committed criminal activity listed in the gang statute,” and may be accomplished through
expert testimony. (Id. at p. 324, original italics.)
       The enumerated criminal acts which consist of the “primary activities” include
unlawful homicide, manslaughter, assault with a deadly weapon or by means of force
likely to produce great bodily injury, burglary, robbery, narcotics offenses, shooting at an
inhabited dwelling or motor vehicle, discharging a firearm from a motor vehicle, felony
vandalism, and grand theft. (§ 186.22, subd. (e).)
       To make the required showing of primary activities, the prosecution may rely on
evidence of the presently charged crimes, past offenses, and evidence of crimes
committed by other gang members. (Sengpadychith, supra, 26 Cal.4th at pp. 323-324;
People v. Gardeley (1996) 14 Cal.4th 605, 617 (Gardeley); Duran, supra, 97 Cal.App.4th
at p. 1465.)

       “Evidence of past or present conduct by gang members involving the
       commission of one or more of the statutorily enumerated crimes is relevant
       in determining the group’s primary activities. Both past and present
       offenses have some tendency in reason to show the group’s primary activity
       [citation] and therefore fall within the general rule of admissibility
       [citation].” (Sengpadychith, supra, 26 Cal.4th at p. 323.)
       The primary activities element may also be established through expert testimony
regarding the gang’s activities. (Sengpadychith, supra, 26 Cal.4th at p. 324; Gardeley,
supra, 14 Cal.4th at p. 617; People v. Vy, supra, 122 Cal.App.4th at p. 1226) “The
testimony of a gang expert, founded on his or her conversations with gang members,
personal investigation of crimes committed by gang members, and information obtained
from colleagues in his or her own and other law enforcement agencies, may be sufficient
to prove a gang’s primary activities. [Citations.]” (Duran, supra, 97 Cal.App.4th at p.



                                              35.
1465; People v. Killebrew (2002) 103 Cal.App.4th 644, 657, disapproved on other
grounds in People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3.)
       For example, the California Supreme Court has explained that the primary
activities element might be satisfied by expert testimony of the type found in Gardeley,
supra, 14 Cal.4th 605, where a police gang expert testified that the defendant’s gang
“was primarily engaged in the sale of narcotics and witness intimidation, both statutorily
enumerated felonies. [Citation.]” (Sengpadychith, supra, 26 Cal.4th at p. 324.)
       Similarly, Duran held there was substantial evidence that one of the gang’s
primary activities was the commission of one or more of the statutorily enumerated
offenses because the gang expert’s “testimony supported a jury finding that members of
the [gang] were engaged in more than the occasional sale of narcotics, robbery, or
assault. [The gang expert] testified that the [gang] members engaged in these activities
‘often,’ indeed often enough to obtain ‘control’ of the narcotics trade in a certain area of
Los Angeles. Evidence of the [charged] robbery and [a gang member’s prior] conviction
[for felony possession of cocaine base for sale] further corroborated [the expert’s]
testimony, providing specific examples of [gang] members’ commission of robbery and
narcotics offenses.” (Duran, supra, 97 Cal.App.4th at p. 1465.)
       C. Analysis
       There is substantial evidence to support the primary activities element of the gang
allegations in this case based on Officer Flowers’s testimony. It is well settled that expert
testimony about gang culture and habits is the type of evidence a jury may rely on to
reach a verdict on a gang-related offense or a finding on a gang allegation. (Gardeley,
supra, 14 Cal.4th at p. 617; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) “Expert
testimony may be founded on material that is not admitted into evidence and on evidence
that is ordinarily inadmissible, such as hearsay, as long as the material is reliable and of a
type reasonably relied upon by experts in the particular field in forming opinions.
[Citation.] Thus, a gang expert may rely upon conversations with gang members, his or

                                             36.
her personal investigations of gang-related crimes, and information obtained from
colleagues and other law enforcement agencies. [Citations.]” (Duran, supra, 97
Cal.App.4th at pp. 1463-1464.)
       Officer Flowers testified that he was familiar with the Playboyz because he had
validated the gang’s existence, he had spoken to members of the gang, he was familiar
with the gang’s activities, and he reviewed numerous police reports about the gang’s
activities. Based on his extensive background and experience, he testified to his opinion
that the primary activity of the Playboyz gang was robbery. Flowers’s opinion was based
on his review of approximately 12 police reports involving incidents where members of
the Playboyz committed robberies, from 2006 to 2009. Flowers testified the gang had
“the pattern, again the consistency of violating Penal Code [section] 211.” Flowers
testified he had also investigated homicides, shootings, and firearm cases which involved
members of that gang.
       Thompson and Williams argue Officer Flower’s testimony was insufficient to
establish the gang’s primary activities, based on the holding in In re Alexander L. (2007)
149 Cal.App.4th 605 (Alexander L.).) In that case, the court held the gang expert’s
testimony lacked foundation and was insufficient to support the primary activities
element. The officer testified only about general offenses committed by the gang, and
about a predicate offense in which the alleged gang member was actually acquitted of the
gang allegation. The officer failed to explain how he knew about the offenses. (Id. at
pp. 611-612.) On cross-examination, the officer conceded that the vast majority of cases
related to the gang involved graffiti, and he failed to specify whether the incidents
involved misdemeanor or felony vandalism. (Ibid.) Alexander L. held that since
“information establishing reliability was never elicited from [the expert] at trial,” it was
“impossible to tell whether his claimed knowledge of the gang’s activities might have
been based on highly reliable sources, such as court records of convictions, or entirely
unreliable hearsay.” (Id. at p. 612, fn. omitted.)

                                             37.
       As explained in People v. Martinez (2008) 158 Cal.App.4th 1324 (Martinez), the
gang expert in Alexander L. “never specifically testified about the primary activities of
the gang. He merely stated ‘he “kn[e]w” that the gang had been involved in certain
crimes.... He did not directly testify that criminal activities constituted [the gang’s]
primary activities.’ [Citation.]” (Martinez, supra, 158 Cal.App.4th at p. 1330.) The
court in Martinez contrasted the gang expert’s testimony in that case with the insufficient
foundational testimony in Alexander L.: “[In Martinez ], on the other hand, [the gang
expert] had both training and experience as a gang expert. He specifically testified as to
[the gang’s] primary activity. His eight years dealing with the gang, including
investigations and personal conversations with members, and reviews of reports suffices
to establish the foundation for his testimony. [Citation.]” (Martinez, supra, 158
Cal.App.4th at p. 1330; see also People v. Margarejo (2008) 162 Cal.App.4th 102, 107-
108 [distinguishing Alexander L.].)
       In this case, Officer Flowers’s testimony provided substantial evidence about the
primary activities of the Playboyz. Flowers established the foundation for his testimony,
he did not equivocate about the basis for his opinions, and he did not contradict himself
about his opinions on the activities of the Playboyz. In contrast, the expert in Alexander
L. failed to establish the foundation for his testimony, failed to testify the crimes he cited
constituted the gang’s primary activities, equivocated on direct examination, and
contradicted himself on cross-examination. Flowers’s testimony did not suffer from
these foundational defects. (Cf. Alexander L., supra, 149 Cal.App.4th at pp. 611-612.)
Flowers had a sufficient foundation for his opinions based on his own interactions with
members of the Playboyz, his personal investigation into the gang’s activities, his
conversations with other law enforcement officers, and his review of law enforcement
reports about the Playboyz.




                                             38.
III.   Substantial evidence to support gang enhancements
       Thompson contends there is insufficient evidence to support the gang
enhancements found true as to counts I and II, whether the robberies of Gaynor and
Franco were “committed for the benefit of, at the direction of, or in association with any
criminal street gang, with the specific intent to promote, further, or assist in any criminal
conduct by gang members ....” (§ 186.22, subd. (b)(1).) Thompson argues the Franco
and Gaynor robberies were committed for his personal benefit, and there was no evidence
any of the robbery suspects wore gang attire or colors, flashed gang signs, or made any
remarks regarding the alleged “Playboyz” gang when the robberies were committed.
       A. Elements of the gang enhancement
       To establish a gang enhancement, the prosecution must prove two elements: (1)
that the crime was “committed for the benefit of, at the direction of, or in association with
any criminal street gang,” and (2) that the defendant had “the specific intent to promote,
further, or assist in any criminal conduct by gang members ....” (§ 186.22, subd. (b)(1),
italics added.)
       As to the first element, “[n]ot every crime committed by gang members is related
to a gang.” (Albillar, supra, 51 Cal.4th at p. 60.) However, the gang-related requirement
for the enhancement may be shown by evidence indicating that several defendants “came
together as gang members” to commit the offense, or that the offense could benefit the
gang by elevating the gang’s or gang members’ status or advancing the gang’s activities.
(Albillar, supra, 51 Cal.4th at pp. 62-63, original italics; see Gardeley, supra, 14 Cal.4th
at p. 619.) If the evidence is sufficient to establish the crime was committed “in
association” with a gang, the prosecution need not prove that it was committed for the
benefit of or at the direction of a gang. (People v. Morales (2003) 112 Cal.App.4th 1176,
1198 (Morales).)
       As for the second element of specific intent, it does not require “that the defendant
act with the specific intent to promote, further, or assist a gang; the statute requires only

                                             39.
the specific intent to promote, further, or assist criminal conduct by gang members.”
(Albillar, supra, 51 Cal.4th at p. 67, original italics.) “[S]pecific intent to benefit the
gang is not required.” (Morales, supra, 112 Cal.App.4th at p. 1198, original italics.) The
specific intent element “applies to any criminal conduct, without a further requirement
that the conduct be ‘apart from’ the criminal conduct underlying the offense of conviction
sought to be enhanced.” (Albillar, supra, 51 Cal.4th at p. 66, original italics.) The
scienter requirement is “the specific intent to promote, further, or assist in any criminal
conduct by gang members – including the current offenses – and not merely other
criminal conduct by gang members.” (Albillar, supra, 51 Cal.4th at p. 65, original
italics.)
        “[I]f substantial evidence establishes that the defendant intended to and did
commit the charged felony with known members of a gang, the jury may fairly infer that
the defendant had the specific intent to promote, further, or assist criminal conduct by
those gang members.” (Albillar, supra, 51 Cal.4th at p. 68.) “Commission of a crime in
concert with known gang members is substantial evidence which supports the inference
that the defendant acted with the specific intent to promote, further or assist gang
members in the commission of the crime. [Citation.]” (People v. Villalobos (2006) 145
Cal.App.4th 310, 322.)
        The prosecution’s gang expert may testify about whether the defendant acted for
the benefit of, at the direction of, or in association with a gang, even though it is an
ultimate factual issue for the jury to decide, because these are matters far beyond the
common experience of the jury. (People v. Valdez, supra, 58 Cal.App.4th at pp 508-
509.)
        “A gang expert[’s] testimony alone is insufficient to find an offense gang related.
[Citation.] ‘[T]he record must provide some evidentiary support, other than merely the
defendant’s record of prior offenses and past gang activities or personal affiliations, for a
finding that the crime was committed for the benefit of, at the direction of, or in

                                              40.
association with a criminal street gang.’ [Citation.]” (People v. Ochoa (2009) 179
Cal.App.4th 650, 657.)
       B. Commission of crimes “in association with” a criminal street gang
       Thompson argues there is no evidence he committed the robberies to “benefit” the
Playboyz. However, several cases have found substantial evidence to support gang
enhancements where gang members commit offenses “in association” with fellow gang
members within the meaning of section 186.22, subdivision (b)(1).
       For example, in Morales, supra, 112 Cal.App.4th 1176, the defendant and two
fellow gang members committed a robbery and other offenses, and the jury found the
gang allegations true. The prosecution’s gang expert testified that, based on a
hypothetical, the crimes were committed in association with a criminal street gang
because “they involved three gang members acting in association with each other. The
gang provided ‘a ready-made manpower pool....’ That is, one gang member would
choose to commit a crime in association with other gang members because he could
count on their loyalty. They would ‘watch his back....’ In addition, the very presence of
multiple gang members would be intimidating. The crime would benefit the individual
gang members with notoriety among the gang, and the gang with notoriety among rival
gang members and the general public.” (Id. at p. 1197.)
       Morales rejected the defendant’s argument that there was insufficient evidence
that he committed the offenses to benefit his gang, and instead noted the gang expert’s
focus was on “a crime committed, not just by a gang member, but by several gang
members, acting in association with each other. Also, [the expert] did not testify that
such a crime necessarily would benefit the gang, merely that it would be committed
either for the benefit of, or at the direction of, or in association with the gang.” (Morales,
supra, 112 Cal.App.4th at p. 1197, original italics.)

            “Defendant argues that reliance on evidence that one gang member
       committed a crime in association with other gang members is ‘circular....’


                                             41.
       Not so. Arguably, such evidence alone would be insufficient, even when
       supported by expert opinion, to show that a crime was committed for the
       benefit of a gang. The crucial element, however, requires that the crime be
       committed (1) for the benefit of, (2) at the direction of, or (3) in association
       with a gang. Thus, the typical close case is one in which one gang member,
       acting alone, commits a crime. Admittedly, it is conceivable that several
       gang members could commit a crime together, yet be on a frolic and detour
       unrelated to the gang. Here, however, there was no evidence of this. Thus,
       the jury could reasonably infer the requisite association from the very fact
       that defendant committed the charged crimes in association with fellow
       gang members.

               “If defendant is arguing that there was insufficient evidence of the
       specific intent element (as opposed to the benefit/direction/association
       element), we disagree. Again, specific intent to benefit the gang is not
       required. What is required is the ‘specific intent to promote, further, or
       assist in any criminal conduct by gang members....’ Here, there was
       evidence that defendant intended to commit robberies, that he intended to
       commit them in association with [his fellow gang members], and that he
       knew that [they] were members of his gang. Moreover,... there was
       sufficient evidence that defendant intended to aid and abet the robberies
       [his fellow gang members] actually committed. It was fairly inferable that
       he intended to assist criminal conduct by his fellow gang members.”
       (Morales, supra, 112 Cal.App.4th at p. 1198, original italics.)28
       In People v. Romero (2006) 140 Cal.App.4th 15, the defendant drove fellow gang
members to the site of a drive-by shooting, and the court found the gang enhancements
were supported by substantial evidence because the defendant committed the offenses in
association with fellow gang members. “There was ample evidence that [defendant]
intended to commit a crime, that he intended to help [his accomplice] commit a crime,
and that he knew [his accomplice] was a member of his gang. This evidence creates a
reasonable inference that [defendant] possessed the specific intent to further [his
accomplice’s] criminal conduct.” (Id. at p. 20.)


       28 Cf. People v. Rodriguez (2012) 55 Cal.4th 1125, 1145 [gang member who
commits a felony but acts alone does not violate section 186.22, subdivision (a), active
participation in a criminal street gang].)



                                             42.
       A similar result was reached in People v. Martinez, supra, 158 Cal.App.4th 1324,
where the defendant admitted membership in a criminal street gang, and he committed
robberies with another admitted member of that gang. The defendant argued there was
insufficient evidence to support the gang enhancement because his accomplice was also
his brother-in-law, and they committed the offenses for their own personal benefit. (Id. at
pp. 1332-1333.) Martinez rejected the argument and noted the gang expert testified “this
evidence showed defendant committed the robbery in association with the gang. The
elements of the gang enhancement may be proven by expert testimony. [Citation.] Nor
does it matter that defendant did not commit the crime on or live in gang turf or that [the
gang expert] had never heard of defendant or [his accomplice]. Defendant did not even
need to be an ‘ “active” ’ or ‘“current, active” ’ gang member. [Citation.]” (Id. at
p. 1332, italics added.) “Here defendant, an admitted gang member sporting gang tattoos,
actually committed the robbery with a gang confederate. That he was not in his gang’s
territory, by itself, does not necessarily overcome the other supporting evidence.” (Id. at
p. 1333.)
       In People v. Leon (2008) 161 Cal.App.4th 149 (Leon), the defendant and an
accomplice were members of the same gang, and they stole a car and threatened an
eyewitness. The defendant argued there was insufficient evidence that he committed the
offenses for the benefit of his gang. Leon relied on Morales and Romero, and rejected
this argument because “a ‘specific intent to benefit the gang is not required.’ [Citation.]”
(Leon, supra, at p. 163.) Leon held there was substantial evidence that the defendant
committed the offenses in association with a fellow gang member. There was also
evidence of the defendant’s specific intent because he intended to commit the offenses,
he intended to do so in association with his accomplice, and he knew his accomplice was
a member of his gang. (Ibid.)




                                            43.
       C. Analysis
       Thompson argues there is insufficient evidence the Gaynor and Franco robberies
were gang related, based on several cases which affirmed gang enhancements in
situations where gang members committed particular offenses for the benefit of their
particular criminal street gangs because they were claiming gang turf, selling drugs on
that turf, shouting gang names, and/or seeking to instill fear in the area. (See, e.g.,
Albarran, supra, 149 Cal.App.4th at pp. 220-221; In re Frank S. (2006) 141 Cal.App.4th
1192, 1197-1199; People v. Ferraez (2003) 112 Cal.App.4th 925, 928; People v. Ochoa,
supra, 179 Cal.App.4th 650, 661-664.)
       Thompson’s reliance on these cases is misplaced. In this case, as in Morales,
Martinez, and Leon, there is substantial evidence to support the gang enhancements
because each defendant, an active member of the Playboyz criminal street gang,
committed the Franco and Gaynor robberies “in association with” two other active
members of the Playboyz. The defendants acted in concert with each other. Williams
placed the telephone call, pretending to be interested in the sales item, and lured the
victims to secluded or dark areas to conduct the transaction. Williams approached the
victim at the designated location, and again stated his intent to look at the item.
Thompson and Easter arrived, and took turns as the gunman. The three defendants
arrived and fled together, taking the victims’ property. The videos on Williams’s cell
phone demonstrated that each defendant knew that the other defendants claimed
membership in the Playboyz. There was thus overwhelming evidence that defendants
knew their associates were gang members, they each intended to commit the robberies in
association with the others, and the stolen property from all the robberies were found in
the apartment of Thompson’s grandmother, where Thompson and Williams were arrested
shortly after the Gaynor robbery. We conclude that the jury’s true findings on the gang
enhancements in this case are supported by substantial evidence.



                                             44.
       D. Albillar
       Defendant Thompson further argues that gang connection in this case was
“incidental” to the Gaynor and Franco robberies because he committed the crimes for
personal reasons, and he “sought back up from family” who happened to be members of
the Playboyz. Defendant Thompson asserts his “position is somewhat borne out” by
Albillar, supra, 51 Cal.4th 47, where the California Supreme Court addressed a
substantial evidence challenge to the gang enhancements found true as to defendants’
sexual assault convictions in that case. The defendants in Albillar argued the sexual
assaults were not “gang-related” because the defendants were related to each other, they
lived together, and it was conceivable that “ ‘several gang members could commit a
crime together, yet be on a frolic and detour unrelated to the gang.’ [Citation.]” (Id. at
pp. 59-60, 62.)
       Albillar rejected defendants’ arguments and found there was substantial evidence
to support the gang enhancements for two reasons: the offenses were committed in
association with gang members, and the offenses were committed for the benefit of the
gang. (Albillar, supra, 51 Cal.4th at p. 60.) “The record supported a finding that [the]
defendants relied on their common gang membership and the apparatus of the gang in
committing the sex offenses against [the victim].” (Ibid.) In particular, the court cited
expert testimony about how gang members earn respect and status by committing crimes
with other members, and that gang members choose to commit crimes together in order
to increase their chances of success and to provide training for younger members. (Id. at
pp. 60-61.)
       Albillar concluded that defendants’ conduct, where each participant assisted the
others without a word being spoken, and each could rely on the silence of the others and
group intimidation of the victim, “exceeded that which was necessary to establish that the
offenses were committed in concert.” (Albillar, supra, 51 Cal.4th at p. 61.)



                                            45.
       “Defendants not only actively assisted each other in committing these
       crimes, but their common gang membership ensured that they could rely on
       each other’s cooperation in committing these crimes and that they would
       benefit from committing them together. They relied on the gang’s internal
       code to ensure that none of them would cooperate with the police and on
       the gang’s reputation to ensure that the victim did not contact the police.”
       (Id. at pp. 61-62.)
       Albillar also found substantial evidence the crimes were committed to benefit the
gang. (Albillar, supra, 51 Cal.4th at p. 63.) The court cited the gang expert’s testimony,
that “ ‘[w]hen three gang members go out and commit a violent brutal attack on a victim,
that’s elevating their individual status, and they’re receiving a benefit. They’re putting
notches in their reputation. When these members are doing that, the overall entity
benefits and strengthens as a result of it.’ Reports of such conduct ‘rais[e] the[ ] level of
fear and intimidation in the community.’ ” (Ibid.) Albillar explained:

       “Expert opinion that particular criminal conduct benefited a gang by
       enhancing its reputation for viciousness can be sufficient to raise the
       inference that the conduct was ‘committed for the benefit of ... a[ ] criminal
       street gang’ within the meaning of section 186.22[, subd.] (b)(1).” (Ibid.)
       Thompson asserts Albillar supports his evidentiary challenge to the gang
enhancements in this case based on several factors: there were strong family ties between
Williams, Easter, and Thompson, these ties prompted the family to “work together,” the
robberies were committed solely for Thompson’s personal benefit to pay his rent and not
for any gang, and Officer Flowers did not offer expert testimony similar to the expert
who testified in Albillar, that defendants committed the robberies to intimidate others,
and enhance their reputation and status in the gang.
       Thompson presented similar arguments to the jury, when he testified that he
committed the robberies because he needed the money to pay his rent, and he did not
intend to benefit any gang. These arguments were completely dependent on the jury’s
determination of Thompson’s credibility, and the verdicts and findings in this case infer
the jury rejected Thompson’s veracity.


                                             46.
       As acknowledged by Albillar, not every crime committed by gang members is
gang-related for purposes of the enhancement, and the mere fact that gang members
commit a crime together does not mean the crime is gang-related for purposes of section
186.22, subdivision (b). (Albillar, supra, 51 Cal.4th at pp. 60, 62.) As in Albillar,
however, there was substantial evidence to support the gang enhancements in this case
because the three defendants “came together as gang members to [rob the victims] and,
thus … they committed [the substantive offenses] in association with the gang.” (Id. at
p. 62, original italics.)
       Thus, as to the first element of the enhancement, defendants Williams, Thompson
and Easter came together to commit a series of robberies in association with each other,
the “bathroom” video demonstrated their knowledge of each other’s affiliation, and they
committed offenses which Officer Flowers identified as the primary activity of the
Playboyz. As to the second element of the enhancement, there was evidence the
defendants intended to, and did commit, the robberies with known members of a gang,
and the jury could have fairly inferred that defendants had “the specific intent to promote,
further, or assist criminal conduct by those gang members.” (Albillar, supra, 51 Cal.4th
at p. 68.)29
IV.    Substantial evidence to support Williams’s conviction for Gaynor robbery
       Defendant Williams contends there is insufficient evidence to support his
conviction in count I, the robbery of Gaynor. Williams argues that his involvement was
limited to holding Gaynor’s Blackberry cell phone while they were standing in the
Walgreens parking lot, and then running away with it. Williams argues he cannot be
guilty of robbery because he ran away with the cell phone without using any force or fear


       29Given our finding that the gang enhancement is supported by substantial
evidence, we need not address defendant Thompson’s further contention that the related
firearm enhancement could not be imposed under section 12022.53, subdivision (e).



                                            47.
against Gaynor. Williams argues the actual robbery occurred later on, when Thompson
pulled the gun on Gaynor, and Williams was not involved in that act.
       A. Robbery
       In order to address Williams’s substantial evidence challenge, we must review the
elements of robbery, and the application of force or fear. “Robbery is the felonious
taking of personal property in the possession of another, from his person or immediate
presence, and against his will, accomplished by means of force or fear.” (§ 211.)
       “Robbery is larceny with the aggravating circumstances that ‘the property is taken
from the person or presence of another’ and ‘is accomplished by the use of force or by
putting the victim in fear of injury.’ [Citation.]” (People v. Anderson (2011) 51 Cal.4th
989, 994.) Robbery is a continuing offense, and all the elements must be satisfied before
the crime is completed. (People v. Gomez (2008) 43 Cal.4th 249, 254 (Gomez).) A
robbery remains in progress and is not complete until the perpetrator has reached a place
of temporary safety. (People v. Wilson (2008) 43 Cal.4th 1, 17; People v. Young (2005)
34 Cal.4th 1149, 1177; People v. Cooper (1991) 53 Cal.3d 1158, 1161 (Cooper).)
       “For robbery, a felonious taking requires both a taking (caption) and a carrying
away (asportation). [Citation.] It is sufficient if either the caption or the asportation is
accomplished through force or fear. [Citation.]” (People v. Alvarado (1999) 76
Cal.App.4th 156, 161, disapproved on other grounds in People v. Lopez (2003) 31
Cal.4th 1051, 1056.) “[A] taking is not over at the moment of caption; it continues
through asportation. [A] robbery can be accomplished even if the property was
peacefully or duplicitously acquired, if force or fear was used to carry it away.” (Gomez,
supra, 43 Cal.4th at p. 256.) “[A]sportation is not confined to a fixed point in time. The
asportation continues thereafter as long as the loot is being carried away to a place of
temporary safety.” (Cooper, supra, 53 Cal.3d at p. 1165, fn. omitted.)
       Even if property is initially taken without use of force or fear, the crime may
become a robbery if force or fear is used to hold onto the property while it is being

                                              48.
carried away. (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8.) “[M]ere theft becomes
robbery if the perpetrator, having gained possession of the property without use of force
or fear, resorts to force or fear while carrying away the loot.” (Ibid., italics added.) “If
the aggravating factors are in play at any time during the period from caption through
asportation, the defendant has engaged in conduct that elevates the crimes from simple
larceny to robbery.” (Gomez, supra, 43 Cal.4th at p. 258.)
       “In California, ‘[t]he crime of robbery is a continuing offense that begins from the
time of the original taking until the robber reaches a place of relative safety.’ [Citation.]
It thus is robbery when the property was peacefully acquired, but force or fear was used
to carry it away. [Citation.]” (People v. Anderson, supra, 51 Cal.4th at p. 994.) The
“force or fear” and “immediate presence” elements may occur at any point during which
the property is being carried to a place of temporary safety, as the crime has not yet
concluded while it is being carried away. (Gomez, supra, 43 Cal.4th at p. 257.)
       The scene of a robbery is not a place of temporary safety. (People v. Young,
supra, 34 Cal.4th at p. 1177.) “Evidence may support the conclusion that no place of
temporary safety has been reached while the robber is still encumbered with the victim,
‘who at first opportunity might call the police.’ [Citations.]” (People v. Barnett (1998)
17 Cal.4th 1044, 1153.) “ ‘When the perpetrator and victim remain in close proximity, a
reasonable assumption is that, if not prevented from doing so, the victim will attempt to
reclaim his or her property.’ [Citation.]” (Gomez, supra, 43 Cal.4th at p. 264.)
Regardless of whether the victim gives chase, however, the perpetrator of a robbery has
not reached a place of temporary safety while still in flight. (People v. Johnson (1992) 5
Cal.App.4th 552, 559.)
       “Robbery is not confined to a fixed location, but may be spread over a
considerable distance and varying periods of time. [Citations.]” (People v. Johnson,
supra, 5 Cal.App.4th at pp. 561-562.) “[N]o artificial parsing is required as to the precise
moment or order in which the elements are satisfied.” (Gomez, supra, 43 Cal.4th at

                                             49.
p. 254.) “Defendant’s guilt is not to be weighed at each step of the robbery as it unfolds.
The events constituting the crime of robbery, although they may extend over large
distances and take some time to complete, are linked by a single-mindedness of purpose.
[Citation.]” (People v. Estes (1983) 147 Cal.App.3d 23, 28.)
       Whether a robber has reached a place of temporary safety is a question of fact for
the jury. (People v. Carter (1993) 19 Cal.App.4th 1236, 1251.) An objective standard is
used to determine whether “a robber had actually reached a place of temporary safety, not
whether the defendant thought that he or she had reached such a location.” (People v.
Johnson, supra, 5 Cal.App.4th at p. 560.)
       B. Aiding and abetting
       It is undisputed that Williams was not the gunman during the Gaynor robbery, and
he was convicted as an aider and abettor. “A person aids and abets the commission of a
crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii)
and with the intent or purpose of committing, facilitating or encouraging commission of
the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission
of the crime. [Citation.]” (Cooper, supra, 53 Cal.3d at p. 1164.) The prosecution must
show that the defendant “intended to facilitate or encourage the principal offense prior to
or during its commission.” (Id. at p. 1160.)
       “[T]he commission of a robbery for purposes of determining aider and abettor
liability continues until all acts constituting the robbery have ceased. The asportation, the
final element of the offense of robbery, continues so long as the stolen property is being
carried away to a place of temporary safety. Accordingly, in order to be held liable as an
aider and abettor, the requisite intent to aid and abet must be formed before or during
such carrying away of the loot to a place of temporary safety.” (Cooper, supra, 53
Cal.4th at p. 1161, original italics; Gomez, supra, 43 Cal.4th at p. 256.)




                                             50.
       C. Analysis
       Defendant Williams contends his conviction in count I for the robbery of Gaynor
must be reversed because he did not use force or fear to take the Blackberry from
Gaynor. Williams argues that at most, he committed a larceny in the Walgreens parking
lot when he asked to look at the Blackberry, Gaynor handed it to him, and Williams ran
away with the cell phone. Williams argues that he cannot be culpable for Thompson’s
subsequent act of pulling a gun on Gaynor and taking property from his pockets.
       However, the entirety of the record provides substantial evidence to support
Williams’s conviction as an aider and abettor. At trial, Thompson testified that Williams
made the telephone calls to set up the robbery of Gaynor. Gaynor testified that Williams
kept changing the time and meeting location. Williams used the same tactic when he
contacted Franco and Flechsing – he repeatedly changed the time and location for their
meeting, and lured the victims into relatively isolated areas for the actual robberies. With
Gaynor, the meeting was ultimately set for 9:00 p.m. in the Walgreens parking lot.
       When defendants met Gaynor in the parking lot, they arrived together and
Williams asked Gaynor about the Blackberry. Gaynor handed it to Williams so he could
look at it. Williams asked if the cell phone could hold a charge. Gaynor suggested they
walk to Walgreens to test the power plug. Gaynor testified that he started to walk toward
the store with the three defendants, and Williams suddenly ran away with the Blackberry.
The record clearly suggests the reason – Williams and his companions did not want to be
in the more populated area of the store as compared to the parking lot.
       Williams asserts that he completed the crime of larceny at this point. However,
the record suggests that his conduct was likely the result of Gaynor’s decision to walk
into the store. Easter and Thompson ran after Williams, Gaynor chased them to the
apartment complex, and Thompson pulled his gun on Gaynor and demanded all his
property. After emptying Gaynor’s pockets, the three defendants ran away.



                                            51.
       As explained ante, “mere theft becomes robbery if the perpetrator, having gained
possession of the property without use of force or fear, resorts to force or fear while
carrying away the loot.” (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8.) “If the aggravating
factors are in play at any time during the period from caption through asportation, the
defendant has engaged in conduct that elevates the crimes from simple larceny to
robbery.” (Gomez, supra, 43 Cal.4th at p. 258.) Williams, Easter, and Thompson did not
want to confront Gaynor at Walgreens. The record strongly suggests that they ran so they
could lure Gaynor away from the store. Gaynor told Easter and Thompson that he was
going to follow them, and he chased them to the apartment complex. At that point,
Thompson pulled the gun to both prevent Gaynor from continuing to follow them and
possibly reclaim his Blackberry, and to take whatever property was still in Gaynor’s
possession.
       “Evidence may support the conclusion that no place of temporary safety has been
reached while the robber is still encumbered with the victim, ‘who at first opportunity
might call the police.’ [Citation.]” (People v. Barnett, supra, 17 Cal.4th at p. 1153.)
“ ‘When the perpetrator and the victim remain in close proximity, a reasonable
assumption is that, if not prevented from doing so, the victim will attempt to reclaim his
or her property.’ [Citation.]” (Gomez, supra, 43 Cal.4th at p. 264.) While defendants
had reached the apartment gate, that area was not a place of temporary safety since
Gaynor followed them, he was standing directly adjacent to their position, and he was
clearly not inclined to leave. The robbery was not complete when Williams ran away
with the Blackberry, it was still in progress when Gaynor chased the defendants and,
under the circumstances, defendants had not reached a place of temporary safety.
       There was substantial evidence to find that Williams was an aider and abettor
since he set up the initial meeting, kept changing the location, and lured Gaynor out of
the parking lot. Once Gaynor reached the apartment gate, Thompson pulled the gun to
ensure that they kept the stolen Blackberry, Gaynor did not try to recover it, and take the

                                             52.
rest of Gaynor’s property. (See, e.g., People v. Haynes (1998) 61 Cal.App.4th 1282,
1294.)
V.       Robbery instructions
         Defendant Williams raises two related instructional issues regarding his conviction
in count I for the robbery of Gaynor. First, Williams contends the court had a sua sponte
duty to give the unanimity instruction so the jury could agree which act constituted the
robbery of Gaynor – when Williams ran away with Gaynor’s Blackberry, or when
Thompson produced the gun and emptied Gaynor’s pockets. Second, Williams argues
the court should have given the jury a special verdict form, so the jury could have
explained which act it relied upon to find defendants guilty of the robbery of Gaynor.
Both arguments are meritless.
         A. Background
         During the instructional phase, Easter’s attorney asked the court to consider giving
the unanimity instruction. The court said it had considered the issue but decided not to
give the instruction for the Gaynor robbery, because the prosecution had charged a single
crime against the three defendants.

         “It does appear that there were two different contacts between the
         defendants and Mr. Gaynor, allegedly, but we’re not talking about two
         separate instances of the crime of robbery, we’re talking about one that is
         being charged by the People. And I think that is the purpose of [the
         unanimity instruction] is where the People are … alleging two different
         instances which the jury can make a determination. Some may vote one
         way, others may vote another way, and there is no clear showing that the
         jurors were unanimous as to what took place. Now, it is arguable that the
         jurors may conclude that there was a robbery at one location and at another
         location there was not a robbery. That is perfectly clear in the evidence.
         But then again the jurors can also conclude that this was one continuous
         course of conduct from one location to the other which was very close in
         time and proximity and allegedly involved the same individuals. So in the
         Court’s mind, it is not distinct enough for there to be the requirement that
         the Court give the unanimity instruction.”



                                              53.
       Easter’s attorney argued there were two separate acts in the Gaynor incident, and
Easter was present when Williams ran away with the Blackberry and Thompson later
pulled the gun. The court replied there were not “two separate instances of an alleged
robbery.” 30
       B. Unanimity
       “The key to deciding whether to give the unanimity instruction lies in considering
its purpose. The jury must agree on a ‘particular crime’ [citation]; it would be
unacceptable if some jurors believed the defendant guilty of one crime and other jurors
believed [him] guilty of another. But unanimity as to exactly how the crime was
committed is not required. Thus, the unanimity instruction is appropriate ‘when
conviction on a single count could be based on two or more discrete criminal events,’ but
not ‘where multiple theories or acts may form the basis of a guilty verdict on one discrete
criminal event.’ [Citation.] In deciding whether to give the instruction, the trial court
must ask whether (1) there is a risk the jury may divide on two discrete crimes and not
agree on any particular crime, or (2) the evidence merely presents the possibility the jury
may divide, or be uncertain, as to the exact way the defendant is guilty of a single
discrete crime. In the first situation, but not the second, it should give the unanimity
instruction.” (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.)
       When the evidence shows only a single discrete crime “but leaves room for
disagreement as to exactly how that crime was committed, the jury need not unanimously
agree on the theory under which the defendant is guilty. [Citation.]” (People v.
Benavides (2005) 35 Cal.4th 69, 101.) In addition, the unanimity instruction is not
required “if the case falls within the continuous-course-of-conduct exception, which

       30Williams did not join Easter’s request for the unanimity instruction, “but we
may overlook this forfeiture because [Williams] is now arguing that the trial court is
under a sua sponte duty to instruct. [Citation.]” (People v. Quiroz (2013) 215
Cal.App.4th 65, 73.)



                                             54.
arises ‘when the acts are so closely connected in time as to form part of one transaction’
[citation], or ‘when the statute contemplates a continuous course of conduct of a series of
acts over a period of time’ [citation].” (People v. Jennings (2010) 50 Cal.4th 616, 679.)
       C. Analysis
       The unanimity instruction was not required in this case. As explained, ante,
robbery is a continuing offense, and all the elements must be satisfied before the crime is
completed. (Gomez, supra, 43 Cal.4th at p. 254.) “Robbery is not confined to a fixed
location, but may be spread over a considerable distance and varying periods of time.
[Citations.]” (People v. Johnson, supra, 5 Cal.App.4th at pp. 561-562.) “[N]o artificial
parsing is required as to the precise moment or order in which the elements are satisfied.”
(Gomez, supra, 43 Cal.4th at p. 254.) A robbery may fall within the continuous conduct
exception if multiple encounters between the victim and the perpetrator’s are so closely
connected in time. (People v. Haynes, supra, 61 Cal.App.4th at p. 1295.)
       As noted by the trial court, the Gaynor robbery was a continuous course of
conduct which began when Williams ran with the Blackberry and lured Gaynor away
from the parking lot, and continued as Easter and Thompson further induced Gaynor to
follow them, Gaynor chased defendants, and Thompson pulled the gun to stop Gaynor
and take the rest of his property.
       The jury herein was fully and correctly instructed on the elements of robbery as to
all counts, including count I, the robbery of Gaynor. These instructions demonstrated
that the jury could only convict defendants of robbing Gaynor if it found that property
was taken from his immediate presence by force or fear. CALCRIM No. 1600 defined
the elements of the offense, particularly whether the property was taken against the
person’s will, and the defendant used force or fear to take the property or to prevent the
person from resisting. CALCRIM No. 1600 further stated: “The defendant’s intent to
take the property must have been formed before or during the time he used force or fear.



                                            55.
If the defendant did not form this required intent until after using the force or fear, then
he did not commit robbery.”
       The jury received CALCRIM Nos. 400 and 401, which correctly defined the
general elements of aiding and abetting. The jury also received CALCRIM No. 1603:

              “To be guilty of robbery as an aider and abettor, the defendant must
       have formed the intent to aid and abet the commission of the robbery before
       or while a perpetrator carried away the property to a place of temporary
       safety. [¶] A perpetrator has reached a place of temporary safety with the
       property if he or she has successfully escaped from the scene, is no longer
       being pursued, and has unchallenged possession of the property.” (Italics
       added.)
       Based on these instructions, the jury could not have convicted Williams of robbery
simply based on his act of running away with the Blackberry, since it was undisputed that
defendants had not used force, fear, or any type of intimidation to initially take the
Blackberry from Gaynor or prevent Gaynor from following them. The jury was fully
instructed on aiding and abetting, and only could have convicted Williams if it found that
force or fear was used against Gaynor, and Williams formed the intent to aid and abet
before the robbery or while the property was being carried away. Such evidence is
supplied by Thompson’s trial testimony, that Williams placed the calls to Gaynor to set
up the robbery. In addition, the jury was instructed on the lesser offense of theft but
obviously rejected that theory.
       The unanimity instruction was also not required based on the nature of the
prosecutor’s closing argument. The prosecutor asserted the robbery of Gaynor was based
on the entirety of the encounter, which began when Williams ran away with the
Blackberry, and culminated in Thompson’s act of pulling the gun after Gaynor chased
them. The prosecutor never argued that Williams could be guilty of robbery when he ran
away with the cell phone.




                                             56.
       For the same reasons, Williams’s related instructional argument is also meritless.
The court was not required to instruct the jury to return some sort of special verdict to
specify which act constituted the robbery of Gaynor.
VI.    The victims’ identifications of Easter
       As set forth in the factual statement, Gaynor and Franco identified Easter as one of
the robbery suspects after they separately looked at a single photograph which showed
Williams and Easter standing together.
       Easter contends that his defense attorney was prejudicially ineffective for failing
to file a pretrial motion to exclude the victims’ identifications based on that single
photograph. Easter contends the photographic identification process was unduly
suggestive and violated his due process rights because the picture showed Easter with his
hair in dreadlocks and standing next to Williams, who had already been identified as one
of the suspects.
       A. Background
       Easter did not file any pretrial motions to argue that the identifications made by
Gaynor and Franco, from the single photograph which showed Easter and Williams,
violated his due process rights or was the result of unduly suggestive and unreliable
procedures.
       After Easter was convicted, he filed a motion for new trial and argued the court
should have suppressed the identification evidence because the single photographic
show-up was inherently suggestive and unreliable since it showed Easter and Williams
together, the victims never looked at photographic lineups for the third suspect with the
dreadlocks, and Franco did not identify Easter in court.
       The People replied that Easter had waived this issue since he never objected to or
moved to exclude the identification evidence. In the alternative, the People asserted the
identification procedure for Easter was reliable and not suggestive.



                                             57.
       The trial court denied Easter’s motion for new trial and found the identification
procedure for Easter was not unduly suggestive, and it did not cause Easter to “stand
out.” The court believed the victims looked at a photograph which only showed Easter,
and the picture did not show Thompson or Williams.31
       The court held there was nothing in that photograph that suggested Easter stood
out compared to the other live witnesses and photographs that were viewed by the
victims. The victims “described very accurately” Easter’s hairstyle, “even to the point of
the dreadlock hairstyle having red tips.” While there were inaccuracies in Franco’s
description of the suspect’s height and facial hair, Franco immediately identified Easter
from the photograph and said he was the gunman.

       “[C]onsidering all the circumstances under which this identification took
       place, the Court is not satisfied that the … procedure was unduly
       suggestive. It was not. These … victims in the case had the opportunity to
       view others live and in photographs and did not select those individuals.
       They selected the person that they believed based upon … what they went
       through to be the person who was involved.”
       The court also found that both victims received appropriate admonitions before
they looked at the photograph, and the identifications were close in time to the robberies.
       B. Suggestiveness
       We begin with the well-settled principles about pretrial identification procedures,
which violate due process if such procedures are so impermissibly suggestive as to give
rise to a very substantial likelihood of irreparable misidentification. (People v. Sanders
(1990) 51 Cal.3d 471, 508.) “ ‘The issue of constitutional reliability depends on (1)


       31  As we will explain, post, the court’s statement about the nature of the
photograph used to identify Easter conflicts with the trial evidence. Detective Mares
testified that Gaynor and Franco separately identified Easter when they looked at the
photograph identified as exhibit No. 7, which showed both Easter and Williams. When
Gaynor testified, he thought he identified Easter after looking at a photograph which only
showed one person, but agreed that he also looked at exhibit No. 7.


                                            58.
whether the identification procedure was unduly suggestive and unnecessary [citation];
and if so, (2) whether the identification itself was nevertheless reliable under the totality
of the circumstances, taking into account such factors as the opportunity of the witness to
view the criminal at the time of the crime, the witness’s degree of attention, the accuracy
of his prior description of the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the confrontation [citation]. If, and
only if, the answer to the first question is yes and the answer to the second is no, is the
identification constitutionally unreliable.’ [Citation.] In other words, ‘[i]f we find that a
challenged procedure is not impermissibly suggestive, our inquiry into the due process
claim ends.’ [Citation.]” (People v. Ochoa (1998) 19 Cal.4th 353, 412 (Ochoa).)
       “To determine whether a procedure is unduly suggestive, we ask ‘whether
anything caused defendant to “stand out” from the others in a way that would suggest the
witness should select him.’ [Citations.]” (People v. Yeoman (2003) 31 Cal.4th 93, 124.)
“[F]or a witness identification procedure to violate the due process clauses, the state
must, at the threshold, improperly suggest something to the witness – i.e., it must,
wittingly or unwittingly, initiate an unduly suggestive procedure.” (Ochoa, supra, 19
Cal.4th at p. 413.) “A procedure is unfair which suggests in advance of identification by
the witness the identity of the person suspected by the police.” (People v. Slutts (1968)
259 Cal.App.2d 886, 891 [photographic lineup violated due process where child shown
several pictures, but only one had beard drawn on it].)
       The defendant bears the burden of demonstrating that the identification procedure
was suggestive, unreliable, and so unfair that it violated his due process rights. (People v.
DeSantis (1992) 2 Cal.4th 1198, 1222; People v. Sanders, supra, 51 Cal.3d at p 508.)
The defendant must show “unfairness as a demonstrable reality, not just speculation.”
(People v. DeSantis, supra, 2 Cal.4th at p. 1222.) If the defendant raised and preserved
the issue, we independently review the trial court’s ruling that a pretrial identification
procedure was not unduly suggestive. (People v. Avila (2009) 46 Cal.4th 680, 698.)

                                             59.
       C. Single-person photographic identifications
       A single-person photographic show-up is not inherently unfair or impermissibly
suggestive. (Ochoa, supra, 19 Cal.4th at pp. 413, 425-426; People v. Clark (1992) 3
Cal.4th 41, 136, overruled on other grounds in People v. Pearson (2013) 56 Cal.4th 393,
462; People v. Floyd (1970) 1 Cal.3d 694, 714, overruled on other grounds in People v.
Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.) “Showing the witnesses a single photo of
the defendant is no more impermissibly suggestive than an in-court identification with the
defendant personally sitting at the defense counsel table in the courtroom. [Citations.]”
(People v. Yonko (1987) 196 Cal.App.3d 1005, 1008-1009, original italics.)
       However, numerous cases have also “condemned the use of a single photo
identification procedure.” (People v. Contreras (1993) 17 Cal.App.4th 813, 820.) Single
person show-up procedures are considered unfair when they are not neutral, and
unnecessarily suggest to the witness in advance the identity of the person suspected by
the police. (People v. Yeoman, supra, 31 Cal.4th at pp. 123-124; Ochoa, supra, 19
Cal.4th at pp. 412-413; People v. Slutts, supra, 259 Cal.App.2d at p. 891.) We must look
to the totality of the circumstances of the identification procedure. If we find the
challenged procedure is not impermissibly suggestive, the due process claim fails.
(Ochoa, supra, 19 Cal.4th at p. 412.)
       D. Analysis
       Defendant Easter did not file a pretrial motion to challenge the photographic
identification procedure. He filed a posttrial motion for new trial based on the inherent
suggestiveness of the identification procedure, and the trial court denied that motion. On
appeal, however, he has not challenged the court’s denial of his new trial motion.
       Defendant Easter’s failure to file a timely objection to alleged suggestiveness of
the identification procedure results in waiver of that issue. (People v. Cunningham
(2001) 25 Cal.4th 926, 989.) Easter acknowledges this problem and raises the alternate
contention that his defense attorney was prejudicially ineffective for failing to file a

                                             60.
pretrial motion to challenge the single photographic show-up which led to Franco and
Gaynor identifying him as the third robbery suspect.
       “To establish ineffective assistance, defendant bears the burden of showing, first,
that counsel’s performance was deficient, falling below an objective standard of
reasonableness under prevailing professional norms. Second, a defendant must establish
that, absent counsel’s error, it is reasonably probable that the verdict would have been
more favorable to him. [Citations.]” (People v. Hawkins (1995) 10 Cal.4th 920, 940,
overruled on other grounds in People v. Lasko (2000) 23 Cal.4th 101, 110 and People v.
Blakeley (2000) 23 Cal.4th 82, 89.)
       We first note that while Easter’s attorney did not file a pretrial motion to exclude
the identifications, he was not oblivious to this issue. He extensively cross-examined
Detective Mares on how and why he only used a single photograph for the identification
of Easter, and about his failure to use a photographic lineup. When Franco testified,
Easter’s attorney sought to undermine the accuracy of Franco’s identification of Easter,
and Franco became confused as to whether he had identified Thompson and/or Easter.
Finally, Easter’s attorney used closing argument to attack the reliability of the Gaynor
and Franco identifications of Easter based on inconsistencies in Franco’s description of
the third suspect, Franco’s trial confusion, and the use of a photograph with both
Williams and Easter. Easter’s attorney urged the jury to review the instruction about the
factors to evaluate eyewitness identifications, and argued the victims’ identifications of
Easter were not reliable and should be rejected. The jury was fully and correctly
instructed by CALCRIM No. 315 on the factors to evaluate eyewitness identification
testimony.
       In any event, “[i]f a defendant has failed to show that the challenged actions of
counsel were prejudicial, a reviewing court may reject the claim on that ground without
determining whether counsel’s performance was deficient. [Citation.]” (People v.
Kirkpatrick (1994) 7 Cal.4th 988, 1008, overruled on other grounds in People v. Doolin

                                            61.
(2009) 45 Cal.4th 390, 421, fn. 22.) Thus, the ultimate question before this court is
whether the failure of Easter’s attorney to file a pretrial challenge to the identification
procedure was prejudicial, i.e., whether there is a reasonable probability the result would
have been different if such a motion had been made.
              1. Suggestiveness
       We believe the answer to that question is no for several reasons. First, the use of a
single photograph is not inherently unfair or impermissibly suggestive, and the fact the
officers used that procedure did not violate due process by itself.
       Second, there is no evidence the investigating officers engaged in any conduct
which improperly suggested to Gaynor and/or Franco that the officers believed Easter
was one of the suspects. Indeed, Gaynor had looked at numerous suspects before he
identified Easter. Just after the robbery, police officers drove Gaynor past two or three
men standing on the street near the apartment complex and asked Gaynor if any of these
men were the robbery suspects. Gaynor said no. Later that night, Gaynor was taken to
an infield show-up of three men. He immediately identified Williams and Thompson as
two of the robbers, but did not identify the third man as a suspect.
       When Detective Mares showed Gaynor and Franco the photograph of Easter from
Williams’s cell phone (on separate occasions), Mares read admonitions to them that the
photograph may or may not show someone involved in his case. Franco also looked at
different photographic lineups. Thus, the officers’ efforts to identify all three suspects
were not limited to showing the single photograph of Easter to the robbery victims.
       Defendant Easter argues the single photograph shown to the victims was
inherently suggestive because it depicted Easter and Williams together, and Williams had
already been identified as one of the robbery suspects. The People contend that Easter
was the only person in the photograph that was shown to the robbery victims. In support
of this contention, the People cite to the trial court’s findings when it denied defendant’s
new trial motion.

                                              62.
       When the trial court made these findings, however, it acknowledged that it was
doing so from memory. The court’s memory appears inconsistent with the trial evidence.
Detective Mares testified that he showed the photograph marked exhibit No. 7 to Franco
and Gaynor, the photograph had been found on Williams’s cell phone, and it depicted
two African-American males: Easter, who had red-tipped dreadlocks, and Williams.32
       We note that the mere fact that Williams and Easter were in the single photograph
together does not mean the identification procedures were suggestive. On the night of the
robbery, Gaynor was taken to an infield show-up and asked to look at three men:
Williams, Thompson, and a third man. Gaynor identified Williams and Thompson as two
of the robbery suspects, and did not identify the third man. Thus, the presence of another
man with two of the identified suspects did not influence Gaynor to identify that man, or
cause him to hesitate about identifying the other two suspects. As for Franco, he looked
at photographic lineups, which contained pictures of Thompson and Williams. He
identified Thompson as the man who went through his pockets, but he failed to identify
Williams. Thus, the record suggests that Franco looked at the photograph without having
already identified Williams.
              2. Reliability
       In any event, even if it was suggestive to show the victims a single photograph, the
identifications were reliable under the totality of the circumstances, considering the
victims’ opportunity to view the perpetrator at the time of the offense, the accuracy of
their descriptions, the level of certainty they demonstrated at the time of the
identifications, and the lapse of time between the robberies and the identifications.


       32 The court may have relied on Gaynor’s testimony when it made this finding.
Gaynor testified he identified Easter from a photograph which showed a single person,
and he thought he looked at a photograph other than exhibit No. 7 when he made the
identification. Gaynor also testified that at some point, he looked at exhibit No. 7 and
recognized both Williams and Easter in the picture.


                                             63.
(People v. Kennedy (2005) 36 Cal.4th 595, 608 (Kennedy), disapproved on other ground
in People v. Williams (2010) 49 Cal.4th 405, 459.) Both Gaynor and Franco were in
close proximity with all three robbers, they consistently described the third man’s red-
tipped dreadlocks, Gaynor made his identification less than 24 hours after he was robbed,
and Franco’s identification was within two to three days after he was robbed. Franco and
Gaynor both said they were certain of their identifications at the time they viewed the
photograph, and Franco further identified Easter as the gunman in his robbery. While
Franco and Gaynor may have been shaken by being victims of an armed robbery, they
were sufficiently observant to also identify the white T-Mobile cell phone as the device
which Williams held during the robberies, and describe the firearm consistent with the
weapon which was found in the apartment with the stolen cell phones.
       Defendant Easter argues the victims’ identifications were not reliable because they
gave inconsistent descriptions of the third suspect’s precise height, and whether he had
gold or silver teeth. Easter also points out that during his trial testimony, Franco
confused Easter with Thompson, and he did not identify Easter at trial as the third
suspect.
       There are two cases which dealt with similar issues about suggestiveness and
reliability. In Kennedy, supra, 36 Cal.4th 595, a seemingly suggestive identification
process was found to be reliable under similar circumstances. In that case, a witness to a
murder at a rest stop described the perpetrator to police and attempted to aid in preparing
a composite sketch of the man. (Id. at p. 603.) She said the perpetrator had no facial
hair. (Ibid.) When an arrest was made, the witness saw a newspaper photograph of the
arrestee, the defendant, and expressed her concern to police because of the defendant’s
eyes and beard. (Id. at pp. 605, 610.) A detective showed her a picture of the defendant
without a shirt, which revealed his tattoos of a swastika, a gun, and the name of his gang.
The witness could not identify the defendant because his eyes were downcast in the
picture. When shown a videotape of the arrest, however, the witness saw the defendant’s

                                             64.
eyes, immediately identified him, and expressed disbelief for failing to notice his beard.
The witness later positively identified the defendant at trial. (Ibid.) The trial court found
the identification procedure was not unduly suggestive.
       Kennedy held the identification evidence “was admissible as reliable under the
totality of circumstances .…” (Kennedy, supra, 36 Cal.4th at p. 610.) Kennedy found
that the facts that the witness had inaccurately described the suspect to police, and did not
recognize him in the newspaper photograph, were outweighed by her proximity to the
perpetrator, she had looked at him for 30 to 60 seconds, only three weeks passed between
the crime and the identification, and the certainty of her later identifications upon seeing
the video and in court. (Id. at pp. 610-611.)
       In People v. Contreras, supra, 17 Cal.App.4th 813, the court held that a
prosecutor’s act of showing a single photograph of the defendant to a victim witness was
suggestive, but the identification did not violate due process. (Id. at p. 820.) The victim
had been told there were two suspects in custody. The victim personally knew one of his
attackers, and he knew the police wanted him to identify the other one. Contreras held
the showing of the single photograph necessarily suggested to the witness that it depicted
the other attacker. (Ibid.)
       However, Contreras further held that the trial court’s decision to allow the
identification evidence did not violate due process. (Contreras, supra, 17 Cal.App.4th at
p. 823.) The jury was made fully aware of the witness’s failure to select the defendant
from photographic lineups prior to the identification at the preliminary hearing. (Ibid.)
The jury saw the single photograph of the defendant and was able to assess its clarity.
The jury was also able to determine whether the witness should have been able to identify
the defendant given the circumstances of the attack, it was instructed on the factors
bearing upon the accuracy of an eyewitness’s identification, and defense counsel
strenuously argued that the identification was not credible. At that point, the



                                             65.
identification issue became “largely one of credibility,” which was a question for the
jury. (Id. at pp. 823-824.)
       In this case, as in Kennedy and Contreras, the jury was well aware of the single
photograph identification procedure. Easter’s attorney ably developed the evidence
which showed the procedures used to identify Easter, the nature of the photograph used
for that identification, Franco’s confusion at trial between Easter and Thompson, and the
possible differences between the victims’ descriptions of the third suspect and Easter’s
appearance. The jury was also fully instructed on the factors to evaluate eyewitness
identification testimony, and defense counsel urged the jury to discount the victims’
identifications of Easter as inaccurate.
       Easter cites People v. Nation (1980) 26 Cal.3d 169, as an example where a defense
attorney’s failure to challenge the identification procedure was prejudicial. The instant
case, however, is not similar to Nation. In Nation, the defendant was charged with
threatening and molesting children. Two weeks after the event, the children viewed
photographs at the police station. One child selected the defendant’s mug shot. She told
the other children that she had identified the assailant, and, after some discussion, the
other children agreed. An officer gave the mug shot to the children, so they could take it
home and show other possible witnesses. Almost four months later, the children failed to
identify the defendant in a live lineup, and they identified another individual. They were
told they had selected the “wrong” man. (Id. at p. 174.)
       Nation held that the photographic identification evidence was so extraordinarily
suggestive that it was doubtful that the prosecutor could have submitted it over the timely
objection of trial counsel. Nation further held defense counsel’s failure to object to the
identification procedure deprived defendant of constitutionally adequate assistance.
(People v. Nation, supra, 26 Cal.3d at pp. 174, 179-181.) As illustrated, ante, such
suggestive and unreliable circumstances are completely absent from this case.



                                             66.
              3. Prejudice
       Finally, given the nature of defendant’s ineffective assistance claim, the record
demonstrates another reason that it is not reasonably probable that a more favorable result
would have occurred. Defendant Easter contends defense counsel’s conduct was
prejudicial because there was no other evidence which implicated him in the robberies,
aside from the victims’ identification testimony, and Thompson’s trial testimony which
exonerated him.
       The entirety of Thompson’s trial testimony cannot be characterized as exonerating
Easter. Thompson testified that he committed two of the robberies with Williams, and
Easter was not the third person. Thompson initially claimed that the third suspect in the
Franco robbery was not the same person who committed the Gaynor robbery. He said he
met both these men at the apartment complex. One man was associated with the Crips;
he did not really know these men; and he feared for his life if he identified them.
       On cross-examination, however, Thompson’s description of two different men as
the third suspect began to break down. Thompson admitted that the same man committed
both the Gaynor and Franco robberies, but still refused to identify him. When asked why
he was willing to implicate Williams, Thompson replied that he knew Williams had
already talked to the police and admitted he committed the robberies.
       The most crucial part of Thompson’s testimony was his admission that he knew
that Easter had not implicated himself in any of the robberies. Thompson testified he was
afraid to implicate Easter as the third suspect because Easter had not implicated himself.

       “Q     So isn’t it true that you’re afraid that if you were to say that Brian
       Easter was the person, the third party involved in this robbery that you
       would be implicating him where he hadn’t previously done so?

       “[EASTER’S ATTORNEY]:           I’m going to object to the form of the
       question as argumentative, compound, and vague.

       “THE COURT:           Overruled.



                                             67.
       “[THOMPSON]:         Can you say it one more time for me?

       “(Thereupon the question was read by the court reporter.)

       “[THOMPSON]:         Yes.”
       Thompson insisted that was not the reason that he said the third suspect was
someone other than Easter. However, Thompson also testified he was related to Easter.
Thompson had known Easter for his entire life, and he did not want Easter to get into
trouble. Thompson denied that he would lie for Easter.
       While Thompson may have claimed Easter was not the third suspect, and he
would not lie for Easter, he conceded he was afraid to implicate someone who had not
already confessed to the crimes. Thompson’s testimony thus raised the extremely strong
inference that Easter was the third robbery suspect.
       We thus conclude that based on the entirety of the record, defense counsel’s
failure to challenge the pretrial identification of Easter was not prejudicial because the
victims’ identifications were otherwise reliable, and any erroneous admission of their
identifications was harmless given Thompson’s trial testimony.
VII.   Admissibility of Williams’s postarrest statements about Thompson
       Easter raises another ineffective assistance argument based on defense counsel’s
efforts to introduce Williams’s postarrest statement that he committed the robberies with
Thompson. The court allowed evidence that Williams did not identify Easter as a
suspect, and claimed the gunman was named “Alex” or “A-1.” However, the court
excluded that portion of Williams’s statement when he said that he committed the
robberies with Thompson, since Williams did not testify and the evidence violated the
Aranda/Bruton rule. Thompson later testified at trial and admitted he committed the
robberies.
       On appeal, Easter contends his defense attorney should have renewed his motion
to introduce the portion of Williams’s statement which implicated Thompson, once
Thompson testified and admitted his guilt. Easter argues that Thompson’s trial testimony


                                             68.
eliminated any Aranda/Bruton problem. Easter further argues the entirety of Williams’s
statement would have demonstrated his credibility when Williams did not identify Easter
as a suspect, since he admitted his own guilt, identified Thompson, and Thompson later
testified and admitted he committed the robberies.
         A. Williams’s postarrest statement
         As explained in the factual statement, ante, Williams and Thompson were arrested
shortly after the Gaynor robbery. Detective Mares interviewed Williams after he was
arrested. Williams admitted he committed the Gaynor, Flechsing, and Franco robberies.
Williams said he committed the robberies with Thompson. Williams said the gunman
during the Franco robbery was named “Alex” or “A-1.” Williams did not identify Easter
as the gunman or a suspect.
         Neither Thompson nor Easter gave statements or implicated themselves prior to
trial.
         B. Easter’s pretrial motions about Williams’s statement
         During pretrial motions for the joint jury trial, Easter’s attorney moved for
severance of all the charges against Easter from that of Thompson and Williams. The
court denied the motion because Easter failed to show prejudice from a joint trial.
         As pretrial motions continued, the prosecutor stated that he would call Detective
Mares to testify about Williams’s postarrest confession, and exclude the portion which
implicated Thompson and exonerated Easter because those statements were inadmissible.
         Easter’s attorney objected because he wanted to introduce the entirety of
Williams’s statement, particularly Williams’s identification of someone else as the
gunman, and his failure to name Easter as a suspect. Thompson’s attorney objected to
Easter’s motion, and argued the entirety of Williams’s statement violated Thompson’s
rights under Aranda/Bruton.
         Easter’s attorney acknowledged there were Aranda/Bruton issues as to Thompson,
but argued such issues would be eliminated if the court granted his motion to sever

                                              69.
Easter’s trial from the other two defendants. Easter’s attorney argued the entirety of
Williams’s statement was credible because he implicated himself and another person
while failing to name Easter. Easter’s attorney renewed his motion for severance so that
the entirety of Williams’s statement could be admitted.
       The court excluded that portion of Williams’s statement which implicated
Thompson pursuant to the Aranda/Bruton rule, unless Williams testified. The court
granted Easter’s motion that he could ask Detective Mares if Williams implicated a third
party named “Alex” and not Easter, as long as Thompson was not mentioned. The court
denied Easter’s motion for severance because of “the very strong policy issues in favor of
nonseverance, given the interrelatedness of the allegations and frankly the evidence .…”
       C. Easter’s motion for new trial
       In his motion for new trial, Easter argued the trial court committed prejudicial
error when it denied his motion to sever his trial from Thompson and Williams. Easter
again argued that the entirety of Williams’s statement was crucial to Easter’s defense
since he failed to identify Easter, had implicated Thompson, and Thompson admitted his
guilt, and severance should have been granted to avoid the Aranda/Bruton issues as to
Thompson.
       In opposition, the People argued Easter did not suffer prejudice from the
consolidated trial because Williams’s statement was not cross-admissible, a weak case
was not joined with a strong case, defendants were charged with the same crimes, and the
charges were not inflammatory as to Easter compared to the other two defendants. The
People also noted that the jury heard evidence that Williams exonerated Easter from
committing the robberies, and identified the gunman as “Alex” or “A-1.”
       The court denied Easter’s new trial motion.
       D. Analysis
       On appeal, Easter has not challenged the trial court’s denial of his motion to sever
his jury trial from that of Williams and Thompson; the trial court’s initial ruling that

                                             70.
Williams’s statements about Thompson were inadmissible in this joint trial because of the
Aranda/Bruton rule; or whether the court improperly denied his new trial motion based
on these issues.
         Instead, Easter contends his defense attorney was prejudicially ineffective because
once Thompson testified and admitted he committed the robberies, counsel should have
renewed his motion to admit the portion of Williams’s statement when he implicated
Thompson, since the Aranda/Bruton problem was no longer an issue after Thompson’s
admissions. Easter argues that Williams’s failure to name Easter as one of the robbers,
and his identification of “Alex” as the gunman, would have been more credible if the jury
heard Williams’s implication of Thompson, in light of Thompson’s trial admission of
guilt.
         As explained, ante, the Aranda/Bruton rule “declares that a nontestifying
codefendant’s extrajudicial self-incriminating statement that inculpates the other
defendant is generally unreliable and hence inadmissible as violative of that defendant’s
right of confrontation and cross-examination, even if a limiting instruction is given.
[Citation.]” (People v. Anderson, supra, 43 Cal.3d at p. 1120.)
         Easter concedes that Williams’s implication of Thompson was inadmissible under
Aranda/Bruton. Easter also concedes the jury heard Detective Mares’s testimony that
Williams confessed his guilt for the three robberies, did not identify Easter as a suspect,
and said the gunman in the Franco robbery was named “Alex” or “A-1.” However,
Easter insists the court would have granted a renewed motion to introduce the entirety of
Williams’s postarrest statement once Thompson testified and eliminated the
Aranda/Bruton issue.
               1. Chambers
         In making this argument, Easter also concedes that Williams’s statements about
Thompson’s guilt still would have constituted inadmissible hearsay since Williams did
not testify at trial, and there was no applicable hearsay exception to permit the

                                             71.
introduction of this evidence. However, Easter argues that Williams’s statements were
nonetheless reliable and crucial to establish his innocence, and should have been admitted
pursuant to Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers) to preserve his due
process right to present a defense, despite the hearsay problems.
       In Chambers, a defendant in a murder trial called a man as a witness who had
previously confessed to the murder. (Chambers, supra, 410 U.S. at p. 294.) After the
witness repudiated his confession on the stand, the defendant was denied permission to
examine the witness as an adverse witness based on Mississippi’s “ ‘voucher’ rule”
which barred parties from impeaching their own witnesses. (Id. at pp. 294-295.) In
addition, Mississippi did not recognize an exception to the hearsay rule for statements
made against penal interests, thus preventing the defendant from introducing evidence
that the witness had made self-incriminating statements to three other people. (Id. at
pp. 297-299.) The United States Supreme Court noted that the State of Mississippi had
not attempted to defend or explain the rationale for the voucher rule. (Ibid.) The court
held that “the exclusion of this critical evidence, coupled with the State’s refusal to
permit [the defendant] to cross-examine [the witness], denied him a trial in accord with
traditional and fundamental standards of due process.” (Id. at p. 302.)
       In People v. Ayala (2000) 23 Cal.4th 225 (Ayala), the California Supreme Court
considered whether the defendant “had either a constitutional or a state law right to
present exculpatory but unreliable hearsay evidence that is not admissible under any
statutory exception to the hearsay rule.” (Id. at p. 266.) The defendant relied on
Chambers and argued the trial court had “infringed on various constitutional guaranties
when it barred the jury from hearing potentially exculpatory evidence.” (Id. at p. 269.)
       Ayala rejected the defendant’s argument and held that “ ‘[f]ew rights are more
fundamental than that of an accused to present witnesses in his own defense. [Citations.]
[But in] the exercise of this right, the accused, as is required of the State, must comply
with established rules of procedure and evidence designed to assure both fairness and

                                             72.
reliability in the ascertainment of guilt and innocence.’ [Citation.] Thus, ‘[a] defendant
does not have a constitutional right to the admission of unreliable hearsay statements.’
[Citations.] Moreover, both we [citation] and the United States Supreme Court [citation]
have explained that Chambers is closely tied to the facts and the Mississippi evidence law
that it considered. Chambers is not authority for the result defendant urges here.” (Ibid.)
        Indeed, the United States Supreme Court has clarified that Chambers “does not
stand for the proposition that the defendant is denied a fair opportunity to defend himself
whenever a state or federal rule excludes favorable evidence.” (U.S. v. Scheffer (1998)
523 U.S. 303, 316.) The California Supreme Court has similarly held “ ‘[t]he same lack
of reliability that makes ... statements excludable under state law makes them excludable
under the federal Constitution.’ [Citations.]” (People v. Butler (2009) 46 Cal.4th 847,
867.)
        Easter argues that Williams’s postarrest statements about Thompson and Easter
were reliable and admissible under Chambers, because Williams also implicated himself
and Thompson later admitted his guilt. However, there are several factors which
undermine the reliability of Williams’s failure to identify Easter, based upon facts which
were known to Williams when he gave this statement. Williams and Thompson were
apprehended in the apartment of Thompson’s grandmother a short time after Gaynor was
robbed. Williams knew the police searched the apartment, which contained the Xbox,
videogames, and identification stolen from Flechsing earlier that day; the two cell phones
stolen from Gaynor shortly before the search; and the firearm which was used for all
three robberies. Williams and Thompson were asked to stand outside while someone
identified them, and they were both arrested.
        Based on these circumstances, Williams knew that Thompson had been identified
and arrested, and the stolen property was found in his grandmother’s apartment. Thus,
Williams did not implicate Thompson in a vacuum. Williams also knew Easter was not
in the apartment and had not been arrested with them. However, Williams’s own cell

                                            73.
phone was found hidden in the same location as the stolen cell phones and the gun.
Williams likely realized there were images on his cell phone which showed Easter posing
with Williams and Thompson in that same apartment, while Thompson displayed the gun
used in the robberies.33 These factors thus seriously undermine the reliability of
Williams’s postarrest failure to identify Easter, his high school friend, as one of the
suspects, and his identification of “Alex” or “A-1” as the third suspect. Defense
counsel’s failure to renew his motion to admit the entirety of Williams’s statement was
not prejudicial because Williams’s statements were not admissible since they were made
under circumstances suggesting they were not reliable. (Ayala, supra, 23 Cal.4th at p.
270.)
VIII. Denial of Easter’s motion to reopen
        Easter contends the court committed prejudicial error when it denied his motion to
reopen his defense case to call a purported alibi and character witness. Easter argues that
he should have been allowed to reopen to call rebuttal witnesses, based on the nature of
Easter’s trial testimony.
        A. Easter’s trial testimony
        As set forth in the factual statement, Easter testified at trial and denied committing
the robberies. Easter testified that on the night of the Gaynor robbery, he was staying at
the residence of his child and the child’s mother. Easter testified he had never committed
a crime.




        33The record contains circumstantial evidence that Williams was well aware of
the images on his cell phone. The photographs on Williams’s cell phone which show
Williams and Easter (exhibit No. 7), and Williams, Easter, and Thompson (exhibit No.
3), were taken while defendants posed in a mirror as Williams himself held up his white
cell phone and recorded the same images.


                                              74.
       After Easter completed his testimony, the court asked his attorney whether he had
any further witnesses. Easter’s attorney said no. The court asked the other two defense
attorneys and the prosecutor if they had further evidence, and they said no.
       B. The instructional conference
       After the parties rested, the court excused the jury and conducted the instructional
conference. Easter’s attorney asked the court to give CALCRIM Nos. 350 and 351, on
the jury’s consideration of favorable traits of the defendant’s character, based on Easter’s
testimony that he had never committed a crime. The prosecutor objected and argued such
testimony was not character evidence.
       Defense counsel responded that if the court decided not to give the instruction,
then he would move to reopen to call Carlisa Daily, the mother of Easter’s child, as a
character witness. The prosecutor objected because the request was untimely, there was
no discovery or offer of proof, and he had never heard this witness’s name. Easter’s
attorney replied that Daily would be a rebuttal witness.
       Easter’s attorney advised the court that Daily had been seated in the courtroom
during Easter’s testimony. The prosecutor again objected. Defense counsel explained
that Daily had not been considered a witness until after Easter’s testimony. The court
deferred ruling on the matter, and the parties continued to address the instructions.
       C. Easter’s motion to reopen
       After the lunch recess, Easter’s attorney stated that Daily was present in the
courtroom and was ready to testify. Easter moved to reopen the defense case so she
could testify about Easter’s character for peacefulness or nonviolence. The prosecutor
objected because the defense failed to provide any discovery, which left him unable to
prepare for further rebuttal. Easter’s attorney made an offer of proof, that Daily would
testify that she had known Easter since 2006, they had a child together, and she had never
seen or heard of him acting violently.



                                            75.
       The court interrupted defense counsel and asked Daily to step outside the
courtroom. The court then said it was concerned that Daily “has been in and out of the
court for some time throughout the trial, including this morning when Mr. Easter
testified.”
       Defense counsel replied the alibi issue did not arise until cross-examination, when
the prosecutor asked Easter where he was on the night of the robberies, and counsel had
thought Easter’s testimony was sufficient for the character evidence instruction. Defense
counsel conceded his request to call Daily had not been timely, but argued her testimony
was relevant as rebuttal evidence because of the prosecutor’s questions about Easter’s
whereabouts on the night of the robberies.
       The prosecutor stated that he did not know Daily’s identity and had no idea she
was in the courtroom during Easter’s testimony. The prosecutor argued it was not
appropriate for Daily “to watch the testimony of Easter and then testify as an alibi
witness to exactly what she observed on the witness stand. That is the purpose for
excluding witnesses. And frankly, I was not in the position to know that she was in the
courtroom.”
       D. The court’s denial of the motion
       The court denied Easter’s motion to reopen and call Daily as a witness.

              “The Court believes the timing of the request to call this witness as a
       character witness is very significant. Again, it was done after everyone had
       announced that they had rested, it was after the People had raised these
       issues that everyone was aware of.… The issue is that this is a potential
       witness who was present during the testimony of the witness about whom
       the person is going to be giving evidence. This witness was not made
       known to the People until … after we excused the jurors for the noon
       recess. It was only after the Court indicated that it would not be giving [the
       defense character instructions].… And the Court does not see what
       amounts to character evidence.

             “The Court believes at this point the request was untimely, that it is
       something that could have and should have been raised earlier, that it could


                                             76.
         involve the Court in a much longer examination. For example, if this
         witness were to testify that, as was pointed out on the offer of proof, that
         she has not known Mr. Easter to ever be involved in violent conduct, the
         question then remains whether she saw the video [from Williams’s cell
         phone] and whether there’s conduct in that video which may suggest
         otherwise. And, again, that involves the jurors seeing the video yet again,
         and that can raise other issues.”
         The court further found the probative value of Daily’s testimony was substantially
outweighed by undue consumption of time and confusion of issues.
         E. Analysis
         “We review for abuse of discretion a trial court’s ruling on a motion to reopen a
criminal case to permit the introduction of additional evidence. [Citations.]” (People v.
Marshall (1996) 13 Cal.4th 799, 836.) “In determining whether a trial court has abused
its discretion in denying a defense request to reopen, the reviewing court considers the
following factors: ‘(1) the stage the proceedings had reached when the motion was made;
(2) the defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the
prospect that the jury would accord the new evidence undue emphasis; and (4) the
significance of the evidence.’ [Citation.]” (People v. Jones (2003) 30 Cal.4th 1084,
1110.)
         The trial court “may exclude from the courtroom any witness not at the time under
examination so that such witness cannot hear the testimony of other witnesses.” (Evid.
Code, § 777, subd. (a).) “The courts of this state have consistently held that the violation
of a witness exclusion order [citations] does not render the witness incompetent to testify,
and does not furnish grounds to refuse permission to testify, at least where the party who
seeks to offer the testimony was not ‘at fault’ in causing the witness’s violation of the
exclusion order. [Citations.]” (People v. Redondo (1988) 203 Cal.App.3d 647, 654;
People v. Adams (1993) 19 Cal.App.4th 412, 436.)
         In this situation, the court ordered all witnesses excluded, but Daily was never
identified as a witness. However, Daily’s existence was obviously well-known to Easter;


                                              77.
she did not suddenly appear as a surprise witness at the close of the defense case. When
he moved to reopen, Easter’s attorney never stated that he did not know about Daily’s
existence, or that she could provide Easter’s alibi for the night of the Gaynor robbery.
Instead, defense counsel argued that he did not believe Daily’s testimony was going to be
relevant until the court declined to give the character evidence instructions for the
defense. More importantly, both the court and the prosecutor were apparently unaware of
Daily’s identity, appearance, or presence in the courtroom during the entirety of the trial,
and particularly during Easter’s trial testimony. Defense counsel never challenged the
factual accuracy of their comments on this point. For these reasons, the trial court did not
abuse its discretion when it denied Easter’s motion to reopen and call Daily.34
                                      DISPOSITION
       The judgment is affirmed.



                                                                 _____________________
                                                                 Poochigian, J.
WE CONCUR:


______________________
Gomes, Acting P.J.


______________________
Detjen, J.




       34Given our resolution of all the issues raised by the defendants, we further find
there were no cumulative errors.



                                             78.
